Benjamin Piper

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The plaintiffs, including two lawyers and a union, brought a motion for an interlocutory injunction to restrain the defendant from publishing defamatory and harassing posts on a Facebook profile.

The defendant, a former union member, requested an adjournment to retain counsel and transfer the action to Manitoba, which the court denied.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding defamation and harassment, irreparable harm to the professional reputations of the plaintiffs, and that the balance of convenience favoured granting the injunction.

The motion was granted with no costs ordered.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.