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:
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.
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.
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!