Premier Doug Ford’s announcement Monday that his government will invoke the “notwithstanding” clause to override a court ruling on cuts to Toronto’s city council could be a sign of things to come in other ongoing legal challenges involving the Progressive Conservatives.

“The notwithstanding clause is an intentional and explicit declaration by a government that they are going to override our Charter rights,” said Greg Flynn, assistant professor in political science, who teaches constitutional and public law at McMaster University.

“It's a significant use of government power. There's a reason why its use has been limited to very few circumstances.”

Aside from the court challenge on the cuts to Toronto city council, the Ford government continues to face legal battles on its decisions to repeal the updated sex-education curriculum, scrap the basic income pilot project, and terminate the task force on part-time and contract work in colleges.

The government also recently lost in court against Tesla. A Superior Court judge found last month that the California-based electric car company had been “unlawfully targeted” by the PCs when they announced the phasing out of subsidies on electric vehicles.

Legal experts have noted it’s a significant number of court challenges for a government that came to power just three months ago.

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“I do think it’s significant because at a minimum it shows a government in a rush to do things in ill-considered ways that probably are just plain arbitrary, and therefore are making legal mistakes of that sort,” said Craig Scott, law professor at York University’s Osgoode Hall School of Law and former NDP MP.

“Arbitrariness seems to run through everything they’ve been doing, but each case will have to be dealt with on its merits.”

Ford said Monday he would not be “shy” about invoking the notwithstanding clause again in the future. When asked specifically at a news conference whether he would use it on the issue of sex-ed, he replied, “I’m focused on this issue (city council cuts) right now, let’s get through this issue, and then we’ll deal with further issues coming our way.”

The clause can be invoked in legislation to override rights enshrined in section 2 of the Charter of Rights and Freedoms — which include freedom of expression, the right that was found to have been violated by the government’s city council cuts legislation — as well those in sections 7 to 15. Those rights include security of the person and equality, which form the basis for arguments in some of the ongoing court challenges against the government.

Legislation invoking the clause and which rights it overrides must be passed every five years to remain in effect.

With files from Robert Benzie

Ongoing court challenges

The issue: Sex-education curriculum.

The Canadian Civil Liberties Association has filed a court application to get the sex-ed curriculum rollback halted. It wants the modernized 2015 curriculum taught while the government holds province-wide public consultations.

The argument: The CCLA says the government’s process was faulty. It says the interim curriculum, which contains outdated sex-ed information from 1998, is discriminatory against members of the LGBTQ community and hurts children and their families. It argues that the province is violating the Canadian Charter of Rights and Freedoms, which guarantees of equality and security; the Ontario Human Rights Code, which outlaws discrimination; and the Education Act, which requires that schools provide an inclusive environment for students and families.

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The government’s position: The government has argued that the 2015 curriculum was created without sufficient consultation with parents, and launched a new consultation process last month.

(The Elementary Teachers’ Federation of Ontario has filed a similar application, saying the repeal of the 2015 sex-ed curriculum violates teachers’ charter rights, as well as their professional and ethical obligations. It's possible that the two applications may be combined, because of their similarity, but that’s something the court will have to decide. The teachers’ union has also filed for intervener status at a Human Rights Tribunal case launched by six families of LGBTQ youth who want the 2015 curriculum taught, saying the outdated lessons the government has ordered teachers to use make no mention of gender, consent or same-sex relationships.)

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The issue: Basic income pilot project.

Ontario scrapped the project, which offered 4,000 low-income individuals in Hamilton-Brant, Thunder Bay and Lindsay a steady income of $16,989, and up to $24,027 for couples, while researchers looked at how it affected their lives. The project was examining whether the unconditional payments improved participants' health, education, employment opportunities and community engagement. The three-year, $50 million-a-year experiment was launched in April 2017 and was being watched by anti-poverty activists around the world. The Ford government cancelled it on July 31 despite twice promising during the campaign they would allow it to proceed. Lawyer Mike Perry is seeking an injunction on behalf of four Lindsay-area participants who want the courts to overturn the decision. Perry, who is acting pro bono, is also representing the same participants in a proposed class-action law suit.

The argument: Perry argues participants signed a three-year contract with the government with no escape clauses, therefore the government has breached that contract. The decision was arbitrary and without notice, he argues, as participants believed PC campaign promises the project was secure. He says cutting the payments has caused serious hardship on participants who are among the province's most economically disadvantaged. Many signed leases, enrolled in college and made other commitments based on the payments they believed they would receive until April 2020.

The government’s position: Community and Social Services Minister Lisa MacLeod has said “a research project that helps less than 4,000 people is not the answer and provides no hope to the nearly 2 million Ontarians who are trapped in the cycle of poverty.” She has argued the cost of extending basic income payments to all Ontarians living in poverty would be $17 billion, an amount taxpayers can’t afford. Instead, the government is reviewing social assistance and poverty reduction efforts and will release a report Nov. 8.

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The issue: Task force on part-time and contract work.

The Ontario Public Service Employees Union (OPSEU), which represents college faculty members, is taking the province to court for terminating the task force, which was trying to fix the growing problem of part-time and contract work.

The argument: The union argues that the task force was part of an arbitrated collective agreement between OPSEU and the College Employer Council, and that the province had no right to cancel it. It argues in its court application that the government “substantially interfered” with the right to bargain collectively, which violates the Canadian Charter of Rights and Freedoms.

The government’s position: The government has not yet given a rationale for terminating the task force.

Correction — Sept. 12, 2018: This article has been edited from a previous version that said lawyer Mike Perry is arguing a constitutional right to security of the person. In fact, Perry is not raising any Charter issues in his injunction or class action suit stemming from the cancellation of basic income pilot project.

Laure Monsebraaten is a Toronto-based reporter covering social justice. Follow her on Twitter: @lmonseb

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