On October 31, 2022, in an unprecedented bid to prevent school board employees represented by the Canadian Union of Public Employees (CUPE) from proceeding with a strike planned for early November 2022, Ontario introduced Bill 28, Keeping Students in Class Act, 2022 (Act) and insulated it from constitutional challenge. The Act’s Preamble indicates that the government was motivated to introduce the Act to maintain stability after the COVID-19 pandemic caused two years of disruptions to student learning, and negatively impacted students’ mental health.

If passed, the Act would, among other things:

• Deem new collective agreements (CAs) with new central terms to exist for education workers represented by CUPE beginning on the date the Act receives Royal Assent and ending on August 31, 2026 (s. 5)¹;
• Require any ongoing strike or lock-out to be terminated (s.6);
• Prohibit strikes or lock-outs during the term of the CAs (ss.7 and 8);
• Find any person that violates ss. 6, 7, and 8 of the Act guilty of an offence and make individuals liable for a fine of up to $4,000 per day, and make fines in any other case up to $500,000 per day (s. 9);
• Make contravention of ss. 6, 7 or 8 an unlawful strike for purposes of Ontario’s Labour Relations Act, 1995 (OLRA) (s. 10);
• Allow the Minister of Education to make a complaint to the Ontario Labour Relations Board (OLRB) under section 100 of the OLRA that there has been an unlawful strike, and remove the requirement under section 45 of the School Boards Collective Bargaining Act, 2014 that the Minister seek the consent of the employer bargaining agency before making such a complaint (s. 11);
• Stop anything in the Rights of Labour Act from preventing or affecting the operation or enforcement of the Act against any person including CUPE (s. 12);
• Use the “notwithstanding clause” in the Canadian Charter of Rights and Freedoms (Charter) to provide that the Act will operate notwithstanding sections 2, 7 and 15 of the Charter (s. 13);
• Declare that the Act applies despite the Ontario Human Rights Code (HRC) (s. 13);
• Prevent the OLRB, an arbitrator, a mediator-arbitrator, arbitration board, or any administrative tribunal from inquiring or making a decision on whether a provision of the Act, any regulations or actions taken under the Act, or the new central terms are unconstitutional or in conflict with the HRC (s. 14).
• Prevent the OLRB from inquiring or making a decision on whether any action of the Crown or any of the Crown’s current or former ministers, agents, appointees, or employees under the Act is unconstitutional or in conflict with the HRC (s. 14).
• Protect the Crown or any of the Crown’s current or former ministers, agents, appointees, or employees from any litigation or OLRB proceeding relating to the steps it took to enact the Act, and provide that any such litigation or proceeding brought before the Act receives Royal Assent and is deemed into force or after it is deemed into force, would be set aside without costs (s. 15);
• Provide that the enactment, amendment or repeal of any provision of the Act, the making, amendment or revocation of any provision of a regulation made under the Act, or the establishment of any provision of the new central terms, or anything done or not done in order to comply with the Act would not be an unfair labour practice as outlined under sections 17, 59, and 70 of the OLRA or any provision of the School Boards Collective Bargaining Act, 2014 (s. 15).

The Act states that it will come into force on the day it receives Royal Assent.

Bottom Line for Employers

The introduction of the Act by the government of Ontario is of interest to all employers that have unionized workplaces because its features are unprecedented. Among other things, the Act imposes CAs without allowing the parties to negotiate them, pre-emptively prohibits a union’s right to strike or lock-out, imposes hefty fines on those who engage in strikes or lock-outs despite the prohibition, insulates itself from legal challenge by using of the Charter’s notwithstanding clause, declares that it applies despite the HRC, and provides strong protection to the Crown and its agents for their roles in imposing the CAs and implementing the Act.

We will follow developments as they unfold and provide an update at the appropriate time.

Footnotes