As his government’s pandemic response continues to flag, people may be getting wise to Doug Ford’s daily routine of telling reporters “there are no more excuses,” that he’s “hit the roof” or is “outraged” for continuing failings.
His political performance art is nothing new. Over two months ago, his performance du jour was to tell workers that “if the workplace, the construction site, is not safe, you can walk off the job.” But just try to use that labour right.
Media reports show that over 200 workers have tried to use their right to refuse work they believed was unsafe. And Ford’s Conservatives have, every single time, denied their situation met the legal criteria — and sent them back to the job.
Perhaps most concerning is that, outside government, no one knows the legal basis for these denials. Or if they are even legal.
On work refusals, high-level bureaucrats at the Ministry of Labour close to Queen’s Park have taken control away from inspectors in the field, forming an “advisory group” of managers and lawyers who make the decision, then tell the inspector what to say. And every time, it’s the same one: go back to work.
Nothing learned from SARS
After the SARS outbreak, the public inquiry into the government’s response took the Ministry of Labour to task for their secretive and centralized approach, arguing that hiding their interpretations of the circumstances under which they could deny workers the right to refuse work blocked workers from exercising their legal right at the very moment they needed it most.
Justice Archie Campbell, in his report on the findings of the SARS inquiry, recommended that “in the event of any future infectious disease crisis, the Ministry of Labour [should] provide in a timely manner clear direction and information regarding guidelines for work refusals.”
Despite the recommendation, the Ford government has not provided any such direction or information.
And there should be concern that because the ministry’s legal interpretations are too narrow, they are in fact wrong.
Playing fast and loose with public health
Precedent-setting court decisions have found that workplace health and safety law must be interpreted generously, not narrowly or technically, in order to allow it to achieve its purpose — worker protection.
A 2017 Ontario Court of Appeal decision put it clearly. “Protective legislation designed to promote public health and safety is to be generously interpreted,” wrote the court. Legal interpretations need to be made “in a manner that is in keeping with the purposes and objectives of the legislative scheme.”
“Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided,” he wrote.
But as long as Ford keeps his government’s legal interpretation secret — contrary to the SARS inquiry recommendation — no union can test if his government’s 100 per cent denial rate actually meets the standard of case law decisions.
It’s nothing new for a political leader to say one thing in public while his government does the exact opposite in private. To some, it’s just part of the game. But during this pandemic, the stakes are just too high. Ford’s emotional performances need to be checked against his actions.
On the right to refuse, we heard Ford’s words. But his government’s actions have been to deny this essential right — every single time. To know how this can be happening, we need to see the legal interpretations.