In a landmark 2015 decision, Canada’s Supreme Court ruled by a margin of 5-2 that the right to strike is constitutionally guaranteed by the country’s Charter of Rights and Freedoms. That decision was rightly recognized as a historic victory for the labor movement. Unfortunately, the rights protected by Canada’s constitution often come with a glaring asterisk attached in the form of something called the “notwithstanding clause” — a provision in the charter that empowers provincial legislatures to override certain portions for five years if they dislike rulings made by the courts. Effectively, this means that some basic rights can be frozen if a provincial government is sufficiently contemptuous of them.
Prior to the election of Doug Ford’s Conservatives in 2018, no Ontario government had ever invoked the notwithstanding clause. For the past several years, however, Ford and his cabinet have wielded it several times as a blunt instrument in pursuit of their agenda (either by using it or threatening its use). Earlier this week, Ford’s government made clear its intention to set another sinister precedent: namely, invocation of the notwithstanding clause to impose a contract on tens of thousands of education workers represented by the Canadian Union of Public Employees (CUPE).
In bargaining with the government, the union’s demands have been both straightforward and reasonable. Its fifty-five-thousand-strong membership — which includes librarians, custodians, and other school staff — earns an average of only CAD $39,000 a year, and is asking for a salary increase of just over 11 percent. Faced with this demand, Ford’s government has responded by offering meager 2 percent raises paired with cuts to sick pay. With inflation running around 7 percent and food prices soaring, it’s less an offer than a slap in the face and the union has been eminently justified in rejecting it.
As things stand, however, Ford’s government appears determined to use every tool at its disposal to impose a contract and prevent CUPE members from acting on an overwhelming strike mandate registered earlier this month. To that end, it on Monday introduced legislation that’s almost certainly unconstitutional — and says it’s prepared to invoke the notwithstanding clause regardless in order to get its way.
If the union’s bullish response is any indication, the right-wing ideologues who populate Ford’s cabinet government may have miscalculated. Despite the government’s threats, CUPE has defiantly announced that its members will stage a massive walkout this Friday, compelling many schools throughout the province to close. CUPE Ontario president Fred Hahn has made clear that the union will proceed with the walkout regardless of whether the government tries to force its members back to work, telling the Toronto Star: “If that bill passes before Friday it doesn’t matter. If they say it’s illegal to strike then we will be on a political protest.” He’s also indicated CUPE’s readiness to absorb the potentially steep financial cost of any walkout which, thanks to the fines proposed in the government’s recently introduced legislation, could amount to as much as CAD $220 million per day.
The Ford government’s draconian behavior has earned condemnation from across Ontario’s labor movement, drawn sharp criticism from the Canadian Civil Liberties Association, and notably been criticized by Laborers’ International Union of North America (LiUNA) — the biggest union to endorse the Conservatives in this summer’s provincial election and a central part of their strategy to rebrand as a pro-worker party. Encouragingly, the union’s own response has already appeared to have some effect in shifting the government’s posture. Regardless of what transpires in the coming days, Ford has made clear his willingness to push the limits of legal and constitutional norms in order to bludgeon workers. By threatening a walkout in defiance of his back-to-work legislation, CUPE members are thus defending not only their own rights but those of every Canadian.
They’re also underscoring the basic truth that the final backstop of such rights is ultimately democratic action rather than reliance on the courts. As labor historian Larry Savage put it: “Counting on the courts to protect labor rights was always risky, but if governments are going to start using the Notwithstanding Clause to override Charter rights, legal strategies become even less effective for the movement. Political action is the way forward.”