DATE: 20000607
DOCKET: C29509
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG AND GOUDGE JJ.A.
BETWEEN: )
) Paul Cavalluzo
ONTARIO TEACHERS’ FEDERATION ) for the appellant OECTA
(“OTF”); PHYLLIS BENEDICT AND )
NEIL SIMPSON ON THEIR OWN ) Maurice Green
BEHALF AND ON BEHALF OF ALL ) for the appellant OSSTF
MEMBERS OF THE ONTARIO PUBLIC )
SCHOOL TEACHERS’ FEDERATION; ) Steven Barrett
ONTARIO PUBLIC SCHOOL ) for the appellant ETFO
TEACHERS’ FEDERATION (“OPSTF”); )
MARET SADEM-THOMPSON ON ) Eric Bondgard
HER OWN BEHALF AND ON BEHALF ) for the appellant OTF
OF ALL MEMBERS OF THE )
FEDERATION OF WOMEN TEACHERS’ ) Janet E. Minor
ASSOCIATIONS OF ONTARIO ) and Robert E. Charney
(“FWTAO”); FEDERATION OF WOMEN ) for the respondent
TEACHERS’ ASSOCIATIONS OF ) Attorney General of Ontario
ONTARIO; KENNETH SHEPPARD, )
ROBERT WHETTER, AND LLOYD )
HAINES ON THEIR OWN BEHALF )
AND ON BEHALF OF ALL MEMBERS )
OF THE ONTARIO SECONDARY )
SCHOOL TEACHERS’ FEDERATION; )
THE ONTARIO SECONDARY SCHOOL )
TEACHERS’ FEDERATION )
(“OSSTF”); LINDA FROST ON HER )
OWN BEHALF AND ON BEHALF OF )
ALL MEMBERS OF THE ONTARIO )
ENGLISH CATHOLIC TEACHERS’ )
ASSOCIATION; ONTARIO ENGLISH )
CATHOLIC TEACHERS’ ASSOCIATION )
(“OECTA”); ROBERT BERUBÉ, ON HIS )
OWN BEHALF AND ON BEHALF OF )
ALL MEMBERS OF L’ASSOCIATION )
DES ENSEIGNANTES ET DES )
ENSEIGNANTS FRANCO-ONTARIENS; )
AND L’ASSOCIATION DES )
ENSEIGNANTES ET DES ENSEIGNANTS )
FRANCO-ONTARIENS (“AEFO”) )
)
Appellants )
)
and )
)
THE ATTORNEY GENERAL OF )
ONTARIO )
)
Respondent ) Heard: November 15
) and 16, 1999
On appeal from the judgment of Southey J. dated March 17, 1998.
GOUDGE J.A.:
INTRODUCTION
[1] The fall of 1997 was a time of turmoil for the public
education system in Ontario. The previous spring, the provincial
government had introduced legislation to significantly alter the
school board governance structure of the system. This was
followed, on September 22, 1997, by the introduction of Bill 160
which made very substantial changes to education finance, program
delivery, school board management and the collective bargaining
rights of teachers.
[2] Teachers and their unions took profound issue with much of
Bill 160 and on October 27, 1997, commenced a province-wide
protest against it, which lasted until November 10. The protest
involved meetings, speeches, leafleting, picketing, marches,
demonstrations, public advertising and public education, but its
cornerstone was the withdrawal of teachers’ services from schools
across the province.
[3] On November 5, five days before the teachers returned to
work, the government tabled amendments to Bill 160. These
amendments included the provisions under attack in this
litigation which removed principals and vice-principals from
teacher bargaining units and from statutory membership in the
teachers’ unions. Bill 160, including these amendments, received
Royal Assent on December 8, 1997, as the Education Quality
Improvement Act, 1997, S.O. 1997, c. 31 (which I will refer to as
Bill 160 as the parties did in argument).
[4] The teachers’ unions and their representatives sought a
declaration that the provisions of Bill 160 dealing with
principals and vice-principals contravened the freedom of
expression and the freedom of association guaranteed to them by
the Canadian Charter of Rights and Freedoms. They alleged that
these amendments were enacted as a reprisal for participation in
the province-wide protest and that this participation was both
expressive and associational activity protected by s.2(b) and
s.2(d) of the Charter. Second, and apart entirely from the
reprisal argument, these amendments were said to infringe the
freedom of association guaranteed to principals and vice-
principals by removing them from teacher bargaining units and
denying them statutory membership in the teachers’ unions.
[5] Southey J. dismissed the application, finding that the
amendments were not introduced for punitive purposes and that the
amendments themselves did not infringe either the freedom of
expression or the freedom of association of principals and vice-
principals.
[6] For the reasons that follow, I would dismiss the appeal.
THE FACTS
[7] Prior to Bill 160, membership in the various teacher unions
had been provided for by statute since 1944. The Teaching
Profession Act, R.S.O. 1990, c.T.2 declares that every teacher is
a member of the Ontario Teachers’ Federation (“OTF”). That
Federation serves as an umbrella organization for the affiliate
teachers’ unions. In 1997, the five affiliates were the Ontario
Public School Teachers’ Federation, the Federation of Women
Teachers’ Associations of Ontario, the Ontario Secondary School
Teachers’ Federation, the Ontario English Catholic Teachers’
Association, and L’Association des enseignantes et des
enseignants franco-ontariens.
[8] As well as being designated by statute as members of OTF,
all teachers are assigned by OTF by-law to the affiliate union
appropriate to their teaching circumstance. The OTF, its five
affiliate unions and their personal representatives are the
appellants in this proceeding.
[9] Statutory collective bargaining was introduced for teachers
in Ontario in 1975 with the enactment of the School Boards and
Teachers Collective Negotiations Act, 1975 (“SBTCNA”), now R.S.O.
1990, c.S.2. That Act set up bargaining between the affiliate
teachers’ unions and school boards and gave those unions the
right to strike.
[10] The SBTCNA also required that each principal and vice-
principal be a member of the OTF, the appropriate affiliate and
the bargaining unit in which each worked. However, s.64(2) of
that Act prohibited them from participating in any strike. It
reads as follows:
(2) Despite subsection (1), in the event of a
strike by the members of a branch affiliate each
principal and vice-principal who is a member of
the branch affiliate shall remain on duty during
the strike or any related lock-out or state of
lock-out or closing of a school or schools.
[11] This subsection represented the legislature’s answer to the
perennial debate concerning the proper place of principals and
vice-principals in collective bargaining for teachers. That
debate, broadly put, is whether principals and vice-principals
should be seen as managers whose interests are aligned with the
employer or as team leaders with the same interests as teachers
in the outcome of negotiations.
[12] Since 1975, the question of the continued inclusion of
principals and vice-principals in teacher bargaining units has
been the subject of examination in a number of reviews and
studies. Despite the range of views expressed in this material,
both as to the magnitude of the problem and the possible
solutions, the position set out in the 1975 legislation remained
in place until the fall of 1997 when Bill 160 was passed into
law.
[13] In August 1997, prior to tabling Bill 160, officials of the
Ministry of Education and Training informed representatives of
the OTF and its five affiliates that the forthcoming legislation
would remove principals and vice-principals from teacher
bargaining units.
[14] The OTF and its affiliates made clear their opposition to
this step and just prior to the tabling of Bill 160 for first
reading in the legislature the Minister of Education indicated
that the Bill would not remove principals and vice-principals
from teacher bargaining units. On October 8, 1997, he said this
to the legislature:
I was able at the start of that meeting to go over
the times we’ve listened to the teachers’
federations and unions over the past few months. When
they assured us that the right to strike would not
ever jeopardize the education of a student, we listened
to them. When they said that having principals be part
of the bargaining unit was important to them because
principals would be above the fray any time there was
a dispute, we listened to them. When they said it
was important for the Ontario Teachers’ Federation to
retain the statutory right to represent teachers
because they are professional and need that sort of
body, we listened to them.
[15] Through October, as teacher opposition to various aspects of
the proposed legislation became more apparent, the prospect of a
withdrawal of teacher services grew. In light of this, the
Minister made clear to the teachers’ unions his concern that
principals and vice-principals should report to work during any
strike, as required by s.64(2) of the SBTCNA.
[16] On October 27th most of the teachers in the province
withdrew their services as part of their protest against Bill
160. A majority of the 8,000 principals and vice-principals
joined in. The OTF and its affiliates planned and organized the
strike and encouraged the participation in it of principals and
vice-principals.
[17] On October 30th the Minister announced that prior to third
reading the government would be proposing amendments to Bill 160.
These amendments were tabled on November 5. They included the
provisions which are attacked in this proceeding. These
amendments formed part of the bill which received third reading
on November 27 and Royal Assent on December 8, 1997. In their
factum the appellants provided a summary of these amendments
which I have attached to these reasons.
[18] The primary effect of the impugned amendments was to remove
principals and vice-principals from teacher bargaining units and
from statutory membership in OTF and its five affiliate unions.
However, they also excluded principals and vice-principals from
the application of the Labour Relations Act, 1995, S.O. 1995,
c.1, Sch. A. thereby foreclosing their right, under that Act, to
organize in separate bargaining units. The amendments also
empowered cabinet to determine the terms and conditions of
employment for principals and vice-principals by way of
regulation.
[19] On a number of occasions both in the legislative debate on
the bill and in the public discussion of it the Minister
explained the purpose of the amendments affecting principals and
vice-principals. His statement in the legislature on November
17th is typical of those comments:
In the terms of the principals and vice-principals, we
were assured the principals and vice-principals would
be in the school in this sort of situation. The obvious
fact is that they weren’t. The vast majority, well
over 5,000, were not in the schools, were not there to
do their duties, to give safety to the children.
They’re in a difficult situation. They’re in a conflict
situation, with management responsibilities on the one
hand and union responsibilities on the other.
….
The principals and vice-principals are in a difficult
conflict situation with management responsibilities,
union responsibilities. Through the bill, through the
amendment we have attempted to address that.
….
I can only say that the previous minister looked at
this situation. It was put forward to him that there
would not be a problem, that the conflict situation
could be dealt with. It’s a conflict situation that
does not occur anywhere else that I can think of in
terms of the importance of the principal position, the
management functions associated with that position, and
to have the same person in the union context is quite
a conflict.
Unfortunately, during the period of the unlawful strike
there was a problem. There were many principals, I
suspect, who did not want to leave their schools, but
with the pressure that was brought to bear, the reality
was that they could not serve two masters. It’s a
situation that needs to be clarified and we intend to
proceed.
[20] The teachers returned to their classrooms on November 10th,
firmly convinced, as were opposition politicians, that these
amendments represented a vindictive reprisal against principals
and vice-principals for participating in the protest against Bill
160. As a result, this application was commenced on December 10,
1997.
ANALYSIS
A. The Reprisal Argument
[21] The primary argument raised by the appellants on this appeal
is that the impugned amendments to Bill 160 infringe the rights
of principals and vice-principals under s.2(b) and s.2(d) of the
Canadian Charter of Rights and Freedoms. They argue that the
participation of principals and vice-principals in the protest
against Bill 160 constitutes political expression and hence is
activity lying at the core of the freedom guaranteed by s.2(b).
Second, they say that this participation is associational
activity for the purposes of s.2(d). They then assert that, most
importantly, the purpose, but also the effect of the challenged
legislation is to serve as a reprisal against principals and vice-
principals for this participation, thereby penalizing them for
exercising their Charter rights. Finally, they say that these
amendments cannot be justified pursuant to s.1 of the Charter.
[22] The first step in this line of argument, namely that the
principals and vice-principals were engaged in protected
expressive activity, is not without its difficulties. On the one
hand, s.2(b) of the Charter must accord a broad sweep of
protection to political dissent in a democracy such as ours, and
this protest was clearly political dissent. On the other hand, in
withdrawing their services the principals and vice-principals
violated s.64(2) of the SBTCNA. Moreover, they were arguably
engaged in strike activity, something which has found scant
constitutional protection at least under s.2(d) of the Charter.
[23] Because of the conclusion I have reached on whether the
amendments are either in purpose or effect a reprisal for this
activity, I need not resolve this first question. I will assume
without deciding that the principals and vice-principals were
engaged in protected expressive activity in protesting against
Bill 160, and that their collective exercise of this freedom was
protected associational activity.
[24] The second step in the appellants’ argument is that
legislation which is passed with the purpose of punishing
individuals for exercising their Charter rights itself violates
the Charter.
[25] It is clear that where an invalid purpose for enacting
legislation is shown, a court will intervene, whether or not the
legislation has the effect of violating a Charter right. See
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989.
[26] In Delisle, as is commonly the case, the allegedly improper
legislative purpose had prospective effect: it was said that the
legislation was intended to restrict the future exercise of
Charter rights. I can see no reason why the legislative purpose
of punishing a past exercise of Charter rights is any less
improper. Whether the purpose of government action is to hinder
those who would engage in Charter-protected activities or punish
them for having done so, that government action breaches the
Charter and must be justified under s.1. In R. v. Big M Drug Mart
(1985), 18 D.L.R. (4th) 321 (S.C.C.) Dickson J. speaking about
freedom of religion said this at p.353:
The essence of the concept of freedom of religion is
the right to entertain such religious beliefs as a
person chooses, the right to declare religious beliefs
openly and without fear of hindrance or reprisal, and
the right to manifest belief by worship and practice
or by teaching and dissemination. [Emphasis added.]
[27] Thus it seems clear that the purpose of punishing the past
exercise of a Charter right is just as invalid as the purpose of
curtailing the prospective exercise of that right. Again,
however, because of my ultimate conclusion in this case I can
assume this to be so and move on.
[28] The real question in this appeal is whether the impugned
amendments can be shown to be a reprisal for engaging in activity
that is protected under the Charter. In seeking to demonstrate
this, the appellants focus on the purpose of the legislation,
which they say is to punish the principals and vice-principals
for participating in the protest against Bill 160. They look
primarily to the circumstances surrounding the introduction of
the amendments rather than to the impugned provisions themselves
or their legislative context. They point particularly to the fact
that the tabling of the amendments so closely followed the
commencement of the protest and to the link drawn between the two
by the Minister.
[29] As I have said, it is clear that a consideration of the
purpose of impugned legislation is a vital part of Charter
analysis. Dickson J. put it this way in Big M Drug Mart, supra,
at p.350:
[C]onsideration of the object of legislation is
vital if rights are to be fully protected. The
assessment by the courts oflegislative purpose
focuses scrutiny upon the aims and objectives
of the Legislature and ensures they are consonant
with the guarantees enshrined in the Charter. The
declaration that certain objects lie outside the
Legislature’s power checks governmental action at
the first stage of unconstitutional conduct. Further,
it will provide more ready and more vigorous
protection of constitutional rights by obviating the
individual litigant’s need to prove effects violative
of Charter rights. It will also allow courts to
dispose of cases where the object is clearly improper,
without inquiring into the legislation’s actual impact.
[30] It is also clear that the party seeking to establish that
the impugned legislation infringes a Charter right or freedom by
virtue of its purpose bears the onus of establishing the alleged
invalid purpose on a balance of probabilities. See Delisle,
supra, at paras. 13 and 76.
[31] What then can a court be asked to look to in determining
whether a Charter claimant has discharged this onus? In R. v.
Gladue, [1999] 1 S.C.R. 688 at para. 25, the Supreme Court of
Canada reiterated that in determining the purpose of an impugned
legislative provision a court should look to intrinsic and
admissible extrinsic sources regarding the provision’s
legislative history and the context of its enactment.
[32] The degree to which the court may look beyond the wording of
the legislation itself to determine the purpose of the impugned
provision was addressed in Delisle, supra. Speaking for the
majority, Bastarache J. made clear that the search for
legislative purpose in Charter analysis focuses primarily on the
wording of the impugned provision itself and its legislative
context. While the court can consider admissible extrinsic
evidence of purpose, it must be careful to ensure that the
evidence has an institutional quality that reflects the intention
of the legislature and not just the individual motivation of a
particular member of the government.
[33] The appellants argue that where, as here, the invalid
purpose alleged is to punish individuals for exercising their
freedom of expression to protest against the government, such a
purpose is unlikely to be apparent on the face of the legislation
and hence it must be determined by resort to extrinsic evidence.
[34] I acknowledge that the right to protest government action
lies at the very core of the guarantee of freedom of expression.
Thus, the court must be searching in its evaluation of the
assertion that a legislative provision has as its purpose to
punish those who speak out. I also acknowledge that the court can
consider extrinsic evidence of purpose as part of that
evaluation. However, this must be done within the context
described by Bastarache J. The provision itself and its statutory
context remain vital sign posts in the search for legislative
purpose, because they are the actual manifestations of that
purpose. Expressions of motivation by individual government
actors must be scrutinized to see that they truly reflect
legislative intent, rather than simply individual concerns. The
former are appropriately part of the Charter analysis. The latter
are left to be sanctioned at the ballot box.
[35] It is this approach to the determination of legislative
purpose that must be used to assess the appellants’ allegation
that the impugned amendments were enacted with the impermissible
purpose of punishing principals and vice-principals for
exercising their Charter rights to participate in the protest
against Bill 160.
[36] Southey J. addressed this issue and concluded that the
appellants had not proven the impermissible purpose alleged. He
put his finding this way:
I accept the argument of the applicants that the
participation of the principals and vice-principals
was the proximate cause of the amendments to Bill
160. But for that participation in the strike, the
amendments would not have been made. I am satisfied,
however, that they were not made for punitive
purposes, but for legitimate corrective purposes. They
were made, as explained by the Minister in the
Legislature, to remove the principals and vice-
principals from a position of conflict arising out of
their duty to manage the schools and their loyalty to
other members of the unions.
[37] Hence Southey J. rejected the appellants’ argument that the
purpose of Bill 160 was to punish those who engaged in activity
protected by the Charter.
[38] The burden rests with the appellants to establish that
reprisal was the purpose of the impugned legislation. They must
do so on a balance of probabilities. The judge of first instance
found that the purpose of the challenged provisions of Bill 160
was not the invalid one alleged by the appellants but rather that
of removing the principals and vice-principals from a position of
conflict.
[39] Where, as here, the court is invited to find legislative
purpose largely on the basis of extrinsic evidence, its finding
is one of fact. It is one therefore to which an appellate court
must accord deference. Even though the finding is based entirely
on a written record and no witnesses were heard, this court will
interfere with such a finding only if it can be shown to be
unreasonable. See Equity Waste Management of Canada v. Halton
Hills (Town) (1997), 35 O.R. (3d) 321(C.A.).
[40] In my opinion, Southey J.’s finding of legislative purpose
is reasonable. Indeed, on the basis of this record I agree with
it.
[41] The challenged provisions of Bill 160 speak simply of the
removal of principals and vice-principals from teacher bargaining
units and from statutory membership in the teachers’ unions.
There is nothing in the actual language of these provisions
concerning reprisal nor indeed anything that would permit the
court to infer that their purpose was to punish those principals
and vice-principals who participated in the protest against the
legislation. The balance of Bill 160 which provides the
legislative context for these amendments, concerns different
issues entirely, and is of no assistance to the appellants.
[42] What then of the extrinsic evidence on which the appellants
principally rely? I accept, as did Southey J., that the
statements made in the legislative process by the Minister of
Education have the necessary institutional quality referred to by
Bastarache J. in Delisle, supra. They constitute an expression of
legislative purpose.
[43] It is also true that these amendments were introduced only
after the protest against Bill 160 began and that the Minister in
explaining the need for them relied heavily on the fact that the
great majority of principals and vice-principals left their
responsibilities in the schools to participate in the protest
organized by the teachers’ unions. As Southey J. found, but for
that participation in the protest, the amendments would not have
been made. However, the Minister’s statements also made clear
that the impugned amendments were designed to resolve the
conflict for principals and vice-principals between their duty to
stay in the schools and manage them during a strike and their
loyalty to the teachers’ unions. This conflict is not new, having
been the subject of numerous studies and much debate over the
years. While the solution provided by these amendments may have
been new, so too was the context from which they sprang. Faced
with a choice between staying to manage the schools and leaving
to participate in the protest organized by their unions, most
principals and vice-principals chose the latter. The Minister
could properly point to this new context to demonstrate the
arguable need to remove the source of the conflict.
[44] The Minister’s statements do not speak of reprisal or of a
desire to punish principals or vice-principals for their
participation in the protest. There is no mention of any of the
other activities that were part of the protest apart from the
strike. The Minister criticized principals and vice-principals
for leaving their schools during the strike, not for
participating in any other aspect of the protest.
[45] Rather than reflecting an intention to punish, these
statements explicitly indicate a desire to remove the source of
the conflict of interest resting upon principals and vice-
principals which the government perceived to have operated to the
detriment of the public interest during the protest against Bill
160.
[46] The evidence that teachers and opposition politicians
regarded the amendments as a reprisal does not help to
demonstrate the government’s purpose in bringing them forward. No
matter how deeply felt, suspicions of the true legislative
purpose cannot provide the required evidentiary basis for the
order sought. The court must act on the evidence not on the basis
of beliefs even if profoundly held. For those holding these
views, the proper forum for redress is not the court but the
electoral process.
[47] In summary, the appellants have simply not been able to make
out their case. Neither the intrinsic evidence nor the extrinsic
evidence advanced by the appellants demonstrates on a balance of
probabilities that the legislative purpose of the impugned
amendments was to punish principals and vice-principals for
participating in the protest against Bill 160. It cannot
therefore be said that these amendments infringe their Charter
freedoms of expression or association because of an invalid
purpose.
[48] The appellants argue in the alternative that if the impugned
amendments cannot be shown to have an invalid purpose, the effect
of the amendments is that of a reprisal.
[49] I do not agree. There is nothing in the language of the
legislation that suggests such an effect. The consequences
provided for by the amendments do not attach just to those who
participated in the protest against Bill 160. Rather the effects
of the amendments apply to all principals and vice-principals
whether they participated or not. Nor can it be said that these
amendments carry any consequence for those who may participate in
future protests of this kind. Bill 160 simply does not speak to
this subject at all. Hence the challenged provisions do not have
the effect of serving as a reprisal for either past or future
participation in a political protest.
[50] In summary, therefore, the reprisal argument fails.
B. The Freedom of Association Argument
[51] Apart from whether they were enacted as a reprisal, the
impugned amendments are said by the appellants to infringe the
freedom to associate guaranteed to principals and vice-principals
by s.2(d) of the Charter. The appellants say this for two
reasons. First, because the amendments exclude principals and
vice-principals from teacher bargaining units and from bargaining
collectively on their own under the Labour Relations Act. Second,
because the amendments strip principals and vice-principals of
statutory membership in OTF and its affiliate teachers’ unions
thereby, it is said, interfering with their continued membership
in those organizations.
[52] Southey J. held that the challenged amendments do not
infringe the protection guaranteed by s.2(d) as it has been
interpreted by the Supreme Court of Canada.
[53] I agree with this conclusion.
[54] In my view, the Delisle case is a complete answer to the
appellants’ primary submission here, namely, that s.2(d) is
violated because the amendments prevent principals and vice-
principals from bargaining collectively with other teachers or
even on their own under the Labour Relations Act.
[55] In Delisle the appellant, a member of the R.C.M.P.,
challenged the exclusion of R.C.M.P. members from the application
of the Public Service Staff Relations Act, R.S.C. 1985, c.P-35.
(“P.S.S.R.A.”). The appellant argued that the exclusion of
R.C.M.P. members from the collective bargaining regime which this
legislation provides for federal employees, when no other
collective bargaining regime was available to them, violated
their freedom of association. The appeal was dismissed.
Bastarache J. writing for the majority reviewed the jurisprudence
of the Supreme Court of Canada relating to the concept of freedom
of association in the labour relations context. He reiterated the
limited scope of that concept as set out by Sopinka J. in
Professional Institute of the Public Service of Canada v.
Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 at p.
402:
… first, that s.2(d) protects the freedom to establish,
belong to and maintain an association; second, that
s.2(d) does not protect an activity solely on the ground
that the activity is a foundational or essential purpose
of an association; third, that s.2(d) protects the
exercise in association of the constitutional rights
and freedoms of individuals; and fourth, that s.2(d)
protects the exercise in association of the lawful
rights of individuals.
[56] Bastarache J. went on to make clear that the exclusion of
one group of workers from a statutory collective bargaining
regime is not a violation of s.2(d) nor is there any such
violation merely because one group of workers is included in the
regime while another is not. He summarized this at para. 24:
The appellant’s position is that in the absence of any
other applicable trade union regime, the express exclusion
of RCMP members from the PSSRA regime encourages unfair
labour practices and interferes with the creation of an
independent employee association for RCMP members. In my
view, neither the lack of rights under the PSSRA regime,
or the failure to provide RCMP members with a statutory
or other associative regime can be confused with an
infringement of their freedom of association.
[57] Hence it is clear that the impugned amendments do not
infringe the freedom of association of principals and vice-
principals either by denying them the right to bargain
collectively with teachers or by denying them the right to
separate collective bargaining under the Labour Relations Act.
[58] The appellants’ second submission focuses on the removal of
the statutory membership of principals and vice-principals in the
teachers’ unions. In my view, the answer to this argument is that
the legislation under challenge simply removes the deemed
membership provisions that make all principals and vice-
principals members of these unions. Freedom of association does
not extend to guaranteeing mandatory membership in an
organization. While freedom of association does protect the
freedom to establish, belong to and maintain an association, this
legislation does not transgress on that territory. It does not
preclude principals and vice-principals either from voluntary
membership in these organizations or from establishing their own
association to seek to persuade school boards to voluntarily
bargain terms and conditions of employment outside of the
statutory framework of collective bargaining. Thus, I conclude
that these amendments do not infringe the freedom of association
guaranteed to principals and vice-principals. The appellants’
second argument fails.
[59] Since I have found that neither the reprisal argument nor
the freedom of association argument can succeed, there is no
basis upon which to find that the challenged legislation
infringes a Charter freedom. Hence, there is no need to evaluate
that legislation against s.1.
[60] In the result the appeal must be dismissed with costs.
Released: June 7, 2000 “D.D.”
“S.T. Goudge J.A.”
“I agree Doherty J.A.”
“I agree M. Rosenberg J.A.”
APPENDIX 1
THE AMENDMENTS TO BILL 160
1. In general, Bill 160 fundamentally altered the funding and
management of the education system in Ontario and provided a
mechanism to create and staff new district school boards which
have been introduced under Bill 104 (the Fewer School Boards Act,
1997). In addition to these fundamental changes, including the
legislative regulation of preparation time and class size, Bill
160 introduced a new collective bargaining scheme based upon the
model under the Labour Relations Act, 1995, identified the
provincial affiliates as the bargaining agents for statutorily
defined bargaining units, included occasional teachers in defined
bargaining units with defined bargaining agents, and provided for
a method to negotiate new collective agreements in each of the
new district school boards.
2. More specifically, however, s.122 of Bill 160 added a new
Part X.1 to the Education Act, which governs teacher collective
bargaining, and repealed the School Boards and Teachers
Collective Bargaining Act (Bill 100). Under the new s.277.1(1) of
the Education Act, principals and vice-principals are excluded
from the definition of “Part X.1 teacher”. The effect of this
amendment is to remove principals and vice-principals from
teacher bargaining units established under s.277.3 of the
Education Act.
3. In addition, s.151 of Bill 160 excluded principals and vice-
principals from the provisions of the Labour Relations Act, 1995,
with the result that principals and vice-principals are denied
access to the certification and other collective bargaining
rights and protections provided under the terms of that Act.
4. Further, s.180(2) of Bill 160 amended s.1 of the Teaching
Profession Act to exclude principals and vice-principals from
the definition of “teacher” under that Act. The effect of this
amendment was to remove principals and vice-principals from their
statutory membership in OTF and the corresponding provincial
affiliates.
5. Section 277.11 of the Education Act, as amended by s.122 of
Bill 160, provided that principals and vice-principals could
elect to resign from their positions and continue in employment
as teachers, thereby remaining within the bargaining unit. While
this selection was required to be made by April 1, 1998, it did
not take effect until August 31, 1998 or upon such earlier date
as the school board and principal or vice-principal may have
agreed.
6. Section 127 of Bill 160 provided that, under s.287.2 of the
Education Act, any person who remained a principal or vice-
principal after January 1, 1998 was, with notable exceptions,
covered by the same terms and conditions of employment they
enjoyed as of December 31, 1997 and which had been contained in
their collective agreements. These terms and conditions remained
in place until August 31, 1998 or such earlier date as may have
been agreed upon between the individual principal or vice-
principal and the school board that became his or her employer.
7. However, s.287.2(3) provided that, effective April 1, 1998,
principals and vice-principals were to be excluded from the
protections of certain critical terms and conditions of
employment which they previously had under their collective
agreements, namely, provisions relating to membership in OTF or
any affiliate or branch affiliate, and provisions governing
seniority, grievances and recall and redundancy rights.
8. Section 127 of Bill 160 also provided that, under s.287.1(1)
of the Education Act, a principal or vice-principal may perform
the duties of a teacher despite any provision in a collective
agreement.
9. Section 127 of Bill 160 further provided that, under
ss.287.1(2) and (3) of the Education Act, the terms and
conditions of employment of principals and vice-principals may be
determined by Cabinet regulation, and that the regulations may
treat different classes of principals and vice-principals
differently. |