Labour disputes in the public sector often involve a delicate balance between workers’ constitutional rights and the government’s responsibility to protect broader societal interests. One of the most important legal questions that can arise in these disputes is whether governments can intervene in an ongoing strike by passing back-to-work legislation.

In Ontario Public Service Employees Union v. Ontario (Attorney General), the Ontario Court of Appeal considered the constitutionality of legislation that ended a five-week faculty strike at Ontario’s colleges in 2017. The case required the Court to address whether the legislation infringed the constitutional right to strike under the Canadian Charter of Rights and Freedoms, and if so, whether that infringement could be justified.

The decision provides important guidance on the legal framework governing back-to-work legislation in Canada and clarifies how courts evaluate government intervention in labour disputes involving public services.

The 2017 Ontario College Faculty Strike

The dispute arose from collective bargaining negotiations between the Ontario Public Service Employees Union (OPSEU) and the College Employer Council, which negotiates on behalf of Ontario’s public colleges.

Negotiations for a new collective agreement began in July 2017 but quickly became contentious. While the parties reached an agreement on several matters, they remained divided over several key proposals advanced by the union.

Among the unresolved issues were proposals related to academic governance and faculty working conditions. OPSEU sought the creation of academic senates at colleges, contractual protection for academic freedom, and limits on the use of part-time faculty. The employer representatives opposed these proposals, arguing that they would fundamentally alter the statutory governance structure of Ontario’s college system.

Strike Impacted 24 Public Colleges

After conciliation efforts failed, faculty members commenced a legal strike on October 16, 2017. The strike halted instruction at all 24 public colleges across Ontario, affecting hundreds of thousands of students.

As the strike continued, concerns grew about the potential impact on the academic year. Government officials concluded that if the disruption lasted approximately six weeks, the academic term could be compromised in a way that would jeopardize students’ ability to complete their programs and meet professional accreditation requirements.

Government Intervention Through Back-to-Work Legislation

Efforts to resolve the dispute continued during the strike but ultimately failed. In November 2017, the College Employer Council issued what it described as its final offer. Under Ontario’s labour legislation, that offer was put to a vote by union members. The proposal was rejected by approximately 86 percent of those who participated in the vote, strengthening the union’s bargaining position and prolonging the impasse.

Following the failed vote, the provincial government warned that it would intervene if a settlement could not be reached. When negotiations did not produce an agreement, the government introduced the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, commonly referred to as Bill 178.

The legislation received Royal Assent on November 19, 2017. It immediately ended the strike and required the parties to resolve the outstanding issues through binding interest arbitration rather than continued bargaining or strike activity.

An arbitrator subsequently imposed the terms of a new collective agreement covering the period from October 2017 to September 2021.

The Constitutional Challenge

OPSEU challenged the legislation in court, arguing that Bill 178 violated its members’ constitutional rights.

Specifically, the union argued that ending the strike interfered with the freedom of association protected under section 2(d) of the Canadian Charter of Rights and Freedoms. This constitutional protection includes the right of workers to engage in meaningful collective bargaining and, in certain circumstances, the right to strike.

The union sought a declaration that the legislation was unconstitutional and of no force or effect under section 52 of the Constitution Act, 1982. It also sought damages for the alleged Charter violation.

The application judge at the Ontario Superior Court of Justice dismissed the challenge. OPSEU appealed that decision to the Ontario Court of Appeal.

The Key Legal Issues Before the Court of Appeal

The Court of Appeal was asked to address two central legal questions:

1. Did the legislation ending the strike infringe the Charter right to freedom of association?
2. If so, was the infringement justified under section 1 of the Charter?

These questions required the Court to apply the constitutional framework developed by the Supreme Court of Canada in a series of landmark labour law decisions often referred to as the “2015 labour trilogy.”

Those decisions confirmed that collective bargaining and the right to strike form essential components of freedom of association under the Charter.

The Court Confirms That Ending the Strike Limited Charter Rights

The Court of Appeal concluded that the legislation did, in fact, limit the Charter rights of the striking faculty members. The Court emphasized that the right to strike plays a critical role in the collective bargaining process. When workers are deprived of the ability to withdraw their labour, a key bargaining tool is removed.

As a result, legislation that terminates a lawful strike will generally constitute a substantial interference with the constitutional right to collective bargaining. The Court therefore held that by ending the strike, Bill 178 limited the rights of OPSEU members under section 2(d) of the Charter.

However, that conclusion did not end the analysis. Under the Charter, governments may still justify certain limitations on rights if those limitations are reasonable and demonstrably justified in a free and democratic society.

Applying the Section 1 Charter Analysis

To determine whether the infringement could be justified, the Court applied the well-known Oakes test, which evaluates whether a rights limitation is proportionate to a pressing public objective. This analysis involves several steps.

First, the government must demonstrate that the legislation was enacted to achieve a pressing and substantial objective.

Second, the government must show that the means chosen to achieve that objective were proportionate. This requires demonstrating a rational connection between the legislation and its purpose, minimal impairment of the Charter right, and an overall balance between the benefits and harms of the legislation.

Protecting the Academic Year Was a Pressing Government Objective

The Court agreed that the government had a pressing and substantial objective in intervening to end the strike. The evidence showed that a prolonged disruption threatened to derail the academic year for hundreds of thousands of college students. Losing a semester or academic year could have had serious consequences for students’ education, employment prospects, and professional accreditation requirements.

The government also received hundreds of communications from students and members of the public describing the financial and personal consequences of the strike. Based on this evidence, the Court concluded that the government’s objective—resuming classroom instruction and preventing widespread harm to students—was sufficiently important to justify consideration under section 1 of the Charter.

The Legislation Was Rationally Connected to the Objective

The Court also found a clear connection between the legislation and the government’s stated objective. Ending the strike and requiring the dispute to be resolved through arbitration ensured that instruction could resume quickly and that students would not lose the academic year.

The Court therefore agreed that the legislation was rationally connected to the goal of mitigating the disruption caused by the strike.

Interest Arbitration Was a Reasonable Alternative to Strike Activity

A key issue in the case was whether the legislation impaired the union’s Charter rights more than necessary. The Court emphasized that when governments prohibit strikes, they must generally provide a meaningful alternative dispute resolution mechanism.

In this case, the legislation replaced strike activity with binding interest arbitration, which allowed a neutral decision-maker to resolve the outstanding issues between the parties.

Importantly, the arbitration process did not dictate a predetermined outcome. The arbitrator retained full authority to determine the terms of the collective agreement based on the evidence and arguments presented by both sides.

The Court concluded that this approach represented a reasonable alternative mechanism for resolving the bargaining impasse.

Balancing the Effects of the Legislation

Finally, the Court considered whether the benefits of the legislation outweighed its negative effects on workers’ rights. The Court acknowledged that ending the strike interfered with the union’s bargaining power. However, it concluded that the impact on workers’ rights was mitigated by the availability of the arbitration process.

On the other side of the equation, the legislation provided significant public benefits by allowing students to return to class and preventing the collapse of the academic term.

After balancing these competing considerations, the Court determined that the legislation represented a proportionate response to the circumstances.

The Court of Appeal Dismisses the Union’s Appeal

Having concluded that the Charter infringement was justified under section 1, the Court of Appeal dismissed the union’s appeal.

The Court confirmed that while back-to-work legislation does interfere with the right to strike, such legislation can be constitutionally valid where it is enacted for pressing reasons and includes appropriate safeguards such as neutral arbitration.

The decision therefore upheld the constitutionality of Bill 178 and affirmed the government’s authority to intervene in certain labour disputes affecting the public interest.

Grosman Gale Fletcher Hopkins LLP: Legal Guidance for Complex Labour and Employment Issues in Toronto

Labour disputes in Ontario increasingly raise complex constitutional and statutory issues. Whether a matter involves collective bargaining rights, workplace policies, or government intervention in labour disputes, legal guidance can be critical.

At Grosman Gale Fletcher Hopkins LLP, our labour lawyers provide strategic advice and representation to employers, unions, and employees navigating complex workplace disputes. We regularly advise on labour relations, collective bargaining issues, and constitutional challenges affecting the workplace.

If you are facing a labour dispute in Ontario, contact our team online or call (416) 364-9599 today to schedule a confidential consultation.