UPDATE: Ontario’s fight against education workers over walkout continues at labour hearing

Lawyers for both the government and the union presented arguments for a second day on Saturday, Nov. 5 following an application by the provincial government calling the walkout by provincial education workers represented by the Canadian Union of Public Employees (CUPE) on Friday, Nov. 4 an “illegal strike.”

The government says CUPE leadership knowingly advised education workers to engage in a strike, with government lawyer Ferina Merji highlighting comments made by two union leaders.

She played video of Fred Hahn, the president of the Ontario branch of CUPE, saying the union would provide the same benefits to workers that it does in any strike.

Merji also shared video of Laura Walton, president of CUPE Ontario’s School Board Council of Unions, comparing the walkout to one that was planned in 2019.

She argued that the labour relations board risks undermining the province’s labour laws if it fails to declare the walkout illegal and urged the board’s chair to act.

“Ensuring that an unlawful strike is not allowed to continue is a very important labour relations purpose, and if you did not exercise your discretion to do so, it would significantly undermine the very clear prohibition on strike activity that is a key feature of the Labour Relations Act,”  Merji said.

CUPE argues the action by its 55,000 education workers across the province was not a strike but a political protest.

The move came following the Ford government’s new law which was passed on Thursday, Nov. 3 imposing contracts on the education workers and banning them from striking.

The law uses the notwithstanding clause to protect against constitutional challenges.

CUPE said in its board filings that the goal of its members’ action is “to express opposition through political protest to the (province’s) decision to trample upon employees’ constitutionally protected right to collectively bargain and right to strike.”

“Irrespective of what label anyone puts on the activity, Mr. Chair, it is a work stoppage. And a work stoppage, with any other name, still amounts to a work stoppage and therefore a strike, full stop,” Merji told the hearing.

She said the government’s conduct at the bargaining table is irrelevant in an unlawful strike application, and is instead the purview of an unfair labour practice complaint.

“Instead of what is supposed to be an expeditious and narrow factual inquiry into the work stoppage, there’d be a broad inquiry into the history of the labour relationship between the applicant and the respondent,” Merji said.

The job action closed numerous schools, and the union has said the protest could continue indefinitely.

“I do accept that Bill 28 is in writing. But it is not a voluntarily negotiated agreement,” said CUPE lawyer Steven Barrett, who called the legislation “Orwellian.”

“It is deemed to be a collective agreement under Section 5 … but to call this a mid-contract withdrawal of services, as if this was a collective agreement freely negotiated, is a fundamental absurdity.”

Barrett told board chair Brian O’Byrne that should he deem the strike legal, the job action could continue until the government repeals its new legislation or until the union and government negotiate its end.

“But that isn’t your concern,” Barrett told the chair. “The job of the labour board is to oversee the collective bargaining system, and in doing so give effect to Charter values and Charter rights. There are many ways in which the government could have avoided students not being in school … they certainly didn’t have to provoke the reason that we’re here now, with respect to enacting this unprecedented, horrendous legislation.”

He added that deeming the walkout illegal would also send a message that labour laws and collective bargaining rights no longer exist in the province.

“Siding with the government here … it actually sends a message that there’s no more labour law, there’s no more collective bargaining,” he said. “Labour peace, which is imposed this way, isn’t the labour peace the labour board should associate itself with.”

O’Byrne told Barrett the province had the right to invoke the notwithstanding clause under the constitution, even though it may have been “politically risky” to do so.

“Under our laws, governments can do this kind of thing legally. Even though some of us may find it distasteful or worse than that, they still have the right to do it,” said O’Byrne.

“By law, when we have a collective agreement, then you’re not supposed to strike. And the reality is there’s a collective agreement, whether you like it or not,” he said.

Barrett, citing case law, argued Ontario used the clause to address labour issues in an unprecedented and inappropriate way.

“The last ability to contest this assault is here and if you put an end to it, there’s nothing left,” he said. “If these protests are suppressed by an order that comes from you … what is left for these workers to do? Just find another job?”

Saturday’s hearing began at 9 a.m. and continued for more than 14 hours, with discussions growing heated at times. Merji accused union lawyers of acting with “complete disregard for respect and decorum.”

Neither Education Minister Stephen Lecce nor the assistant deputy minister were asked to testify at the hearing.

O’Byrne initially ruled that Lecce was exempt from testifying due to parliamentary privilege, but said Andrew Davis – the assistant deputy minister – would be asked to give evidence.

However, following several hours of delay and debate, Barrett said he would not be calling Davis to testify.

If the board rules in favour of the government it sets the stage for thousands of dollars in fines to be levied against striking workers and the union. Employees face individual fines of up to $4,000 each while the union can be fined up to $500,000 for as long as the strike continues – or a total of more than $220 million per day.

CUPE has said it plans to fight the fines, but gave no indication of how they plan to do that. The union also acknowledged if it has to pay, it will pay and have previously suggested they are looking for outside financial help from other labour groups, who have also declared their support for the job action.

Unifor, one of the largest private-sector unions in Canada, has said it will donate $100,000 to CUPE to help pay fines, as well as offering other supports. The British Columbia Teachers’ Federation’s representative assembly voted to send CUPE Ontario $1 million to help pay the fines, the union said in a post on its Twitter account.

The Ontario Federation of Labour (OFL) staged a series of rallies across the province in solidarity with education workers on Saturday, saying what the Ford government is doing is not just aimed at education workers but all workers across the Ontario.

“Workers stand with workers. The only protection that we have is each other,” said OFL Executive Vice-President Janice Folk-Dawson. “Ford and his government are attacking not only workers in this province, they are attacking workers right across this country.”

Folk-Dawson said its everyone’s duty and obligation to fight this legislation “to the very end.”

“Monday will be bigger than what Friday was, Tuesday will be bigger than Monday and it will keep building until we force this government to back down.”

Members of the Ontario Public Service Employees Union (OPSEU) joined CUPE by walking off the job on Friday, saying the legislation imposed by the government “threatens the rights of every working person in the province.”

What schools are doing

The Ottawa Catholic School Board and the Conseil des Ecoles Publiques de l'Est de l'Ontario have said schools will be closed on Nov. 4, and switch to online learning. 

The Ottawa-Carleton District School Board has no CUPE members employed by the board.

The Conseil des ecoles catholiques du Centre-Est schools will be open.

Boards that plan to switch to online learning include the Catholic Board of Eastern Ontario and the Upper Canada District School Board (UCDSB). 

The OCSB said CUPE represents over 1300 full-time/term OCSB employees and 700 casual positions, and will legally be able to strike as of Nov. 4. The OCSB said that schools will follow on regular learning schedule, remotely, beginning Nov. 7 if a strike lasts longer.

Tom D'Amico, the director of education with the OCSB, told The Sam Laprade Show on Nov. 4 that the board will continue to monitor the situation and plan accordingly. 

As of now, there will be a switch to synchronous learning, and if the strike drags on, there will be shift to remote learning. 

“We respect everyone's choice, and we have a legal responsibility to our students,” he said. “That's our main focus. We are not trying to be political and we have there's a resolution soon.”

The Renfrew County District School Board (RCDSB) informed parents all schools will be closed and shifted to asynchronous learning which will continue on Nov. 7. The board will then switch to synchronous learning come Nov. 8. 

“We have been through a series of shifts from in person learning to online learning at home and really our students and staff are used to that,” said Pino Buffone, the director of education with the RCDSB, on Wake Up With Rob Snow on Nov. 4. “What's unfortunate, it's not the most ideal working environment.”

Buffone is hoping for a quick resolution between both sides, but added that the board has made plans over the next few weeks should the strike linger. 

“We have the next few weeks laid out and adapt into next week if the strike indeed does go longer,” he added. 

The Renfrew County Catholic District School Board (RCCDSB) runs 19 primary schools and two secondary schools, all of which are English, informed parents the doors will stay open and expects the 550 employees that provide education for over 5000 students in 16 different communities to carry on its educational commitments. 

Files from Michael Ranger and The Canadian Press were used in this report.