In two recent decisions released on the same day, the Ontario Court of Appeal (“ONCA”) considered the constitutionality of back-to-work legislation in the public sector: Ontario Public Service Employees Union v Ontario (Attorney General) [OPSEU] and Canadian Union of Postal Workers v Canada (Attorney General) [CUPW].  

In both cases, the Court confirmed that legislation ending a lawful strike limits workers’ freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms [Charter]. However, in each scenario, the Court held that the infringement was justified under section 1. 

OPSEU v Ontario (Attorney General) 

Background 

In 2017, Ontario enacted the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017 (“Bill 178”) to end a five-week strike by full-time academic faculty at Ontario’s 24 colleges. The strike had halted student instruction across the college system. OPSEU challenged Bill 178, arguing that by ending the strike and requiring unresolved issues to proceed to binding interest arbitration, the legislation unjustifiably infringed members’ section 2(d) Charter right to freedom of association, including the right to strike. 

Decision 

The ONCA held that Bill 178 did, in fact, limit section 2(d). Relying on key precedents, the Court held that ending a lawful strike necessarily and substantially interferes with meaningful collective bargaining.  

However, the Court found the infringement justified under section 1. Ontario had a pressing and substantial objective: resuming classroom instruction and mitigating serious academic, financial, and personal harm to students if the academic term were lost. The legislation was rationally connected to that objective, minimally impairing, and proportionate in effect. In particular, the Court emphasized that Bill 178 replaced the strike with a neutral and unrestricted interest arbitration process, which served as a “meaningful alternative mechanism” for resolving bargaining impasses. 

CUPW v Canada (Attorney General) 

Background 

In 2018, Parliament enacted the Postal Services Resumption and Continuation Act [PSRCA] to end five weeks of rotating strikes by CUPW members at Canada Post. The legislation required employees to return to work, prohibited further strikes and lockouts, extended prior collective agreements, and referred outstanding issues to mediator-arbitration. CUPW challenged the legislation, along with a statement by the Prime Minister that “all options [would] be on the table”, arguing that the legislation and government conduct infringed sections 2(d) and 2(b) of the Charter. 

Decision 

Originally, the application judge held that the application was moot because the legislation was spent, the arbitration process had concluded, and the parties had since moved on to later collective agreements. The ONCA upheld the application judge’s decision not to decide the matter on the merits. 

In addition to the finding of mootness, the application judge briefly considered the constitutional question raised by CUPW. The judge found that the PSRCA limited section 2(d) because back-to-work legislation ending a lawful strike interferes with the constitutional right to strike; however, that limit was justified under section 1. On appeal, the ONCA accepted that the strikes caused serious social and economic disruption and that Parliament’s objective of restoring postal service, including service to vulnerable and rural Canadians, was pressing and substantial. The ONCA also found that the legislation minimally impaired the right to strike because it used a fair and neutral interest arbitration model, unlike the flawed scheme criticized in earlier postal strike litigation. The ONCA rejected the separate claims based on freedom of expression and the Prime Minister’s comments. 

Key Takeaways

These decisions confirm that courts will recognize back-to-work legislation as a limit on section 2(d) rights, but they also show significant judicial deference where governments intervene in labour disputes to address serious public harm. In particular: 

• Courts may defer to governments regarding labour-relations policy choices: Where government decisions to intervene in labour disputes reflect policy choices addressing significant public impacts, courts may show deference. In both cases, the Court accepted that government intervention was justified based on broader societal consequences: disruption to students’ academic terms in the college strike and widespread social and economic disruption from postal service interruptions. 

• Evidence of concrete harm is critical: The justification analysis was grounded in evidence of specific harms. In OPSEU, the Court relied on evidence of the potential loss of the academic year and its financial and professional consequences for students. In CUPW, the Court accepted evidence of significant economic and social disruption affecting businesses and vulnerable communities. Governments seeking to justify intervention must be able to demonstrate these harms on an evidentiary record. 

• Neutral dispute-resolution mechanisms help support constitutionality: Both decisions emphasized the role of neutral interest arbitration as a meaningful substitute for strike action. Legislation that ends a strike but provides a fair, impartial process for resolving the underlying bargaining dispute is more likely to satisfy the minimal impairment and proportionality requirements under section 1. 

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.