Government can’t block TTC from going on strike in less than two weeks

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In less than two weeks, workers at the Toronto Transit Commission, the country’s largest public transit system, could be on strike.

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There won’t be anything that the city, provincial or federal governments will be able to do to end the strike other than put more money on the table and negotiate.

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If you’re a member of Amalgamated Transit Union Local 113 which represents 12,000 bus, streetcar and subway operators along with maintenance crews, fare collectors and cleaning staff, you might think that’s a great scenario.

If you’re a taxpayer or one of the people who take one of more of the 2.5 million trips on the TTC each day, you might have a different view.

The TTC is an essential service in Toronto, but TTC workers can’t be ruled an essential service and forbidden from ever striking. In fact, thanks to a 2015 Supreme Court case that very few people know about, no one can be classified as an essential service and ordered back to work.

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It seems pretty clear from the court ruling that back-to-work legislation is also unconstitutional.

Parliament didn’t vote on this. No provincial legislature passed a law declaring there was a Charter-protected right to strike.

This was the Supreme Court in 2015, inventing a new right and in the process upending decades of precedent in labour law.

“The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction,” Justice Rosalie Abella wrote in the decision.

That’s more of a feeling than a legal argument but given that Abella then wore the red robes of the Supreme Court, and she wrote the majority decision in the 5-2 ruling, this is now the law in Canada. For decades, courts had tried to stay out of labour battles, finding for unions at times, employers at others, but letting the policy be decided by the elected officials.

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In that 2015 decision, the court became explicitly political.

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In order to upend nearly 30 years of precedents saying that there was no constitutionally protected right to strike, Abella had to go outside of Canada to get her backing.

She cited two British academics who had advised the Labour governments of the 1960s and ’70s to support her call for a right to strike and pointed to the constitutions of Italy, Portugal and Spain – three countries that don’t share our legal system or traditions.

In essence, she invented the constitutionally protected right to strike because politically she agreed with it. That is a dangerous precedent to set, while also overturning past court precedents, something two of her court colleagues – Justice Marshal Rothstein and Justice Richard Wagner, now Chief Justice of the court – pointed out in their dissenting opinion.

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“In our legal system, certainty in the law is achieved through the application of precedents. To overrule a precedent is to displace community expectations founded on that decision,” they wrote.

The public still expects that core public services will go on. Each time there is a strike or threat of a strike, readers will write to ask why this group or that group hasn’t been made an essential service or why back-to-work legislation hasn’t been invoked.

The reason is this court decision and highly political decision of Abella and her colleagues to ignore all past court rulings and invent a new Charter right the court had previously said did not exist. This is why, when Ontario Premier Doug Ford passed legislation to stop a school strike in the fall of 2022, that he used the notwithstanding clause of the Charter, it’s the only way now.

Abella upended the delicate balance that had existed in labour law for decades. I doubt many TTC riders will be cursing her name if a strike happens, and the service shuts down, but they should.

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