Albert Gaudio
Albert Gaudio

This Saturday, Nova Scotia Education Minister Karen Casey announced all schools in the province would be pre-emptively closed to students for their safety.

The closures are a response to a planned work-to-rule action from teachers — in other words, the teachers had promised to start working to the letter of their contract starting on Monday. That would have meant showing up 20 minutes before class and leaving 20 minutes after, while refusing to supervise lunch, do online data entry, or help with extracurricular activities.

The province later announced that the decision was made in response to school board officials who feared that the work-to-rule would put students at risk if they went unsupervised during lunch or after school. “Government will bring forward legislation Monday, Dec. 5,” the province said in a statement, “that will get students back to school as quickly as possible.”

That legislation now appears to be on hold, at least temporarily, as the government is backing down in the face of a public uproar. But the question remains: Can the McNeil government legally close the schools?

I called up Albert Gaudio, a friend of mine and an up-and-coming lawyer in Toronto who focuses on, among other things, employment and labor law (he works on the employees’ side). I wanted to ask him what exactly the government’s options were — and what legal pitfalls they might face as they try to force teachers to go above and beyond their jobs.

Katie Toth: What was the first response that came to mind when you heard that, after announcing the teachers would be working to rule, the province responded that they’d keep students out of class for the students’ safety?

Albert Gaudio: The first thing I thought would be “unprincipled.” The second thing I thought would be “completely ridiculous, it’s absurd, and it’s a manifestly unreasonable thing for a minister to say. Or for any employer to say.” If it was so unsafe [for teachers to work to rule,] you should have put [the other job duties] in the last collective agreement. That, or, they were sort of always hoping people would put in unpaid time. The problem there is obvious, I think: you don’t show up to work for fun, you show up because you’re getting paid to be there.    

It is actually possible for a work-to-rule to be legally unkosher but only when you’re construing the terms of the contract unreasonably. So like the classic instance of it is there’s this 1972 case in the UK where the railway drivers were on strike and so it says in their contract it said the driver shall not start the train until he has satisfied himself that everything is in good working order. Well the driver would take a good bloody long time to satisfy himself. You know, in cases like that it can be unreasonable.  

Ordering people to stop a work-to-rule is not completely impossible. But [it’s] difficult to do and difficult to enforce.

We’ve got to drill down into the minister’s remarks there. If she’s saying that working-to-rule is making the students unsafe, then there are two possibilities. One is that the interpretation of the collective agreement  that the union is relying on … is unreasonable. Ok, if that’s true, then the union is really in the wrong here and the minister has a point. The much more likely case, however, is that their interpretation is reasonable. The NSTU has lawyers advising them. I’m going to go ahead and assume they are working-to-rule within a reasonable interpretation of the collective agreement.

KT: This is a little hypothetical because they haven’t passed any legislation yet, but what people are expecting is that the NS Legislature may force a new contract down teachers’ throats —  will basically vote that they have to accept a contract. So presumably, the Legislature could vote that NSTU members have to teach or spend time after school coaching soccer in that capacity?

AG: They can certainly attempt that. I think they’re going to run into a lot of the more recent body of Supreme Court of Canada case law, in terms of the right to collective bargaining and the right to strike — both of which flow directly from the Canadian Charter of Rights and Freedoms’ right to freedom of association.

Arguably the right to work-to-rule receives additional protection from the Charter because the rationale for it falls under the same basic “Freedom of association is bupkis without it” rationale as the right to unionize, and by extension, the right to strike — but also because working-to-rule is less intrusive than striking. And the common law doesn’t like forcing you to go to the extreme thing, even if you have the right to.

We had a case in 2007 called BC Health Services v Fraser. The Supreme Court of Canada decided that the right to freedom of association in the Charter of Rights and Freedoms includes the right to join a labour union. And for that reason, it also includes the right to engage in a process of collective bargaining.  

Then the question became, “Alright, but does that also protect the right to strike?” In 2015, when the Supreme Court of Canada decided Saskatchewan Federation of Labour v Saskatchewan, they decided yes, it does. What happened in that case is pretty similar to the hypothetical you’re suggesting to me now about what might happen in Nova Scotia. Legislation the Saskatchewan government brought forward … would have allowed the government to unilaterally declare any public service employees to be “essential” public service employees. And for that reason, to be prevented from striking or taking any other form of job action.

KT: So that would have included work-to-rule?

[No. It only applies to strikes and lockouts. But,] what it meant was there was really no ability to negotiate with the government. Because, in practice, if you can’t actually stop your work and refuse to keep showing up, what leverage do you actually have?  

So when the court revisited this issue, they agreed. And part of why they agreed is that the Saskatchewan government really overreached. And so it forced the court to sort of dig into its pockets and say “Okay, fine, there is a right to strike.” 

Then they had to do a reasonable limits test — which is where they say “Okay, we recognize this infringes on one of your rights under the charter, now we have to see if this limit is reasonable.”

Is this a huge overreach, or are you trying to limit the person’s right as little as possible so—

KT: — So society can function?

AG:  Yeah, so society can function. That’s a good way of putting it, actually. So, they went through and they said “No: it actually fails this test.” Because it lets the government decide who counts as an essential employee unilaterally, without a mechanism to challenge that — but more importantly, because it didn’t include any other dispute mechanisms. And this is really where the Saskatchewan government shot itself in the foot. Because if you’re going to tell people ‘You can’t go on strike,’ you have to give people some other meaningful means of resolving the dispute. Because when you take someone’s leverage away what else are they going to do?

Traditionally, the answer to this in most Canadian jurisdictions is binding arbitration. But it’s binding on the government. And in general when you use binding arbitration, very often you usually see the deal for the union gets a little bit better.

KT: So it’s not necessarily in Stephen McNeil’s best interest to reach out for binding arbitration because he might find himself getting less control, not more. [Stephen McNeil has said that he will not allow the negotiations to be decided by binding arbitration.]

That’s completely correct… He might end up with the teachers getting a deal he didn’t want them to get. It probably wouldn’t satisfy the teachers’ demands, but let’s face it: labor arbitrators usually manage to find something in the middle. 

Basically, you can’t unilaterally impose a contract, because then you’re in violation of the right to strike and the right to freedom of association. You need to submit it to some sort of other process.

I’m not really seeing how they’re going to be able to do this, except — this has occurred to me — I like to call it the Stephen Harper school of passing legislation. It’s where you go ahead and pass the unconstitutional law knowing full well that by the time you get a decision back, it’s not your problem anymore. The political heat’s gone away.

Whether McNeil gets away with imposing a contract [could be] decided down the road at an actual trial and could quite possibly be appealed.

This could take so bloody long that it could be after the next election, so nobody blames McNeil anymore — or at least, he’s away from the issue by then.

This interview has been edited and condensed.

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  1. There is no point asking a NS lawyer, they tend to offer up the ;cupboard is bare’ synopsis unhelpful to the discussion.

  2. The law regarding safety and supervision of students in Ontario is completely different than in Nova Scotia. In Ontario principals & vice-principals were (when formerly in the teachers union) excluded (by legislation) from the job action so as to ensure adequate supervision and safety. In NS that is *not* the case and the NSTU work-to-rule guidelines provided many of the same instructions to principals as they did to teachers (they are both in the same union, which many people do not know…comments about the union and “teachers” in NS refers to classroom teachers, principals, vice-principals, and the counselors who provide psychological supports for students at risk…the union “guidelines” (which are really rules that members are expected to adhere to) apply to all of those school positions). The union COULD have instructed principals to be to schools earlier, to stay later, and to supervise lunches (as is the case in Ontario during a teacher w-t-r) but they did not do so, and in fact instructed the opposite.

    Tim: Consulting a legal expert in a different province on an issue of provincial jurisdiction is poor journalistic practice. I expect better of you.

    1. Agreed. Poor balance in general regarding this story. I support Teachers, they gave me my start in life in many ways. But the NSTU’s hands are not clean. And what is being asked now to change the system is to dump more money and resources into the system. That was what was asked for last time, the time before that, the time before that…..and no changes. If we want change, we have to change. The NSTU doesn’t want to change. You can start with the obvious and remove Principals from the Union as well as admitting that there is such a thing as a bad teacher. For the last two decades, the hard line has been Nova Scotia doesn’t have bad teachers, at all. And if you think one is bad it is because you are ignorant, unless you are a Teacher because only people actively Teaching know. You don’t know, ergo, you have no say.

      I’d like the Government to came back with that answer sometime to a question by the Press and see how well that goes over. But if the NSTU say it, it is gospel. Like the non-existence of bad teachers. Bad Lawyers, Doctors, Reporters, Engineers, even bad Politicians, just look at all of them. No bad teachers.


      1. So McNeil will pass his legislation, and the taxpayer will cough up millions in a fruitless attempt to defend it in court.

        You want to make some changes? That takes negotiating. Your’re not wrong with some of your assertions, certainly regarding teachers that perform poorly. I’ve had some, everyone has had at least one, and you’re right it’s hard to discipline them. But that being said, it’s a small minority.

        A huge part of this issue that you’re ignoring is how much more besides money has been dumped into the system. There are many, many kids now in the system that would have been institutionalized when you were in school. The province downloaded them on the education system, and has not provided adequate supports. This is not the same system we went to school in.

        1. The province did not ‘downloaded them on the education system’.
          The province has partially fulfilled it’s constitutional requirements as set out in the 2012 SCOC decision :

          ” The Supreme Court made an articulate and powerful statement that: “…adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children…”.
          The province has not provided adequate supports.
          The province needs to fully fund the mandated programmes before funding other programmes.
          And NSTU needs to fully support the court decision as well as take the high road on inclusion as laid out by Parker bDonham in his latest column

    2. Michael, I disagree with your somewhat nitpicking and parochial complaint. Bravo for this story. While labour law is a provincial jurisdiction, all provincial labour laws — BC and Saskatchewan cases were cited — are subject to the Charter of Rights and Freedom. Most of what the “Ontario” lawyer talked about was the general labour law landscape in the country, in light of recent Supreme Court labour law decisions. This is far more important than whether or not principals are in the bargaining unit. The student-safety issue is a ridiculous pretext desperately concocted by the government to attempt to justify imposing a collective agreement on the teachers.

      1. Yes, it was totally not a response to warranted complaints from the School Boards over student safety. Thinking of that could NOT have been on the Governments mind because these Liberals are Lizard-people and as everyone knows, Lizard-people eat children. They want them out of schools so they can feed. It is very very clear, why isn’t this in the press?

        I mean, you know, until the Boards got re-assurances, passed them along to the Government who is now opening schools up as of Tuesday. I guess the child-hating Lizard-people got enough to fed, eh? Or maybe, JUST MAYBE, these men, women, mothers, fathers and former teachers actually cared about the children and wanted assurances of their safety….

        Who am I kidding. It’s Stephen McNeil, lead Lizard-person of the congress of Lizard-people. He totally just wanted to snatch up a few kids. I’m frankly surprized this wasn’t the by-line to today’s article. “The Lizard-people strike again!”. You know, to give the story proper balance and context.

        1. It was completely UNwarranted. The superintendents were forced to write the minister any safety concerns that may arise from a work to rule scenario. Those concerns were then addressed by the union and in fact there was no safety concerns as of Friday. The minister of ed had this information as of Friday night and still went ahead and closed schools to the students under the guise of ‘student safety’

          What they really were hoping was that they would enact bill 75 as planned and legislate a contract to teacher. Fortunately some MLA’s with a backbone realized this was not only political suicide but was also just not the right move. The backlash from the public was enough to make them think again… now we’re in a stand still where teachers and the govt seem to be happy to work to rule for the year with no resolution in sight and only the kids will lose in this scenario. They are just waiting for an excuse to pull out bill 75 again and hope their MLAs fall in line… will they bargain in good faith? I doubt it.

    1. Joanne, I am following this from Ohio and wishing (as we all have so often!) that Eileen were there to hold the Minister’s feet to the fire and advocate for students and teachers, as she did in both the classroom and the Legislature. The MacNeil Government should be ashamed of its extra- legal, overreaching and pandering.