Opening Statement



Wednesday, 12 March 2014

ETFO Letter: Bill 115 Charter Challenge Adjournment

ETFO members are receiving the following letter. It advises them of a disappointing adjournment of the Ontario court's June meeting to hear the ETFO legal challenge, pending receipt of some forthcoming legal decisions as described below. It looks like it will result in at least a few months delay, if not more, for the union's Canadian Charter of Rights + Freedom's challenge.



Our local teacher + union readers will be familiar with Bill 115 from August 2012. The Ontario Liberal government called an emergency legislature seating during the summer holidays to quickly pass the bill into law. It gave the government far ranging powers to over ride Ontario Labour law, in regards to the Collective Bargaining Act. It is hoped the challenge will prevent such draconian acts being exercised again. Here's the letter: 

Last week, the judge assigned to the ETFO Bill 115 Charter challenge, Justice Himmel, held a meeting of all the lawyers representing the unions involved in the case, and the Attorney General lawyers representing the government.

During that meeting which is called a case management conference, the Attorney-General requested an adjournment (postponement) of the June hearing dates set aside by the Ontario Court to hear the Bill 115 Charter challenge. The Attorney General's postponement request stemmed from two issues:

1.       Three cases similar in nature to ETFO's Bill 115 case are currently being argued before the Supreme Court of Canada. The Attorney General presented the argument that the law is currently changing on the meaning of the protections for collective bargaining and strike action under s. 2(d) of the Charter. The cases that are before the Supreme Court now will shape and form the law and will be very instructive to the Judge hearing ETFO's Bill 115 challenge. On a practical basis, the Court dates in June will be wasted because all parties will have to return following the Supreme Court's decision to address the updated law;

 2.  Another union wishes to intervene in the Bill 115 Challenge. UNIFOR believes that it has a direct interest in the Charter Challenge because some of its members were affected by Bill 115.   It has requested to join the proceeding and file materials, and wants some time to be able to do so.

We sought legal advice on the request to postpone the Bill 115 Charter Challenge. Our provincial Executive Committee unanimously supported the advice of Counsel. ETFO did not agree with this postponement but accepted the ruling of the Court.




Legal Advice

Counsel Howard Goldblatt and Ethan Postkanzer were of the view that the postponement request would be granted by the Court. Counsel advised us that the postponement made sense because they are also awaiting the Supreme Court's decisions in the other cases. They wish to prepare their materials based on the legal framework established by the  Supreme Court with respect to s. 2(d) and the law is not clear right now. All of the other union lawyers came to the same conclusion.

If the case were to proceed as planned in June, legal counsel would need to revise all of their materials prepared on ETFO's behalf to take into account any decision released by the Supreme Court. Their legal argument, planned to take place over five days in court in June, would be wasted as the law is uncertain.

We do not know when the Supreme Court of Canada will release its ruling on the cases raising the s. 2(d) issues. These rulings sometimes take up to eight or nine months depending on the complexity of the issues. These cases are complex as they are defining under our Charter of Rights and Freedoms what protections unions and their members have to participate in free and fair collective bargaining and strike action without intrusive and oppressive government intervention.

Bringing a Charter case before the court is a challenging undertaking. ETFO is committed to bringing the strongest case forward that we can. While this delay is disappointing, we believe it will better assist us in defending the rights of our members.




Note: Highlights mine solely for ease of reading.

COMMENTS: 
      The Bill 115 Constitutional case was a key element to help frame ETFO + OSSTF's "democratic fight" for "all workers rights" during the MOU crisis. Now, it sounds like there could easily be a delay of up to a year by the time the other cases are ruled upon + the lawyers reformulate their response
      Teachers are becoming more and more dependent upon the advice of lawyers, on complicated legal matters with great implications for our teaching and union life. It seems we need to take their word about what to do. I'm not comfortable with that when I consider the issues at OECTA over other legal matters regularly discussed in this teacher free speech forum. But what, if anything can we do?
      How can most of us even question the lawyers advice with any certainty? Ultimately it seems you will need to trust you provincial executives. Hmmmm. Maybe you feel confident in that. Maybe not. Regardless, it seems there is little we can do while the chasm between everyday teachers and the experts on high continues to grow.     
      Implications? Watch: It will be interesting to see who gets their ass in a knot about us even discussing this here. That's not good for democracy and free speech nor one's self efficacy in the teacher unions as far as I'm concerned! It is however frequently becoming the case throughout the teacher union movement! Some folks get mighty uncomfortable whenever we freely discuss these issues among ourselves!
     The Bill 115 Constitutional challenge will be a precedent setting case one way or another for all unions across Canada should it get to the supreme court + succeed. One hopes the provincial governments will be more hesitant to over ride our labour rights with such a cavalier attitude as they did in Ontario during 2012-13 while ostensibly forcing the MOU concessions upon us by hook and by crook. 
     There were some original estimates then that the case could easily take up to 5 years. That much now seems entirely possible, I'd even bet certain. In the meantime we are vulnerable to further attacks. One also wonders if many rank and file teachers will even recall or care much about Bill 115 and the MOU in another year or two? Time is definitely not on our side and therein lies the danger! I suppose you can cross your fingers and hope your trust is well placed dear readers. However, in my humble opinion, the times they are a changing and most unfortunately not for the best!

COMMENTS:

22 comments:

Anonymous said...

Are there any obvious parallels between this and the recent BC supreme court decisions in favour of free and unfettered collective bargaining rights for teachers and other education workers?

Anonymous said...

David, I believe you are right about people forgetting 2012-13. At my school, all heads get lowered when one brings up Bill 115. People are mostly okay with settling for what ever scraps are thrown our way. I get it when it comes to young teachers- they're just happy to have a job. Older teachers are coming in sick and not raising any concern about what has been lost and may be lost in the next round of austerity cuts. The people of Ontario will probably forget the huge waste of $ by our dear Liberals and vote them back in. OSSTF, ETFO and OECTA have been too quiet. Did we use all we could last year (and fail) and so now we just accept. It is a sad time to be in teaching; not the same fight in our members. "There's a hot place in hell for those who in times of crisis choose to do nothing" JFK.

Anonymous said...

The federations hardly did all they could do in the face of Bill 115. The teachers of Ontario did much more to oppose Bill 160 in 1997. The Liberal Government stole by using their legislative authority over $1.1 Billion when they confiscated teachers banked sick days (Dwight Duncan boasted about this in his last financial statement). The collective response from the teachers of Ontario was that ETFO members went on strike for one day...OECTA sold out and OSSTF did nothing (but their President Ken Coran got a chance to run for Liberals as soon as he signed and MOU and retired). The lack of meaningful resistance then will only encourage the government to come back looking for more. Holding out hope that the someday the courts will make this all right is living in a fool's paradise...how much of the teachers of BC teachers gained by winning in court three times? Not a cent and the latest court ruling that stayed the implementation of the previous rulings on the basis that following those rulings might cause irreparable harm. OSSTF did not even mention that the Ontario Charter Challenge was being pushed back again at their Annual Meeting last week! Justice delayed is justice denied! If you have a winning case why would keep putting it off? Bold prediction: it is just a matter of time until the federations find an excuse to drop the case altogether. Passing Bill 122 will be the last nail in all or our coffins.

Anonymous said...

I am furious. We are still waiting for word from the Provincial Executives on high about this adjournment of the Charter Challenge.

Why on earth was this extremely important issue not raised at AMPA? Instead of letting in the membership in on this huge "secret", PE again let us find out through social media. Better communication with this new PE? I think not. 50 Shades of Ken and just as torturous to read! Instead of open communication (as Sam Hammond seems to be quite accomplished at), OSSTF members got regurgitated tweets from their PE, tweets that originated with two leaders from provincial parties who were noticeably silent when their voices were needed last year. Two leaders who chose political expediency over workers' rights. Our leaders in OSSTF better not be taking advice/lessons from political leaders. (The perception amongst many members is that PE is avoiding/out of touch with the membership!)

For me, I am done! What a complete farce this has been. I am sure we will be told to stifle it but I have been stifled for far too long! By telling us to remain silent (and to do as we are told to do) what has been accomplished? Oh, yes. The largest contract strips in years! Job well done folks! Appeasement has served someone well.

Anonymous said...

Everything Mike Harris said about UNION BOSSES has come true!

Anonymous said...

I am completely disenchanted with "our" unions after 30 years of teaching as well. It seems as if they are more concerned with the "Third World" than with issues in Canada and Ontario....The latter will be the "Third World" pretty soon if someone here doesn't stand up for our collective bargaining rights. Who is looking out for our rights and interests when our unions who are collecting dues for doing it are not??? I would not want to be a young teacher right now. The outlook is grim indeed!

Anonymous said...

There was no mention of this postphonement or even the Bill 115 challenge at the OECTA AGM either. I guess what concerns the rights and interests of union members is of zero interest (not worthy of mention) to the union bosses as it will not affect them in their ivory towers!

Anonymous said...

Legal opinions are exactly that "opinions". Don't be taking what some of these charlatans say as gospel truth.

Anonymous said...

Jonathan Swift’s, On Lawyers:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue.

It is likewise to be observed, that this society has a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide, whether the field left me by my ancestors for six generations belongs to me, or to a stranger three hundred miles off.”
Nothing has changed since Jonathan Swift's time.

David Chiarelli said...

OECTAs involvement has benn minimal from the get go. I don't think they were even involved in the complaint. I do recall seeing James Ryan, Chris and Sonia at some of the ETFO OSSTF protests but otherwise I don't think they cared enough to get involved after unilaterally ratifying the MOU roadmap.

David Chiarelli said...

The PE executive as a whole that is.

Ms Chievous said...

The main reason " the provincial government had such a cavalier attitude as they did in Ontario during 2012-13 while ostensibly forcing the MOU concessions upon us by hook and by crook" was that OECTA sold- what was left of it's soul, abandoned its members and the professional integrity of every teacher in this province with a back door deal. Much like they did when Harris was ready to cave after the media frenzy over "Create a crisis in Education". The only thing that has changed since then is the title and job description of the OECTA person responsible for selling us all out.

How could OECTA take part in a Constitutional challenge when they are so hell bent on proving what they did was right that they have thrown out Richard Brock, a democratically elected local President for protecting his members. This very day my so called local OECTA President spent his time asking teachers what they are willing to give up-jobs or programs. Talk about a defeatist attitude.

I find it ironic that as far back as 15 years ago I suggested that we redirect our dues to top notch lawyers to protect what was left of our professionalism. That's exactly what's happened in a round about way.

If teachers across this Province really want to effect change they will not give up one more dollar of their hard earned money by striking, they will do exactly what they were educated and hired to do-teach, not coach. Parental pressure is and has always been the only way to win the respect that some deserve. The minute that extra curriculars are cut, suddenly everybody pays attention. But the Unions aren't in favour of that because sadly it's typically thru coaching and not teaching that teachers are recognized and promoted whether it be within the Board or the local typically male dominated unions. The only thing OECTA is concerned about losing is control.

Anonymous said...

I agree Ms Chievious. When ETFO promised to go back to the extras last spring we gave away the only leverage we had. We had a chance to turn education on its ear. Parents only cared about the extras, not our lost salaries, benifits etc. We went back to extras because our union leadership suggested that there was now "good will" going forward. That statement was akin to telling the abused to go back to the abuser because he/she has said it won't be done again. Well, we lost more money from unpaid PD days. My sick bank never returned, my expected gratuity was cut dramatically and we were told the Charter Challenge would happen in October 2013, and our 2% increase would come in September 2014. We know where that has all gone. We should have stuck with the job action to get back our previously negotiated items. We caved and basically said to the children, government will control your future- you have little say- get used to it. Our leadership has been pathetic. A part of me wishes for "Right to Work". At least then we won't have to deal with the big sham that OECTA, OSSTF, and ETFO are. We are almost into April. We have heard nothing about September's new contract. Will that too be dictated to us. Sad to see the way this profession has fallen apart.

Anonymous said...

The Liberals are the abuser and the teacher Unions are the abused and I agree whole heartedly that we are acting just like many people that find themselves in an abusive relationship! Kathleen Wynne says it was misfortunate that Bill 115 happened and we all line up again for another black eye! If the Premier is truly sorry then the confiscated sick leave banks, the lost rights to gratuities, the loss of the experience movement on the grid and the unpaid days will be returned to the victims of Bill 115...and that does not happen then we really know how sincerely sorry she is!
She is the Premier if she wants to make amends all of what was stolen by Bill 115 will be returned in this years budget. Absent that happening anyone in the teacher union leadership who puts any faith in the Wynne Government is whistling past their own graveyard. Good will is not easily earned and is easily lost ETFO's leadership seems oblivious to this reality and sold out cheap. The ETFO MOU was done in April and kept secret until June to aid the Liberals politically and to break the spirit of the ETFO members. It is only a matter of time until the same ETFO leadership tries to tell its members to vote for the new Premier...the only difference between the ETFO leadership and the OSSTF leadership is that none of them has announced yet they are running for the Liberals!

Ms Chievous said...

Liberals, Conservatives, NDP-they have all treated us with disrespect-Does Horvath really think that the Ray Days have been forgotten? And rather than act professionally and responsibly to protect us, OECTA used scare tactics to force us to walk without any back up plan whatsoever and then, just when we are making headway, they sell everyone out.The definition of insanity is doing the same thing repeatedly and expecting a different outcome. Anyone who trusts that OECTA has our best interest in mind must be insane.

I can't speak for ETFO or OSSTF but I can speak from my experience with OECTA. They were more concerned about the new members aka $$$$$$$ that they were going to acquire rather protecting their existing members when the Province came up with the idea to fund ECE. I vehemently opposed the idea and went to great lengths to share my concerns with the "brilliant minds " at OECTA.Much like what we teach our students-it's simple financial literacy. There is only so much money in pot. The more that money has to be shared the less there is to go around..........duh.!

David Chiarelli said...

While I wouldnt dagree with other aspects of your argument, please note it wasnt OECTA who backed down on the protest strike.

David Chiarelli said...

FWTAO left everyone hanging. OECTA and OSSTF had rug pulled out from under them. Like OECTA did to others with MOU.

Ms Chievous said...

David, that's not my understanding of what transpired during the protest strike, but then again, I wasn't there.

David Chiarelli said...

Yes it was almost the reverse of what happened with the MOU. Phyllis Benedict was the elementary public president. For a long time there was a lot of resentment about that by both OECTA & OSSTF. Some OECTA units wanted to break ranks but provincial held it together. We thought Harris was about to blink. The steelworkers were voting for strike action to support us, at the car plants and Darlington, but then it fell apart. Too bad. Always wonder what would've happened if we all held tight.

David Chiarelli said...

There was however no exit strategy like you point out.

Anonymous said...

The 1997 protest was pre the formation of ETFO. Phyllis Benedict was the President of OPSTF not FWTAO (which represented public elementary WOMEN teachers only)... both federations "back down". In OPSTF local Presidents were polled before the decision...interestingly many of those local presidents "voted" without even asking their own local executives for input. Bottom line was in the face of Bill 160 all schools in Ontario were closed for two weeks...last year in the face of Bill 115 only public elementary schools were closed and only for one day...clearly the leadership of Unions were more prepared to fight Bill 160 than Bill 115. The next round of negotiations will only be worse maybe someone will stand up for more than one day!

David Chiarelli said...

Thanks for this! The 2 week 1997 Bill 160 province wide teacher strike would make for a very educational blog if anybody is up to writing the history ....?!

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