Robert Lim

By: Eli Feldman

A fundamental Freedom for Canadian Workers

Strikes are a form of collective action by workers who temporarily withdraw or suspend their labour to pressure their employer to meet their demands. Strikes are often used as a last resort when negotiations break down or reach an impasse. But what are the rights of striking unions and their members in Canada? And how have these rights evolved over time? These questions are answered below.

The Right to Strike: History & Jurisprudence

The right to strike is not explicitly mentioned in the Canadian Charter of Rights and Freedoms; instead, it derives from the right to freedom of association (under s. 2(d) of the Charter), which guarantees workers the right to join a union and engage in collective bargaining. The Supreme Court of Canada has affirmed this interpretation in several landmark cases, including:

  • Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia [2007]: the Court ruled that the right to collective bargaining includes “the duty to consult and negotiate in good faith” and that any legislation which interferes with this process must be justified as reasonable and proportional;
  • Saskatchewan Federation of Labour v. Saskatchewan [2015]: the Court ruled that “the ability of workers to engage in collective action including strikes is an essential component” of meaningful collective bargaining and that any legislation which prohibits or restricts strikes must be justified as reasonable and proportional; and, most recently
  • Mounted Police Association of Ontario v. Canada (Attorney General) [2016]: the Court ruled that “the freedom guaranteed by s. 2(d) includes a right for employees to join together and form associations independent from management influence” and that any legislation which prevents workers from forming independent associations must be justified as reasonable and proportional.

Limitations on the Right to Strike

The above cases have collectively established a constitutional framework for protecting the right to strike as a fundamental freedom for Canadian workers. However, this does not mean that workers can strike at any time or for any reason; there are still some legal conditions and limitations that apply depending on the jurisdiction, sector and employer involved. For instance:

  • In order to be legally protected from dismissal or discipline for participating in a strike, workers must belong to a certified union that has followed all the required steps before declaring a strike, such as obtaining a positive strike vote from its members within 60 days (federal jurisdiction) or 120 days (most provinces), giving notice of at least 72 hours (federal jurisdiction) or 48 hours (most provinces) before striking, exhausting all conciliation or mediation services available, etc.;
  • Workers who do not belong to a certified union do not have a legally protected right to strike in Canada (except for some public sector employees in Quebec). If non-unionized workers go on strike, they risk being fired by their employer without recourse;
  • Workers who belong to essential services such as health care, public safety or transportation may have limited or no right to strike depending on their specific designation by law or agreement. If they do go on strike, they may face fines or injunctions for disrupting vital services; and 
  • Workers who belong to federal public service may have limited or no right to strike depending on their classification by law or regulation. If they go on strike, they may face back-to-work legislation enacted by Parliament which can impose arbitration or settlement terms.

Conclusion

The right to strike is not absolute but it is an important tool for advancing workers’ interests and achieving social justice. It is also a democratic expression of solidarity among workers who share common goals and grievances. By respecting and exercising this right responsibly within the legal framework established by the Charter and other laws, Canadian workers can contribute to improving their working conditions and living standards – for today and tomorrow.

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.