What’s the notwithstanding clause and how could Doug Ford use it to crush a strike?
Ontario's government plans to invoke the controversial notwithstanding clause for the second time in Doug Ford's tenure and the province's history, this time to force school support staff on the verge of walking out Friday to stay at work.
The clause allows provinces to override certain parts of the Charter of Rights and Freedoms for five years. Ontario would use it to support legislation that could fine workers $4,000 and the union $500,000 every day if they strike.
Canadian Union of Public Employees (CUPE) has said it will cover members' fines, which could total $220 million a day.
As announced by education minister Stephen Lecce on Monday, the Keeping Students in Class Act would also establish a four-year contract with the 55,000 Ontario school workers represented by CUPE.
The contract includes a 2.5 per cent wage increase for those earning below $43,000 annually, a 1.5 per cent increase for those earning above that, increased benefit contributions and more.
Union officials balked at the proposal: A half per cent wage increase to an already-insulting offer isn't generous," said Fred Hahn, President of CUPE Ontario, in a statement.
An additional 200 bucks in the pockets of workers earning 39K isn't generous. It wouldn't even be generous to accept our proposal - it would be necessary, reasonable, and affordable," he continued. It's simply what's needed in our schools."
School support staff vowed to walk off the job starting Friday in defiance of the new legislation, potentially leaving hundreds of thousands of students in the GTA without in-person learning.
Lecce, meanwhile, told reporters after introducing the legislation Monday: We believe what we brought forth not only is constitutional, but ensures stability for children" and will keep them in class despite any challenges from the union.
In order to protect the new act against legal challenges, Ontario would use the notwithstanding clause to override sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms despite the Human Rights Code," the government said in a news release Monday.
The sections pertain to fundamental rights including, respectively: freedoms of expression, conscience, association and assembly; life, liberty and the security of the person; and equality.
According to a 2018 parliamentary paper, the notwithstanding clause allows governments to override three parts of the Charter: Section 2, Sections 7 through 14 and section 15. After a law is passed using the clause, it can't be challenged for another five years.
Since it was introduced in 1982, the clause has been used 20 times - mostly by Quebec, according to a paper published in the Canadian Journal of Political Science.
Ford previously invoked the clause for the first time in Ontario's history in June of 2021 to bypass a judge's ruling that struck down his government's limits on unions' electoral spending. The most recent attempt would be the first time since 1986 the clause was used to pass labour legislation.
Sources told the Star's Kristin Rushowy on Tuesday that Ontario was willing to return to the bargaining table should CUPE withdraw its strike threat, present a reasonable offer" and if the mediator requests it.
Ontario's intended use of the clause has been panned by unions and politicians alike. On Tuesday, Prime Minister Justin Trudeau slammed the legislation saying: Using the notwithstanding clause to suspend workers' rights is wrong."
I know that collective bargaining negotiations are sometimes difficult, but it has to happen," he said. It has to be done in a respectful, thoughtful way at the bargaining table."
Federal Justice Minister David Lametti said he was going to think about" challenging Ontario's decision in court.
Kevin Jiang is a Toronto-based digital producer for the Star. Follow him on Twitter: @crudelykevin