ERA Charter Challenge: Ruling on Remedy :: Association of Justice Counsel News
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March 27th, 2012
March 27th, 2012
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ERA Charter Challenge: Ruling on Remedy

Yesterday, Mr Justice Grace of the Ontario Superior Court of Justice released his decision on remedy following his original ruling that a 2006 wage cap under the Expenditure Restraint Act (ERA) violated our constitutional right to collective bargaining, and that violation could not be saved under s.1 of the Charter.
 
In his ruling, Grace J. granted the thrust of the relief sought by the AJC and began by reiterating that the effect of his initial ruling on November 1, 2011 was that the parties should be restored to their original bargaining position prior to the ERA:  “The remaining task is to ensure that the ERA allows bargaining to restart and reach its pre-ERA conclusion”: see para.8.  Not only did the Court resolutely underscore this core holding, it went further in several respects.

First, Grace J., as requested, struck down two subsections -ss.16 and 34(1)(a)(ii)-under the ERA, both of which applied directly to AJC members vis-à-vis the 2006 wage cap. Second, while acknowledging that no particular outcome from renewed bargaining is assured, Grace J. contemplated that retroactive compensation would logically flow from any increase to the newly established base rates of pay for 2006: see para.17. And third, as a means of ensuring that the bargaining process restart without any undue delay, Grace J. rejected Treasury Board´s request for a prolonged suspension of the Court´s declaration of unconstitutionality, instead only granting a brief 30 day reprieve for the sole purpose of preserving the employer´s right to move for a stay from the Court of Appeal for Ontario.
 
As we have said on many previous occasions, the AJC strongly encourages Treasury Board to view the Court´s findings in an objective light, and to reflect on whether it would be more cost effective to come back to the table as a good faith bargaining partner, rather than filibustering a potential settlement to our outstanding issues, which have remained unaddressed for far too long.
 
Meanwhile, yesterday´s court ruling marks another positive step forward for the AJC and all of its members.  

 

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