Education
Minister Laurel Broten stated that the Bill was repealed in order to “show
goodwill toward teachers”. Broten’s
comment brings this whole matter to new lows. Does the repeal of Bill 115 also
repeal the contracts imposed under the legislation? According to the Liberals, no,
the contracts will remain in place. If this is the case, the repeal will do
little to restore any goodwill between the government and the teachers’ unions.
If the government’s notion that the repeal of Bill 115 will have no impact on
the imposed contracts proves accurate, not only is it disingenuous to suggest
that repealing the Bill after it has stripped union members of their rights can
be anything even scarcely resembling goodwill, it is borderline Machiavellian.
The
unions have long been taking a different stance, however, asserting that Bill
115 has illegally infringed their constitutional rights. On Friday the Elementary
Teachers’ Federation of Ontario (ETFO) took the dispute a step further, arguing
before the Ontario Labour Relations Board (OLRB) that the repeal of Bill 115
also repealed the contracts it imposed. In the ETFO’s estimation, the repeal of
the contracts has returned the unions to a legal-strike position[1].
Now
that Bill 115 has been repealed it is conceivable that the Liberals could try
to counter any court challenge to the constitutionality of Bill 115 by arguing
that the challenge is moot. Of mootness, the Supreme Court has stated:
The doctrine of mootness is part of a
general policy that a court may decline to decide a case which raises merely a
hypothetical or abstract question. An appeal is moot when a decision will not
have the effect of resolving some controversy affecting or potentially
affecting the rights of the parties. Such a live controversy must be present
not only when the action of proceeding is commenced but also when the court is
called upon to reach a decision[2].
If
the government advances a mootness argument, it’s a matter of speculation what
the outcome of such litigation would be. Since the Bill has been repealed it is
questionable whether a court will consider any challenge to the
constitutionality of the legislation to be a “live controversy”. If not, the
court challenges brought by organized labour against Bill 115 could very well
be deemed moot. However, the ETFO’s recent assertion that the repeal of the
Bill voided the imposed contracts could arguably keep court challenges regarding
the legislation “live” for purposes of a mootness analysis.
Even
if considered moot a court could still choose to hear the case. The approach to
mootness consists of a two-step analysis. At the first stage of the analysis
the court will determine whether the controversy is still live. If it isn’t the
dispute takes on a purely academic quality. Where a court finds that the
dispute is no longer live, under the second stage of the analysis, the court
may still use its discretion to decide whether to determine the merits of the
case.
While
it remains uncertain whether a court will exercise its discretionary powers if
it finds there is no longer a concrete legal dispute, there is some sense that far
from representing an act of goodwill, the Ontario Liberals have stooped to an
almost unfathomable low.
The
quick repeal of Bill 115 suggests the Ontario Liberals knowingly passed
repressive legislation of questionable legality in order to preclude teachers’
unions from exercising otherwise lawful expressions of their fundamental
statutory rights to strike and to bargain collectively. The government then
benefited from the repressive legislation, a benefit it would not have had
opportunity to enjoy but for Bill 115. Now, after having drained all benefit
from its controversial Bill, the government seeks to position itself as the
reasonable party by purporting to repeal the legislation in an act of
“goodwill”.
It
cannot be said with certainty what the
cause of the government’s actions have been and whether or not this was a
tactical maneuver. Nevertheless, if shifting focus to the effect of the government’s actions, it is logical to conclude that
the passage and quick repeal of the Bill was a tactical decision. Whatever the
cause, the effect of this Liberal government’s lack of respect for the rights
of organized labour has been to create a province mired in labour strife. For
the government to now try to cover itself with a good guy veneer through this
act of “goodwill” is absurd.
Broten
is actively trying to vilify teachers by hiding behind the purported welfare of
the students, saying: “Have your court challenge. We will have our debate in
the courtroom. But let’s allow our students to have a good year of
extracurricular activities.”[3]
Perhaps Broten would do well to consider that there is more than one way to
allow students to have a good year. Using the collectively bargaining process
to negotiate fair contracts and respecting the constitutional rights of the
people hired to educate them would be a fine start. If this most recent act of
“goodwill” by the Ontario Liberals is intended as an olive branch to the
teachers, it is one knotted and sad-looking branch indeed.
On
Friday, January 25th the subject of extracurricular activities was the basis of
a legal challenge. The Upper Canada District School Board and the Trillium
Lakelands District School Board sought an order from the OLRB finding that the
union’s urging of elementary school teachers not to participate in voluntary
activities represents an “illegal” strike for purposes of the Labour Relations Act.[4]
It is at this point that the ETFO turned things on their head and asserted
that the repeal of Bill 115 had also voided the imposed contracts. Whatever the
result of this dispute, the school boards have revealed a stunningly
self-serving understanding of the nature of voluntariness. Between the
government’s idea of “goodwill” and the school boards’ perception of
voluntariness, it seems that our esteemed officials should join the students in
the classroom. They might just learn something.
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