SCC majority affirms constitutional protection for the right to strike

The Supreme Court of Canada handed down an important decision on Friday, affirming that the right to strike is protected under s.2(d) (freedom of association) of the Charter of Rights and Freedoms. Justice Abella, writing for a 5-2 majority, held that legislation passed in Saskatchewan in 2007 which prohibited certain essential service employees from participating in strike actions, infringed on Charter rights. The majority concluded that “the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations” and that the right to strike “is not merely derivative of collective bargaining, it is an indispensable component of that right.”

The legislation could have been upheld under s. 1 of the Charter if the provisions prohibiting strike action had been found to be a reasonable limit on Charter freedoms. However, the majority found, among other things, that the legislation's failure to provide a meaningful dispute resolution mechanism suggested that it did not minimally impair Charter rights and therefore could not be saved by s.1.

An article published on the United Steelworkers Union (USW) website and shared on discusses more details of the case. The article quotes Ken Neumann, USW National Director, who said “today's historic decision is a victory for all Canadian workers. For the first time, the Supreme Court of Canada has recognized what we in the labour community have always known: that the right to strike is a fundamental part of the collective bargaining process.”