Executive Summary: Key Legal and Evidentiary Issues

• Whether cancellation of the jointly conceived “Ontario Public Colleges: The Next 50 Years” Task Force by Cabinet substantially interfered with OPSEU members’ freedom of association and collective bargaining rights under s. 2(d) of the Charter.
• Extent to which the (unsigned) Task Force Letter of Understanding, later incorporated by an arbitrator into the collective agreement, could legally bind the Ontario Government, which was not a party to the collective agreement or the mediation-arbitration.
• Significance of the Task Force in the 2017 college sector bargaining impasse, including OPSEU’s claim that government-promised Task Force participation induced it to soften demands on academic freedom, governance, and faculty complement.
• Impact of the Government’s role in shaping and supporting the Task Force (including drafting language and political timing around the election) on the integrity of the collective bargaining process between OPSEU and the College Employer Council.
• Application of the “substantial interference” test in s. 2(d) jurisprudence to a government decision to rescind Orders in Council establishing and funding an advisory body, rather than to enactments directly restructuring collective agreements.
• Remedy and costs consequences following dismissal of the Charter application, including the absence of Charter damages and an agreed costs order of $70,000 payable by OPSEU to the Crown.

Factual background and the 2017 college strike

In October 2017, collective bargaining between the Ontario Public Service Employees Union (OPSEU), representing support staff and full-time academic staff at Ontario’s 24 colleges of applied arts and technology, and the College Employer Council, the statutory bargaining agent for the colleges, reached an impasse. The expiring collective agreement covered academic freedom, governance, and the balance between full-time and contract faculty, which were among OPSEU’s key priorities in the new round of bargaining. Negotiations, initiated in July 2017, stalled over these structural and governance-related issues. After conciliation failed, OPSEU commenced a lawful strike on 16 October 2017. The strike quickly became the longest in the colleges’ history, halting all instruction and affecting hundreds of thousands of students. During the strike’s second week, the Minister of Advanced Education and Skills Development met separately with each side to urge a negotiated settlement, but no resolution followed.

Creation of the Task Force concept during bargaining

Early in bargaining, OPSEU’s executive assistant to the president, Bob Eaton, proposed that a joint task force might be a vehicle to address systemic issues—academic freedom, collegial governance, and faculty complement—that were proving too contentious for immediate resolution at the table. He raised the idea with senior public servants in the Treasury Board Secretariat and the Ministry, who in turn involved the Deputy Minister of Advanced Education and Skills Development. When OPSEU and the Council returned to negotiations on 2 November 2017, the Task Force idea gained traction. Government officials, including an assistant deputy minister and the deputy minister, worked with both sides to refine a Task Force Letter of Understanding addressing its mandate, composition, and funding. Two draft versions circulated—one from OPSEU and one from the Council—but neither was signed. Both contemplated that the Government would create and fund the Task Force, that it would include representatives of OPSEU, the Council, and other stakeholders, and that its work would span the 2018 pre- and post-election period. Government officials were particularly focused on the political timing of interim and final reports, pressing for an interim report around May 2018 and a final report in the fall. That timing language, drafted by the deputy minister, was adopted almost verbatim into the final Task Force text later used in arbitration.

OPSEU’s concessions and continued bargaining deadlock

On 6 November 2017, OPSEU tabled a Comprehensive Offer for Settlement that included a Task Force Letter of Understanding reflecting the language hammered out with government participation. OPSEU asserted in the litigation that, in reliance on the Government’s commitment to establish and fund the Task Force, it made significant concessions: withdrawing proposed academic freedom language and a specific 50–50 full-time to non-full-time faculty ratio. The Council, however, remained unwilling to accept provisions it perceived as fundamentally altering college governance and management. It issued a final offer and sought a final-offer vote, which faculty rejected by 86 per cent. The strike persisted. Despite ministerial exhortations, OPSEU and the Council reported that they remained at complete deadlock.

Back-to-work legislation and the arbitration award

On 17 November 2017, the Ontario Government introduced the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017. It was quickly enacted and came into force on 19 November 2017. The legislation required all outstanding disputes between OPSEU and the Council to be resolved by binding mediation-arbitration. The Government itself was not designated as a party to those proceedings; the statute made clear that only the Council and the union were parties. The strike ended when the legislation took effect, and faculty returned to work. The Minister later referred publicly to the Task Force in the Legislature as one of the Government’s efforts to facilitate a negotiated resolution, but this was after the back-to-work law had passed and prior to arbitration.

In December 2017, an experienced labour arbitrator, William Kaplan, conducted the mediation-arbitration between OPSEU and the Council. The Government did not appear or make submissions. On 20 December 2017, he issued an award setting the terms of the new collective agreement for the period 1 October 2017 to 30 September 2021. Among several “new Letters of Understanding” he added to the agreement, he included the (previously unsigned) Task Force Letter of Understanding. The incorporated text provided that OPSEU and the Council would request government establishment of a province-wide Task Force, facilitated by the ministry; that the Task Force would include government and stakeholder representatives; that it would study issues such as faculty complement and contract work, funding, accessibility, student success, and academic governance; that the Ministry would accept and endorse the initiative as facilitator and commit that Cabinet would consider funding any recommendations; and that the government would work with OPSEU and the Council to get the Task Force underway by 1 January 2018, with an interim report by May 2018 and a final report by fall 2018. Notably, in the collective agreement version, the Letter of Understanding had no signature lines and did not formally list the Government as a party.

Establishment and design of the Task Force

After the Kaplan award, Cabinet exercised its statutory powers to create the Task Force through Orders in Council, rather than under any express contractual obligation. In January 2018, Cabinet passed an order establishing the Task Force under the Ministry of Training, Colleges and Universities Act, authorizing the appointment of members by the Minister to serve at pleasure, and stipulating that the Task Force would expire no later than 31 March 2019. A companion order set remuneration for the chair and members pursuant to the Legislation Act, 2006, with total remuneration capped at $25,500. The Task Force’s mandate was framed broadly: to provide the Minister with a forward-looking plan to support the publicly assisted college system in delivering high-quality, career-focused, accessible and responsive education and training. While the collective agreement language had spoken of Cabinet “considering” Task Force recommendations for funding, the Orders in Council and mandate confirmed that there was no legal obligation on the Minister or Cabinet to accept any recommendations.

The Task Force was structured as a 20-member advisory body including a chair, five OPSEU representatives, five college representatives, student members, and several external experts (industry, francophone community, economist, postsecondary expert). The chair received a higher per diem than other non-public sector members, and a civil-service secretariat was created within the Ministry to provide research and administrative support. The Task Force met six times between March and May 2018 and delivered a non-binding interim report on 27 April 2018, outlining preliminary recommendations and areas for further study.

Election period, change of government, and cancellation of the Task Force

On 9 May 2018, the writs for the provincial election were issued, placing the Government in a “caretaker” role constrained to routine, non-controversial, or urgent matters. During the writ period, Task Force members were advised that no further working meetings or stakeholder consultations would be scheduled, though the secretariat continued background research and procurement steps. The June 7, 2018 election brought a change in government. On 18 June 2018, the Secretary of Cabinet imposed a freeze on discretionary spending and new hiring in anticipation of the transition.

On 29 June 2018, the new Cabinet issued an omnibus Order in Council revoking 44 prior Orders, including those that had established and funded the Task Force. This effectively terminated the Task Force and its appointments before completion of its work or issuance of any final report. The Chair of OPSEU’s bargaining committee was formally notified on 13 July 2018 that the Task Force had been cancelled by Order in Council.

The Charter application and issues raised

OPSEU and J.P. Hornick, chair of the union bargaining committee during the strike, commenced a Charter challenge in the Ontario Superior Court of Justice. They did not attack the back-to-work legislation in this proceeding; that statute had been upheld in separate litigation. Instead, they alleged that the Government’s cancellation of the Task Force infringed s. 2(d) of the Charter—freedom of association as it protects meaningful collective bargaining. Their theory was that the Task Force had been negotiated between OPSEU and the Council in the context of collective bargaining, with the Government deeply involved in shaping and supporting the process; that the Government’s commitment to create and fund the Task Force had induced OPSEU to moderate or withdraw certain bargaining demands on central issues of governance and job security; and that by unilaterally terminating the Task Force before completion, the Government substantially interfered with OPSEU members’ collective bargaining rights and “tipped the balance of power” in favour of the Council and the Government. They sought declarations of Charter breach, an order re-establishing the Task Force and restoring funding, and Charter damages for affected members.

The Crown conceded that collective bargaining is protected associational activity under s. 2(d) but argued that participation in a government-created advisory task force is not, in itself, a protected bargaining process. It stressed that the Government was not, and could not legally be, a party to the college sector collective agreement under the Colleges Collective Bargaining Act, and that it never appeared as a party in the mediation-arbitration. The Government maintained it had acted as a facilitator and policy-maker, not as a contractual counterparty, and that the Task Force had been established and revoked strictly under statutory authority. It further argued that there was no evidence its involvement had coerced or dictated bargaining outcomes, no evidence of a concluded bargain incorporating the Task Force before the strike ended, and no substantial interference with OPSEU’s ability to organize, negotiate, or pursue its priorities with the Council.

Legal framework on freedom of association and substantial interference

The court applied the two-step s. 2(d) test developed by the Supreme Court of Canada. First, it confirmed that collective bargaining falls within the scope of freedom of association, including the rights to form an independent association, make collective representations to the employer, and have those representations considered in good faith. Second, it examined whether the impugned state action—here, the cancellation of the Task Force by revoking Orders in Council—had the purpose or effect of substantially interfering with meaningful collective bargaining. This substantial interference analysis turns on two aspects: the importance of the affected matter to the collective bargaining process and the manner in which the state action impacts the right to good faith negotiation and consultation. The court emphasized that s. 2(d) protects a process, not any particular outcome, instrument, or model of labour relations. Meaningful bargaining can be contextual and fact-specific, and interference may range from overt “union-busting” to more subtle legislative or executive acts that undercut negotiated terms or deny unions a real opportunity to bargain.

Was the Task Force part of a protected collective bargaining bargain?

On the facts, the court concluded that the Task Force was not an integral part of any concluded bargain between OPSEU and the Council for the simple reason that there was no bargain at all before the back-to-work statute. Negotiations failed; the strike ensued; and no new collective agreement was reached by the parties. The strike ended only when the Legislature mandated mediation-arbitration. While OPSEU asserted that the promise of a Task Force induced significant concessions, the court found no evidentiary basis for an actual inducement that produced a concluded agreement. Government officials, in the court’s view, were correctly characterized as facilitators pressing for a settlement rather than as parties offering contractual consideration. Even if the Government’s assurances about establishing a Task Force influenced OPSEU’s tactical choices, those assurances did not culminate in a negotiated contract.

The later inclusion of the Task Force Letter of Understanding in the Kaplan award did not, in the court’s analysis, transform the Government into a contracting party bound by the collective agreement. The statutory scheme under the Colleges Collective Bargaining Act defines a collective agreement as one between the Council, on behalf of employers, and an employee organization (a trade union). The Government is nowhere listed as a possible party, and the back-to-work statute likewise identified only the Council and the union as parties to mediation-arbitration. The award did not list the Government as a party. Moreover, there was no evidence that the ministry had been informed that the Task Force Letter was being placed before the arbitrator or that it had any opportunity to shape its inclusion. On these facts, the court held that, however the Task Force Letter appeared in the collective agreement, it could not legally impose obligations on a non-party government.

Government’s statutory authority and the non-contractual nature of the Task Force

The court emphasized that Cabinet created and funded the Task Force under broad statutory powers to appoint advisory committees and fix remuneration, not because it was legally required to do so by any collective agreement term. The Orders in Council made clear that members served at pleasure and that the Task Force itself would end by a fixed outside date. The Government also went beyond what the Task Force Letter contemplated by unilaterally appointing members, setting remuneration levels, and establishing a secretariat. These features underscored that the Task Force was a discretionary, policy-driven advisory body rather than a binding contractual mechanism. On that basis, Cabinet also retained the legal power to revoke the Orders in Council and terminate the Task Force altogether, which it did in June 2018.

While the court accepted OPSEU’s broader point that public sector bargaining is highly sensitive to funding and policy decisions made by government, and that in the college sector the Government is ultimately the source of resources that underpin negotiated terms, this political and economic reality did not convert the Task Force into a protected element of collective bargaining. Critically, OPSEU and the Council never actually reached a negotiated settlement that incorporated the Task Force; thus, its later termination could not be said to nullify an agreed term or undermine a concluded bargain.

Distinguishing prior substantial interference cases

The court distinguished this case from prior authorities where governments had been found to substantially interfere with s. 2(d) rights. In cases like Health Services and Ontario English Catholic Teachers Association v. Ontario (OECTA), legislation directly overrode existing collective agreements or dictated future terms (e.g., by capping compensation, altering contracting-out rights, or authorizing ministers to void inconsistent arbitration awards). Those measures interfered with the substance and scope of collective agreements themselves. Similarly, in the Bill 115 litigation involving the Putting Students First Act, the Government had structured and controlled the bargaining process in the education sector, imposed “parameters” that effectively predetermined key outcomes, declined to share necessary fiscal information, and ultimately legislated terms modeled on a government-preferred memorandum of understanding. That conduct went well beyond facilitation and was found to have rendered true collective bargaining impossible.

By contrast, in the OPSEU Task Force case, the Government’s involvement did not take the form of prescribing contract terms, controlling the negotiation process, or withholding essential information. Rather, it responded to a union-generated idea for a joint task force, worked with both parties to refine the proposal, and attempted—unsuccessfully—to help them reach a voluntary settlement. When that failed and the Legislature mandated arbitration, the Government did not participate in the proceedings or dictate their outcome. Its later policy choice, under a new government, to discontinue a discretionary advisory body did not negate a concluded agreement or otherwise dismantle meaningful collective bargaining.

Finding on section 2(d) and the outcome of the case

Applying the substantial interference test to the specific facts, the court held that the cancellation of the Task Force did not significantly and adversely impact OPSEU members’ ability to exercise their collective bargaining rights. The Task Force, while politically and strategically important to OPSEU, was not shown to be essential to members’ capacity to organize, communicate demands, or bargain with the Council. Its termination did not prevent OPSEU from continuing to advocate on faculty complement, academic freedom, or governance through regular bargaining channels in future rounds. Nor did the evidence support the assertion that the Government’s decision to revoke the Orders in Council undermined good faith negotiation or consultation protected by s. 2(d), given that no negotiated collective agreement incorporating the Task Force had ever come into being.

The court therefore concluded that the existence of the Task Force was not protected by s. 2(d) and that the Government’s June 2018 termination of the Task Force did not amount to substantial interference with OPSEU’s freedom of association and collective bargaining rights. It dismissed the application without needing to proceed to a s. 1 justification analysis. On costs, the parties had reached an agreement. In accordance with that agreement, the court ordered that OPSEU pay the Government $70,000, inclusive of fees, disbursements and HST, in favour of the successful party, the Crown in Right of Ontario. No Charter damages or other monetary awards were granted beyond this agreed costs order, and no additional amount could be determined from the decision.