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Striking Ontario teachers protest in downtown Toronto on Feb. 6, 2020. The two sides are far apart on some key issues and there is no sense of what it would take to get a deal.

Frank Gunn/The Canadian Press

The country’s largest education union shut down all public elementary schools in Ontario for the first time on Thursday, with more strikes expected and no end in sight to the labour impasse.

Families will likely be dealing with two strike days each week for the foreseeable future. The Elementary Teachers’ Federation of Ontario escalated its job action after renewed discussions with Doug Ford’s government broke down late Friday.

The two sides are far apart on some key issues and there is no sense of what it would take to get a deal. If an agreement can’t be reached over the next few weeks, education observers and legal experts say the government will need to meet a high bar constitutionally to be able to force educators back to work. The school year will likely need to be put in jeopardy for back-to-work legislation to withstand court scrutiny.

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Both sides have acknowledged that the key in this battle is to keep parents on side. The government is standing firm on capping salary increases at 1 per cent and focusing on a public message that teachers in the province are already highly paid, while the union says the province wants to erode public education through class-size increases and drastic cuts to special-education supports.

Education Minister Stephen Lecce said the teachers’ union was being unreasonable in bargaining. “I think we, the government side, is trying to move this as close as possible to get a deal. But the teachers’ union has not made many moves,” he said in an interview.

Outside the Ministry of Education offices on Front Street in Toronto on Thursday, hundreds of ETFO workers picketed in the snow, marching around the block as passing cars honked.

“We know it’s difficult for families, absolutely, but we’re asking them to continue to support us as they have been to hold this government accountable,” ETFO president Sam Hammond said on Thursday, as 83,000 members walked the picket lines.

“Nobody really wants to be here, picketing and doing these things, but we need the government of Ontario to listen to our concerns," said Rose Palmer, a kindergarten teacher at the Toronto District School Board. "Because it’s not about the money. It’s not about the benefits. It’s about the kids.”

Parent Shameela Shakeel, who lives in Newmarket, Ont., said she supports teachers in their fight to stop the government from cutting classroom supports. She and other parents, who form a group called York Communities for Public Education, organized a $10-a-day camp for children on Thursday and Friday at the Newmarket Soccer Centre, while elementary schools are closed in the York region. Ms. Shakeel has a flexible work schedule, but she said it would get trickier for many parents if the strike drags on.

“I know it’s really tough for parents who are working to keep having to take time off or make other arrangements. Honestly, it’s worth the fight,” Ms. Shakeel said.

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Asked on Thursday whether he would consider back-to-work legislation, Mr. Lecce did not directly answer. “I think for the immediate period, the focus is on getting a deal,” Mr. Lecce said. “But I hear the frustration. I’m very cognizant of the impacts on families and on parents and that is not lost on me.”

On the likelihood of the school year being lost, Charles Pascal, a former deputy minister of education and a professor with the Ontario Institute for Studies in Education at the University of Toronto, said prolonged strikes at the end of the academic year “would increase jeopardy." But students missing school here and there because of one-day strikes would not meet the bar, he said. All the main teacher unions in the province are involved in some type of job action from work to rule to one-day rotating strikes.

“Our teachers are committed to their students, so school-year jeopardy is months away with the current approach by the teachers’ representatives,” Prof. Pascal said. “If, however, there is a major strike, jeopardy would depend on when the full strike takes place and how long the strike lasted.”

The government passed legislation in 2018 to end a strike at York University, but in that case, contract faculty and graduate teaching and research assistants had been off the job for nearly five months – the longest university strike in Canadian history – over issues of wages and job security.

Kevin Banks, a law professor and director of the Centre for Law in the Contemporary Workplace at Queen’s University in Kingston, said the government would need to legally prove that the school year is being lost, for example, before introducing back-to-work legislation and infringing on a union’s right to strike.

“The question becomes: Can the government justify it under Section 1 of the Charter [of Rights and Freedoms], which allows for reasonable limitations on constitutional rights. The onus is on the government to demonstrate that it has got a pressing and substantial purpose for what it’s doing,” Prof. Banks said.

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He said that it would be difficult “to characterize things as pressing and substantial when they’re really more matters of inconvenience. There’s still a ways to go before we get to the pressing and substantial point.”

Further, unlike police, firefighters and hospitals, education has not been declared an essential service, which means workers have the right to strike. The former B.C. Liberal government brought in legislation in 2001, changing the labour code to add education as an essential service and reducing teachers’ ability to strike. That changed in 2019, when the NDP government made substantive changes to the code.

In 2017, the Nova Scotia government passed legislation that ended a lengthy contract dispute with teachers and put a stop to work-to-rule action. This came after teachers rejected three tentative agreements.

Sam Andrey, a former Liberal chief of staff for the minister of education in Ontario, said governments may be reluctant to make teachers an essential service because it can hinder their ability to control costs.

“The further you stray from health and safety, into areas like teaching, while it’s certainly inconvenient for parents … the legal question of whether you’re infringing on Charter rights gets blurrier than it does for health care,” said Mr. Andrey, who is now director of policy and research at the Ryerson Leadership Lab.

“It’s a complicated area of the law that governments have to weigh before taking that kind of step to declare education workers an essential service,” he said.

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