Monday, 28 January 2013

The Tangled Web of Repeal

On Wednesday, January 23rd, in what could be one of the most meaningless moves in recent memory, the Ontario Liberals repealed Bill 115, the controversial Bill that imposed two-year contracts on teachers and effectively stripped them of their right to bargain collectively and to strike.

Education Minister Laurel Broten stated that the Bill was repealed in order to “show goodwill toward teachers”.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the dispute a step further, arguing before the Ontario Labour Relations Board (OLRB) that the repeal of Bill 115 also repealed the contracts it imposed.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Now that Bill 115 has been repealed it is conceivable that the Liberals could try to counter any court challenge to the constitutionality of Bill 115 by arguing that the challenge is moot.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 Since the Bill has been repealed it is questionable whether a court will consider any challenge to the constitutionality of the legislation to be a “live controversy”.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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