Gatineau court challenge the latest step in fight for labour mobility
The Ottawa Construction News
Pamela Eadie, Editor 2003-12
Almost two years to the date of a Supreme Court ruling that upheld the Québec laws he hoped to have declared unconstitutional, Jocelyn Dumais sat in a courtroom, harboring the same ambitions.
A Gatineau judge will rule on a constitutional challenge to part of Québec’s construction law that Dumais argues violates Section 6 of the Charter of Rights and Freedoms, which guarantees the right to find work in any province. A decision is expected in late December.
Lawyers for Québec’s attorney general and the province’s largest construction union say the law is not discriminatory because it applies to all workers and does not single any particular individual or group out.
Under the law, construction workers at Québec job sites must have a union card, complete a safety course, and have a Grade 11 diploma (Québec) and letters from employers guaranteeing 150 hours of work done in a period of three months. This has made it difficult for Ontario workers to work in Québec, and essentially requires that any Québec worker wishing to work in the province join a union.
This spawned Ontario’s retaliatory Bill 17 in 1999, which requires Québec workers to provide proof of competency, and mandatory registration of all Québec workers with the Ontario Job Protection Office. It also prohibits Québec construction firms from bidding on provincially funded or Crown corporation construction contracts.
In 2001, Dumais’ group took its challenge of the Québec laws to the Supreme Court of Canada, where it was narrowly defeated on a 5-4 vote, which was rendered on Oct. 19, 2001.
More than 145,000 Ontario and Québec construction workers were charged under the law between 1978 and 1998, paying $29 million in fines to the Québec government.
The court hearing on charges against several workers ended Oct. 24 after three days of testimony, in which Dumais was a key witness. Dumais owns an Ontario company, but lives in Québec.
« We explained all of this to the court, that there is a barrier even if you don’t see it. It’s not airtight, but it’s there, » says Dumais, president of the Association for the Right to Work, and owner of a concrete forming company. « We felt bad because for years many people have been complaining about this situation on both sides of the river. »
Dumais says he thinks « right to work » lawyer Julius Grey did an effective job arguing to the judge that the laws violate the right to work in any province. Previously, Dumais challenged the law on the basis that they force workers to join Québec unions, which he says is a violation of the Charter’s guarantee of freedom of association.
However, if the law is upheld, it will be the second time it has been declared constitutional, and Dumais will have to decide if he will continue the fight, which he has led for 11 years. In April 1999, Québec construction workers temporarily blocked the bridges between Ottawa and Hull.
« We will have to sit back with our people and see what they decide, » he says, adding that at this point it is too soon to know what the court’s decision will be.
If the decision renders the laws unconstitutional, Dumais says it will have serious but positive ramifications for the construction industry, particularly in Québec.
« The Québec government will have to change its labour law to make it easier to access the industry, » he says. « One thing is sure, it would open up the border and they could not close it again for any reason. We hope that this time around we’ll have open borders throughout Canada. »
André Martin, a spokesperson for the Commission de la construction du Québec (CCQ) denies that the law violates worker’s constitutional rights.
« That’s the regulation, that’s the law, that’s the situation. In Québec, you have to become qualified, » he says, adding that some employers require University degrees as a prerequisite for employment in some fields, and that this isn’t any different. « Maybe 20 years ago or more the construction sector everybody could do the job, it didn’t matter about the training or the educational level. But things are changing. Now, it’s getting more technological, and we need to have manpower that is more productive. »
He says that Québec workers often work on the black market when they cross the river into Ontario, and that those hours cannot be recognized in Québec towards a competency card. He says that so long as the work is completed in the « white market » the experience will be recognized.
Dumais says it’s not that simple, and that invisible barriers prevent labour mobility. He would like to see the union requirement struck down.
He has the support of John DeVries, president and general manager of the Ottawa Construction Association.
« He’s saying that Québec has this restrictive CCQ system where the door is open some days, the door is closed others, that’s how he’s attacking the system, » says DeVries. « If the court rules that in favour of less restriction in the way CCQ controls the system, I think that would be a positive. I think there is too much control, and I think they should unregulated how they control entry into the labour pool for each occupation. »
DeVries says Dumais’ intentions have their roots in democracy.
« In Ontario it’s not dictated that you have to be unionized. He’s a believer in democracy; if the guys want to be union, let them choose. But in Québec they have no choice. »
Martin argues though that if the Québec workers didn’t want the union system, they would oust it on their own.
« I think most of the Québecois workers in Québec prefer the situation where they are a union member because there are better conditions, » he says. « The laws sometimes reflect the social revolution, and there’s no large movement in Québec to change that. »
However, he does allow that there could be some room for change to the system.
« We agree that we could maybe modernize certain aspects of the regulations, specifically what we call the manpower pool by each trade in each region, » Martin says. « He (Dumais) has the right to think like this, but in the CCQ we are working to modernize certain things like the definition of the trades, the way of getting into the industry. »
Regardless of the outcome of the court case, there is some renewed hope that the situation can be worked out amicably between the new Liberal Ontario and Québec governments. Québec Premier Jean Charest and Ontario Premier Dalton McGuinty have said labour ministers from both provinces will negotiate an end to the issue soon.
Bernard Grandmaître, an Ontario MPP for 15 years under the David Petersen government, says it isn’t going to be easy to reach a resolution, but that it is necessary.
Grandmaître retired in 1999 after holding cabinet positions including Minster of Municipal Affairs, Revenue, and Francophone Affairs. He was at the centre of the construction labour issue during the early-1990s, when as MPP of Ottawa-East (now Ottawa-Vanier) he introduced a private members’ bill in an attempt to resolve the ongoing dispute between the provinces, after hearing horror stories from constituents who were construction workers working in Hull and being fined. The bill passed in the House, but eventually died.
Grandmaître says he felt sympathy for construction workers-many of whom were older than 50 years old and with very little education-who had to jump through hoops to have access to small contracts.
« I thought it was very unfair for these people who have practiced the same trade for 30 or 35 years, and now they were being subject to all kinds of discrimination. »
But change will not come easily, he says.
« We’re faced with the same old problems of 1985, 1990, 1993, and we’re in 2003 and we’re still talking about the same thing, » he says. « I think with a new government in Ontario and Charest’s willingness to open the docket, I think there’s a great chance of moving on this issue. »
« It’s not going to be easy for Mr. Charest because in my past experience it is not the government that was in charge, as far as construction workers in Québec were concerned, it’s the unions. Let’s be honest, you’ve got to call a spade a spade. »
DeVries is also hopeful that some sort of inter-provincial agreement can be reached.
« There’s a history there, the Liberals don’t mind freeing up stuff, and if they do, I think that’s going to address some of these issue of control that the contractors on the Ottawa side chafe under. So I think that’s a positive, » he says.
Martin says the CCQ would also welcome resolution to the situation.
« I think both Premiers want to find a solution that will be agreeable to both provinces. I think that the will is there, they want to, and I think that’s good news, » he says.
But whether a solution hammered out between premiers would be satisfactory to Jocelyn Dumais is another question.
« Even if he’s not fully satisfied, he’s making a little progress, a little progress, but that’s not what he’s looking for, » says Grandmaître, who Dumais credits as his mentor. « He started with very few labourers and tradesmen but now he is surrounded by a good number of people and he’s helped a lot of people, so you’ve got to give him credit. »