The use of a special law to force teachers to return to work is unlikely given recent Supreme Court decisions, says a constitutional expert, who warns, however, that the Legault government's hands are not entirely tied.
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Even though schools have been compulsorily closed for weeks, Quebec has still not addressed the possibility of a special law, previously the government's tool for resolving standoffs surrounding strikes.
According to constitutional law professor Patrick Taillon, the reason is that the government doesn't really have “room” for it given the current legal situation.
Through various rulings since the early 2000s, freedom of association, a right protected by the Canadian Charter, has slowly become the right to bargain in good faith over working conditions and even to strike to provoke negotiations.
This legal development then culminated in a Supreme Court ruling in 2015 that made the application of a special law “extremely complicated” and even “almost impossible.” “The trend at the moment is therefore to consolidate the logic that says that special laws are prohibited by the constitution,” explains Mr. Taillon on the phone.
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“But if one day the government says that it is enough and that it wants to move forward with such a law, it still has a little leeway to do so, but it is more limited than ever before,” he specifies.
For the professor, the most legally sensible scenario would be to emulate what Doug Ford's government did in Ontario last year and pass a special law using the derogation clause, which had caused a real shock in public opinion.
“There are political costs to this option, but the fact remains that it opened up space for negotiations because unions knew that if they didn't put water in their wine they would be subject to conditions, so the government took a look.” a way to avoid implementing his own special law, which did not give him much popularity,” says the expert.
However, the Legault government does not necessarily have to go that far. “It could also represent the possibility of forcing a return to work as a simple scarecrow or as a lever to change the balance of power,” continues Patrick Taillon.
In another scenario, Quebec could try to comply with current legal requirements and prepare to defend its special right in court. “The government would then have to be prepared to demonstrate that it negotiated in good faith and, for example, demonstrate that there is a real threat to education after a certain number of weeks because no right is not absolute.”
And if in the past the balance of power was too biased towards governments, now there is an imbalance in favor of the unions, a situation that must be corrected in the coming years, says the professor.
“The judges wanted to intervene, now they have to identify the criteria and circumstances in which the application of the special law is justified,” he concludes.
Constitutional protection of the right to strike
The Supreme Court of Canada issued a ruling in 2015 recognizing that the right to strike has constitutional protection.
This decision states that a law that completely prohibits any strike by workers appointed by the employer to provide essential services constitutes an impediment to the rights protected by the Canadian Charter of Rights and Freedoms.
This is a controversial decision as the current Chief Justice of the Supreme Court himself wrote an argument against this ruling.
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