The Ontario Court of Appeal (“ONCA”) released its recent decision in Ontario English Catholic Teachers’ Association v Ontario (Attorney General)[1]. The majority of the ONCA ruled that the Protecting a Sustainable Public Sector for Future Generations Act, 2019, known as Bill 124 (“Bill 124”), was unconstitutional in so far as it applies to unionized employees.
Background
On November 7, 2019, the Ontario legislature passed Bill 124, which imposed a three-year moderation period on compensation, including salary rates, for both union and non-union employees in the broader public sector. Bill 124 imposed a 1% cap per year on increases to salary rates for those three years.
Ten labour organizations and unions (the “Respondents”) brought applications challenging the constitutionality of Bill 124. All applications were heard consecutively by the Ontario Superior Court of Justice (“Superior Court”) in 2022. Justice Koehnen of the Superior Court held that Bill 124 was unconstitutional as it substantially interfered with collective bargaining and violated the freedom of association rights protected under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”) and could not be saved by section 1 of the Charter. Justice Koehnen did not accept the arguments that Bill 124 violated the Respondents’ freedom of expression (s. 2(b)) or equality rights (s. 15) under the Charter. The Ontario government appealed this decision to the ONCA, which was heard in June 2023.
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