Ontario, Canada's Superior Court Decides Bill 124 Violates S. 2(d) Of Charter (Right To Freedom Of Association) And Declares It Void And Of No Effect

• Published date: 19 December 2022
• Subject Matter: Employment and HR, Government, Public Sector, Employee Benefits & Compensation, Constitutional & Administrative Law
• Law Firm: Littler - Canada
• Author: Ms Rhonda B. Levy and Monty Verlint

Ontario's Superior Court of Justice has declared Bill 124, which limits public sector wage increases, null and void. Court determined that Bill 124's prevention of collective bargaining for wage increases of more than 1% infringed on employees' right to freedom of association under s 2(d) of the Canadian Charter of Rights and Freedoms. The government is expected to appeal this decision.

In Ontario English Catholic Teachers Assoc. v. His Majesty, 2022, ONSC 6658, Ontario's Superior Court of Justice declared Bill 124, Protecting a Sustainable Public Sector for Future Generations Act (Act), to be void and of no effect.

On June 5, 2019, Ontario introduced the Act, which limits wage increases¹ for approximately 780,000 workers in the broader public sector² to 1% per year³ for a three-year moderation period. The Act came into force with respect to a particular bargaining unit when the collective agreement that was in force as of June 5, 2019 expired. Accordingly, when the court's decision was released, the Act had already begun to apply to some bargaining units but not to others.

Labour organizations challenged the constitutionality of the Act in 10 separate applications, all of them heard consecutively by Ontario's Superior Court of Justice over 10 days in September 2022. The applicants argued that the Act limited the freedom of association, freedom of speech, and equality rights of their members under the Canadian Charter of Rights and Freedoms (Charter). Ontario denied this and, in the alternative, argued that if the Act did infringe on any Charter rights, it was saved by s. 1 of the Charter as a reasonable limit that is demonstrably justified in a free and democratic society.

The Court found that the Act (i) infringed on the applicants' right to freedom of association under s 2(d) of the Charter; (ii) did not violate the applicants' freedom of speech or equality rights under the Charter; and (iii) was not saved by s. 1 of the Charter. After declaring the Act to be void and of no effect, the court deferred consideration of any remedy to a further hearing, as requested by the parties.

Decision

Does the Act violate section 2 (d) of the Charter (i.e., the right to freedom of association)?

The court determined that the Act infringed on the applicants' right to freedom of association under s 2(d) of the Charter. In conducting its analysis, the court emphasized the following:

• The Supreme Court of Canada (SCC) granted constitutional protection to collective...