Constitutionality of Ontario Education Sector Bargaining

Abstract

At the time of writing, bargaining in Ontario’s education sector is governed under two regimes; The Putting Students First Act - legislation which imposed Collective Agreements across Ontario, and its successor legislation; The School Boards Collective Bargaining Act – which limits workers’ rights to choose who will represent them, and centralizes the bargaining process for some, while keeping it out of reach from others. This paper examines the constitutionality of each regime under Canadian law having regard for the freedom of association, which is a protected right under Canada’s Charter of Rights and Freedoms (the Charter), and the jurisprudence interpreting that right. The author concludes that both regimes fail to pass constitutional muster. The Putting Students First Act violates the Charter by setting strict parameters on bargaining outcomes for the education sector, unilaterally changing working conditions during bargaining, and by imposing collective agreements which took away a unions’ ability to strike. The School Boards Collective Bargaining Act violates the Charter by designating which unions can represent workers at the central bargaining table, by excluding small unions from central bargaining, and by denying parties the right to strike over certain types of bargaining disputes