ETFO’s Charter Challenge Against Bill 115 and Remedy Decision

In September 2012, the Government imposed collective agreements on Elementary Teachers’ Federation of Ontario (ETFO) members and other education sector workers through legislation called the Putting Students First Act, 2012, also known as Bill 115. In response, five unions – ETFO, Ontario Secondary School Teachers’ Federation (OSSTF), Canadian Union of Public Employees (CUPE), Ontario Public Service Employees Union (OPSEU), and Unifor – challenged Bill 115 in Court, arguing that the legislation violated Canada's Charter of Rights and Freedoms.
 
In a landmark decision released on April 20, 2016, the Superior Court of Justice held that Bill 115 substantially interfered with collective bargaining contrary to s. 2(d) of the Charter. In his decision, Justice Lederer ruled that Bill 115 infringed on union members’ rights to meaningful collective bargaining under the Charter of Rights and Freedoms. He also determined that the process the government engaged in was “fundamentally flawed.” At that time, Justice Lederer did not comment on a remedy for the parties, rather the unions and the government were required to meet to determine a remedy. If the parties were unable to reach agreement on a remedy, the matter will be referred back to Justice Lederer for a decision.

Over 18 months, ETFO met with government representatives to negotiate a fair Bill 115 remedy settlement. The settlement offers made by the government were not a fair restitution for the losses experienced by ETFO members as a result of Bill 115. In June 2017, the issue of remedy was referred back to Justice Lederer. The remedy decision was received on February 2, 2022.

Remedy Decision

On February 2, 2022, Justice Lederer issued his decision on the ETFO remedy for the Charter violations that stemmed from the government’s imposition of Bill 115, the Putting Students First Act in 2012. This is the end of a long road for ETFO members, as we have been fighting, and waiting, a long time for a fair remedy. Today marks an end to that wait. The award of damages is significant in the amount of $103,100,000.

“ETFO welcomes Justice Lederer’s decision, but we recognize it does not replace the loss of ETFO members’ bargaining rights, nor the sick leave, gratuities, and salary ETFO members lost when the Ontario government-imposed Bill 115,” says ETFO President Karen Brown. “We thank the court for recognizing that our members’ constitutional rights were violated by a government who unjustly forced contracts on them, froze their pay, and cut sick day provisions as part of an austerity push. Justice Lederer’s decision serves as a reminder to the government that they must never interfere with collective bargaining rights.”

Remedy Summary

In brief, Justice Lederer has ordered a one-time cash payment of damages to eligible ETFO members who were employed by a school board during the 2012-2013 and/or 2013-2014 school year(s). ETFO will release specific details regarding the calculation of damages in our next communication.

Award Eligibility

ETFO members who were employed by a school board between September 1, 2012, and August 31, 2014, including those who are no longer employed by a school board may be eligible if they meet the criteria of the award. Please ensure your employer(s) have your current address on file. 

The verification of employment data may take several months. ETFO will also engage in a notification process.

Please be patient.  Local offices don’t have specific details at this time and the provincial office will be communicating out in the near future.

You can update your member information here.
 

Questions and Updates

We are preparing a Frequently Asked Questions resource to address questions about the remedy and compensation process. It will be shared with members very soon. Please share this message with retired members who worked during the affected years.

Updates will be provided in the days and weeks ahead through member e-newsletters, email, and the ETFO website. 

On September 11, 2012, the Liberal government introduced (and subsequently enacted) the Putting Students First Act, 2012 (Bill 115). Bill 115 set out the terms under which education sector collective agreements were to be negotiated or, if negotiations were not achieved, imposed on education sector workers for the period of September 1, 2012, to August 31, 2014. 

In October 2012, ETFO along with the Canadian Union of Public Employees, Ontario Public Service Employees Union, Ontario Secondary School Teachers’ Federation (OSSTF), and Unifor began court proceedings against the Liberal government on the basis that Bill 115 violated Canada’s Charter of Rights and Freedoms in that it stripped the education sector of its right to bargain collectively during the 2012 round of negotiations.  

On January 2, 2013, the Liberal government imposed collective agreements on all ETFO locals. The collective agreements included a partial freeze on salary grid movement, as well as the elimination of sick leave banks and retirement gratuities. The Liberal government immediately repealed Bill 115 after imposing those collective agreements. 

In December 2015, ETFO and the four other unions presented their Charter case at the Ontario Superior Court of Justice before Justice Thomas Lederer.  

On April 20, 2016, Justice Lederer released his decision, which was in the unions’ favour. The decision confirmed that Bill 115 was “fundamentally flawed” and infringed on ETFO’s right to meaningful collective bargaining. Justice Lederer referred the issue of a remedy back to ETFO and the Liberal government to attempt to resolve. Remedy discussions between ETFO and the Liberal government took place on many occasions since September 2016. 

In March 2017, OSSTF settled the issue of remedy. The ETFO Executive determined that the government’s offer was insufficient. 

In June 2017, ETFO members were advised that ETFO's provincial Executive decided to end discussions with the Ontario government and, instead, make the case for a fair Bill 115 remedy at the Ontario Superior Court of Justice.

In July 2017, Justice Lederer of the Ontario Superior Court of Justice proposed that ETFO and the Ontario government consider using the services of a mediator to determine if an appropriate remedy could be achieved without the intervention of the Court at that point in time. ETFO and the Ontario government then agreed to appoint Kevin Burkett as mediator. Mr. Burkett is one of Canada’s foremost mediator-arbitrators.

On December 9, 2017, mediation occurred between the government and ETFO with Mr. Burkett. Shortly after discussion began, it became apparent that the government was unwilling to be flexible and would not move off the same position that ETFO had previously rejected. As a result, the issue of remedy was referred back to Justice Lederer.

In the spring of 2018, ETFO learned that the Liberal government made significant payouts to the Ontario English Catholic Teachers’ Association and the Association des enseignantes et des enseignants franco-ontariens even though these unions did not pursue Bill 115 Charter challenges. As a result, ETFO and OSSTF filed unfair labour practice complaints against the government at the Ontario Labour Relations Board (OLRB).  

On November 30, 2018, the Government of Ontario contacted ETFO to propose a further discussion on our Bill 115 remedy. The government's request was made in advance of its Bill 115 remedy submission to Ontario Superior Court Judge Lederer, which was due on December 15, 2018. Again, the remedy offered was inferior and included terms that would require abandoning a number of grievances as well as the OLRB complaint. ETFO continued with its plan to pursue a fair Bill 115 remedy with Justice Lederer.  
 
On February 2, 2022, ETFO received Justice Lederer’s decision on remedy. 
 

In December 2015, ETFO made the case at the Ontario Superior Court of Justice that the provincial government violated the Canadian Charter of Rights and Freedoms when it enacted unprecedented legislation in 2012 (i.e., the Putting Students First Act, more commonly known as Bill 115) that stripped the education sector of its right to bargain collectively.

The decision regarding our court challenge was released on April 20, 2016 and the decision confirms that the Ontario government violated the Charter rights of ETFO and other unions’ members when it stripped collective bargaining rights through Bill 115.

In the words of Justice J. Lederer, “I find that between the fall of 2011 and the passage of the Putting Students First Act, Ontario infringed on the applicants’ right, under the Charter of Rights and Freedoms, to meaningful collective bargaining. When reviewed in the context of the Charter and the rights it provides, it becomes apparent that the process engaged in was fundamentally flawed. It could not, by design, provide meaningful collective bargaining.” [paragraphs 134-135]
 

On Friday, April 13, 2018, ETFO filed an unfair labour practice complaint with the Ontario Labour Relations Board (OLRB) against Ontario's Liberal government.

ETFO's concerns are based on the Liberal government's conduct during and after the 2014 round of central bargaining. In its complaint, ETFO details how the Liberal government:

• made  payouts worth tens of millions of dollars to unions and employee bargaining agencies that did not challenge and, in fact,  cooperated in the Liberals' agenda to strip education sector workers' collective agreements during the 2012 round of education sector bargaining under Bill 115;

• engaged in coercion and reprisals, and discriminated against ETFO members because their union successfully challenged the violation of its members' constitutionally protected rights under Bill 115; and 

• bargained in bad faith during 2014 education sector negotiations by consistently representing that all four of Ontario's teacher unions would be receiving substantially identical financial settlements for their 2014-2017 collective agreements.

ETFO's complaint alleges that the Liberal government's actions violated five sections (Sections 5, 17, 70, 72, and 76) of Ontario's Labour Relations Act, 1995 and three sections (Sections 4, 29 and 32) of the School Boards Collective Bargaining Act, 2014 (also known as Bill 122).

The Liberal government's conduct only recently came to light when it confirmed it would be providing financial payouts to two of four teacher unions in the province (as well as other organizations that negotiate on behalf of education sector employees) totalling tens of millions of dollars, essentially for their non-participation in the Bill 115 Charter challenge. ETFO's complaint includes a request for production of all documents related to these recent settlements.

Corrective Action Sought by ETFO

ETFO is seeking the following corrective action from the OLRB:

• A declaration from the OLRB that the Liberal government violated its obligations under Labour Relations Act and Bill 122;
• An order from the OLRB directing the Liberal government to provide compensation to ETFO members that is no less than the collective amount recently provided (or to be provided) to unions and other bargaining agents that were not part of the Bill 115 Charter challenge;
• Damages for violating the Labour Relations Act and Bill 122; and
• Any other remedy that ETFO may seek or that the OLRB permits.

• In February 2012 the Liberal government met with education sector unions, and described the significant concessions it would be seeking from them during provincial negotiations during the 2012 round of collective bargaining.
• On July 5, 2012, the Ontario English Catholic Teachers’ Association (OECTA) entered into an agreement (i.e., a Memorandum of Understanding – or “MOU”) with the Liberal government. The OECTA MOU included a number of significant alterations to the terms and conditions of OECTA collective agreements, including a partial freeze on salary grid movement, as well as the elimination of sick leave banks and retirement gratuities.
• A significant concession agreed to by OECTA was a delay on salary grid movement, which meant that grid movement for OECTA members would occur on the 97th day of the school year rather than on the first day of the school year. The delay in salary grid movement was to occur over two school years – 2012-2013 and 2013-2014.
• On August 9, 2012, a second teacher union, L’Association des Enseignants et des Ensignants Franco-Ontariens (AEFO), entered into an agreement with the Liberal government. Like the OECTA MOU, the AEFO MOU included provisions that delayed salary grid movement to the 97th day for AEFO members.
• Over the summer of 2012 ETFO refused to participate in negotiations under the conditions and limitations set by the Liberal government.
• On September 11, 2012, the Liberal government introduced (and subsequently enacted) the Putting Students First Act, 2012 – also known as Bill 115. Bill 115 set out the terms under which education sector collective agreements were to be negotiated or, if negotiations were not achieved, imposed on education sector workers for the period of September 1, 2012 to August 31, 2014.
• The terms of Bill 115 required all education sector collective agreements negotiated after August 31, 2012, to be “substantively identical” to the terms in the OECTA MOU. ETFO would not agree to the significant changes to collective agreements included in Bill 115.
• On January 2, 2013, the Liberal government imposed collective agreements on all ETFO locals. The collective agreements included a partial freeze on salary grid movement, as well as the elimination of sick leave banks and retirement gratuities. The Liberal government immediately repealed Bill 115 after imposing those collective agreements.

• On March 27, 2014, ETFO and other education sector unions were advised by the Liberal government that salary grid movement delay imposed under Bill 115 would continue, despite the bill having been rescinded on January 2, 2013.  Unions were advised that grid delay would remain in place beyond August 31, 2014 until new collective agreements were negotiated.
• On April 8, 2014, the Liberal government passed the School Boards Collective Bargaining Act, also referred to as Bill 122. Bill 122 established a new, two-tier (i.e., central and local) bargaining process for negotiating collective agreements in the education sector, and it formalized the role of the Government in that process.
• On September 1, 2014, ETFO began the 2014 round of collective bargaining with the objective of removing the delay in salary grid movement as of September 1, 2014.
• From the outset of the 2014 round of bargaining, the government and the Ontario Public School Boards’ Association emphasized to ETFO negotiators that the financial provisions to be paid to all of Ontario’s teacher unions would be substantially identical.
• In the fall of 2014 every ETFO local filed grievances disputing that the restriction on salary grid movement for 97 days could be applied outside the two-year period of the collective agreement into the 2014-2015 school year.
• In May 2015 a local grievance filed by AEFO about the issue of grid movement delay during the 2014-2015 school year was dismissed by Arbitrator Carolyn Rowan.
• On August 25, 2015, OECTA reached a central agreement with the Ontario Catholic School Trustees’ Association that included a provision regarding salary grid movement. The provision appears to be an agreement that the delay in salary grid movement would end after September 1, 2015.
• Between August and November 2015 OSSTF, AEFO and ETFO reached central agreements that included substantially identical financial provisions to the agreement reached between the Liberal government and  OECTA.
• In November 2015 ETFO entered into a tentative agreement with the government and OPSBA. ETFO agreed in good faith that it would settle its grievances regarding 2014-2015 grid movement delay on the understanding that this would be the basis for restoring grid movement as of September 1, 2015 for all four of Ontario’s teacher unions (i.e., ETFO, OSSTF, AEFO, OECTA). ETFO’s settlement also included language confirming that the contents of the settlement were without prejudice to ETFO’s Charter challenge.