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2008 Expenditure Restraint Act (ERA)

The Ontario Court of Appeal (OCA) issued its decision in relation to the Institute's (and the PSAC's) constitutional challenge to the 2008 Expenditure Restraint Act (ERA) that imposed wage increase limits on the federal public service. We were unsuccessful in our appeal.

As you may recall, the impact of those measures announced in the 2008 budget was to impose certain wage increase limits in the course of ongoing bargaining and to roll back economic increases that had already been agreed to for certain Crown corporations. The Institute and the PSAC initiated separate challenges that were joined together for the purposes of hearings and decisions. The parties argued that government's conduct leading up to the adoption of the ERA and the ERA itself impermissibly limited our right to collective bargaining as protected by s. 2d of the Charter.

In February 2014, the Ontario Superior Court of Justice dismissed our application. Given the state of the law on public sector labour relations at the time, we appealed that decision. About one year later, the Supreme Court of Canada issue its landmark trilogy of decisions (Mounted Police Association of Ontario, Meredith and Saskatchewan Federation of Labour), which confirmed that the right to form an association for the purpose of advancing important workplace issues through collective bargaining and the right to strike are constitutionally protected by s. 2d of the Charter.

A panel of three judges of the OCA dismissed our appeal, finding that the government did bargain in good faith; that the ERA did not impede s. 2d of the Charter and that, even if there had been a breach of Charter rights, any such violation would be saved by s. 1 of the Charter. Briefly put, the Court was of the view that meaningful bargaining did occur and the limits imposed ultimately resulted in wage increases that were in line with freely negotiated agreements. It concluded that the unions were consulted adequately by being provided with the same rights as any other citizen to participate in the legislative process. Finally, it concluded that, even if it was wrong in its finding that there was no breach of Charter rights, the government's actions were justified under s. 1 given the global economic crisis with which it was faced.

While the OCA did find some errors in law were contained in the decision of the lower court, it was of the view that these errors had no impact on the ultimate findings that there was no Charter violation. The reasons for the decision will be made available to all members on our website shortly. The decision was issued in English and has not been officially translated.

 


Publish Date: 23-AUG-2016 10:09 AM