Digital Brain
digital brain
digital brain

28 Years Later: Constitutional Right to Strike Confirmed by Supreme Court

February 2015 Employment and Labour Bulletin 2 minute read

Nearly 28 years after former Chief Justice Brian Dickson wrote passionate – yet dissenting – reasons in favour of extending constitutional protection to the right to strike, the Supreme Court of Canada has taken up his call. In Saskatchewan Federation of Labour v. Saskatchewan,[1] the Supreme Court has held that the right to strike is an essential component of the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms (“Charter“).

Background

At issue before the Court was whether legislation prohibiting designated employees from participating in strike action amounted to a substantial interference with their right to participate in meaningful collective bargaining. Specifically, the Court was asked to consider the constitutionality of two statutes:

  1. The Public Service Essential Services Act (“PSESA“), which imposed narrow limits on the ability of public sector employees who perform “essential services” to strike; and
  2. The Trade Union Amendment Act, 2008 (“TUAA“), which imposed changes to the union certification process and the rules regarding communications between employers and employees.

The PSESA gave public employers unilateral authority to determine whether and how essential services are to be maintained and therefore which employees could not strike. In the view of Court, the PSESA did not provide for an acceptable review mechanism or a meaningful dispute resolution mechanism.

The Right to Strike

A majority of the Court found that the PSESA was unconstitutional and that the ability of employees to take strike action played a crucial role in meaningful collective bargaining. The majority also found that the right to strike helped balance the “deep inequalities” that exist between employers and employees. The Court held that the right to strike is protected under s. 2(d) of the Charter.

The majority also confirmed that the broad restrictions in the PSESA were neither minimally impairing nor proportionate and went beyond what is reasonably necessary in order to ensure the delivery of essential services to the community during labour disputes.

Regarding the TUAA, however, the Court held that introducing amendments to the process by which unions obtain and/or lose bargaining representative status did not substantially interfere with the freedom of association.

Remaining Questions

The largest question that remains from this decision was raised by Justices Rothstein and Wagner in their dissent: what is the scope of this new constitutional right to strike? Is this new right only available to public employees and unionized members of the private sector? Will governments now have to rationalize existing statutory limits on the right to strike?

We will be following the impact of this decision closely as legislatures and employers alike pivot to rebalance the scales of the Canadian labour ecosystem.

by Paul Boshyk and Tyson Gratton

1 2015 SCC4.

A Cautionary Note 

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

Insights (5 Posts)

Featured Insight

Round One of Competition Act Amendments Passed; National Security Review Regime Amended

New amendments to the Competition Act were passed today as part of the budget implementation bill.

Read More
Jun 27, 2022
Featured Insight

Privacy Reform is on the Table Once More: Canada Introduces the Digital Charter Implementation Act, 2022

New federal privacy legislation has been introduced. If passed, Bill C-27 will materially change the legal landscape for privacy and data protection in Canada.

Read More
Jun 22, 2022
Featured Insight

Plan for the Ban: Canada Announces Timeline for Single-Use Plastics Prohibition

Canada's final Single-use Plastics Prohibition Regulations have been published and come into effect on December 20, 2022

Read More
Jun 22, 2022
Featured Insight

Canada’s Greenhouse Gas Offset Credit System Creates Green Incentives for Regulated Facilities (Update)

Canada has published the Greenhouse Gas Offset Credit System Regulations establishing a system for projects preventing or removing GHGs from the atmosphere.

Read More
Jun 21, 2022
Featured Insight

The Federal Government Suspends its Mandatory Vaccination Requirements

The Government of Canada has lifted its mandatory vaccination requirements for employees in the air, marine and rail sectors.

Read More
Jun 21, 2022