TTC Essential Services - constitutional? wise?

Yesterday, Charles Sousa, Minister of Labour for the Province of Ontario, introduced Bill 150, Toronto Transit Commission Labour Disputes Resolution Act, 2011. The Province has acted on a request from municipal council to declare all TTC employees essential workers and to deprive them all of the right to strike in all circumstances. Maybe it is just my old constitutional law class with Professor (now Madame Justice) Swinton causing me to think about this twice.

Now that the right to collective bargaining (and possibly strikes) has been constitutionalized (in accordance with the ruling in BC Health), the Court is going to apply the standard section 1 test. And blanket bans tend to run afoul of section 1. Every worker at the TTC is deprived of his/her right to strike according to this bill. Drivers, ticket collectors, maintenance workers, trades, secretaries, cleaners, etc. are all essential workers in the eyes of the government. The section 1 test is as follows: the measure must be rationally connected to pressing and substantial objectives, must minimally impair the right and the impairment must be proportional. I cannot see how the government can meet that test.

In addition, the transit workers' union, ATU 113 had voluntarily offered to submit outstanding matters in the upcoming round of bargaining to binding arbitration in order to allow full consultation. Yet, the Government has acted unilaterally once the City indicated that it desired the legislation.

The failure to consult with worker representatives was one of the things that ticked off the Supreme Court in BC Health. I think the Court is going to be equally confused by the failure of the City and the Government to take the Union up on its offer so as to allow more consultation.

Readers, what do you think?

For me, I don't believe that the TTC is essential for the preservation of health, safety or public order. Those are the essential criteria under ILO jurisprudence for depriving workers of the right to strike. That is why hospital workers, for instance, do not have the right to strike. Interestingly, ambulance drivers in Ontario are not all essential workers. Rather, there is an essential services regime in which some ambulance workers must continue during a strike. SO, the Government is saying that TTC workers - all of them - are more essential to health, safety and public order than ambulance workers. Interesting.

Second, I don't think that the Government will be able to show that the complete ban on strikes meets the section 1 test.

Third, I think the Court is going to be annoyed that the Government moved with such haste and failed to engage in any meaningful consultation. Rather, the City asked and the Province legislated. Surely, that is going to raise concerns.

So, I think that a Court challenge would likely find the legislation to be unconstitutional.

If that is the case, why would the Government proceed? It can't be wise to deliberately enact legislation that will be overturned and in so doing poison labour relations. I think the Government has done so in order to allow the Court to be the one that says "no" to Toronto's new mayor. The Liberals are facing an election in a few months and smart money says they don't want to annoy a popular newly elected mayor of Toronto. Liberals need Toronto seats in order to retain office.

What do you think?