Sunday, December 4

Terence Corcoran: Doug Ford wins one for the Charter of Rights


Knocks down union power to strike against state monopolies

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Prime Minister Justin Trudeau, his labour minister, Seamus O’Regan, assorted leftist academics and a small army of labour leaders and CBC agitpropists would have Canadians believe that the Ontario government’s attempt to prevent a strike by 55,000 education workers amounted to a fundamental overturning of one of the sacred principles guaranteed under the Charter of Rights and Freedoms that was formally signed into law by prime minister Pierre Trudeau and the Queen in 1982. But Trudeau Jr., in full earnest mode filled with meaningful pauses, said the other day that it is a “very, very serious thing to suspend people’s fundamental rights and freedoms.” Premier Doug Ford’s use of the notwithstanding clause, he said, “is actually an attack on people’s fundamental rights and, in this case, is an attack on one of the most basic rights available — that of collective bargaining.”

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The agitpropists at the CBC were so eager to jump aboard this view of rights that they led The National news on Monday showing union workers “celebrating” Ford’s decision to cancel his use of the notwithstanding clause to prevent a strike — even though his threat to use it actually ended the strike.

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The prime minister’s characterization of Ontario’s legislation is false on several accounts. First, collective bargaining rights were not being suspended. What would have been suspended was the right to strike. But suspending the right of workers to strike is not an attack on fundamental rights or on the foundations of a free society.

The claim that the right to strike is embedded in the Charter of Rights is untrue. No such right exists in the Charter. The right to strike was manipulated into Charter territory by a bizarre and twisted 2015 Supreme Court decision that essentially invented the right in contravention of existing jurisprudence. As two dissenting justices commented in the 2015 decision, citing previous decisions, “nothing in the concept of collective bargaining … includes a constitutional right for employees to strike.” And: “The result is to inflate the right to freedom of association to such an extent that its scope is now completely divorced from the words of the Charter themselves.”

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Trudeau and the liberal left are using the Ontario education workers situation as a political tool in a play for pro-union voters and to prey on average Canadians’ fears that their rights are being taken away. In fact, it was the Supreme Court’s 2015 decision that took away individual rights and reinforced a system of union labour negotiations that gave union leaders the ability to extort money from government monopoly operations — something they have been doing successfully for years.

Allow me to cite an earlier column on the 2015 Supreme Court decision that continues to have serious economic implications and subverts the rights of individual Canadians. What starts in the Charter as an individual’s right to freedom of association — in a religion or a union or an activist group or an NGO — was expanded into the right of union leaders (assuming a majority vote) to march workers off to strike against employers.

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This leaves individual Canadians caught between two extremes when it comes to public services. On the one side are the unions, their power enhanced by the court with the ability to extract taxpayer funds from government monopoly operations that leave consumers and the public with no choice. On the other side are the government-based monopoly service providers.

Financial Post legal columnist Howard Levitt recently noted the rarely acknowledged power imbalance that government unions hold over government operations. As Levitt observes, “in the private sector, market discipline prevails.” No such discipline exists in government monopolies.

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In the event of a strike at Loblaws, consumers and producers would be free to turn to other chains and suppliers. If a union strikes General Motors, there are plenty of competing automakers around. In the case of state monopolies that provide services for which there are no other options — teachers, education workers, nurses, transit workers — users have no choice, as was the case as Ontario’s education workers were set to leave struggling parents and students without alternatives. Under the laws and the court ruling, unions have a right to deprive Canadians of services that are available only through the unionized government monopoly agencies.

By introducing notwithstanding clause legislation, the Ford government challenged that right to strike by a union holding monopoly power. The legislation was withdrawn — on condition that the Canadian Union of Public Employees stopped the strike that was to take place this week. CUPE agreed. Ford won. It was a small but important Charter of Rights victory.

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Canadian union membership has declined from 38 per cent to 30 per cent of total employment over the past three decades. Private sector membership has fallen while public sector membership has risen. Total membership rates would be lower still were it not for the power of government unions to deploy their un- Chartered right to strike that deprives workers, citizens and consumers of their Charter rights.

Ford’s initiative could be a bit of a precedent, with government union leaders — and the general public and consumers — perhaps now more aware that the union right to strike against government monopolies cannot be taken for granted.

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