Billions at stake as Ontario takes public sector workers to Court of Appeal

Billions of dollars are at stake as a three-day hearing at Ontario's highest court gets underway Tuesday over the province's controversial wage-limiting law for public sector workers.

Last November, a judge with the Superior Court of Justice struck down Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, ruling it unconstitutional.

The province appealed.

There are some 780,000 broader public sector workers in Ontario, including teachers, nurses and most employees of the province. Bill 124 became law in 2019, limiting their wages to a one per cent raise per year over a three-year period.

The province's fiscal watchdog says the province owes public sector workers about $8.4 billion over five years if the law remains overturned. Ontario has already paid about $1 billion to workers who've recently gone to arbitration to reopen their contracts in wake of the ruling.

Premier Doug Ford would not directly comment on the province's decision to appeal the bill when asked Tuesday at a news conference in Ottawa, which was unrelated to the hearing.

"Our whole goal with Bill 124, I have to make sure that we respect the taxpayers but also make sure that the frontline workers are treated fairly and come up with common ground," Ford told reporters.

"Lets see what the courts say, and I'm sure I will have comments after a decision is made," he said when asked if the province will take its appeal to the Supreme Court of Canada if it loses.

'Fundamental legal errors' made, province argues

In its factum filed with the Court of Appeal, the province said Justice Markus Koehnen made "fundamental legal errors."

The province says the law does not interfere with the collective rights to free and fair bargaining.

More than 10 groups fighting Bill 124 say that it does.

The province argues Koehnen erred by incorrectly applying the section of the Canadian Charter of Rights and Freedoms that allows for the freedom of association. That law governs the rights of groups, such as unions.

"He concluded that Bill 124 substantially interfered with the associational rights of employees based on the incorrect conclusion that the inability to achieve particular substantive outcomes is by itself a substantial interference with collective bargaining," provincial lawyers wrote.

"Accordingly, he failed to consider whether there was substantial interference with employees' ability to associate to pursue workplace goals effectively, or to their ability to participate in meaningful, good faith consultation and negotiation."

But the province says the judge misinterpreted the bill as interfering with workers' right to strike and points to strike actions taken after the law came into effect.

The province argues that Bill 124 only limits negotiations on the annual one per cent raise cap and that other monetary and non-monetary negotiations are still permitted.

The government argued it was in rough financial shape at the time it enacted the law and it was needed to help reduce the deficit.

Adil Shamji, an emergency room physician and Liberal MPP for the Toronto riding of Don Valley East, called on the provincial government to address widespread shortages in the public service workforce amid its appeal.

"The Ford government tries to defend Bill 124 by claiming this legislation will help address the budget deficit in Ontario," said Shamji at a news conference Tuesday.

"The roots of countless problems in our province have invariably been traced back to [it]. It is a dark cloud that hangs over our province, impeding progress and trampling on the rights of people."

Unions to fight appeal

Meanwhile, the president of the Ontario Federation of Labour (OFL), which represents 54 unions and a million workers in the province, said Bill 124 should be "scrapped for good.

"As we have said repeatedly: Bill 124 hurts workers and it hurts our public services," OFL president Patty Coates said in a statement Tuesday.

"Earlier this month, thousands of Ontarians mobilized to demand action on the simultaneous cost-of-living and health care crises. Instead of responding to these demands, this government is back in court using public dollars to fight workers."

Ontario Public Services Employees Union (OPSEU) president JP Hornick said unions will fight the appeal.

"We are determined to win. We'll do whatever it takes and nothing is off the table," Hornick told reporters at a news conference Tuesday.

"Our message to Doug Ford today is [to] withdraw the appeal, stop underfunding, understaffing and creating chaos in our public services."

Bill 'skewed' bargaining process, say groups

The province is seeking dismissal of the judge's original decision while the public sector workers want the appeal to be dismissed.

More than 10 groups representing hundreds of thousands of public sector employees are part of the appeal process.

The judge who struck down Bill 124 delivered a "carefully reasoned decision," the groups argued in their factums filed with court.

"The court found that the Crown failed to prove with evidence that Bill 124 was reasonable, proportionate, and justified in its violation of Charter rights," wrote the Ontario English Catholic Teachers' Association.

The bill "completely skewed the bargaining process" in favour of the government, the groups say.

"Bill 124 severely undermined the union's bargaining power both by legislating the preferred outcome of the Crown and employer with respect to the fundamental term of employment (compensation) and by rendering strikes over compensation illegal," the Catholic teachers wrote.

"Compensation was effectively removed from the table and could not be used to trade off against other working conditions in order to make gains in other areas."

The groups also argue Ontario was not in a financial crisis at the time and, therefore, the legislation was unnecessary.