By David Doorey, Professor of Law and Labour Relations, York University
A non-lawyer friend at a party asked me recently what I thought about “that Section 107 nonsense.” Seems everyone is a labour lawyer now.
For those of you not in the game, Section 107 of the Canada Labour Code permits a federal Minister to “direct the CIRB to do such things as the Minister deems necessary” to “secure industrial peace and promote conditions favourable to settlement” of disputes. Starting in summer 2024, the Liberals adopted the controversial position that Section 107 permits a single politician to override all provisions in the rest of the Code, including protections for the right to strike, by simply sending an email to the CIRB ordering it to ban strikes and lockouts and refer outstanding bargaining issues to arbitration. On this approach, all past governments (Liberal and Conservative) that bothered to introduce and defend back-to-work legislation were suckers, just wasting time with all that “democratic” nonsense. Just shoot off an email to the CIRB and get on with your day. Section 107 is a poison pill for labour rights that has been hiding in plain sight for 40 years.
Until last summer, but no government, not even the anti-collective bargaining Stephen Harper Conservatives, ever asserted that the section permitted governments to end work stoppages this way. I explained the history of Section 107’s use in this post called, “The All-Powerful Section 107 of the Canada Labour Code: A Liberal Love Story”.
However, recently, I told a New York Times reporter that the controversial experiment of using Section 107 to end work stoppages is over. There are two reasons why I think this. The first is the straightforward observation that CUPE and the Canadian labour movement have now drawn a line in the sand. Enough is enough. We can anticipate that henceforth any attempt to block the constitutionally protected right to strike by “email fiat” under Section 107 will meet with civil disobedience and non-compliance. I think the same is true of the use of the “notwithstanding clause” to protect Charter violating labour laws after the 2022 CUPE defiance of Bill 28 in Ontario (I prepared a video explaining this dramatic story in Canadian labour history), but we will see.
Section 107 Does Not “Promote Settlements”
However, the other reason that I think Section 107 is dead on the vine as a means of ending work stoppages is that it has been demonstrated clearly that the conditions for its use in this manner are not, and never have been, satisfied. Any further use of Section 107 to thwart a strike would require the Minister to act in bad faith and contrary to the letter and spirit of that provision. There has not been enough attention on the actual language of Section 107. Consider again what the Section says. Here it is:
107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace AND to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.
Obviously, banning strikes can “secure industrial peace”, provided the workers obey the order (see point one above). For that matter, so can just banning collective bargaining and unionization entirely, which I presume the Minister can also do under Section 107 if the Liberal’s interpretation of the section is correct. However, reading the statute as a whole, with an eye on the importance of the Charter protected right to collective bargaining and to strike, it is clear that “securing industrial peace” cannot mean that the government can outright ban all strikes under Section 107 under the notion that doing so would “secure industrial peace.” Such an interpretation would make a mockery of the “right to strike” in Canada.
Therefore, Section 107 was never intended to be a “get out of strikes” card to permit a single politician to prevent workers from flexing their economic muscles in collective bargaining. There is more to the Section. The very next passage is preceded with a mandatory “AND.” That means that the Minister must not only believe that making a Section 107 order will help “secure industrial peace.” They must also believe that the order will “promote conditions favourable to the settlement of industrial disputes.” This is where the Liberals’ recent rash of Section 107 directives collapses. The preponderance of evidence is that Section 107 directives, and even the threat of these directives, undermine conditions favourable to settlement of disputes rather than “promote” them. No person who has been watching the use of Section 107 by the Liberals since 2024 can claim seriously that the government’s strategy has promoted settlements. The opposite appears to be true.
Let’s look at the evidence.
The Liberal’s first attempted use of Section 107 sought to end a strike by Westjet mechanics in June 2024. However, the government was still sorting out its novel interpretation of Section 107 and they screwed up, as I explained in an earlier post entitled “WTF Happened with that Westjet Strike?”. The Minister directed the CIRB to assist the parties in reaching a settlement by referring outstanding matters to arbitration, but it did not order the CIRB to end the strike. So, the mechanics just stayed out on strike. Once Westjet realized that the strike was going to continue through a busy summer weekend, it returned to the bargaining table and the parties reached a deal. The refusal of the Aircraft Mechanics Fraternal Association (AMFA) to stop the strike, notwithstanding the government’s Section 107 order, is what lead to the settlement, not the use of Section 107.
After the Westjet fiasco, the Liberals cleaned up their Section 107 directive language and henceforth (with one exception described in the next paragraph) its orders unambiguously directed the CIRB to order work stoppages to end immediately and to impose binding arbitration. The CIRB ruled that it had no choice but to do whatever it is told in a Section 107 direction, effectively removing the Board’s independence from the executive. In August 2024, the government ordered the CIRB to end a work stoppage at CNR and CPKC railways and in November 2024 they used their trusty little legislative friend again to order the CIRB to end lockouts at ports in Vancouver, Quebec, and Montreal. By ending the work stoppages, the government clearly achieved “industrial peace”, but did the Section 107 directive “promote conditions favourable to a settlement”? More on this below.
The government used Section 107 again in December 2024 in the Canada Post dispute. However, this case was different (“Feds Dust Off Section 107 Again at Canada Post, But With a Twist”). Recall that there was great concern that the Canada Post work stoppage was highly disruptive during the booming holiday season. Small business was complaining that the dispute was costing them billions of dollars and demanding that government intervene. One might think that given the government’s now well-worn pattern of ordering the CIRB to end work stoppages and refer outstanding issues to arbitration, that it would simply do the same here. However, the twist in this case was that the employer (Canada Post) did not want arbitration while the union (CUPW) did.
It is exceedingly rare for a government to order binding arbitration when the employer does not want it. And so, rather than order the CIRB to end the work stoppage and refer the matter to arbitration, as it had done on numerous occasions in the preceding months, the Minister directed the CIRB to pause the work stoppage until the busy holiday period was over and extend the expired collective agreement to May 2025, a much slower period for the company. The feds then also appointed famed mediator William Kaplan to study and propose a way forward, but notably, not to impose a settlement. Thus, here we sit, advancing towards another busy holiday period and there IS STILL NO DEAL at Canada Post. The feds have bent over backwards to NOT order binding arbitration via Section 107 in the one dispute where it is the union pushing for it. One thing is clear though, the government’s use of Section 107 has clearly not promoted a settlement at Canada Post. Instead, the Section 107 directive involving Canada Post has prolonged the dispute, with no settlement in sight.
Earlier this summer, the giant courier company DHL locked out Unifor members and then hired replacement workers to perform their work right up to the final seconds before the Code reform banning replacement workers came into effect. Stripped of its ability to use scab workers, DHL then begged the federal government to use Section 107 to save the company from the harm of a work stoppage (see DHL Requests Permission to Violate Labour Laws”). In a truly extraordinary letter to the Prime Minister, the company noted that it had “witnessed similar interventions” at Canada Post, and it wanted similar treatment.
By June 2025, companies had come to expect the government to use Section 107 to force arbitration anytime a work stoppage would inflict harm on the employer and arbitration was perceived as a beneficial route for the employer. I have called this “intervention expectation”, which is the narcotic effect on bargaining once parties begin to expect a Section 107 intervention. The DHL dispute settled only after it became clear that the government would not intervene in that dispute by using Section 107.
In the most recent Air Canada flight attendant case, the company as much as admitted that it was simply expecting the government to use Section 107 to block any work stoppage and refer the dispute to arbitration. As in the Westjet case, it was only after the flight attendants defied the Section 107 order to return to work that Air Canada sat down and worked out a proposed settlement. As I write, it remains unclear whether the workers will ratify that settlement. But, again, no one can seriously argue that the use of Section 107 “promoted” a settlement at Air Canada. A stronger case can be made that the expectation of a Section 107 intervention impeded a settlement, and it was the defiance of the Section 107 back to work order that finally resulted in a proposed settlement.
If you are keeping score then, in two cases (Westjet and Air Canada), it was the workers’ defiance of the Section 107 order referring the dispute to arbitration that produced conditions for a settlement. In another (DHL), it was the government’s refusal to grant the employer’s request for a Section 107 order that led to a settlement. In all these cases, once it became clear that the government’s Section 107 intervention would not prevent the work stoppage, the employers returned to the table and a settlement was quickly hashed out. These stories support the thesis that not using Section 107 produced conditions favourable to a settlement, not the other way around.
Recall that the Minister must believe that the Section 107 will not only lead to “industrial peace” but also that the directive will “promote conditions favourable to a settlement”. What is the evidence that the Liberals’ frequent use of Section 107 over the past year has satisfied this latter condition for the use of Section 107? Well, as noted above, in the case of the railways (CN and Canada Pacific Kansas City) and the ports (in Vancouver, Quebec, and Montreal), the use of Section 107 directives certainly ended the work stoppages.
However, a binding arbitrator’s award is not a “settlement”, it represents the failure to reach a settlement. Moreover, the Section 107 directives for the ports and railways are now the subject of a very expensive and lengthy Charter battle that frankly benefits no one except the lawyers arguing the case, and only fuels more division and tensions.
In short, as a strategy to “promote conditions favourable to settlements”, the Liberals’ use of Section 107 directives has been an abysmal failure. Frequent use of Section 107 to end work stoppages has poisoned the bargaining climate and made settlements less likely. This is the complete opposite of the intended purpose of Section 107. Maybe someone could argue that the Liberals believed that using Section 107 as a hammer would cause parties in the future to settle. However, even if that were true, by now it should be abundantly clear that the gig is up. Moving forward, no Minister can honestly claim that they believe ordering the CIRB to block the right to strike under Section 107 is “likely…to promote conditions favourable to settlement.” And without that belief, Section 107 cannot be used, at least not in good faith.
That is why it is time to retire this failed Section 107 experiment to the labour law history books. So long Section 107, we hardly knew you!