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.
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.