On 30 January 2015, the Supreme Court of Canada (the Court) recognized a constitutional protection of the right to strike, ruling in Saskatchewan Federation of Labour v. Saskatchewan that this right is an “indispensable” part of collective bargaining. In so doing, the Court reversed its original position established in 1987.
This decision is one in a labour-law trilogy developed in 2015 by the Court, which re‑examined freedom of association within the context of labour relations. The other two decisions in the trilogy are Mounted Police Association of Ontario v. Canada (Attorney General) and Meredith v. Canada (Attorney General).
Case History: Saskatchewan’s Public Service Essential Services Act
In 2008, the Government of Saskatchewan enacted the Public Service Essential Services Act (the Act), in a stated desire to move away from regulating public sector strikes on an ad hoc basis. This legislation, which is no longer in force, prohibited designated employees who provide essential services from participating in strike action.
The definition of “essential services” given in the Act included services necessary to prevent danger to life, health or safety; the destruction or serious deterioration of machinery, equipment or premises; or serious environmental damage.
Under the Act, a public employer and a union were required to negotiate the terms of an “essential services agreement” that set out how public services would be maintained during a work stoppage. However, if the negotiations broke down, the employer could unilaterally designate which public services it considered essential, what classifications of employees would be required to continue to work and the number of employees in each of the classifications.
While the Saskatchewan Labour Relations Board could review the number of employees required to continue working during a strike, it had no authority to review other decisions made by the employer. Moreover, the Act provided no alternative dispute resolution mechanism, such as arbitration, to resolve bargaining impasses.
Several unions challenged the constitutionality of this new legislative scheme.
The Decision: “Substantial Interference” with Collective Bargaining
In its ruling, the Court found that section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter), which guarantees freedom of association, includes a protection of the right to strike. The Court explained that the right to strike is not “merely derivative” of the right to a meaningful process of collective bargaining; it is an “essential” and “indispensable” component of that right.
According to the Court, legislation that interferes with the right to strike infringes section 2(d) of the Charter when it amounts to a “substantial interference” with collective bargaining. The Court found that, by preventing designated employees from engaging in any strike activity as part of the collective bargaining process, Saskatchewan’s essential services legislation constituted such an infringement.
In addition, the complete prohibition of strike activity for designated employees could not be justified under section 1 of the Charter, which provides a general framework for justifying limits placed on rights and freedoms.
In this regard, the Court found that the decisive issue in the section 1 analysis was “whether the means chosen by the government [were] minimally impairing.” It concluded that the legislation did not impair constitutional rights as minimally as it could to ensure the continued delivery of essential services and identified two issues with the Public Service Essential Services Act:
- First, the public employer could unilaterally determine whether and how essential services were to be maintained during a work stoppage, without an adequate mechanism to review this unilateral determination.
- Second, the Act provided no meaningful dispute resolution mechanism as an alternative to a strike to resolve bargaining impasses.
The Court declared the Public Service Essential Services Act unconstitutional but suspended the declaration of invalidity for one year.
Implications for Legislators and Unions
While the Saskatchewan Federation of Labour decision established that the right to strike is constitutionally protected, it did not enshrine an absolute guarantee. Rather, the Court held that the right to strike should be limited as little as possible. Governments seeking to justify legislation that interferes with strike activity may, at a minimum, need to address the two main issues identified by the Court in relation to section 1 of the Charter.
This decision may also have repercussions on the use of back‑to‑work legislation and other remedies when parties fail to resolve labour disputes. Notably, various federal ministers of labour have relied on the discretionary powers granted to them under section 107 of the Canada Labour Code to intervene in labour disputes on multiple occasions.
Section 107 gives the Minister of Labour (the Minister) two options:
- refer any question to the Canada Industrial Relations Board (CIRB); or
- direct the CIRB to do certain things that the Minister deems necessary.
The Minister may proceed in this manner under section 107 to “maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences.”
Under this authority, the Minister may, among other actions, instruct the CIRB to:
- determine any question, such as whether the parties bargained collectively in good faith and made every reasonable effort to enter into a collective agreement;
- order employees to resume their duties and employers to resume operations, effectively ending any strikes or lockouts;
- impose final binding arbitration; and
- extend the terms of the existing collective agreement until a later date.
Figure 1 illustrates the collective bargaining process.
Figure 1 – Collective Bargaining Process
Source: Figure prepared by the Library of Parliament.
While a similar provision has existed since 1984, historically, section 107 has been used “sparingly” to various ends, according to the CIRB. From 2023 to 2025, however, the CIRB received ministerial instructions to intervene in several labour disputes pursuant to section 107, such as disputes in the ports industry and in the airline industry (dispute with WestJet and dispute with Air Canada),a dispute involving national freight railways and a dispute involving the postal service.
Several unions have challenged the use of the Minister’s discretion under section 107 to intervene in labour disputes at the CIRB and in Federal Court, with some calling for the provision’s repeal. In August of 2025, a strike involving Air Canada flight attendants continued despite the Minister instructing the CIRB to issue a back-to-work order and impose final binding arbitration. On 6 October 2025, a Member of Parliament introduced legislation to repeal section 107.
In the case involving the national freight railways, the CIRB held that it has no discretion to refuse to implement ministerial directions issued under section 107 or to modify their terms. While it has found that the provision itself does not violate the Charter, the CIRB has indicated that it has no authority to review the ministerial directions issued under section 107 or to assess their constitutional validity. The exclusive jurisdiction to review the Minister’s exercise of discretion under this provision lies with the Federal Court.
Based on a study conducted by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, the ability to participate in a meaningful process of collective bargaining, which includes the right to strike, has been associated with improved working conditions and other benefits, particularly for certain population groups. At the same time, depending on the industry, strikes and lockouts could impact the national economy and the provision of services to the public, among other repercussions. Thus, it remains to be seen what the long-term impact of using section 107 to intervene in labour disputes will be on collective bargaining and workers’ rights. It is also uncertain whether, in the face of constitutional and other challenges, the Minister may resort to other remedies when parties fail to resolve labour disputes.
By Mayra Perez-Leclerc, Library of Parliament
This publication is based on a previous Library of Parliament publication by Caroline Quesnel.
Categories: Employment and labour, Law, justice and rights