Teacher strike strategy makes back-to-work bill hard to justify, expert says

The fact Ontario teachers’ unions are holding targeted and rolling walkouts instead of a general strike makes it difficult for the Ford government to justify back-to-work legislation, according to one legal expert.

The fact strikes are rotating makes it difficult to clear legal bar

OECTA members strike in Ottawa Jan. 21, 2020. (CBC)

Ontario teachers' unions holding targeted, rolling walkouts instead of a general strike makes it difficult for the Ford government to justify back-to-work legislation, according to one legal expert.

Gilles LeVasseur, a law and business professor at the University of Ottawa, said even if the province wanted to force teachers back to work when MPPs return to Queen's Park next week, it likely wouldn't be able to because of the limited job actions the unions have taken so far.

"There has to be either security issues, a public health [threat] or an imminent danger to society in order to have that legislation," said LeVasseur.

"You cannot actually quash the right to negotiate … unless there is an actual necessity."

The strategy raises the prospect that strikes and school closures could continue for the foreseeable future as little progress appears to have been made in bargaining over the past several months.

You cannot actually quash the right to negotiate … unless there is an actual necessity.- Gilles LeVasseur, University of Ottawa law professor

Teachers turned up the pressure on the government this week, with several rounds of strikes affecting elementary, secondary and French school boards. 

All four major education unions representing teachers and support workers — three English and one French — are now engaged in job actions that include both working to rule and walkouts. 

The Supreme Court of Canada ruled in a 2015 case that the right to strike is protected under section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association.

This includes allowing workers to use "whatever means that are reasonable under the law" while negotiating the terms of a collective agreement, LeVasseur said.

But this right can be overruled by governments that pass laws that force employees back to work, as the Ford government did with striking contract workers at York University in the summer of 2018. 

To defend such legislation, the government must persuade a court that its actions have a "pressing and substantial purpose."

Gilles LeVasseur, a University of Ottawa professor specializing in labour law, says the Ford government could not likely legislate teachers back to work at this point because doing so would not pass a court challenge. (CBC)

LeVasseur said that by limiting their strikes to one or two per week in any given area and by targeting school boards on different days, these unions are putting pressure on the government without causing enough disruption to meet that bar.

Based on historical precedent, LeVasseur said teachers would need to strike continuously for at least two weeks before the government could argue they need to be forced back to work.

"[That's] the threshold standard where people are saying 'This is where our tolerance level has reached its maximum. It's causing harm to the kids. It's causing harm to the school calendar. It's causing harm in order to recuperate the time we're missing,'" said LeVasseur.

In 2017, a faculty strike closed the province's 24 colleges, cancelling courses for hundreds of thousands of students for five weeks before the Wynne government legislated an end to the dispute.

That back-to-work bill might not have withstood a legal challenge had the government brought it in sooner, then-minister of advanced education Deb Matthews told reporters at the time.

'The last step'

Premier Doug Ford said last month that back-to-work legislation would be "the last step" and that he wants to see a negotiated solution, but added there is only so long that his patience can last.

A spokesperson for Education Minister Stephen Lecce said the government is committed to negotiating voluntary agreements with teachers' unions.

"To achieve that end, it requires the unions to reciprocate, which we have not seen from them to date," said Alexandra Adamo.

"It is clear that union-imposed strikes continue to upend the lives of millions, especially our youngest learners."

The labour tensions were presaged by major changes to the education system introduced by the Ford government last year, which included new math and sex ed curricula, larger class sizes, introducing mandatory online learning, and a plan to cut as many as 3,000 full-time teaching positions.

Some of these moves have since been reversed, but that hasn't been enough to quell the unrest among the ranks of teachers.

With files from Mike Crawley and The Canadian Press