Legal opinion on CEC’s misleading statements

We received the following e-mail from one of Humber College's law faculty...

SUBJECT: Comments/Observations regarding CEC Webcast of November 13th

After listening to the CEC Webcast regarding the Forced Offer Vote  today, I noticed some inaccurate and misleading  statements made by and on behalf  of  the CEC. In particular, I wanted to point out the following issues:

Highly Misleading Statements by CEC regarding impact of  Bill 148 language contained at p. 11 of  CEC Forced Offer  

Contrary to the misleading statement made today during the CEC Webcast, the Forced Offer does not adequately address the implementation of the equal pay provisions of Bill 148 and fails to provide an effective and timely remedy to enforce  these provisions.  More specifically, at page 11 of the CEC's Forced Offer of November 6, 2017 they make a very deceptive and disingenuous proposal on the Fair Workplace Better Jobs Act . The CEC proposes to negotiate "consequential adjustments" to the Collective Agreement within 30 days after Bill 148 becomes law and  agrees to submit to arbitration such outstanding issues  upon which the parties have failed to agree within one year of Bill 148 becoming law. While this proposal may at first glance appear to be superficially attractive, it is highly deceptive and misleading, illusory and an ineffective or non-existent remedy because in the current draft of Bill 148 after 2nd Reading   subsection 42.1(7) makes the "equal pay" provisions in subsection 42.1(1) inapplicable if they conflict with a collective agreement in effect on April 1, 2018.  While subsection 42.1(8)  causes  the restriction in subsection 42.1 (7) to cease to apply on the earlier of the expiry of the collective agreement or January 1, 2020, effectively the  "equal pay" provisions of Bill 148 are inapplicable until January 1, 2020.  So, arbitrating a dispute about these provisions before that date is doomed to failure because the arbitrator would not have the jurisdiction to make such an award before January 1, 2020.

As a result, the arbitration board constituted under the CEC's proposal would automatically have to  summarily dismiss any attempt by the union to arbitrate any "equal pay"/Bill 148 issues because subsection 42.1(1) would not be applicable until January 1, 2020 and the arbitration board would lack the jurisdiction to make such an award.  Therefore, as a matter of law, an arbitration board would have no choice but to dismiss the union's attempt to arbitrate. As currently drafted, the CEC's proposal  is illusory, highly misleading and does not provide the union with an an effective remedy.

One way to make the CEC's proposal acceptable would be for the union and CEC to stipulate  that, notwithstanding  subsections  42.1(7) and (8),  subsection 42.1(1) is immediately applicable in any such arbitration by the parties and is in effect in any event on or after April 1, 2018.  If the Forced Offer Vote is rejected and negotiations subsequently resume or if, after a "NO" vote,  the Wynne government passes back-to-work (BTW)  legislation including binding arbitration provisions,  we would have an opportunity to attempt to rectify the CEC’s misleading proposal on Bill 148. If there is a “YES” vote, we would unfortunately be stuck with the CEC’s misleading, deceptive and ineffective  language at p. 11 of the Forced Offer and we would be unable to effectively and successfully exercise our legitimate  “equal pay” rights under Bill 148 until after January 1, 2020 at the earliest.  This in itself is another compelling reason to vote “NO” and reject the Forced Offer Vote.

Highly Misleading Statements by CEC regarding possible Back-to-Work legislation (BTW) Legislation and Availability of Binding Arbitration as part of such BTW Legislation

Contrary to the misleadingly simplistic and categorical  statements made today during the CEC Webcast, if we vote “NO” on the Forced Offer Vote it is probable that shortly thereafter the Wynne government will in fact pass back-to-work (BTW) legislation which includes binding arbitration. Contrary to the CEC’s statements, the most recent decisions of the Supreme Court of Canada do not preclude the government from passing BTW legislation providing the legislation also contains a meaningful dispute resolution mechanism such as binding arbitration. While the Supreme Court of Canada has recognized that s. 2(d) [Freedom of Association] of the Charter of Rights and Freedoms protects a meaningful process of collective bargaining, the  right to strike is not absolute. If BTW legislation limits the right to strike or “substantially interferes with collective bargaining”, then such legislation will still be valid and constitutional if  such restrictions are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” under s.1 of the Charter. In fact, in the Supreme Court of Canada’s decision in in Saskatchewan Federation of Labour v. Saskatchewan (2015) SCC 4, the Honourable Madam Justice Rosalie Abella described to what extent BTW legislation could limit collective bargaining rights:
 “Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations”.

Therefore, the decision of the Supreme Court of Canada did not rule  that governments could never end strikes by BTW legislation but rather that the government must persuade the court that the BTW legislation still upholds the right to meaningful collective bargaining by, for example, requiring binding arbitration. In our case, if properly drafted to include binding arbitration, the Wynne government  would be permitted to pass BTW legislation notwithstanding the Charter.

The CEC also incorrectly stated today that the College Collective Bargaining Act, 2008 does not contain arbitration provisions and as a result the appointment of an arbitrator would not be permitted. This is a ridiculous, nonsensical and incorrect argument. The Wynne government can simply pass separate BTW legislation containing binding arbitration provisions.

In summary,  if we vote “NO” on the Forced Offer Vote it is probable that shortly thereafter the Wynne government will pass back-to-work (BTW) legislation which includes binding arbitration.  We are much better off in binding arbitration with a neutral arbitrator making the decision rather than trying to continue the futile  negotiations with the CEC which has not been negotiating in good faith.  This in itself is another compelling reason to vote “NO” and reject the Forced Offer Vote.

Another Ancillary Benefit of ending up in Binding Arbitration

Perhaps another ancillary or collateral benefit of binding arbitration may also be that it will take 6-9 months to get a decision and we may not sign a collective agreement until after April 1, 2018 and therefore as a result we may be able to avoid the adverse  consequences of section 42.1(7) and (8) of Bill 148 and p. 11 of the Forced Offer described above which would have made the “equal pay” provisions of Bill 148 only apply to us after January 1, 2020. By not signing a collective agreement until after April 1, 2018because of the delay inherent in binding arbitration, the “equal pay” provisions would apply to us immediately on April 1, 2018because we will have signed our collective agreement after that date because of the delay in the arbitration. This in itself is yet another compelling reason to vote “NO” and reject the Forced Offer Vote.

For the forgoing reasons (and many other reasons that have been pointed out by others), the Forced Offer Vote must be emphatically rejected by the union membership. If we vote “NO” on the Forced Offer Vote, we will then invariably find ourselves in binding arbitration as a result of virtually  immediate back-to-work (BTW) legislation. This is undoubtedly our best case scenario at this point.