By David Doorey, York University
I put together a quick brief for the Senate Standing Committee assigned to study the federal government’s “misuse” of Section 107 to end a flurry of work stoppages since 2024. Here’s what I wrote.
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Thank you for the opportunity to submit this brief comment to the Standing Committee on Transport and Communications. I have limited my comments to the following areas of inquiry falling within the mandate of the Committee:
(d) the recent use by the Minister of Labour of section 107 of the Canada Labour Code to refer labour disputes in federally regulated transportation sectors to the Canada Industrial Relations Board in order to maintain or secure industrial peace; and
(e) the use of section 107 of the Canada Labour Code by the Minister — instead of “back to work” legislation passed by both Houses of Parliament — as a means to end a labour disruption.
My comments will be presented under five headings. A summary of my submission is as follows:
- The federal government’s use of Section 107 to prohibit strikes violates Section 2(d) of the Charter that will not likely be saved by Section 1.
- The Supreme Court of Canada ruled that the Charter protects a right to strike, not a right to binding interest arbitration.
- Section 107 was never intended to confer on a single elected official the unfettered discretion to decide whether workers have a right to strike.
- The evidence is clear that the conditions for exercising Section 107 directions are not satisfied: using Section 107 to order the end of strikes has not “promoted conditions favourable to settlement” as required by the Section. The opposite is true.
- Back-to-work legislation remains the proper democratic avenue for governments that believe a strike prohibition is required to protect essential services.
- The Government’s Recent Use of Section 107 to Override the Right to Strike Violates Section 2(d) of the Charter
The Supreme Court of Canada decided in its 2015 decision in Saskatchewan Federation of Labour v. Saskatchewan that Section 2(d) of the Charter protects a right to strike.[1] The SCC ruled that the right to strike is “an indispensable component” (para. 3) of collective bargaining and the right to strike is “the powerhouse of collective bargaining” (para. 55). According to the Court, a right to strike is essential to promoting the central Charter values of “human dignity, equality, liberty, respect for the autonomy of the person and enhancement of democracy” (para 53):
The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse… The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives. (para. 54).
Therefore, the right to strike is not some pithy statutory entitlement that governments can override whenever it is political expedient to do so. In recent years, some Canadian governments have become complacent in their respect for the fundamental right to strike, reflecting a troubling backslide towards illiberalism and disrespect for the rule of law and fundamental Charter rights and freedoms.
The SCC ruled that governments cannot prohibit the right to strike, except in cases of true “essential services”, which is defined narrowly to mean services without which the “life, personal safety or health” of the population would be threatened (para. 86). Applying this definition, essential services are typically understood to refer to essential medical services, police and military, and firefighting. Economic harm or “inconvenience to members of the public does not fall within the ambit of the essential services justification for abrogating the freedom to strike.” (para. 84). Therefore, insofar as governments seek to justify blocking the right to strike of workers in the federal sector, it is incumbent on them to prove that the work interruption threatens life, personal safety or health of the public, not just that the work stoppage is (or might have) a detrimental economic impact.
Rarely will strikes by workers who are not providing “true” essential services (medical, police, military, firefighters) meet this threshold. Rather, government interventions blocking the right to strike in the federal sector have typically been justified as necessary to prevent economic harm and disruption to supply chains. Moreover, the more economic disruption caused by a work stoppage, the more likely the federal government will intervene to block it. Therefore, it is not strikes per se that concerns the government, but effective strikes that cause sufficient economic harm that the workers have power. With the routine use of Section 107 in the past two years, the government has slid into a pattern of intervention into labour relations whenever workers have power and employers call on the government to neutralize that power.
For example, the federal government did not intervene to end a 2-year long lockout of port workers in Quebec, but the moment that port workers in Vancouver and Montreal struck, the government dusted of Section 107 and ended the strike. Similarly, the government has shown restraint in restraining strikes at Canada Post, except during the December holiday period, when a strike would have the most economic impact. It is no coincidence that the government’s use of Section 107 in regards to Canada Post was different than in the ports, railways, and airlines. In the Canada Post dispute, the government did not refer the dispute to arbitration, as it has done in those other disputes. Rather, it “paused” the strike until after the holiday period, when a strike would no longer be as effective. A key distinguishing feature in the Canada Post dispute is that the employer did not want arbitration. It was the union (CUPW) advocating for government intervention in the form of a referral to arbitration. Rarely, if ever, does the government intervene to end a work stoppage and refer a bargaining dispute to arbitration against the wishes of the employer. Almost every intervention in the right to strike occurs over the objection of the union.
This selective use of Section 107 to restrict effective strikes that could cause economic harm is the defining labour relations strategy of the federal government since 2024. In my opinion, the government’s repeated use of Section 107 in 2024 and 2025 to end strikes and order arbitration will ultimately be ruled a violation of Section 2(d) of the Charter. Insofar as strikes by federal workers could cause real risk to the health and safety of the public, some restrictions on the right to strike might be justified under Section 1 of the Charter. However, the law would need to be carefully tailored to those risks. A blanket ban on all strikes by non-essential workers is unlikely to be saved by Section 1.
- The Supreme Court Constitutionalized the Right to Strike, Not a Right to Interest Arbitration
Some defenders of the use Section 107 by the government to override the right to strike have argued that Section 2(d) of the Charter is not violated provided that interest arbitration is substituted as a method for resolving the dispute. The argument is that, in fact, the SCC did not recognize a constitutional right to strike in the SFL decision at all. Rather, the Court recognized a constitutional right to interest arbitration. That argument fundamentally distorts what the SCC decided. Almost the entirety of the majority ruling in SFL is dedicated to the fundamental importance of the “right to strike” towards a meaningful process of collective bargaining. It is the “right to strike” that is given “constitutional benediction,” not access to binding arbitration (para. 3). If governments are free to ban strikes whenever it suits them provided only that they substitute arbitration, then there is no right to strike.
The SCC specifically rejects the notion that alternative dispute resolution processes such as binding arbitration have constitutional equivalence to the right to strike:
Alternative dispute resolution mechanisms, on the other hand, are generally not associational in nature and may, in fact, reduce the effectiveness of collective bargaining processes over time. Such mechanisms can help avoid the negative consequences of strike action in the event of a bargaining impasse, but as Dickson C.J. noted in RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, they do not, in the same way, help to realize what is protected by the values and objectives underlying freedom of association (para 60).
Therefore, while the substitution of interest arbitration for a prohibited right to strike might ultimately be justified in some cases under Section 1 of the Charter, the government must first meet the threshold of demonstrating that the ban on strikes addresses a pressing and substantial objective, that the ban is rationally connected to that objective, and that the strike ban “is carefully tailored so that [the right to strike] is impaired no more than necessary” (para. 79-80). The Charter does not create a simple menu of options–strike or arbitration–and then grant governments unfettered discretion to decide which option to select in any given case. Rather, we begin with the right to strike as a fundamental right that can only be restricted in the narrowest of situations involving true essential services.
- The Misuse of Section 107 of the Canada Labour Code
The government’s position appears to be that Section 107 of the Canada Labour Code was added to the legislation in the 1980s to introduce a sort of “poison pill” that permits a single Minister to effectively override the entire statute, and the Charter, whenever they, and they alone, decide that a work stoppage has become troublesome. This is a surprising interpretation of Section 107 indeed, and one that no other government before 2024 had adopted in the 40 odd years that Section 107 has been in the statute.
If this interpretation is correct, then it is truly a revolutionary development in Canadian labour and constitutional law. Let’s consider the implications. Section 107 reads as follows:
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. [emphasis added]
The current government has interpreted this language as granting the Minister “King-like” powers to decide when and if workers can strike. The only proviso is that the Minister “deem” that banning strikes will achieve both outcomes listed in the section, namely: (1) likely to maintain or secure industrial peace, and (2) likely to promote conditions favourable to a settlement. On this theory, the Minister can order the CIRB to terminate any strike, at any time, at their total and unfettered discretion, by simply sending an email to the CIRB, which has no alternative but to follow the Minister’s direction.
The full extent of this revolutionary argument becomes clear if we follow it through to its logical conclusion. It means, for instance, that a Minister could decide to prohibit all employer speech during union organizing campaigns, on the basis that employer campaigning against unionization tends to raise tensions at the workplace and thereby might make settlement of disputes less likely. Or, a Minister could order first contract arbitration in every newly certified bargaining unit, on the basis that this will secure industrial peace. Or, a Minister could have simply prohibited the use of replacement workers during a strike or lockout, without any need for the government to have enacted the recent Bill C-58, because banning replacement workers could be perceived to promote conditions favourable to a settlement. Whether these moves actually would secure industrial peace and improve settlement potential is beside the point, because the Minister’s discretion is unfettered and not subject to any review.
However, it is absurd to believe that the legislature intended by Section 107 to confer on a single Minister the effective unfettered authority to override the entire infrastructure of the Canada Labour Code by simply directing the CIRB to do as it is told. Whether employers should have free speech rights to campaign against unionization, whether and in what circumstances first contract arbitration should be available, whether employers should be able to use replacement workers during a work stoppage, and in what circumstances the right to strike should be circumscribed are substantive labour policy questions that are routinely (and often hotly) debated in parliament after consultations with the labour relations community. It would come as a great shock to that labour relations community if it turns out that Section 107 empowers a single Minister to make these fundamental labour policy decisions without any parliamentary or independent oversight. Section 107 was not intended to be used in this manner.
- The Conditions for Exercising Section 107 Powers Are Not Satisfied
I noted in Part 3 that the expressed language of Section 107 requires the Minister to be satisfied of two outcomes: that prohibiting a work stoppage and ordering arbitration is (1) likely to maintain or secure industrial peace, and (2) likely to promote conditions favourable to a settlement. Whatever else the government or the Minister may have believed beginning in the summer of 2024 when Section 107 was first dusted off to end a work stoppage, it is now abundantly clear that the government’s use of Section 107 in this manner is neither securing peace nor promoting conditions favourable to settlement. In fact, the opposite is true. Therefore, any further use of Section 107 to end strikes under the rationale that it promotes settlement would be both inappropriate and disingenuous.
Obviously, banning strikes by using Section 107 can “secure industrial peace” in a literal sense, except when workers are so angered by the move that they refuse to return to work, as Air Canada flight attendants did earlier this year. Continued use of Section 107 to quash strikes is likely to fuel more worker resistance of this type. A mass general strike is on the table if governments continue their recent pattern of systematically undermining the right to strike, either through the use of Section 107 or the “notwithstanding clause.” In this sense, it is naïve to believe that banning strikes promotes industrial peace. Labour history demonstrates the fallacy of this belief.
However, even if it could be argued that using Section 107 to ban strikes promotes “industrial peace”, it is clear that the second requirement for exercising Section 107 powers is not satisfied. The government’s repeated interventions under Section 107 have clearly not promoted conditions favourable to settlements. In fact, the evidence supports the conclusion that the government’s actions have impeded settlements and that settlement is more likely when the parties believe that government intervention will not prohibit a work stoppage. Consider the evidence.
The government’s first use of Section 107 involved mechanics employed by Westjet. The Section 107 order directed the CIRB to impose arbitration, but the direction did not expressly ban strikes in the period before arbitration, so the mechanics stayed out on strike. Once Westjet realized the workers were not returning to work any time soon, the company reached a deal with the union. It was the reality that the workers would remain on strike that promoted the settlement, not the Section 107 order. Similarly, in the case of the Air Canada flight attendants, it was the workers’ refusal to obey the Section 107 directive to end their strike that pressured Air Canada back to the bargaining table, where a deal was quickly reached. The parties reached a voluntary agreement just this week in a deal covering Westjet pilots in a case in which the government signaled that it would not intervene. Likewise, in a dispute involving the giant courier DHL, the government’s refusal of DHL’s request for a Section 107 that would block a strike encouraged the employer to work out a deal with the union.
In all these cases, either the government’s refusal to use Section 107 to prohibit a strike (Westjet pilots, DHL), or the employees’ refusal to return to work following government intervention (Westjet mechanics, Air Canada flight attendants), created the climate that lead the parties to work out a settlement on their own. Once it became clear that government intervention would not force the workers to end their strikes, the parties quickly worked out deals. The Section 107 interventions in the ports and railways did end the work stoppages, but by ordering binding arbitration. Imposing arbitration against the wishes of one or both of the parties is the opposite of “promoting conditions favourable to settlement.” It is using force to impose a settlement against the parties’ wishes, a move that can create lingering resentment in the workplace that can fuel further conflict.
The government’s Section 107 intervention into the Canada Post dispute in December 2024 has been a complete disaster in terms of “promoting a settlement.” Recall that the government “paused” the strike during the December busy period, neutralizing CUPW’s bargaining leverage, but then permitted the strike to resume in the spring, once Canada Post’s busy period had passed. This was the equivalent of banning a teachers’ strike until the summer, when there are no classes. In the meantime, a Special Investigator was appointed to prepare a report. To this day, there is still no settlement, over a year since CUPW began its strike.* No reasonable person could suggest that the government’s Section 107 intervention in Canada Post “promoted conditions favourable to a settlement.” The bargaining dispute has languished for more than a year after the government intervened with its Section 107 order to the CIRB to pause the strike.
Notably, William Kaplan, the Special Investigator appointed by the government in Canada Post, concluded that the government’s regular interventions into labour disputes had “contributed to the current situation” and he warned the government to “make clear at the outset that it will not be interfering and that it is the responsibility of Canada Post and CUPW to mutually agree on the changes that must be made for Canada Post to keep operating.” Mr. Kaplan’s point is well known to labour relations professionals: if parties expect governments will intervene to end work stoppages, then there is good reason for one or both of them to hold-back in negotiations and wait for arbitration. This is not true all of the time, but it is true a lot of time for at least the one party that believes it would be better off with an arbitrated decision if it cannot achieve what it wants in a negotiated settlement. This is known as the “chilling effect” in the academic literature. Governments can remove or neutralize the chilling effect by making it clear that it will not intervene and that the parties must figure out a deal on their own. The current government’s routine use of the Section 107 to end strikes has raised the expectations of the parties that government will not permit free collective bargaining to run its course. This is poisoning the bargaining climate.
- The Parliamentary Process Protects Democracy. The Government’s Recent Use of Section 107 Undermines Democracy.
Of course, governments have always had the power to legislate an end to disruptive work stoppages, even in the post-SFL era when the right to strike has been constitutionally protected. The controversy over the use of Section 107 has little to do with the fundamental debate over whether governments should be permitted to block or end a strike. The controversy relates to the government’s cynical use of Section 107 to bypass parliament and the democracy-constituting process of law-making. If the government believes that work stoppages at ports, on railways, or in the airline sector need to be restricted in order to protect essential services and protect Canadians, then they have a well-worn route to respond to those concerns. It is called back-to-work legislation.
Canada, perhaps more than any other democratic nation, has a long and controversial history of interfering in the right to strike through back to work legislation. However, back-to-work legislation has one important virtue that the government’s recent use of Section 107 does not: it is democratic. When a government introduces legislation, it needs to defend and justify the legislation in the House of Commons, in committees, and in the Senate. This democratic process is deeply important, because it permits the presentation of alternative ideas and possible solutions. It requires the government to take account of various perspectives. It requires a democratic dialogue. It gives the government an opportunity to respond to constructive criticisms.
For sure, the legislative process is slower than a system in which a single elected official can make labour policy decisions unilaterally by fiat, simply by sending an email to a labour board. However, the cost of democracy involves taking the time to listen and deliberate. It is time to end the use of Section 107 of the Canada Labour Code as a device to override the constitutionally protected right to strike and to return important debates over labour relations law and policy to the Parliament.
[* As of the date of writing, the parties had reached a tentative settlement, but the terms are not publicly available and the agreement remains subject to ratification by the CUPW membership.]