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Union Power Tested in the Supreme Court of Ontario

October 1, 1985 -

Merv Lavigne, a 50-year-old professional engineer and teacher at the Haileybury School of Mines, is challenging the right of the Ontario Public Service Employees' Union (OPSEU) to force him to pay dues and to not work during a strike.

He launched his action in the Supreme Court of Ontario in March 1985, basing his case on the new Charter of Rights and Freedoms which states, among other things, that "every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination." The National Citizens' Coalition is financially supporting what will undoubtedly become a landmark court case.

During the three and one-half week strike of 7,600 teachers at 22 Ontario community colleges in late 1984, Lavigne and seven colleagues decided to return to work without pay. They discovered that Ontario's Colleges Collective Bargaining Act stipulates that everyone must take part in a strike called by the union and that no teacher may be pald salary or benefit during such time. Since Lavigne was not a union member (although he was required to pay dues), he could not collect strike pay. Furthermore, by ignoring the union's strike, Lavigne could be fined $500 and his school $10,000 per day. When the union fined the eight teachers $2,500 each, Lavigne took his case to the Ontario Labour Relations Board. Although the union dropped its fine one week later, Lavigne is still pursuing court action.

Merv Lavigne's action in the Supreme Court of Ontario has a two-fold focus. First, Lavigne's lawyers argue that it violates the equality section of the Charter of Rights and Freedoms to force every teacher to take part in a strike and to withold payment from those teachers who choose to work. Second, Lavigne objects to being forced to pay union dues, part of which go to support such groups as the Ontario Federation of Labour, the National Union of Provincial Government Employees (NUPGE) and the Canadian Labour Congress (CLC). Lavigne objects to these organizations, and to many of the causes they in turn support, e.g., the New Democratic Party, Arthur Scargill of the British miners' union, the anti-cruise missile campaign, Nicaragua, free choice on abortion, and the Palistinian Liberation Organization. "I would like to make it clear that I don't object to Canadians associating together, voluntarily, to financially support a variety of political parties and causes," Lavigne stated. "However, I don't believe that in a free and democratic society, citizens should be forced to financially support political parties and causes."

The CLC and NUPGE have joined forces with OPSEU against Lavigne, and are clearly taking his challenge seriously. Said Dennis McDermott, president of the Canadian Labour Congress: "The outcome of this proceeding might well imperil the strength or even the existence of the CLC . . . These proceedings represent a novel and wide-ranging attack upon accepted principles of labour legislation in Canada." Morris Wright, lawyer for the CLC, said that the case was a "basic attack on the essential structure of trade unionism in Canada." During cross-examination McDermott was asked whether losing the right to compel workers to pay dues used to support political parties with which they disagreed would "imperil the strength or even the existence of the CLC." He replied: "Oh, I believe so . . . I believe that this is the foot in the door, that the first step may not appear to be imminently dangerous, but it goes to the whole point of our right to affiliate with and support the party of our choice . . ."

If unions had paid more attention to workers' freedom of conscience and of association and relied less on their control over jobs, they would not now be confronted with what they consider to be a challenge to their existence. The circumstances leading up to this challenge, including a strike by relatively well-paid professionals and the union's arrogant treatment of a few independent-minded teachers—sanctioned by legislation that gives unions arbitrary powers—amply explain why the unions now find themselves on the defensive in this court action.