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The Law of Work
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Charter Right to Strike Off to the Supreme Court

by David Doorey October 17, 2013
written by David Doorey October 17, 2013

It’s not very surprising that the Supreme Court of Canada has agreed today to hear an appeal from a Saskatchewan Court of Appeal decision finding that Section 2(d) of the Charter [Freedom of Association] does not protect a right to strike.

SCC

Does the Charter Protect a Right to Strike?


The Saskatchewan Court of Appeal essentially punted the issue to the SCC, finding that while there may be good reason to believe that the Charter does protect a right to strike in some form, it’s not appropriate for a lower court to rule so.  Since the SCC ruled in 1987 that s. 2(d) does not protect a right to strike, only the SCC can reverse that finding.  Here’s my summary of the Court of Appeal ruling.
Thus, the stage is now set for a major showdown at the Supreme Court of Canada.  There are several other cases pending in Canadian courts that consider the Constitutional right to strike, including a dispute involving back to work legislation Air Canada and the teachers Bill 115 in Ontario? There is also an important section 2(d) case pending at the SCC involving the scope and meaning of the right to collective bargaining (the Mounted Police Association of Canada case).
Great news of labour and Constitutional law quicks, since we are guaranteed many more years of  trying to sort out the meaning of the three most mystifying words in the legal world: Freedom. Of. Association.
Related:   See my backgrounder for beginners on the Charter and the Law of Work.

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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