The CUPE Cause Célèbre: Provinces Spend beyond what Canada’s Constitutional Drafters Budgeted For
On October 31st 2022, the Ontario Government led by Premier Doug Ford invoked s. 33 of the Canadian Charter of Rights and Freedoms (“Charter”) to shield its ‘back to work’ legislation from judicial scrutiny. The legislation, known as the Keeping Students in School Act, 2022, would have terminated any on-going strike by the Canadian Union of Public Employees (“CUPE”) – who represented the 55,000 education workers impacted by the bill (Chris Fox, CTV News, 2022) — and unilaterally imposed a new collective agreement. This article will begin by explaining how the notwithstanding clause came to be and its most notable past uses in Ontario, and then turn to the factual matrix which prompted the Ford government to rely upon it again this past month. In closing, it will canvas three solutions that have been proposed by legal experts in light of the discussions that were reignited during the CUPE/Ford impasse.
The Great Compromise
The Language of the Provision
Section 33 of the Charter – the notwithstanding clause – states:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter
Origins of the Provision
In 1982, as Canada was repatriating its Constitution from the United Kingdom, Prime Minister Pierre Trudeau proposed the addition of the Charter to the Constitution Act, 1867 in order to clearly delineate the rights and liberties of all Canadians and how they may be safeguarded by the courts from government intrusion (The Canadian Encyclopedia, 2022). The proposal, however, was not received with embrace from all of the Provinces, mainly due to the underlying concern that the ability of Provincial Legislatures to pass laws would be significantly limited by the dictates of the judiciary (The Canadian Encyclopedia, 2022). Specifically, by subjecting Provincial legislation to an additional layer of judicial review, focused not only on compliance with all elements of the Constitution Act, 1867, but all the rights and freedoms enshrined in the Charter, the Supreme Court of Canada’s opinion – rather than the will of the people of the Province – would prevail as the final authority on the matter. Thus, a compromise was struck, balancing the need for Charter-related judicial scrutiny of legislation with the preservation of the democratic will of the populace. Prime Minister Trudeau, after painstaking negotiation, sketched out the blueprint for what would eventually become the notwithstanding clause. This clause would ensure that the Charter received the necessary support from the Provinces to be amended into the Constitution (The Canadian Encyclopedia, 2020). The Accord concocted a clause which — when invoked — exempted Provincial legislation from certain Charter related judicial reviews. Specifically, fundamental rights (s. 2), legal rights (s. 8 to s. 14), and equality rights (s. 15) (The Canadian Encyclopedia, 2022). And with this great compromise, the notwithstanding clause became part of our constitutional fabric.
Past Uses of the Provision in Ontario
Before the Ford Government’s ascension into power in 2018, Ontario had never used the notwithstanding clause. The streak came to an end when the Ford government enacted the Better Local Government Act, 2018, reducing the number of wards in the City of Toronto in the middle of the 2018 Toronto municipal election campaign. After the Ontario Superior Court of Justice found the legislation in contravention of the Charter in City of Toronto et al v Ontario (Attorney General) (2018 ONSC 5151), the Ford government reintroduced the bill (as the Efficient Local Government Act, 2018) with the notwithstanding clause appended. Eventually, the matter went to the Supreme Court of Canada (SCC) in Toronto (City) v Ontario (Attorney General), where the original legislation was deemed not to be in breach of the Charter (2021 SCC 34).
Then in 2019, after making changes to the Election Finances Act which the Ontario Superior Court found unconstitutional (Working Families Ontario v Ontario, ONSC 4076), the Ford Government re-enacted the legislation as Bill 307 with the notwithstanding clause appended (Loriggio, CTV News, 2021).
CUPE vs Ford
All of these events set the stage for what occurred (and remains between the Ford Government and CUPE.
The collective agreement between CUPE and the Ontario Government expired on August 31st, 2022 (Fox, CTV News, 2022) Since then, the Province and CUPE have been at the bargaining table attempting to reach a new agreement. CUPE has requested, among other things, a yearly wage increase of $3.25/hour (amounting to 11.7 % annually), five additional paid days before every school year, and an increase in overtime pay (Fox, CTV News, 2022). In stark contrast, the Ford government has offered a yearly wage increase of 2.5% (for those making less than $43,000/year) and a 1.5% yearly wage increase for those making more than $43,000/year (Fox, CTV News, 2022). An overwhelming majority of CUPE members (96%) voted to strike in response to the Province’s offer (Fox, CTV News, 2022). Upon hearing this news, Minister of Education Stephen Lecce tabled back-to-work legislation, known as the Keeping Students in School Act, 2022, imposing a four year collective agreement on all CUPE workers and thus terminating the ongoing strike action (Fox, CTV News, 2022). Anticipating a legal challenge, the Minister also made clear that the Bill will be appended with the notwithstanding clause, shielding it from judicial review (Fox, CTV News, 2022).
After Minister Lecce’s announcement, polling data from a variety of sources, including Abacus Data, signalled that the Province’s use of the notwithstanding clause to foreclose collective bargaining was deeply unpopular among the Ontario public (Coletto, Abacus Data, 2022). In addition, a variety of unions representing workers from a wide array of industries announced that, if the Ford government did not back off from their intention to pass back-to-work legislation, a general strike would take place soon after (Wherry, CBC News, 2022). As a result, on November 7th 2022, Ford announced that his government would not go through with passing the Keeping Schools Open Act, 2022 into law, and instead return to the bargaining table with CUPE to hammer out a new agreement (Ranger, City News, 2022). On December 5th 2022, CUPE ratified a new, four year collective bargaining agreement struck with the Ontario Government on November 20th 2022 (Alphonso, Globe and Mail, 2022).
As this saga came to a close, the Ford Government’s most recent, blunt use of the notwithstanding clause caused many in the legal and political community to break the discursive seal on what was considered a long settled arrangement.
Charter Inflation and the Proposed Tools to Control it
Through this most recent invocation of s. 33 of the Charter by the Ford government, three notable solutions have been proposed by legal experts from a variety of institutional backgrounds seeking to address the increasing propensity of Premiers to trample over Charter protections using the notwithstanding clause. These were: (a) relying on the Federal power of disallowance; (b) relying on the Federal power of reference; and (c) harnessing the power of political culture.
The Power of Disallowance
Andrew Coyne, in his article “See your Notwithstanding Clause, Raise You Disallowance,” proposed the idea of reactivating the long dormant disallowance power afforded to the Federal Government in the Constitution Act, 1867, as a means of responding to the Provinces’ increasing reliance on s. 33 as a constitutional bypass. The disallowance power flows from s. 56 of the Constitution Act, 1867.
The purpose of the disallowance power was to provide the Federal government the power (and responsibility) to protect individual and/or minority rights, which, if left to the mercy of Provincial governments empowered by electoral majorities, would be vulnerable to being trampled on. This concern (to protect minorities) for those who may be at the knife’s edge of the majoritarian will is, as Justice La Forest explained in Reference re Secession of Quebec, a fundamental constitutional principle ( 2 SCR 217 at para 79). It is also one of the main arguments against keeping the notwithstanding clause as is. Over the 155 year history of the Canadian Confederation, 112 Provincial Acts have been disallowed by the Federal government for, among other things, being (a) contrary to Dominion policy, (b) in the Dominion interest, or (c) contrary to reason, justice, and natural equity (The Canadian Encyclopedia, 2013). However, the power has not been used since 1943 (The Canadian Encyclopedia, 2013). There are two reasons why the proverbial lever for this Federal power has developed a thick layer of dust over it. First, the Canadian Bill of Rights passed by Parliament in 1960; and, second, the Charter, which was amended into the Constitution in 1982. Both of these legal instruments assumed the responsibility of protecting minorities that was previously assigned to the Federal government, rendering the use of the power of disallowance obsolete (or so it was assumed). Now, with the incumbent constitutional guardian of minority rights completely stripped of its firepower by design, it may be time to call in the cavalry of slumbering Federal power to resume its responsibilities. While this proposal may have the sharpest teeth of the three, it pours gasoline onto the current constitutional sparks flying around the Federal and Provincial branches of government, risking a widespread burn which may permanently scorch our current division of powers.
The Power of Reference
Another proposal was fielded by Professor Adam Dodek of the University of Ottawa Faculty of Law, who said that one option available to the Minister of Justice would be to apply to the SCC for a reference on the constitutionality of any bill that is passed by the Provinces with the notwithstanding clause appended onto it (Dodek, The National Post, 2022). Although the SCC’s ultimate decision would have no force or effect, the space for legal argumentation such a reference would provide, for the Provincial and Federal Government, the affected groups, and the intervenors with a stake in the issues being decided upon, would all be helpful reference points for the public to refer to when entering the voting booth during the next slated election. This proposal seeks to preserve the existing status quo and the constitutional peace it provides. It simply asks the executive branch to take a more proactive role in addressing the recent trends in s. 33 reliance, allowing the public to (in theory) make a better informed decision come the next election. It does, however, do so at the risk of causing greater friction between the Federal and Provincial branches of government, and engendering greater scepticism of the judiciary — ruling on cases with no underlying, originating dispute to bring it up to the higher courts organically — in the eyes of the Provinces. Moreover, the theory of the public being better informed by reference generated SCC opinions would require greater empirical backing, as the notion of the public consulting with appellate court decisions to inform their voting choices is not intuitive.
The Power of Political Culture
Patricia Hughes, former Dean of the University of Calgary, Faculty of Law, explained that all of the constitutional volatility that this CUPE v Ford episode — in addition to the other s. 33 uses we have seen over the past half decade — has created, is “the price Pierre Trudeau reluctantly paid for the Canadian Charter of Rights and Freedoms, for an enshrined bill of rights” (Hughes, Slaw Magazine, 2022). This price, in recent years, appears to have inflated beyond its initial asking value, where the constitutional drafters expected it to be “used rarely and only in extraordinary circumstances to protect provincial/territorial legislation from the Charter” (Hughes, Slaw Magazine, 2022). Now, Premiers, whether from Ontario, Quebec, or any other Province/Territory appear to be willing to make use of this constitutional backstop whenever it conveniences them. But, as Hughes explains, this latest chapter in this long-running constitutional saga may have a silver lining that is worth latching onto for those who believe no ‘on the books’ solution to this issue exists without fracturing the fragile constitutional peace that was struck in 1982. This is the fact that, through the power of public opinion, pressures applied by a coalition of advocacy groups, and mobilization of the media in scrutinizing government action, the Ford government backed off its decision to pass back-to-work legislation with the notwithstanding clause attached to its hip. And that is where I would also land, at present, in dealing with this recent disruption in our constitutional order. The trend of Premiers liberally using what was intended to be a sparsely relied upon constitutional power was borne out of a shift in political culture, and it should be through the medium of constitutional ethics, political norms, and historical sensitivity, that we put this genie back in its bottle.
To seek any other avenue is to risk tearing a hole through our constitutional fabric that we may not be able to sow back together.