Justin Trudeau denounces the use of the notwithstanding clause in Ontario

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Justin Trudeau denounces the use of the notwithstanding clause in Ontario

Canadian Prime Minister Justin Trudeau criticizes his Ontario counterpart, Doug Ford.

Canadian Prime Minister Justin Trudeau lashes out at his Ontario counterpart, Doug Ford, and says a province “should never use the notwithstanding clause to limit workers' rights.”

M. Trudeau reacted Tuesday morning to the Ford government's decision to introduce special legislation to block any Friday strikes by support workers in schools in Ontario.

The province also wants to impose a four-year collective agreement on these 55,000 teaching assistants, custodial and administrative workers.

The Ford government adds that it will use the notwithstanding clause of the Canadian Charter, commonly referred to as the “notwithstanding clause”, if the Union of Education Workers tries to challenge the special law in court.

This clause allows a government to ignore certain provisions of the Charter for five years.

Collective agreements are not always easy to negotiate, recognizes Mr. Trudeau. But it takes respectful and engaged dialogue to get through it.

“Suspending the fundamental rights of individuals, it should be used only in exceptional circumstances. I hope politicians understand that it shouldn't be used lightly. »

— Justin Trudeau, Prime Minister of Canada

The Canadian Union of Public Employees (CUPE), which represents support workers in Ontario schools, says its members will not be at the work on Friday, despite the special law. The largest school board in Ontario has already indicated that its schools will be closed for this reason on Friday.

Federal Justice Minister David Lametti notes that Quebec has also used the notwithstanding provision for Bill 21 on religious symbols. According to him, this kind of “preventive” use of the notwithstanding clause is “very problematic”, because it shuts down both political debate and judicial review.

It was not designed at the time to be employed at the beginning. It's the last word, not the first word, argues Lametti.

In response to a question in the Legislative Assembly on Tuesday about the notwithstanding clause, Ontario Education Minister Stephen Lecce responded that Ontario was the only province where a union of education workers confirmed that he would strike after the pandemic. This is unprecedented and unfair, he said, hence the need for this government to stand up for students and parents.

[The use of the notwithstanding provision] is becoming more and more common by the various governments, deplores Prime Minister Trudeau.

He adds this: We are very concerned about this and we are looking at the different tools we could have.

The Ford government had used the notwithstanding provision in 2021 for a third-party campaign spending law and threatened to use it in 2018 to block opposition to his decision to cut the size of the city council of Toronto by almost half.

Quebec has also used it several times over the years, mainly in linguistic matters, but also for its law on secularism.

Minister Lametti is not getting wet on a possible appeal to the Supreme Court. For now, we are following the process in Quebec. The Quebec Court of Appeal will listen to the arguments and we will wait for [its] decision and then we will go to the Supreme Court afterwards, he said about the legal challenge against Bill 21.

< p class="e-p">Last May, he indicated that Ottawa did not rule out intervening in the challenge of another Quebec law, Bill 96 on the reform of the Charter of the French language. /p>

Legally, this syndicate has no options. The only recourse that will be left to him is political. It will be necessary to influence the political discourse. Legally speaking, it's a right the government can use, says Rich Appiah, a Toronto labor lawyer.

He adds that he does not, however, believe that the use of the clause will become commonplace; it is only rarely mentioned.

I don't think we can extrapolate from these circumstances, he believes.

Andrew Monkhouse, a partner at the law firm Monkhouse Law in Toronto, is not so optimistic. According to him, this decision breaks a tacit agreement between unions and employers in which strikes are legal, but predictable.

[Unions] could choose to resort to wildcat strikes, explains -t-il.

This term commonly designates strikes by workers that are not expressly validated by the unions, thus becoming much more difficult to regulate.

He feels it will all depend on how far the Ontario government is actually willing to go.

Are they really going to put union presidents in jail for choosing to go on strike when the law prevents them from doing so?

Paul Champ is a constitutional and labor lawyer in Ottawa. He says the Supreme Court of Canada clarified in 2007 and 2015 that the right to bargain a collective agreement and to strike can only be taken away in very serious circumstances. He believes that is not the case at the moment.

There was no fundamental break in the negotiations, he believes.

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