Ontario Teachers' Federation et al. v. Attorney General of Ontario
Ontario Teachers' Federation et al. v. Attorney General of Ontario [Indexed as: Ontario Teachers' Federation v. Ontario (Attorney General)]
49 O.R. (3d) 257
[2000] O.J. No. 2094
No. C29509
Court of Appeal for Ontario
Doherty, Rosenberg and Goudge JJ.A.
June 7, 2000
Charter of Rights and Freedoms -- Freedom of association -- Labour relations -- School principals and vice-principals participating in protest against education bill -- Amendments removing principals and vice-principals from teacher bargaining units and from statutory membership in teachers' unions not constituting reprisal for exercise by principals and vice- principals of their freedom of association -- Amendments not violating s. 2(d) of Charter of Rights -- Canadian Charter of Rights and Freedoms, s. 2(d).
Charter of Rights and Freedoms -- Freedom of expression -- Labour relations -- School principals and vice-principals participating in protest against education bill -- Subsequent amendments to education bill removing principals and vice- principals from teacher bargaining units and from statutory membership in teachers' unions not constituting reprisal for exercise by principals and vice-principals of freedom of expression -- Amendments not violating s. 2(b) of Charter -- Canadian Charter of Rights and Freedoms, s. 2(b).
Teachers and their unions objected to the introduction of Bill 160 (which received Royal Assent as the Education Quality Improvement Act, 1997, S.O. 1997, c. 31) and took part in a province-wide protest against it. The Ontario government subsequently tabled amendments to Bill 160 which removed principals and vice-principals from teacher bargaining units and from statutory membership in teachers' unions. The teachers' unions and their representatives brought an application for a declaration that the provisions of Bill 160 dealing with principals and vice-principals contravened the freedom of expression and freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Specifically, the applicants submitted that the amendments were enacted as a reprisal for participation in a province-wide protest by teachers and their unions against Bill 160 and that this participation was both expressive and associational activity protected by s. 2(b) and (d) of the Charter. The application was dismissed on the grounds that the amendments were not introduced for punitive purposes and that they did not infringe either the freedom of expression or the freedom of association of principals and vice-principals. The applicants appealed.
Held, the appeal should be dismissed.
Assuming without deciding that the principals and vice- principals were engaged in protected expressive activity in protesting against Bill 160 and that their collective exercise of this freedom was protected associational activity, and assuming that legislation passed with the purpose of punishing individuals for exercising their Charter rights itself violates the Charter, the applicants failed to show that the amendments were a reprisal for engaging in Charter-protected activity. The search for legislative purpose in Charter analysis focuses primarily on the wording of the impugned provision itself and its legislative context. While the court can consider admissible extrinsic evidence of purpose, it must be careful to ensure that the evidence has an institutional quality that reflects the intention of the legislature and not just the individual motivation of a particular member of government. Where, as here, the court is invited to find legislative purpose largely on the basis of extrinsic evidence, its finding is one of fact to which an appellate court must accord deference. The appellate court should interfere with such a finding only if it can be shown to be unreasonable. The application judge's finding of legislative purpose in this case was reasonable.
The impugned amendments did not infringe the freedom of association of principals and vice-principals by excluding them from teacher bargaining units and from bargaining collectively on their own under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A or by stripping them of their statutory membership in the Ontario Federation of Teachers and its affiliated unions. The exclusion of one group of workers from a statutory collective bargaining regime is not a violation of s. 2(d), nor is there such a violation merely because one group of workers is included in the regime while another is not. Further, freedom of association does not extend to guaranteeing mandatory membership in an organization. While freedom of association does protect the freedom to establish, belong to and maintain an association, the impugned amendments did not transgress on that territory. They did not preclude principals and vice-principals either from voluntary membership in these organizations or from establis hing their own association to seek to persuade school boards to voluntarily bargain terms and conditions of employment outside of the statutory framework of collective bargaining.
APPEAL from a judgment of Southey J. (1998), 51 C.R.R. (2d) D-1, 1998 14738 (ON SC), 37 C.C.E.L. (2d) 56 (Ont. Gen. Div.) dismissing an application for a declaration that amendments to Bill 160 violated the Canadian Charter of Rights and Freedoms.
Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513, 244 N.R. 33, 66 C.R.R. (2d) 14, 99 C.L.L.C. 220-066, consd Other cases referred to Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.); Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367, [1990] N.W.T.R. 289, 72 D.L.R. (4th) 1, [1990] 5 W.W.R. 385, 49 C.R.R. 193, 90 C.L.L.C. 14,031; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, 37 Alta. L.R. (2d) 97, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d) Education Quality Improvement Act, 1997, S.O. 1997, c. 31 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A School Boards and Teachers Collective Negotiations Act, 1975, S.O. 1975, c. 72 -- now R.S.O. 1990, c. S.2 (rep. 1997, c. 31, s. 178) Teaching Profession Act, R.S.O. 1990, c. T.2
Paul J.J. Cavalluzzo, for appellant, Ontario English Catholic Teachers' Association. Maurice A. Green, for appellant, Ontario Secondary School Teachers' Federation. Steven M. Barrett, for appellant, Elementary Teachers' Federation of Ontario. Eric Bondgard, for appellant, Ontario Teachers' Federation. Janet E. Minor and Robert E. Charney, for respondent, Attorney General of Ontario.
The judgment of the court was delivered by
GOUDGE J.A.: --
Introduction
1The fall of 1997 was a time of turmoil for the public education system in Ontario. The previous spring, the provincial government had introduced legislation to significantly alter the school board governance structure of the system. This was followed, on September 22, 1997, by the introduction of Bill 160 which made very substantial changes to education finance, program delivery, school board management and the collective bargaining rights of teachers.
2Teachers and their unions took profound issue with much of Bill 160 and on October 27, 1997, commenced a province-wide protest against it, which lasted until November 10. The protest involved meetings, speeches, leafleting, picketing, marches, demonstrations, public advertising and public education, but its cornerstone was the withdrawal of teachers' services from schools across the province.
3On November 5, five days before the teachers returned to work, the government tabled amendments to Bill 160. These amendments included the provisions under attack in this litigation which removed principals and vice-principals from teacher bargaining units and from statutory membership in the teachers' unions. Bill 160, including these amendments, received Royal Assent on December 8, 1997, as the Education Quality Improvement Act, 1997, S.O. 1997, c. 31 (which I will refer to as Bill 160 as the parties did in argument).
4The teachers' unions and their representatives sought a declaration that the provisions of Bill 160 dealing with principals and vice-principals contravened the freedom of expression and the freedom of association guaranteed to them by the Canadian Charter of Rights and Freedoms. They alleged that these amendments were enacted as a reprisal for participation in the province-wide protest and that this participation was both expressive and associational activity protected by s. 2(b) and s. 2(d) of the Charter. Second, and apart entirely from the reprisal argument, these amendments were said to infringe the freedom of association guaranteed to principals and vice- principals by removing them from teacher bargaining units and denying them statutory membership in the teachers' unions.
5Southey J. dismissed the application [reported (1998), 1998 14738 (ON SC), 37 C.C.E.L. (2d) 56], finding that the amendments were not introduced for punitive purposes and that the amendments themselves did not infringe either the freedom of expression or the freedom of association of principals and vice-principals.
6For the reasons that follow, I would dismiss the appeal.
The Facts
7Prior to Bill 160, membership in the various teacher unions had been provided for by statute since 1944. The Teaching Profession Act, R.S.O. 1990, c. T.2 declares that every teacher is a member of the Ontario Teachers' Federation ("OTF"). That Federation serves as an umbrella organization for the affiliate teachers' unions. In 1997, the five affiliates were the Ontario Public School Teachers' Federation, the Federation of Women Teachers' Associations of Ontario, the Ontario Secondary School Teachers' Federation, the Ontario English Catholic Teachers' Association, and L'Association des enseignantes et des enseignants franco-ontariens.
8As well as being designated by statute as members of OTF, all teachers are assigned by OTF by-law to the affiliate union appropriate to their teaching circumstance. The OTF, its five affiliate unions and their personal representatives are the appellants in this proceeding.
9Statutory collective bargaining was introduced for teachers in Ontario in 1975 with the enactment of the School Boards and Teachers Collective Negotiations Act, 1975, S.O. 1975, c. 72 ("SBTCNA"), now R.S.O. 1990, c. S.2. That Act set up bargaining between the affiliate teachers' unions and school boards and gave those unions the right to strike.
10The SBTCNA also required that each principal and vice- principal be a member of the OTF, the appropriate affiliate and the bargaining unit in which each worked. However, s. 64(2) of that Act prohibited them from participating in any strike. It reads as follows:
64(2) Despite subsection (1), in the event of a strike by the members of a branch affiliate each principal and vice- principal who is a member of the branch affiliate shall remain on duty during the strike or any related lock-out or state of lock-out or closing of a school or schools.
11This subsection represented the legislature's answer to the perennial debate concerning the proper place of principals and vice-principals in collective bargaining for teachers. That debate, broadly put, is whether principals and vice-principals should be seen as managers whose interests are aligned with the employer or as team leaders with the same interests as teachers in the outcome of negotiations.
12Since 1975, the question of the continued inclusion of principals and vice-principals in teacher bargaining units has been the subject of examination in a number of reviews and studies. Despite the range of views expressed in this material, both as to the magnitude of the problem and the possible solutions, the position set out in the 1975 legislation remained in place until the fall of 1997 when Bill 160 was passed into law.
13In August 1997, prior to tabling Bill 160, officials of the Ministry of Education and Training informed representatives of the OTF and its five affiliates that the forthcoming legislation would remove principals and vice-principals from teacher bargaining units.
14The OTF and its affiliates made clear their opposition to this step and just prior to the tabling of Bill 160 for first reading in the legislature the Minister of Education indicated that the Bill would not remove principals and vice- principals from teacher bargaining units. On October 8, 1997, he said this to the legislature:
I was able at the start of that meeting to go over the times we've listened to the teachers' federations and unions over the past few months. When they assured us that the right to strike would not ever jeopardize the education of a student, we listened to them. When they said that having principals be part of the bargaining unit was important to them because principals would be above the fray any time there was a dispute, we listened to them. When they said it was important for the Ontario Teachers' Federation to retain the statutory right to represent teachers because they are professional and need that sort of body, we listened to them.
15Through October, as teacher opposition to various aspects of the proposed legislation became more apparent, the prospect of a withdrawal of teacher services grew. In light of this, the Minister made clear to the teachers' unions his concern that principals and vice-principals should report to work during any strike, as required by s. 64(2) of the SBTCNA.
16On October 27 most of the teachers in the province withdrew their services as part of their protest against Bill 160. A majority of the 8,000 principals and vice-principals joined in. The OTF and its affiliates planned and organized the strike and encouraged the participation in it of principals and vice-principals.
17On October 30 the Minister announced that prior to third reading the government would be proposing amendments to Bill 160. These amendments were tabled on November 5. They included the provisions which are attacked in this proceeding. These amendments formed part of the bill which received third reading on November 27 and Royal Assent on December 8, 1997. In their factum the appellants provided a summary of these amendments which I have attached to these reasons.
18The primary effect of the impugned amendments was to remove principals and vice-principals from teacher bargaining units and from statutory membership in OTF and its five affiliate unions. However, they also excluded principals and vice-principals from the application of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A thereby foreclosing their right, under that Act, to organize in separate bargaining units. The amendments also empowered cabinet to determine the terms and conditions of employment for principals and vice- principals by way of regulation.
19On a number of occasions both in the legislative debate on the bill and in the public discussion of it the Minister explained the purpose of the amendments affecting principals and vice-principals. His statement in the legislature on November 17 is typical of those comments:
In the terms of the principals and vice-principals, we were assured the principals and vice-principals would be in the school in this sort of situation. The obvious fact is that they weren't. The vast majority, well over 5,000, were not in the schools, were not there to do their duties, to give safety to the children. They're in a difficult situation. They're in a conflict situation, with management responsibilities on the one hand and union responsibilities on the other.
The principals and vice-principals are in a difficult conflict situation with management responsibilities, union responsibilities. Through the bill, through the amendment we have attempted to address that.
I can only say that the previous minister looked at this situation. It was put forward to him that there would not be a problem, that the conflict situation could be dealt with. It's a conflict situation that does not occur anywhere else that I can think of in terms of the importance of the principal position, the management functions associated with that position, and to have the same person in the union context is quite a conflict.
Unfortunately, during the period of the unlawful strike there was a problem. There were many principals, I suspect, who did not want to leave their schools, but with the pressure that was brought to bear, the reality was that they could not serve two masters. It's a situation that needs to be clarified and we intend to proceed.
20The teachers returned to their classrooms on November 10, firmly convinced, as were opposition politicians, that these amendments represented a vindictive reprisal against principals and vice-principals for participating in the protest against Bill 160. As a result, this application was commenced on December 10, 1997.
Analysis
A. The reprisal argument
21The primary argument raised by the appellants on this appeal is that the impugned amendments to Bill 160 infringe the rights of principals and vice-principals under s. 2(b) and (d) of the Charter. They argue that the participation of principals and vice-principals in the protest against Bill 160 constitutes political expression and hence is activity lying at the core of the freedom guaranteed by s. 2(b). Second, they say that this participation is associational activity for the purposes of s. 2(d). They then assert that, most importantly, the purpose, but also the effect of the challenged legislation is to serve as a reprisal against principals and vice-principals for this participation, thereby penalizing them for exercising their Charter rights. Finally, they say that these amendments cannot be justified pursuant to s. 1 of the Charter.
22The first step in this line of argument, namely that the principals and vice-principals were engaged in protected expressive activity, is not without its difficulties. On the one hand, s. 2(b) of the Charter must accord a broad sweep of protection to political dissent in a democracy such as ours, and this protest was clearly political dissent. On the other hand, in withdrawing their services the principals and vice- principals violated s. 64(2) of the SBTCNA. Moreover, they were arguably engaged in strike activity, something which has found scant constitutional protection at least under s. 2(d) of the Charter.
23Because of the conclusion I have reached on whether the amendments are either in purpose or effect a reprisal for this activity, I need not resolve this first question. I will assume without deciding that the principals and vice-principals were engaged in protected expressive activity in protesting against Bill 160, and that their collective exercise of this freedom was protected associational activity.
24The second step in the appellants' argument is that legislation which is passed with the purpose of punishing individuals for exercising their Charter rights itself violates the Charter.
25It is clear that where an invalid purpose for enacting legislation is shown, a court will intervene, whether or not the legislation has the effect of violating a Charter right: see Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513.
26In Delisle, as is commonly the case, the allegedly improper legislative purpose had prospective effect: it was said that the legislation was intended to restrict the future exercise of Charter rights. I can see no reason why the legislative purpose of punishing a past exercise of Charter rights is any less improper. Whether the purpose of government action is to hinder those who would engage in Charter-protected activities or punish them for having done so, that government action breaches the Charter and must be justified under s. 1. In R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, Dickson J. speaking about freedom of religion said this at p. 336 S.C.R., p. 353 D.L.R.:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.
(Emphasis added)
27Thus it seems clear that the purpose of punishing the past exercise of a Charter right is just as invalid as the purpose of curtailing the prospective exercise of that right. Again, however, because of my ultimate conclusion in this case I can assume this to be so and move on.
28The real question in this appeal is whether the impugned amendments can be shown to be a reprisal for engaging in activity that is protected under the Charter. In seeking to demonstrate this, the appellants focus on the purpose of the legislation, which they say is to punish the principals and vice-principals for participating in the protest against Bill 160. They look primarily to the circumstances surrounding the introduction of the amendments rather than to the impugned provisions themselves or their legislative context. They point particularly to the fact that the tabling of the amendments so closely followed the commencement of the protest and to the link drawn between the two by the Minister.
29As I have said, it is clear that a consideration of the purpose of impugned legislation is a vital part of Charter analysis. Dickson J. put it this way in Big M Drug Mart, supra, at pp. 331-32 S.C.R., p. 350 D.L.R.:
. . . consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the Legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the Legislature's power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant's need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation's actual impact.
30It is also clear that the party seeking to establish that the impugned legislation infringes a Charter right or freedom by virtue of its purpose bears the onus of establishing the alleged invalid purpose on a balance of probabilities: see Delisle, supra, at paras. 13 and 76.
31What then can a court be asked to look to in determining whether a Charter claimant has discharged this onus? In R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385, at para. 25, the Supreme Court of Canada reiterated that in determining the purpose of an impugned legislative provision a court should look to intrinsic and admissible extrinsic sources regarding the provision's legislative history and the context of its enactment.
32The degree to which the court may look beyond the wording of the legislation itself to determine the purpose of the impugned provision was addressed in Delisle, supra. Speaking for the majority, Bastarache J. made clear that the search for legislative purpose in Charter analysis focuses primarily on the wording of the impugned provision itself and its legislative context. While the court can consider admissible extrinsic evidence of purpose, it must be careful to ensure that the evidence has an institutional quality that reflects the intention of the legislature and not just the individual motivation of a particular member of the government.
33The appellants argue that where, as here, the invalid purpose alleged is to punish individuals for exercising their freedom of expression to protest against the government, such a purpose is unlikely to be apparent on the face of the legislation and hence it must be determined by resort to extrinsic evidence.
34I acknowledge that the right to protest government action lies at the very core of the guarantee of freedom of expression. Thus, the court must be searching in its evaluation of the assertion that a legislative provision has as its purpose to punish those who speak out. I also acknowledge that the court can consider extrinsic evidence of purpose as part of that evaluation. However, this must be done within the context described by Bastarache J. The provision itself and its statutory context remain vital sign posts in the search for legislative purpose, because they are the actual manifestations of that purpose. Expressions of motivation by individual government actors must be scrutinized to see that they truly reflect legislative intent, rather than simply individual concerns. The former are appropriately part of the Charter analysis. The latter are left to be sanctioned at the ballot box.
35It is this approach to the determination of legislative purpose that must be used to assess the appellants' allegation that the impugned amendments were enacted with the impermissible purpose of punishing principals and vice- principals for exercising their Charter rights to participate in the protest against Bill 160.
36Southey J. addressed this issue and concluded that the appellants had not proven the impermissible purpose alleged. He put his finding this way [at p. 65 C.C.E.L.]:
I accept the argument of the applicants that the participation of the principals and vice-principals was the proximate cause of the amendments to Bill 160. But for that participation in the strike, the amendments would not have been made. I am satisfied, however, that they were not made for punitive purposes, but for legitimate corrective purposes. They were made, as explained by the Minister in the Legislature, to remove the principals and vice-principals from a position of conflict arising out of their duty to manage the schools and their loyalty to other members of the unions.
37Hence Southey J. rejected the appellants' argument that the purpose of Bill 160 was to punish those who engaged in activity protected by the Charter.
38The burden rests with the appellants to establish that reprisal was the purpose of the impugned legislation. They must do so on a balance of probabilities. The judge of first instance found that the purpose of the challenged provisions of Bill 160 was not the invalid one alleged by the appellants but rather that of removing the principals and vice-principals from a position of conflict.
39Where, as here, the court is invited to find legislative purpose largely on the basis of extrinsic evidence, its finding is one of fact. It is one therefore to which an appellate court must accord deference. Even though the finding is based entirely on a written record and no witnesses were heard, this court will interfere with such a finding only if it can be shown to be unreasonable: see Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.).
40In my opinion, Southey J.'s finding of legislative purpose is reasonable. Indeed, on the basis of this record I agree with it.
41The challenged provisions of Bill 160 speak simply of the removal of principals and vice-principals from teacher bargaining units and from statutory membership in the teachers' unions. There is nothing in the actual language of these provisions concerning reprisal nor indeed anything that would permit the court to infer that their purpose was to punish those principals and vice-principals who participated in the protest against the legislation. The balance of Bill 160 which provides the legislative context for these amendments, concerns different issues entirely, and is of no assistance to the appellants.
42What then of the extrinsic evidence on which the appellants principally rely? I accept, as did Southey J., that the statements made in the legislative process by the Minister of Education have the necessary institutional quality referred to by Bastarache J. in Delisle, supra. They constitute an expression of legislative purpose.
43It is also true that these amendments were introduced only after the protest against Bill 160 began and that the Minister in explaining the need for them relied heavily on the fact that the great majority of principals and vice-principals left their responsibilities in the schools to participate in the protest organized by the teachers' unions. As Southey J. found, but for that participation in the protest, the amendments would not have been made. However, the Minister's statements also made clear that the impugned amendments were designed to resolve the conflict for principals and vice- principals between their duty to stay in the schools and manage them during a strike and their loyalty to the teachers' unions. This conflict is not new, having been the subject of numerous studies and much debate over the years. While the solution provided by these amendments may have been new, so too was the context from which they sprang. Faced with a choice between staying to manage the schools and leaving to partic ipate in the protest organized by their unions, most principals and vice-principals chose the latter. The Minister could properly point to this new context to demonstrate the arguable need to remove the source of the conflict.
44The Minister's statements do not speak of reprisal or of a desire to punish principals or vice-principals for their participation in the protest. There is no mention of any of the other activities that were part of the protest apart from the strike. The Minister criticized principals and vice-principals for leaving their schools during the strike, not for participating in any other aspect of the protest.
45Rather than reflecting an intention to punish, these statements explicitly indicate a desire to remove the source of the conflict of interest resting upon principals and vice- principals which the government perceived to have operated to the detriment of the public interest during the protest against Bill 160.
46The evidence that teachers and opposition politicians regarded the amendments as a reprisal does not help to demonstrate the government's purpose in bringing them forward. No matter how deeply felt, suspicions of the true legislative purpose cannot provide the required evidentiary basis for the order sought. The court must act on the evidence not on the basis of beliefs even if profoundly held. For those holding these views, the proper forum for redress is not the court but the electoral process.
47In summary, the appellants have simply not been able to make out their case. Neither the intrinsic evidence nor the extrinsic evidence advanced by the appellants demonstrates on a balance of probabilities that the legislative purpose of the impugned amendments was to punish principals and vice- principals for participating in the protest against Bill 160. It cannot therefore be said that these amendments infringe their Charter freedoms of expression or association because of an invalid purpose.
48The appellants argue in the alternative that if the impugned amendments cannot be shown to have an invalid purpose, the effect of the amendments is that of a reprisal.
49I do not agree. There is nothing in the language of the legislation that suggests such an effect. The consequences provided for by the amendments do not attach just to those who participated in the protest against Bill 160. Rather the effects of the amendments apply to all principals and vice- principals whether they participated or not. Nor can it be said that these amendments carry any consequence for those who may participate in future protests of this kind. Bill 160 simply does not speak to this subject at all. Hence the challenged provisions do not have the effect of serving as a reprisal for either past or future participation in a political protest.
50In summary, therefore, the reprisal argument fails.
B. The freedom of association argument
51Apart from whether they were enacted as a reprisal, the impugned amendments are said by the appellants to infringe the freedom to associate guaranteed to principals and vice- principals by s. 2(d) of the Charter. The appellants say this for two reasons. First, because the amendments exclude principals and vice-principals from teacher bargaining units and from bargaining collectively on their own under the Labour Relations Act. Second, because the amendments strip principals and vice-principals of statutory membership in OTF and its affiliate teachers' unions thereby, it is said, interfering with their continued membership in those organizations.
52Southey J. held that the challenged amendments do not infringe the protection guaranteed by s. 2(d) as it has been interpreted by the Supreme Court of Canada.
53I agree with this conclusion.
54In my view, the Delisle case is a complete answer to the appellants' primary submission here, namely, that s. 2(d) is violated because the amendments prevent principals and vice- principals from bargaining collectively with other teachers or even on their own under the Labour Relations Act.
55In Delisle the appellant, a member of the R.C.M.P., challenged the exclusion of R.C.M.P. members from the application of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"). The appellant argued that the exclusion of R.C.M.P. members from the collective bargaining regime which this legislation provides for federal employees, when no other collective bargaining regime was available to them, violated their freedom of association. The appeal was dismissed. Bastarache J. writing for the majority reviewed the jurisprudence of the Supreme Court of Canada relating to the concept of freedom of association in the labour relations context. He reiterated the limited scope of that concept as set out by Sopinka J. in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367 at p. 402, 72 D.L.R. (4th) 1:
. . . first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.
56Bastarache J. went on to make clear that the exclusion of one group of workers from a statutory collective bargaining regime is not a violation of s. 2(d) nor is there any such violation merely because one group of workers is included in the regime while another is not. He summarized this at para. 24:
The appellant's position is that in the absence of any other applicable trade union regime, the express exclusion of RCMP members from the PSSRA regime encourages unfair labour practices and interferes with the creation of an independent employee association for RCMP members. In my view, neither the lack of rights under the PSSRA regime, nor the failure to provide RCMP members with a statutory or other associative regime can be confused with an infringement of their freedom of association.
57Hence it is clear that the impugned amendments do not infringe the freedom of association of principals and vice- principals either by denying them the right to bargain collectively with teachers or by denying them the right to separate collective bargaining under the Labour Relations Act.
58The appellants' second submission focuses on the removal of the statutory membership of principals and vice-principals in the teachers' unions. In my view, the answer to this argument is that the legislation under challenge simply removes the deemed membership provisions that make all principals and vice-principals members of these unions. Freedom of association does not extend to guaranteeing mandatory membership in an organization. While freedom of association does protect the freedom to establish, belong to and maintain an association, this legislation does not transgress on that territory. It does not preclude principals and vice-principals either from voluntary membership in these organizations or from establishing their own association to seek to persuade school boards to voluntarily bargain terms and conditions of employment outside of the statutory framework of collective bargaining. Thus, I conclude that these amendments do not infringe the freedom of association guaranteed to principals and v ice-principals. The appellants' second argument fails.
59Since I have found that neither the reprisal argument nor the freedom of association argument can succeed, there is no basis upon which to find that the challenged legislation infringes a Charter freedom. Hence, there is no need to evaluate that legislation against s. 1.
60In the result the appeal must be dismissed with costs.
Appeal dismissed.
APPENDIX 1
The Amendments to Bill 160
In general, Bill 160 fundamentally altered the funding and management of the education system in Ontario and provided a mechanism to create and staff new district school boards which have been introduced under Bill 104 (the Fewer School Boards Act, 1997, S.O. 1997). In addition to these fundamental changes, including the legislative regulation of preparation time and class size, Bill 160 introduced a new collective bargaining scheme based upon the model under the Labour Relations Act, 1995, identified the provincial affiliates as the bargaining agents for statutorily defined bargaining units, included occasional teachers in defined bargaining units with defined bargaining agents, and provided for a method to negotiate new collective agreements in each of the new district school boards.
More specifically, however, s. 122 of Bill 160 added a new Part X.1 to the Education Act, which governs teacher collective bargaining, and repealed the School Boards and Teachers Collective Bargaining Act (Bill 100). Under the new s. 277.1(1) of the Education Act, principals and vice-principals are excluded from the definition of "Part X.1 teacher". The effect of this amendment is to remove principals and vice-principals from teacher bargaining units established under s. 277.3 of the Education Act.
In addition, s. 151 of Bill 160 excluded principals and vice-principals from the provisions of the Labour Relations Act, 1995, with the result that principals and vice-principals are denied access to the certification and other collective bargaining rights and protections provided under the terms of that Act.
Further, s. 180(2) of Bill 160 amended s. 1 of the Teaching Profession Act to exclude principals and vice-principals from the definition of "teacher" under that Act. The effect of this amendment was to remove principals and vice-principals from their statutory membership in OTF and the corresponding provincial affiliates.
Section 277.11 of the Education Act, as amended by s. 122 of Bill 160, provided that principals and vice-principals could elect to resign from their positions and continue in employment as teachers, thereby remaining within the bargaining unit. While this selection was required to be made by April 1, 1998, it did not take effect until August 31, 1998 or upon such earlier date as the school board and principal or vice- principal may have agreed.
Section 127 of Bill 160 provided that, under s. 287.2 of the Education Act, any person who remained a principal or vice- principal after January 1, 1998 was, with notable exceptions, covered by the same terms and conditions of employment they enjoyed as of December 31, 1997 and which had been contained in their collective agreements. These terms and conditions remained in place until August 31, 1998 or such earlier date as may have been agreed upon between the individual principal or vice-principal and the school board that became his or her employer.
However, s. 287.2(3) provided that, effective April 1, 1998, principals and vice-principals were to be excluded from the protections of certain critical terms and conditions of employment which they previously had under their collective agreements, namely, provisions relating to membership in OTF or any affiliate or branch affiliate, and provisions governing seniority, grievances and recall and redundancy rights.
Section 127 of Bill 160 also provided that, under s. 287.1(1) of the Education Act, a principal or vice-principal may perform the duties of a teacher despite any provision in a collective agreement.
Section 127 of Bill 160 further provided that, under ss. 287.1(2) and (3) of the Education Act, the terms and conditions of employment of principals and vice-principals may be determined by Cabinet regulation, and that the regulations may treat different classes of principals and vice-principals differently.
