Ontario's use of notwithstanding clause in dispute with union a 'Pandora's box,' expert says

The Ontario government's move to force school-support staff to stay at work by using the heavy hammer of the notwithstanding clause could have huge repercussions on labour relations, experts say.

"If the public is sympathetic to the government [in this case], then the government's actions will have set a significant precedent for years to come," said Rich Appiah, a principal at Appiah Law Employment and Labour Counsel in Toronto.

Education Minister Stephen Lecce introduced legislation Monday afternoon to avert a looming strike and impose a four-year contract on about 55,000 education workers, including librarians, custodians and early childhood educators, but not teachers. Under the proposed legislation workers could face fines of up to $4,000 per day if they strike.

The Canadian Union of Public Employees says it will be looking at every avenue to fight the legislation, but the government says it intends to use the notwithstanding clause to keep the eventual law in force despite any constitutional challenges.

The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives provincial legislatures the ability, through legislation, to override certain portions of the charter for five years.

Noa Mendelsohn Aviv, the executive director of the Canadian Civil Liberties Association, said in a statement Monday that the clause was "never meant to be used in contract negotiations, or as a casual tool to disrupt basic human rights safeguarded in our Charter."

"This misuse, and the flagrant disregard for individual rights is wrong and it is dangerous to our constitutional democracy."

CUPE said the workers will stage a provincewide "protest" Friday — meaning they will be off the job despite the legislation.

Labour experts had told CBC News earlier Monday that the government was likely to face a stiff and costly legal challenge by forcing a contract on the union, but Appiah said the government can pre-empt any court challenge by invoking the notwithstanding clause.

"I understand that the … invocation of the notwithstanding clause is included in the legislation, and that being the case, frankly, the union is screwed," Appiah said. 

From a legal perspective, Appiah said, the union's only options are political: convincing stakeholders, community members and ultimately voters to join them in protest, as well as walking off the job illegally. 

"It's taking away a constitutionally protected right, and it'll be up to the people to decide whether they are on side with that," he said.

How much this changes labour relations will depend on public reaction, he said, noting that many people are tired of school closures due to the COVID-19 pandemic.

"If the people allow this to happen, I think it will send a signal to other provinces that they have the upper hand in negotiations with educational institutions, as well as other public institutions," he said.