Michael Taube: When It Comes to the Notwithstanding Clause, Doug Ford Had No Other Option

Ontario Premier Doug Ford sits in the Ontario Legislature as members debate a bill meant to avert a planned strike by 55,000 education workers, on Nov. 1, 2022. The Canadian Press/Frank Gunn

Commentary

Ontario Premier Doug Ford passed Bill 28, or the Keeping Students in Class Act, on Nov. 3 to prevent roughly 55,000 education support workers represented by the Canadian Union of Public Employees from going on strike. The provincial government also received royal assent to include Section 33 of the Charter of Rights and Freedoms, or the notwithstanding clause, to ensure no court challenges could be filed.

This is the third time Ford has been forced to consider using the dreaded override lever as premier. It’s also the first time in his political tenure that he truly had no other option but to enact it.

Section 33 reared its ugly head during the 2018 political battle to reduce the number of Toronto City Council wards from 47 to 25. That September, Ontario Superior Court Justice Edward Belobaba declared that Bill 31, or the Efficient Local Government Act, was unconstitutional. Ford threatened to use the notwithstanding clause to get the bill passed, but it never materialized. The Ontario Court of Appeal granted a stay of the Superior Court’s decision on Sept. 19, 2018, and defeated it by a 3-2 margin. The matter went to the Supreme Court of Canada on Mar. 16, 2021, and the ruling was upheld by a 5-4 margin the following October.

The Ontario government had to consider the notwithstanding clause again in 2021. Superior Court Judge Edward Morgan declared that Bill 254, or the Protecting Ontario Elections Act, which capped third-party political advertising at $600,000 for a year before an election campaign was launched, was unconstitutional. The Ford PCs immediately moved forward with Bill 307, or the Protecting Elections and Defending Democracy Act, to enact these changes along with the notwithstanding clause. This new bill received royal assent on June 14, 2021.

The notwithstanding clause has been primarily used in Canada during Quebec-based language law disputes and matters of free speech and religious freedom. Some   wondered if a dispute over municipal seats in Toronto really should have been tied to a possible constitutional challenge. Others worried Section 33 would become a more regular feature in government bills defeated in the lower courts. Still others pointed to the Superior Court’s repeated intervention in government matters as an example of judicial activism run amuck.

Ford’s decision to enact the notwithstanding clause with Bill 28 is the one instance where it made sense.

CUPE’s demands during this labour dispute were completely unreasonable. They asked for an across-the-board 11.7 percent annual raise for education support workers, which includes early childhood educators, educational assistants, and custodians. This would have been a gigantic pay hike in not only political and economic terms, but also from a historical perspective. Union demands always start high in contract negotiations with the public and private sector, but this figure was in the stratosphere.

Ford and his education minister, Stephen Lecce, weren’t going to agree to CUPE’s outrageous demand. Both sides had reportedly discussed this issue since the original contract ended in August. Last-minute talks between CUPE’s Ontario School Board Council of Unions and government negotiators proved fruitless. There was too much distance between the union and government, and no way to reach a deal when the former was clearly acting irresponsibly and irrationally.

The PC government ultimately passed its own four-year deal with the union. Education support workers earning less than $43,000 per year received an annual raise of 2.5 percent, while everyone else received 1.5 percent. Striking would lead to fines of $4,000 per individual and $500,000 for CUPE, which happened on Nov. 4.

COVID-19 was obviously an enormous challenge in terms of balancing in-person learning and virtual learning. It hurt our children’s educational progress and affected their mental health. Keeping schools open was a high priority for the Ontario government, like other provincial governments, throughout the pandemic. Education support workers have dealt with the same rising costs in Ontario (and Canada) that directly affect individuals, families and businesses.

Yet there’s no justification for this grandiose type of salary increase for any position, regardless of current and forthcoming economic concerns. If education support workers really believed our children’s learning and well-being came first, they wouldn’t have gone along with their union’s rigid approach and nonsensical salary demand. But they did.

That’s why the Ford government’s decision to enact the notwithstanding clause in Bill 28 was correct. The premier, education minister, and other PC MPPs surely didn’t want to bring it back to the bargaining table once more. But if you’re the only party acting in good faith and thinking with clarity during a difficult negotiation process, you need to use every political tool available at your disposal. Even if it happens to be the rustiest and most controversial one in the toolbox.