Air Canada flight attendants strike outside Montreal–Trudeau International Airport in August. They defied a back-to-work order imposed by the federal government and their union CUPE ended up with a significantly improved deal.Graham Hughes/The Canadian Press
In under three years, governments – both Conservative and Liberal, provincial and federal – have leaned on rarely used pieces of legislation to quash labour strikes at least 10 times.
The most recent example took place on Tuesday: The Alberta government invoked the notwithstanding clause in a back-to-work bill aimed at 51,000 school teachers who have been on strike since Oct. 6. The clause effectively shielded Bill 2, or the Back to School Act, from being challenged in court on Charter grounds, forcing teachers to return to classrooms and accept a collective agreement almost all of them had rejected.
Unions and labour experts have been sounding the alarm for years now about what they call a climate of overreach, a new trend of governments increasingly infringing upon workers’ right to strike by invoking obscure sections of the law. But apart from defying legislative orders altogether, they warn that there is little the labour movement can do – its leverage in the collective bargaining process, they say, has been greatly undermined in recent years and there are no signs of a course correction.
Andrew Coyne: It’s not about the notwithstanding clause – it’s about the Charter
Governments have defended back-to-work legislation and orders by arguing the economic harm of prolonged labour unrest outweighs the rights of workers to take job action.
At the same time, governments are still navigating the implications of a 2015 Supreme Court of Canada ruling that enshrined the right to strike and, experts say, limited the ability to legislate workers back to the job without using the notwithstanding clause.
“What we have been seeing since 2024 especially, is governments pushing the envelope with regards to clamping down on strikes. They are effectively saying: Strikes are inconvenient politically, and economically, and we are going to do everything we can to end them,” said Charles Smith, a professor of political science at the University of Saskatchewan.
“If the Alberta government is able to do this, then every government can do this and that means collective bargaining is under threat.”
The Decibel: The fight over the notwithstanding clause
Since June, 2024, Ottawa has used Section 107 of the Canada Labour Code eight times to end strikes of postal workers, port workers, railway workers, flight attendants and WestJet mechanics. The clause allows for a sitting government to direct the federal labour board to force both sides in a labour dispute to reach a deal through binding arbitration.
Then there’s the notwithstanding clause, Section 33 of the Canadian Charter of Rights and Freedoms, that allows a federal or provincial legislature to override certain constitutional rights. In 2022, the Ontario government under Premier Doug Ford invoked the clause to force tens of thousands of striking education workers from the Canadian Union of Public Employees back to work. Only after CUPE rallied the national labour movement and threatened a general strike, did the Ford government reverse its decision.
“What happens in Alberta will have implications for public sector labour relations across the country. Rights aren’t absolute. But using the notwithstanding clause in this way constitutes a direct attack on unionized workers,” said Larry Savage, a professor of labour studies at Brock University.
Striking Alberta teachers and supporters wave signs outside Rogers Place in Edmonton earlier this month.Aaron Sousa/The Canadian Press
In the past, if a government wanted to end a strike because it deemed that the strike was damaging to the functioning of the economy, it would table back-to-work legislation, which would then be debated in parliament and voted on. “The government had to justify why it wanted to get workers back to work. The use of Section 107 and the notwithstanding clause is different. It lacks democratic legitimacy,” argued Michael Lynk, a law professor at the University of Western Ontario.
David Doorey, a law professor at York University’s Osgoode Law School, noted that a major reason why governments started using rare clauses of the law to end strikes was because of the 2015 Supreme Court decision that ruled the right to strike as a constitutionally protected part of the Charter.
“Since 2015, the Charter has restricted the government’s right to legislatively block the right to strike, so we have seen governments resort to more controversial strategies,” Prof. Doorey said.
Unions, both in the private and public sectors, have also become more aggressive in their demands since the pandemic, as members have demanded wages that kept up with the rising cost of living. Approximately a third of Canada’s labour force is unionized, and a majority of those workers (75 per cent) are employed in the public sector, meaning that governments are frequently navigating the position of being key negotiators in labour disputes as well as architects of legislation.
Prof. Lynk says he believes that governments will continue using legislation to restrict strikes because it has been effective at putting an end to work stoppages.
Ottawa calls on Supreme Court to clarify the law around use of Charter’s notwithstanding clause
Unions will have to figure out a long-term strategy for dealing with governments that unilaterally crack down on strikes, noted Dr. Smith. One way is to rally public support, and make it politically tougher for governments to openly end strikes of workers that have the public’s sympathy.
On Tuesday, the Alberta Teachers’ Association said it would tell its members to comply with the order and return to work as the union considered its options, including whether it could mount a legal challenge despite the notwithstanding clause or work with other labour groups to use public pressure to oppose the back-to-work legislation.
This past summer, Air Canada flight attendants defied a back-to-work order imposed by the federal government, with CUPE’s national president Mark Hancock vowing to go to jail instead of obeying the return-to-work ruling. CUPE ended up with a significantly improved deal for flight attendants and national sentiment appeared to favour the union in this dispute.
Prof. Doorey says he believes unions could increasingly take the position of choosing civil disobedience, if governments keep resiling from their end of the bargain.
“Defying the law is serious business, but there is a recent template for defying laws that clearly infringe upon the fundamental right to strike.”