Ontario’s fight against education workers over walkout continues at labour hearing

Lawyers for both the government and the union presented arguments for a second day on Saturday, following an application by the provincial government calling the walkout by provincial education workers represented by the Canadian Union of Public Employees (CUPE) on Friday an “illegal strike.”

The government says CUPE leadership knowingly advised education workers to engage in a strike, with government lawyer Ferina Merji highlighting comments made by two union leaders.

She played video of Fred Hahn, the president of the Ontario branch of CUPE, saying the union would provide the same benefits to workers that it does in any strike.

Merji also shared video of Laura Walton, president of CUPE Ontario’s School Board Council of Unions, comparing the walkout to one that was planned in 2019.

She argued that the labour relations board risks undermining the province’s labour laws if it fails to declare the walkout illegal and urged the board’s chair to act.

“Ensuring that an unlawful strike is not allowed to continue is a very important labour relations purpose, and if you did not exercise your discretion to do so, it would significantly undermine the very clear prohibition on strike activity that is a key feature of the Labour Relations Act,”  Merji said.

CUPE argues the action by its 55,000 education workers across the province was not a strike but a political protest.

The move came following the Ford government’s new law which was passed on Thursday imposing contracts on the education workers and banning them from striking.

The law uses the notwithstanding clause to protect against constitutional challenges.

CUPE said in its board filings that the goal of its members’ action is “to express opposition through political protest to the (province’s) decision to trample upon employees’ constitutionally protected right to collectively bargain and right to strike.”

“Irrespective of what label anyone puts on the activity, Mr. Chair, it is a work stoppage. And a work stoppage, with any other name, still amounts to a work stoppage and therefore a strike, full stop,” Merji told the hearing.

She said the government’s conduct at the bargaining table is irrelevant in an unlawful strike application, and is instead the purview of an unfair labour practice complaint.

“Instead of what is supposed to be an expeditious and narrow factual inquiry into the work stoppage, there’d be a broad inquiry into the history of the labour relationship between the applicant and the respondent,” Merji said.

The job action closed numerous schools, and the union has said the protest could continue indefinitely.

“I do accept that Bill 28 is in writing. But it is not a voluntarily negotiated agreement,” said CUPE lawyer Steven Barrett, who called the legislation “Orwellian.”

“It is deemed to be a collective agreement under Section 5 … but to call this a mid-contract withdrawal of services, as if this was a collective agreement freely negotiated, is a fundamental absurdity.”

Barrett told board chair Brian O’Byrne that should he deem the strike legal, the job action could continue until the government repeals its new legislation or until the union and government negotiate its end.

“But that isn’t your concern,” Barrett told the chair. “The job of the labour board is to oversee the collective bargaining system, and in doing so give effect to Charter values and Charter rights. There are many ways in which the government could have avoided students not being in school … they certainly didn’t have to provoke the reason that we’re here now, with respect to enacting this unprecedented, horrendous legislation.”

He added that deeming the walkout illegal would also send a message that labour laws and collective bargaining rights no longer exist in the province.

“Siding with the government here … it actually sends a message that there’s no more labour law, there’s no more collective bargaining,” he said. “Labour peace, which is imposed this way, isn’t the labour peace the labour board should associate itself with.”

O’Byrne told Barrett the province had the right to invoke the notwithstanding clause under the constitution, even though it may have been “politically risky” to do so.

“Under our laws, governments can do this kind of thing legally. Even though some of us may find it distasteful or worse than that, they still have the right to do it,” said O’Byrne.

“By law, when we have a collective agreement, then you’re not supposed to strike. And the reality is there’s a collective agreement, whether you like it or not,” he said.

Barrett, citing case law, argued Ontario used the clause to address labour issues in an unprecedented and inappropriate way.

“The last ability to contest this assault is here and if you put an end to it, there’s nothing left,” he said. “If these protests are suppressed by an order that comes from you … what is left for these workers to do? Just find another job?”

Saturday’s hearing began at 9 a.m. and continued for more than 14 hours, with discussions growing heated at times. Merji accused union lawyers of acting with “complete disregard for respect and decorum.”

Neither Education Minister Stephen Lecce nor the assistant deputy minister were asked to testify at the hearing.

O’Byrne initially ruled that Lecce was exempt from testifying due to parliamentary privilege, but said Andrew Davis – the assistant deputy minister – would be asked to give evidence.

However, following several hours of delay and debate, Barrett said he would not be calling Davis to testify.

If the board rules in favour of the government it sets the stage for thousands of dollars in fines to be levied against striking workers and the union. Employees face individual fines of up to $4,000 each while the union can be fined up to $500,000 for as long as the strike continues – or a total of more than $220 million per day.

CUPE has said it plans to fight the fines, but gave no indication of how they plan to do that. The union also acknowledged if it has to pay, it will pay and have previously suggested they are looking for outside financial help from other labour groups, who have also declared their support for the job action.

Unifor, one of the largest private-sector unions in Canada, has said it will donate $100,000 to CUPE to help pay fines, as well as offering other supports. The British Columbia Teachers’ Federation’s representative assembly voted to send CUPE Ontario $1 million to help pay the fines, the union said in a post on its Twitter account.

The Ontario Federation of Labour (OFL) staged a series of rallies across the province in solidarity with education workers on Saturday, saying what the Ford government is doing is not just aimed at education workers but all workers across the Ontario.

“Workers stand with workers. The only protection that we have is each other,” said OFL Executive Vice-President Janice Folk-Dawson. “Ford and his government are attacking not only workers in this province, they are attacking workers right across this country.”

Folk-Dawson said its everyone’s duty and obligation to fight this legislation “to the very end.”

“Monday will be bigger than what Friday was, Tuesday will be bigger than Monday and it will keep building until we force this government to back down.”

Members of the Ontario Federation of Labour stage a rally in solidarity with CUPE education workers on Saturday, Nov. 5, 2022. CITYNEWS/Craig Wadman

Members of the Ontario Public Service Employees Union (OPSEU) joined CUPE by walking off the job on Friday, saying the legislation imposed by the government “threatens the rights of every working person in the province.”

The Labourers’ International Union of North America – LiUNA – which endorsed Ford during last spring’s election, called Bill 28 an attack on the fundamental freedoms of Canadians.

“When you endorse anybody, or you support and work with any party, that also comes with a responsibility to hold them accountable when they are wrong,” said LiUNA spokesperson Victoria Mancinelli. “And in this case, they are wrong. There’s no argument for that.”

What schools are doing starting on Monday

While the Ministry of Education has urged school boards to make every effort to “keep schools open for as many children as possible,” a number of school boards have indicated schools will be closed on Monday if the job action continues with students transitioning to remote learning.

The Toronto District School Board — which previously said schools would be closed until the strike is over — said Friday it was hopeful an agreement could be reached, but if job action continues, it would have to move to virtual learning.

“TDSB students will begin transitioning to synchronous (live, interactive) learning early next week, if the strike action continues,” the board said in a memo sent to parents.

The Toronto District Catholic School Board and the York Catholic District School Board say their schools will remain closed next week in the event of an extended strike and students will start remote learning Monday.

York Region’s public school board says schools will remain closed “until CUPE members return to work” and that students will do independent virtual learning on Monday before moving to real-time online learning starting Tuesday.

The York Catholic District School Board says unless an agreement is reached over the weekend, students will move to vitual learning starting on Monday “for the balance of any further job action.”

In Peel Region, the board says schools will remain closed Monday, and if it continues beyond that day, students will start remote learning on Tuesday.

The Dufferin-Peel Catholic District School Board says schools will be closed to students on Monday as teachers make prepartions to transition to remote learning but warned “synchronous learning may take a day or two to become fully operational.”

“We have been directed by the Ministry of Education to make a speedy switch to synchronous remote learning and are working to put the necessary pieces in place to make that happen as soon as we can,” the board said in a memo to parents on Friday.

The Durham District School Board says schools will remain closed for in-person learning next week and elementary students will begin virtual learning Monday afternoon, however, they warn that there is not enough staff or surplus equipment “to effectively distribute technology to all students in Grades K-6 who may require it.” High school students are asked sign into their Google Classroom on Monday morning.

Halton District School Board says elementary students will alternate between in-person and remote learning. As schools were open for in-person learning on Friday, students will do independent remote learning on Monday before returning to the class on Tuesday. High school students are required to be in class every day starting Monday.

Halton Catholic District School Board says its schools will be closed for the duration of the job action with students alternating between online learning and remote live learning.

“The HCDSB says it will update parents by 6:30 a.m. on Monday to confirm its final plan for that week,” the board said.

The Hamilton-Wentworth District School Board says students will do online learning on Monday before moving to live remote learning on Tuesday while the Hamilton-Wentworth Catholic District School Board says students will continue with online learning on Monday and Tuesday which will also include some live remote instruction. The board will provide further details of its plans beyond Nov. 8 on Monday.

The Kawartha Pine Ridge District School Board said schools will remain closed Monday and teachers will assign work for students to do at home.

Files from Michael Ranger and The Canadian Press were used in this report