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Supreme Court recognizes a constitutional right to strike

January 30, 2015

Prohibition on striking violated s. 2(d) of the Charter, Court determines

In another historic victory for the labour movement, the Supreme Court has held that the Charter’s guarantee of freedom of association protects the right to strike.


In May 2008, the Government of Saskatchewan enacted the Public Service Essential Services Act (“PSESA”). The PSESA was a controversial piece of legislation that, among other things, broadened the categories of public services defined as “essential”, provided the employer with unilateral authority to determine which employees provided essential services, and prohibited employees providing those services from striking.

The Saskatchewan Federation of Labour challenged the legislation.  It won at trial, but the decision was overturned by the Court of Appeal. The case, Saskatchewan Federation of Labour v. Saskatchewan, then went to the Supreme Court of Canada.

The Supreme Court’s decision

In a 5-2 majority decision, the Supreme Court held that the right of employees to participate in strike action for the purpose of negotiating the terms and conditions of their employment is constitutionally protected under s. 2(d) of the Canadian Charter of Rights and Freedoms.

The majority decision, written by Justice Abella, found that the right to strike is an indispensable component of the right to collective bargaining, affirmed just a few weeks earlier in the Mounted Police Association of Ontario (MPAO”) appeal. According to the Court, “the right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.”  In overturning its previous leading case on the issue, the majority acknowledged that the jurisprudence regarding s. 2(d) of the Charter has evolved over the years to embrace a generous approach to the freedom of association guarantee in the field of labour relations.

In the majority’s view, a right to strike is supported by both the history of strikes and international law. The Court found that in the history of Canadian labour relations, the right to collectively withdraw services in the negotiation of a collective agreement has been the “irreducible minimum” of the freedom to associate.

This conclusion was reinforced by the Court’s review of Canada’s obligations under international law, as well as its comparative analysis of the approach of other jurisdictions, where the Court observed “an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike.”

Building upon MPAO, the majority held that “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining.” Without the right to strike, the right to organize would be hollow. The right to strike “is essential to realizing [Charter values of human dignity, equality, liberty, respect for the autonomy of the person and enhancement of democracy] through a collective bargaining process.” The right to strike “also promotes equality in the bargaining process,” as it enables workers to negotiate with employers on a more level footing. Without a right to strike, “bargaining risks being inconsequential – a dead letter”.

Taking these arguments together, Abella J. wrote,

“This historical, international, and jurisprudential landscape suggests compellingly to me that s. 2(d) has arrived at the destination sought by Dickson C.J. [in dissent] in the Alberta Reference, namely, the conclusion that a meaningful process of collective bargaining requires the ability of employees to participate in collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement.”

Accordingly, the majority found that since PSESA “prevents designated employees from engaging in any work stoppage as part of the bargaining process” it substantially interferes with collective bargaining and infringes s. 2(d).

With respect to s. 1 of the Charter, the majority found that PSESA was not minimally impairing, and thus was not justified under s. 1. PSESA impaired s. 2(d) rights more than necessary in part because the legislation gave public employers the “unilateral authority…to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism”, but also because it did not include a “meaningful dispute resolution mechanism to resolve bargaining impasses.” The majority noted that essential services must be properly interpreted as referring only to those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Mere inconvenience or the fact that a service is provided exclusively through the public sector does not mean that a service is essential.

Moreover, the Court adopted the view of respected labour law scholar Paul Weiler, namely, that “If we pull all the teeth of a union by requiring provision of imperative public safety services, such that any remaining strike option does not afford the union significant bargaining leverage, …the union should have access to arbitration at its option.”

As the majority concluded:

“Given the breadth of essential services that the employer is entitled to designate unilaterally without an independent review process, and the absence of an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses, there can be little doubt that the trial judge was right to conclude that the scheme was not minimally impairing.”

In the result, the majority concluded that PSESA was unconstitutional and allowed the Unions’ appeal with costs throughout, suspending the declaration of invalidity for one year.

Dissent by Justices Rothstein and Wagner

In dissent, Justices Rothstein and Wagner found that the statutory right to strike reflects a “complex balance” struck by legislators between the interests of employers, employees and the public, and that constitutionalizing the right to strike upsets this balance, undermines the legislative process and oversteps the role of courts. The dissenting judges also found that public sector strikes should be treated uniquely, as the government is the employer and the public expects that services will be delivered.

After taking issue with various aspects of the majority’s reasoning – including its application of recent jurisprudence and its articulation of international law – the dissenting judges concluded that the PSESA’s “controlled strike regime” does not violate the right to meaningful collective bargaining, as it “does not render effectively impossible nor substantially interfere with the ability of associations representing affected public sector employees to submit representations to employers and to have them considered and discussed in good faith.”

Notably, however, even the dissenting judges recognized that the “historical common law right to strike is a fundamental component of our legal system insofar as it reflects the idea that employees have no obligation to continue to work under conditions they consider to be unsatisfactory: no legislature can force an individual or a group into servitude”. However, according to the dissent, the majority wrongly “constitutionalizes a duty on employers not to terminate employees who have withdrawn their labour, nor to hire replacement workers.”

The New Labour Trilogy

Since the Supreme Court of Canada decided, nearly thirty years ago in the so-called “Labour Trilogy”, that the Charter does not protect a constitutional right to strike, constitutional labour law has undergone a series of transformations. This decision, along with the MPAO and Meredith decisions released earlier this month, form part of a new “Labour Trilogy” with the Supreme Court of Canada finally and resoundingly affirming that the right to strike is protected by s. 2(d) of the Charter. As Abella J. put it, it is “time to give this conclusion constitutional benediction.” The majority opinion, firmly rooted in Canadian labour history, international law and Canadian constitutional jurisprudence, will no doubt have ripple effects for many years to come.

Steven Barrett and Ethan Poskanzer represented the intervenor, Canadian Labour Congress.

Peter Engelmann and Colleen Bauman represented the intervenor, Professional Institute of the Public Service of Canada.


Steven Barrett, Ethan Poskanzer, Peter Engelmann, Colleen Bauman

Practice Areas

Appeals & Judicial Review, Constitutional Law, Labour Law