Behzad Akhkend

The appellants, a public sector union and its officers, challenged the constitutionality of back-to-work legislation (Bill 178) that ended a five-week faculty strike at Ontario's 24 colleges of applied arts and technology in 2017.

The Court of Appeal found that the legislation limited the appellants' s. 2(d) Charter right to freedom of association by ending a lawful strike, departing from the application judge's finding of no substantial interference.

However, the court held that the limitation was justified under s. 1 of the Charter, finding that Ontario had a pressing and substantial objective of resuming classroom instruction to protect students' academic year, that the means were rationally connected and minimally impairing, and that the substitution of neutral interest arbitration for strike activity rendered the effects proportionate.

The Ontario Public Service Employees Union (OPSEU) and two individuals applied for a declaration that the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017, which ended a five-week college strike, infringed their freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms, and sought damages.

The Crown in Right of Ontario and the College Employer Council argued the Act did not infringe the Charter or was justified under section 1.

The court dismissed the application, finding that the Act did not substantially interfere with meaningful collective bargaining, as the parties were at an impasse.

Alternatively, the court held that even if there was an infringement, it was justified under section 1, given the pressing and substantial objective of resuming college instruction, the rational connection of the legislation, its minimal impairment (by substituting a neutral arbitration process), and its proportionality.