FOR IMMEDIATE RELEASE
April 28, 2025
Via E-mail (engagement@toronto.ca)
| Public Engagement and Consultations City of Toronto 100 Queen Street West Toronto ON M5H 2N1 |
| Re: | Proposed Demonstrations Bylaw to Protect Vulnerable Institutions |
We represent the Ontario Council of Hospital Unions/Canadian Union of Public Employees (OCHU/CUPE). OCHU/CUPE’s member locals represent approximately 45,000 workers employed in hospitals and long-term care facilities throughout the province – 10,000 of whom work in the Toronto area. We are writing to provide written submissions on OCHU/CUPE’s behalf regarding the City’s proposed vulnerable institutions by-law.
OCHU/CUPE is very concerned that the proposed by-law would be harmful to and infringe the Charter rights of members of the public, including the employees they represent. Specifically, members of OCHU/CUPE’s bargaining units regularly participate in demonstrations outside of hospitals or long-term care facilities on matters of fundamental interest to healthcare workers and the public they serve. Because employees in this sector are denied the right to strike under the Hospital Labour Disputes Arbitration Act (“HLDAA”), these demonstrations are often the only way for healthcare workers to raise public awareness and thereby apply pressure to employers and governments. As a result, the proposed vulnerable institutions by-law seriously risks outlawing or casting a chill on valuable, Charter-protected speech.
A vulnerable institutions by-law would also be unnecessary, from OCHU/CUPE’s perspective. Although OCHU/CUPE’s members have been the targets of hateful and threatening activities within and around hospitals, these are rare occurrences and it is OCHU/CUPE’s view that it would be counterproductive to seek to address this problem by imperilling the Charter rights of healthcare workers, being one of the populations that the by-law aims to protect. Rather, the problem of hateful and threatening activity is best addressed through education campaigns and, where necessary, traditional policing measures. These strategies have been successful in the past, including during the COVID-19 pandemic.
We therefore ask that you withdraw this initiative.
Parameters of the proposed by-law
There is no draft by-law to date, but the parameters of what is being considered are broadly outlined on your website, https://www.toronto.ca/community-people/get-involved/public-consultations/public-consultation-for-proposed-demonstration-bylaw/.
We understand that the proposed bylaw would apply to “demonstrations” held “in public areas owned by the City of Toronto near and connected to vulnerable institutions,” including “streets and sidewalks.” “Demonstrations” refer to “public gatherings where people assemble around a common purpose as a form of peaceful assembly and expression,” and includes “protests, rallies and vigils.”
A few examples of “vulnerable institutions” are included on the City’s website, such as “places of worship, faith-based schools and cultural institutions.” Although “hospitals” are not mentioned in the examples of “vulnerable institutions,” hospitals potentially meet the definition of the term, and at least one other city (Vaughan) has adopted a vulnerable institutions by-law that applies to hospitals.
The website also links to vulnerable institutions by-laws adopted by the cities of Brampton, Calgary and Vaughan, seemingly as possible models for what the City of Toronto is contemplating.
Each of these by-laws focuses on different types of vulnerable institutions: Brampton’s applies to places of worship; Vaughan applies to a childcare centre, a congregate care facility, a hospital, a school, or a place of worship; and Calgary’s applies to recreation facilities and libraries.
All three by-laws prohibit certain types of activities occurring within 100 metres of the vulnerable institution in question.
The nature of the prohibited activity varies. Brampton and Vaughan’s by-laws prohibit “nuisance demonstrations,” defined as “one or more Persons, publicly and in person, protesting against something or expressing views on any issue, in any manner, whether it is intended or not, that is likely, on an objective standard, to cause a reasonable Person to be intimidated, meaning that they are either concerned for their safety or security, or they are unable to access [the vulnerable institution in question].” Calgary’s by-law prohibits “specified protests,” which involve prohibited hate speech that is contrary to human rights legislation:
“specified protest” means an expression of objection or disapproval towards an idea or action related to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation by any means, including graphic, verbal, or written means, but does not include messaging at an event scheduled by a recreation facility.
Both the Brampton and Vaughan by-laws exclude certain activities from the definition of “nuisance demonstration,” namely “peaceful gatherings, protests or demonstrations, including any such activities that occur as part of a labour union strike.” The Brampton by-law also expressly excludes peaceful protests “against foreign governments.” There are no exclusions from the definition of “specified protest” in the Calgary by-law.
Violations of the Brampton and Vaughan by-law are prosecuted as provincial offences, with those convicted being liable for fines under the Provincial Offences Act and/or the Municipal Act. Alternatively, the legislation may be enforced through administrative monetary penalties.
Violations of the Calgary by-law are also prosecuted as provincial offences; however those convicted are liable on summary conviction for fines or up to a year’s imprisonment.
Fundamental Charter rights at stake
As acknowledged on the City’s website, any attempt to regulate public demonstrations in the manner contemplated by the City has the potential to violate Charter rights. Such Charter rights include freedom of expression (s. 2(a)) and freedom of assembly (s. 2(c)), as listed on the website, as well as freedom of association (s. 2(d)).
These rights are specifically and vitally important to the labour movement. They protect the right of workers to come together in pursuit of common aims by engaging the public in both collective bargaining disputes and broader matters of public concern. This enhances democratic ideals at the same time as it promotes self-fulfillment, equality and dignity. As the Supreme Court of Canada recognized in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII):
[29] This Court has long recognized the fundamental importance of freedom of expression in the context of labour disputes: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII), [2002] 1 S.C.R. 156 (“Pepsi”), at para. 33. In U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083 (“KMart”), Cory J., writing for the Court, held that “[f]or employees, freedom of expression becomes not only an important but an essential component of labour relations”: para. 25 (emphasis added).
[30] Expressive activity in the labour context is directly related to the Charter protected right of workers to associate to further common workplace goals under s. 2(d) of the Charter: Ontario (Attorney General) v. Fraser, 2011 SCC 20 (CanLII), [2011] 2 S.C.R. 3, at para. 38. As the International Labour Organization observed, “[t]he exercise of freedom of association and collective bargaining is dependent on the maintenance of fundamental civil liberties, in particular, . . . freedom of opinion and expression”: Report of the Director-General: Freedom of association in practice: Lessons learned (2008), at para. 34.
[31] A person’s employment and the conditions of their workplace can inform their identity, emotional health, and sense of self-worth: Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 368. As McLachlin C.J. and LeBel J. recognized in Pepsi, free expression on these issues therefore “contributes to self-understanding, as well as to the ability to influence one’s working and non-working life”: para. 34.
[32] Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker: Pepsi, at para. 34. It is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer.
[33] Finally, in the labour context, freedom of expression can enhance broader societal interests. As this Court found in Pepsi, the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate: paras. 34-35. As this Court emphasized in Pepsi, free expression provides “an avenue for unions to promote collective bargaining issues as public ones to be played out in civic society, rather than being confined to a narrow realm of individualized economic disputes”: Michael MacNeil, “Unions and the Charter: The Supreme Court of Canada and Democratic Values” (2003), 10 C.L.E.L.J. 3, at p. 24.
The proposed vulnerable institutions by-law seriously implicates the Charter rights of healthcare workers represented by OCHU/CUPE, who regularly participate in demonstrations outside of hospitals or long-term care facilities. At these demonstrations, healthcare workers come together to raise awareness on matters of fundamental interest to healthcare workers and the public they serve, including the healthcare funding crisis, cuts to necessary healthcare jobs, improved wages and pensions for healthcare workers, the regulation of personal support workers, and union organizing campaigns (see https://ochu.on.ca/). These demonstrations are especially important to the Charter rights of healthcare workers, who are denied the right to strike under the Hospital Labour Disputes Arbitration Act (“HLDAA”). For healthcare workers, public demonstrations can be the best or even the only way to apply public pressure to employers and governments.
A by-law targeting the rights to free speech and protest of this highly (85%) female and largely racialized workforce, already subject to restricted collective bargaining and health and safety legislation is, in OCHU/CUPE’s view, a form of structural sexism and racism.
A vulnerable institutions by-law risks outlawing or casting a chill on this critical Charter-protected activity. This would be the case even if the prohibited activity were to be narrowly defined to apply to demonstrations that are objectively threatening or hateful, and even if “peaceful protests” were to be excluded from the law. This is because of the inherent vagueness in this kind of terminology, the discretion held by enforcement officers, the deterrent effect of even the prospect of being prosecuted or fined, and delays in the court system. In concrete terms, a healthcare worker may opt to sit out of a demonstration rather than face the risk of being subject to a potentially escalating fine they can’t afford to pay, a prosecution they can’t afford to defend, and a court date far off in the future.
Further, the exclusion for “activities that occur as part of a labour strike” (contained in the Brampton and Vaughan by-laws) has no application to the healthcare workers represented by OCHU/CUPE, who lack the right to strike, and who often demonstrate to raise awareness of broader healthcare policy issues unrelated to any specific labour dispute.
In short, even a carefully crafted vulnerable institutions by-law has the potential to imperil the fundamental Charter rights of the healthcare workers represented by OCHU/CUPE, at the cost of the very democratic values that the by-law is likely intended to protect.
Vulnerable institutions by-law not necessary
OCHU/CUPE is well aware of the harm that can be caused by campaigns organized to promote hate or intimidate those with opposing views. In recent years, healthcare workers, including those represented by OCHU/CUPE, have been targeted by groups opposed to COVID-19 vaccine mandates, other public health measures, and 2SLGBTQIA+ rights.
While OCHU/CUPE holds zero tolerance for any hate or intimidation directed at its members or the patients that they serve, it is OCHU/CUPE’s view that a vulnerable institutions by-law is not the solution. At the same time as such a by-law risks compromising exercise of Charter rights, it will do little to address most of the risks presented by campaigns of hate or intimidation. Specifically, a vulnerable institutions by-law will not stop healthcare workers or patients from being targeted just outside of the bubble zone (i.e.101 metres away from a hospital), from being followed on public transit or to their homes, and/or from being doxxed online.
In OCHU/CUPE’s view, the problem of hate or intimidation is best addressed through public education and, where necessary, traditional policing. The City should work together with vulnerable institutions and unions to address risks to workers and members of the public.
Conclusion
For all the reasons set out above, OCHU/CUPE does not support a vulnerable institutions by-law, and asks that you withdraw this initiative. Our clients do not want to direct resources to challenging this proposed by-law, through demonstrations and/or in the courts, but they will do so to defend the Charter rights of their members.
Please reconsider.
If you have any questions, please do not hesitate to reach out to Michael Hurley, President of the Ontario Council of Hospital Unions-CUPE (michaelhurley@ochu.on.ca).
Thank you for your attention to this request.
Sincerely,
Steven M. Barrett
Char Wiseman
M. Hurley
