Canada: Supreme Court Of Canada Decision On The Right To Strike Could Have An Impact On The Education Sector

On January 30, 2015, the Supreme Court of Canada issued  a landmark decision, holding that the right to strike is constitutionally protected. This recent decision could have a significant impact on the education sector.

In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Supreme Court found that the Public Service Essential Services Act (the "PSESA"), which created an absolute ban on the right to strike for unilaterally designated "essential service employees", infringed on protected Charterrights.

The PSESA is Saskatchewan's first statutory scheme to limit the ability of public sector employees who perform essential services to strike. It comes on the heels of a recent history of the withdrawal of services by public sector employees in the areas of health care, highway maintenance, snow plow operations, and corrections work, sparking major concerns about public safety. It prohibits the designated "essential service employees" from participating in any strike action against their employers.

In 2008, the trial judge concluded that the prohibition on the right to strike in the PSESA infringes on a fundamental freedom protected by section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter"). Subsequently, the Saskatchewan Court of Appeal unanimously allowed an appeal by the Government of Saskatchewan, stating that the jurisprudence did not warrant a ruling that the right to strike is constitutionally protected by section 2(d) of the Charter. Justice Abella, writing for the majority of the Supreme Court (and a former head of the Ontario Labour Relations Board), agreed with the trial judge.

The Supreme Court held that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The Court also determined that the means chosen by the Saskatchewan government to meet its objectives were not justified under section 1 of the Charter.

Constitutionalizing The Right To Strike

Relying on history, jurisprudence and Canada's international obligations, the Supreme Court found that the right to strike is an indispensable component of participating meaningfully in the pursuit of collective workplace goals.

The Supreme Court emphasized the importance of the right to strike in promoting equality in the
bargaining process. The Supreme Court recognized the deep inequalities that structure the relationship between employers and employees. It is the possibility of strike action that enables vulnerable workers to negotiate with employers on terms of "approximate equality" in the context of a fundamental power imbalance. In the Court's  view, resorting to strike action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives. While a strike on its own does not guarantee the resolution of a labour dispute, the Supreme Court stated that strike action has the potential to place pressure on both sides to engage in good faith negotiations.

PSESA Is Not Justified Under Section 1 of the Charter

The Supreme Court found that, while the maintenance of essential public services is a pressing and substantial objective, the means chosen by the government in the PSESA are neither minimally impairing nor proportionate. The ban on the right to strike substantially interferes with the rights of public sector employees and cannot be saved by section 1 of the Charter. The Supreme Court held that the PSESA goes beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.

First, the PSESA grants unilateral authority to public employers to determine whether and how essential services are to be maintained during a work stoppage without any adequate review mechanism. This authority includes the power to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and the essential services to be maintained. Only the number of employees required to work is subject to review by the Saskatchewan Labour Relations Board. Simply, the PSESA has no adequate review mechanism for the determination of the maintenance of essential services during a strike. Also, the PSESA does not tailor an employee's responsibilities during a work stoppage to the performance of essential services alone. The Supreme Court found that requiring employees to perform both essential and non- essential work during a strike undercuts their ability to meaningfully participate in the process of collective bargaining.

In addition, the PSESA lacks access to a meaningful alternative mechanism to resolve bargaining impasses, such as arbitration. In essence, the Supreme Court held that a ban on the right to strike must be accompanied by a meaningful mechanism for dispute resolution by a third party. Quoting the trial judge's remarks, it was noted that no other essential services legislation in Canada is as devoid of access to independent, effective dispute resolution processes to address employer designations of essential services employees. In fact, "no strike" legislations are almost always accompanied by an independent dispute resolution process which acts as a "safety valve against an explosive buildup of unresolved labour relations tensions".

In conclusion, the Supreme Court held that the PSESA impairs the freedom of association much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services.

The PSESA was declared unconstitutional but the declaration of invalidity was suspended for one year. This should provide time for the Saskatchewan government to review its legislation.

Constitutionality of Amendments to the Certification  Process

In the same judgment, the Supreme Court examined whether amendments to the Saskatchewan Trade Union Act, which introduced stricter requirements for a union to be certified, are constitutional. The amendments included an increase in the required level of written support for union certification (from 25% to 45%); the elimination of automatic certification with 50% employee written support; a reduction in the period for receiving written support from employees from six months to three; and a reduction in the level of advanced written support needed for decertification. These changes also broaden the scope of permissible employer communications to include facts and opinions.

The Supreme Court dismissed the constitutional challenge against these amendments. Although it has long been recognized that the freedom of association protects the right to join associations of the employees' choosing, the amendments do not substantially interfere with that right.

Compared to other Canadian labour relations statutory schemes, these requirements were found not to constitute an excessively difficult threshold such that the employees' right would be substantially interfered with.

In respect of employer communications, the Supreme Court found that permitting an employer to communicate facts and its opinions to its employees is not an unacceptable balance as long as the communication does not infringe upon the ability of the employees to engage their collective bargaining rights in accordance with their freely expressed wishes.

Effect Of Supreme Court Ruling

This judgment represents continuity in the Supreme Court's reversal of its thirty-year old precedents which had found no constitutional right to collectively bargain or to strike. In January 2015, the Supreme Court ruled that the federal government violated the Charterby denying the RCMP officers the right to unionize.1

Notably, a strong dissent by Justices Rothstein and Wagner expressed the view that the Supreme Court should not intrude into the role of policy makers in fundamental matters of labour relations. For the dissenting judges, the constitutionalization of the right to strike upsets the delicate balance that has been struck by legislatures between the interests of employers, employees and the public.

Significance to Education Sector

The Supreme Court's decision may have an impact in ongoing negotiations with education sector unions, particularly in Ontario where the government passed new legislation, the School Boards Collective Bargaining Act, 2014 in April 2014 (the "SBCA"). The SBCA was intended to create the framework for two-tiered bargaining with teacher and other education sector unions in Ontario, with roles for the province, school boards and unions.

The Supreme Court's strong stance against back-to-work legislation enacted by the
Saskatchewan government may impact a possible strike by teacher or other education sector unions in current negotiations. The Ontario Secondary School Teachers' Federation ("OSSTF") publicly announced a strike fund in June 20142, and the Elementary Teachers' Federation of Ontario ("ETFO") announced a strike vote in December 20143. Given the tension in the current bargaining environment, the Ontario government may soon be facing labour disruption in the education sector, and public pressure to end (or avoid) such disruption.

In order to comply with the Supreme Court's decision and the Charter, any back-to-work legislation would have to be carefully drafted to include a "meaningful dispute resolution mechanism" commonly used in labour relations. There are dispute resolution mechanisms and provisions relating to strikes in the SBCA, however this legislation was drafted before the release of the Supreme Court's decision, and may need to be re-examined.

In addition, the Supreme Court's decision is highly relevant to the ongoing constitutional challenge

The Supreme Court's strong stance against back-to-work legislation enacted by the Saskatchewan government may impact a possible strike by teacher or other education sector unions in against the Putting Students First Act, 2012 (the "PSFA") by the OSSTF and the ETFO. The PSFA imposed two-year contracts between teacher and other education sector unions and school boards from September 1, 2012 to August 31, 2014, and limited the right to strike. The preamble to the PSFA states that the "public interest" required adopting the contracts and limits on the right to strike on an "exceptional and temporary basis" in order to "encourage responsible bargaining" and to ensure contracts contained "appropriate restraints on compensation." Although the PSFA was repealed on January 23, 2013, it has had significant ongoing effects on collective bargaining and contract provisions.

The teachers' unions assert that the PSFA violates subsection 2(d) of the Charter. The hearing of this Charter challenge by the Ontario Superior Court of Justice was delayed in 2014 pending the decisions of the Supreme Court in the PSESAand RCMP cases.4 If the Ontario Superior Court decides the PSFA was unconstitutional, it remains to be seen what remedies would be ordered; the collective agreements imposed under the PSFA terminated on August 31, 2014.


1. 2015 SCC 1.

2. Kate Hammer and Caroline Alphonso, "Ontario teachers to receive three-quarters of pay in case of strike", The Globe and Mail (June 9, 2014).

3. ETFO Bulletin, "ETFO Members Vote 95 Percent in Favour of Central Strike Action", December 9, 2014 online: MediaRoom/MediaReleases.aspx>.

4. OSSTF District 20 Teachers' Bulletin, "Supreme Court Cases Delay OSSTF's Bill 115 Challenge" (March 25, 2014): Online <>.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions