Ontario's new teacher bargaining legislation leaves some important questions hazy, particularly three key words, the province's Labour Relations Board heard on Wednesday.
The legislation separates negotiations into local, board-level talks and central talks that include the province. The school boards that have strikes in the current round of local contract talks – Durham, Peel and Rainbow – say teachers walked out to send a message over central issues, particularly class sizes, and they say that is illegal under the new law.
If labour board chair Bernard Fishbein agrees, teachers will be ordered back to work. But the hearing stretched into its fourth day on Wednesday with no resolution of the complex legal arguments.
The law says teachers unions may strike "in respect of" issues at either level as long as they give proper notice to the appropriate bargaining partner. But it does not explain how to determine exactly what grievances the teachers are striking "in respect of," or whether they can mix the issues in a strike at either level.
Much evidence brought to the hearing focused on what was written on picket signs, what striking teachers said during casual conversations, and what union leaders told the media.
Asking the labour board to peek into the teachers' hearts and minds is "as invasive as it is impossible," and could have a chilling effect on their right to strike, argued Heather Alden, a lawyer representing the Ontario Secondary School Teachers' Federation.
The law also does not explicitly forbid teachers on a local strike from expressing some unhappiness over non-local issues, she said, and a strike should not have to end, as the school boards say it should, because a few strikers talk about issues from the other level of bargaining.
"Local strike done, full stop; it ends for everyone, whether two people of the bargaining unit are striking for central issues, 300, or the entire membership, it doesn't matter. It's over," she said.
Mr. Fishbein challenged her logic, asking whether the union does not exercise some control over its members' picket signs and other forms of expression.
Requiring a local strike to be focused on local bargaining problems is within the spirit of the legislation, said Michael Hines, the lawyer for the three school boards.
He said the law would be "a mockery of itself" if it allowed employees to "start hopping the fence" on issues.
Crown lawyer Robert Fredericks said the legislation contains little guidance for Mr. Fishbein on how to determine teachers' intentions. But leaving that phrase vague was no mistake, he said.
"It allows the labour board to use its expertise to determine what the strike is actually in respect of," he said. "I understand it's difficult."
The hearing is expected to finish on Thursday, with a written decision soon after.
Education Minister Liz Sandals said the legislation was written after "extensive consultation" with the unions, and that everyone involved in negotiations had reached a consensus over its rules.
"It sets out clear roles and responsibilities for all our education partners involved in the collective bargaining process," she said.
In a separate process, a panel is deciding this week whether the three strikes could jeopardize the completion of the school year in the three affected boards. The Education Relations Commissions' decision could clear the way for the province to enact back-to-work legislation.
With a report from The Canadian Press