Oshawa. Ontario COURT FILE NO.: 2179/17

DATE: 20180530

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DOUGLAS HAMILTON

Applicant

— and —

ATTORNEY GENERAL OF ONTARIO

Respondent

COUNSEL:

Douglas Hamilton, self-represented, for, Applicant

Padraic Ryan for Attorney General of Ontario, Respondent.

HEARD: May 23, 2018

Shaughnessy J.

REASONS FOR JUDGMENT

OVERVIEW

[1] The applicant Douglas Hamilton brings this application to seek a declaration that the Ambulance Services Collective Bargaining Act, 2001,SO 2001 (“ASCBA”) unjustifiably violates subsection 2(d) of the Canadian Charter of Rights and Freedoms (‘the Charter”) due to its requirement that ambulance workers continue to provide essential ambulance services during a strike by their bargaining unit.

[2] The position of the Attorney General of Ontario is that the limitations on striking in the ASCBA do not rise to the level of a substantial interference with collective bargaining.

[3] It is not disputed that ambulance workers are permitted to be members of bargaining units which contain non-ambulance workers and can engage in strike action under the Labour Regulations Act, 1995 (“LRA”). Under the ASCBA, the employers and bargaining agents of ambulance workers must negotiate an essential service agreements (“ESAs”) before ambulance workers exercise the right to strike or be locked out. These ESAs designate the proportion of ambulance workers who must continue working during a strike in order to preserve public safety. The parties may apply to the Labour Relations Board if they are unable to conclude an essential services agreement (ESA).

[4] In bargaining units where more than one quarter of employees are prohibited from striking as a result of the ESA, a union may apply to the LRB for a declaration that the ESA amounts to a deprivation of the employees’ meaningful right to strike. In these circumstances, the ASCBA provides a wide range of remedies, including amendment of the ESA or final and binding interest arbitration for ambulance workers.

[5] One of the central issues of the Applicant is that because he is on the paramedic staff and the employer is Durham Region, his bargaining unit is part of a mixed union. Therefore because the number of paramedics represents less than one-quarter of the total union membership then the remedy of proceeding to the OLRB does not exist. It is submitted by the Applicant that he has no effective right to strike and accordingly he is left with having to ask other members of the union to strike for him and his issues.

BACKGROUND INFORMATION

[6] The applicant has been employed as a Paramedic for 15 years with the Region of Durham.

[7] Since the applicant is a Paramedic and a member of CUPE 1764 all collective negotiations are between the employer, Region of Durham and the paramedic staff of CUPE 1764. In the rather unique circumstances of paramedics the collective negotiations are governed by the ASCBA. Under this legislation an ESA must be negotiated prior to collective bargaining or any strike situation.

[8] In the Application filed, Douglas Hamilton states that “there is a high expectation that my s.2d [of the Charter] rights will again be put in jeopardy when collective bargaining with my local and employer and the ASCBA take effect in April 2018 without remedy by the Ontario Superior Courts.”

[9] The Applicant is a member of a local wherein the percentage of paramedics is less than one quarter of all the membership. This is referenced as a mixed union.

ISSUES

[10] The Applicant has presented to the Court a separate document, “Notice of Constitutional Question”. Attached to this Notice are further pages under the title “Material Facts” and consist of the various points made by the Applicant who proceeded to simply read what was typed. In essence this has to be characterized as a factum with references made to sections of the ASCBA, other case law and extensive reference to the decision in Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4. While I will to the extent required be referencing the matters raised by the Applicant, nevertheless, a re-wording of the issues is necessary to refine the issues to be decided.

[11] The issues then to be decided are as follows.

(1) Framework for considering a Charter challenge;

(2) Is there a violation of subsection 2(d) of the Charter?

(3) If there is a valuation of subsection 2 (d) is that violation justified under section 1 of the Charter?

Issue # 1 Framework for Considering a [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[12] The material filed by the Applicant in his Application Record consists of judicial and labour board decisions (Tabs D, F, G), statutory provisions (Tabs B, C,E), legal argument (Tab J), and two purported bargaining documents (Tabs H, I) which the Respondent points out have not been authenticated or contextualized by an affidavit.

[13] This issue is not addressed in the Application, rather only in reply oral submissions. The Applicant submits that no other supporting materials are necessary because this application is dealing with the “purpose” of the ASCBA (the denial of the right to strike) and not the “effects” of the legislation. Mr. Hamilton, in drawing the distinction between the “purpose” and “effect” of the ASCBA, references the decision in Danson v Ontario 1990 93 (SCC), [1990] 2 SCR 1086. At page 1100 (para. g and following) Justice Cory states;

A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case can be made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position.

This is not to say that such facts must be established in all Charter challenges. Each case must be considered on its own facts (or lack thereof). As Beetz J. pointed out in Manitoba (Attorney General) v. Metropolitan Stores Ltd. 1987 79 (SCC), [1987] 1 S.C.R. 110 at p.133:

There may be rare cases where the question of constitutionality will permit itself as a simple question of law alone which can be finally settled by a motions judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter, and might perhaps be struck down right away………..It is trite to say that those cases are exceptional.

The unconstitutional purpose of Beets J.’s hypothetical law is found on the face of the legislation and requires no extraneous evidence to flesh it out.

[14] Therefore, the Applicants responding argument is that this matter before the Court relating to striking the entire ASCBA as being unconstitutional is one of those “exceptional” cases and where the unconstitutional purpose is found on the face of the legislation and requires no extraneous evidence to flesh it out. It is submitted that the legislation, the ASCBA, on its face demonstrates that its purpose is to abrogate the right to strike in order to provide ambulance services during a mandated and legal strike and as such constitutes a breach of the Charter.

[15] It is reasonable to infer that the Applicant has no evidence of the “effect” of the ASCBA in the bargaining units or to the union membership. The Applicant in submissions stated that this application is being brought at this time as a “pro-active measure” and as such “they are not waiting for rights to be infringed.”

[16] The position of the Attorney General on this issue is also based interalia on the reasoning and comments of the Supreme Court in Danson v Ontario. The Attorney General submits that the argument of the Applicant is artificial as it relates to distinguishing between “purpose” and “effects.” It is submitted that the absence of a factual foundation is fatal to this application.

Analysis

[17] It is important to consider the framework for considering a Charter challenge. The onus is on the party challenging the validity of legislation to establish on a balance of probabilities that the impugned provision (or here the entire ASCBA) violates a right protected by the Charter. (Canada (Attorney General) v Bedard, 2013 SCC 72 at para 127).

[18] The Supreme Court of Canada has repeatedly held that constitutional decisions should not be made in the absence of a factual foundation and indeed likely will be “fatal” to an application seeking to have legislation declared unconstitutional. (Mackay v Manitoba, [1989] 2 SCR 367 at pgs. 361-362, 366; Danson v Ontario 1990 93 (SCC), [1990] 2 SCR 1086 at 1099; Campisi v. Ontario, 2017 ONSC 2884 at para 15.)

[19] The cases, in which courts and tribunals have been called upon to consider whether legislation unjustifiably violates the subsection 2(d) right to freedom of association, have proceeded on a substantial record involving the law’s effects on associational activities such as collective bargaining. Where legislation has ultimately been found unconstitutional, it was on the basis of such evidence. In the present case, where there is no such factual record, this Court should not declare the statute to be unconstitutional unless this case comes within the very rare exceptions outlined in Danson v Ontario above. (Dunmore v Ontario(attorney General), 2001 SCC 94 at paras, 5, 18, 23, 42, 45, 51-52; Health Services Support---Facilities Subsector Bargaining ASSN v British Columbia, 2007 SCC at paras. 34 , 107; Mounted Police Association of Ontario, 2015 SCC 1 at paras. I07, 111, 147; Meredith v Canada (Attorney General), 2015 SCC 2 at para 29; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at paras 6, 9; Saskatchewan Federation of Labour v Saskatchewan, 2012 SKQB 62 at paras. 138-148.)

[20] In order to meet the test for an infringement, the Applicant must prove that the ASCBA violates the right to freedom of association and he must establish that it substantially impairs employees’ collective pursuit of workplace goals. It is not sufficient to establish that the law interferes with the ability to strike. Rather, the question is whether “legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining.”(Mounted Police Association v Ontario, at para. 93; Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4 at paras. 77-78.)

[21] It follows then that the test of a violation of s. 2 (d) of the Charter as instructed by the Supreme Court of Canada necessarily involves evidence of the “effects” of the legislation. The test of violation of s. 2 (d) requires evidence of substantial interference which necessarily involves evidence of “effects” and not just “purpose”.

[22] This proceeding does not come within the very rare exception as referenced in Danson v Ontario and Manitoba (Attorney General) v Metropolitan Stores referenced above. The onus is on the Applicant to obtain and provide the necessary evidence of substantial interference with the collective bargaining and associational activities. I find that there is no evidence, as but one example, of employers taking advantage of the present legislation to the detriment of the union members. Indeed there is no evidence of the qualitative and quantitate result of measures under the legislation.

[23] Further there is no affidavit of the facts, not otherwise evident, related to this application. What this Court is left with are the sweeping assertions of the Applicant throughout the factum and attachment to the Notice of a Constitutional Question. This is not evidence but rather opinions and arguments of the Applicant.

[24] Accordingly, I adopt the wording of the Supreme Court of Canada (outlined above) and find that this application fails because a factual foundation is of the utmost importance and evidence of the law’s effects on associational activities such as collective bargaining is completely lacking on this application. The deleterious effects are not established and accordingly in the absence of such factual base there can be no Charter violation, as no case can be made out. Contrary to the Applicant’s argument I find that it is not the purpose of the legislation which is said to infringe the Charter but its effects. I further find that this lack of evidentiary foundation is not a technicality that can be overlooked, “but rather it is a flaw that is fatal to the [applicant’s] position.” (Danson v Ontario 1990 93 (SCC), [1990] 2 SCR 1086 at page 1100).

[25] Separate and distinct from the findings above, I have noted other procedural issues which I do not have to address but I will briefly mention here. Mr. Hamilton throughout his written and oral submissions referenced how all the paramedics in his bargaining unit are affected. However, Mr. Hamilton stated that he is not bringing this application on behalf of the union or CUPE 1764. Nor does he represent the other paramedics in his bargaining unit. He speaks for only Douglas Hamilton. While this may be problematic, I make no further comment.

[26] In the circumstances, after careful consideration, I find that I am unable to deal with issues # 2 and 3 which require an evidentiary foundation. I cannot proceed to deal with these other issues as there is no evidentiary foundation on which to proceed.

[27] The application accordingly is dismissed without costs. The Applicant and Counsel for the Respondent advised me that on consent, there are no claims for costs sought by either party.

The Honourable Mr. Justice Bryan Shaughnessy

DATE RELEASED: May 30, 2018