Significance of the Court’s Ruling and the Legal Front

Significance of the Court’s Ruling and the Legal Front – Enver Villamizar –

The Ontario court ruling against Bill 124 is being used to refine how the government will go about violating rights in the future. Russell Groves, an employment and labour partner at the Canada office of Dentons, the biggest law firm in the world, said the decision shows that government lawyers are going to have to “get their ducks in a row” when this type of legislation is being written.

“They’ll have to be collecting evidence to support that position and leading evidence at a hearing with respect to the various factors that the courts can consider when determining if there’s been a Charter breach and whether the Charter breach is supportable under section one,” he argued.

Groves noted that the court referenced in its analysis “detailed evidence” brought by the unions. In future litigation, “lawyers from both sides are going to have to come prepared with lots of evidence with respect to various legal tests.” When passing legislation governments will have to make sure it meets s.1 of the Charter because “if they don’t, they’re going to be in Federal Court (and the) courts are likely going to be following this line of reasoning,” he said. “Charter rights,” he emphasized are “highly protected and difficult to displace.”

This comment from the Dentons lawyer urges governments to devise a more serious disinformation campaign from the get-go to justify their violation of rights. Based on the neo-liberal direction set for the economy and its integration into the U.S. war economy, the state will continue to be restructured, power will continue to be usurped by narrow private interests and nation-wrecking will continue to cause havoc for the people from all walks of life.

The Dentons critique of the ruling against Bill 124 is that the Ford government did not have its “ducks in a row” to wage this battle and that next time it should. But the Ford  government does not appear to care or be willing to follow this advice as it has given up trying to provide or gain any legitimacy for its destructive decisions. Evidence of this is its notorious Bill 28 Keeping Students in Class Act, which simply invoked the “notwithstanding clause” to avoid court interference. The public outcry was such the government was compelled to pass another law repealing the Bill and removing it from the public record.

The opinion of the Dentons’ lawyer merely addresses the legal front which focuses on the need for workers’ lawyers to assemble the best legal teams to combat government legal teams with their “ducks in a row.” This position tends to exclude any other course of action which does not run through union lawyers to ensure nothing is done that would harm an eventual court case. The logic behind this insistence is that the prerogative powers of governments to impose limitations on rights contained in the Charter are legitimate and the constitutional order which submits the majority of the population to rule by decree in the name of the need for fiscal restraint or national security is also legitimate.

While everything must be done to fight in the courts to defeat the attacks of governments against the workers, the fight in the court of public opinion to uphold and define what belongs to the workers by right is crucial to the success of any cause. This is a political front of struggle and for its success, workers must have their own voice and political organizations, independent of the limits established by the established authority.

It is important for the workers to recognize that the legal front is but one front of their struggle to affirm their rights, rather than the only one. Winning the fight for public opinion, speaking for themselves to elaborate their claims on society and providing modern definitions in the fight to renew the democracy is what opens the path for the progress of society. Within this broad struggle,  the legal front is one front that can make a contribution so long as it fulfills an aim set by the workers.

The fight to lead the entire society forward in defence of the rights of all is decisive. When the workers give up their fight for political opinion or limit their fight to the courts they are unable to break new ground in providing arguments, perspective and conviction for their demands and their rights. The example of the courageous political fight of CUPE workers against Bill 28 illustrates that when the fight is taken to the society itself, out of the realm of labour negotiations and limitations on rights that governments, not the workers, deem to be reasonable, the workers can assert their power to make their No! actually mean something. This is made necessary because the government is using the state power against them directly in the form of rule by decree and the passing of unjust laws.

During the lead-up to the education workers’ province-wide walkout, a legal battle was going on at the labour board in which CUPE’s lawyers made a three-day-long case about the justness of their cause and the irrationality of legislation to impose a contract as if it constituted an agreement. The dispute at the labour board brought out the unlawfulness of Bill 28 and slowed down the government’s ability to receive an order to further threaten the workers.

At the same time as this was going on, the workers made it clear that irrespective of what the labour board ruled, they were going to continue their political protest outside of the confines of labour law because it was a politicial matter of government policy which affected the workers’ rights. This just stand of the CUPE workers is what won the day. The government backed down on the law and the issue of the contract went back into the realm of  labour relations.

It is important for workers to recognize that they have been making the case for what is required to resolve the problems in public services such as health care and education through their actions and finding ways to speak out. These independent actions are decisive in smashing the silence on their working conditions and what is required to improve them. These actions open a path forward in the political domain with the workers speaking out to set the direction of the economy in a manner which upholds the dignity of labour and the justice of the demand to stop paying the rich and increase investments in social programs. The broad political fight is crucial so that workers go beyond the limitations on rights which are imposed by labour law as well as the Charter itself.

More and more, governments of police powers are ruling without any regard for the constitution, the rule of law and the limits these place on their actions to serve narrow private interests at the expense of the well-being of the people. Those limits came into being to keep the workers in line with what the ruling class continues reasonable. Today, the workers are to be reduced to things without rights with the open rule of the rich dictating what they can and cannot do and what they must accept.

In this context, governments of police powers either impose decrees by using their prerogative powers which are above the law or use the legislatures to pass laws which impose what are called reasonable limits which are defined outside the purview of the workers and majority of the people.  They pass legislation to this effect and call it a rules-based system.

In the current case of the ruling striking down Bill 124 the courts have made it clear that the government did not make the case that they needed to do in order to violate rights. Now the government will appeal and likely try to make its case and have its way without invoking the notwithstanding clause. This raises the issue that with Bill 124, the Ford government faced so much opposition that when it came to Bill 28 it invoked the notwithstanding clause but that did not go well for it either. Now it will try to find another way to achieve its goal of suppressing workers’ right to a say over their wages and working conditions.

The government’s appeal of the decision will delay any discussion in the courts of a remedy for the rejected law. The delay will also be used to try and convince the workers not to fight in the present and hope that somewhere down the line they will receive a remedy. This is significant because contract negotiations are currently taking place across the public sector. Some unions already have contracts with what are called “reopener clauses” saying if Bill 124 is ruled unconstitutional, as it has been, the contracts must be re-negotiated.

Workers have a lot of experience with these remedies, most recently for Bill 115 after it was struck down. The court made its ruling on that particular bill in 2016. This itself was four years after the law came into force. Then over another two years, negotiations took place for a remedy between the government and unions. Some unions accepted pennies on the dollar for what workers had lost as a result of Bill 115 eliminating 10 paid sick days per year. The Elementary Teachers’ Federation of Ontario asked the judge to make a decision on a remedy for their members. This then took another two years and only this year did ETFO members receive a remedy, which amounted to almost nothing. Immediately following implementation of that remedy, the government passed Bill 28 using the notwithstanding clause.

Many workers are clear that court remedies do not actually hold the government to account as the ante keeps getting upped in terms of violating workers’ rights despite ruling after ruling by the Supreme Court saying workers have the right to negotiate. In this situation things are coming to a head, as the workers are gaining more confidence in defying governments of police powers while these governments are becoming more brazen in trying to find ways to do as they please.

Some are now arguing that the solution is for the government to re-open the constitution in order to explicitly take the right to collective bargaining out of the rights prescribed under freedom of association. The situation is such that workers need to be organized both into labour defence organizations and political organizations in which they directly, through mass democratic methods, determine the course of action which favours them and keeps the initiative in their own hands. Their security lies in the fight for the rights of all which also imbues them with the courage of the convictions they work out collectively. The path governments are taking reveals the urgency with which the workers must develop their own independent politics and resolve the crisis in a manner which favours them, not the supranational narrow private interests which have seized control of the state power.