Supreme Court finds a Constitutional Right to Strike

“Clearly the arc bends increasingly towards workplace justice”: The Supreme Court of Canada today released a landmark decision in Saskatchewan Federation of Labour v Saskatchewan, ruling that section 2(d) of the Canadian Charter of Rights and Freedoms protects workers’ right to strike. In bold and sweeping reasons on behalf of the Majority, Justice Abella outlined the historical, international, and jurisprudential foundations for this right, emphasizing that a right to strike is indispensable to meaningful collective bargaining.

The case itself dealt with legislation from Saskatchewan that granted public sector employers the unilateral authority to identify which employees were prohibited from participating in a strike because they performed ‘essential services’. This legislation – which closely resembles amendments subsequently made to federal public sector labour law – departed from the conventional approach to essential services legislation across the country, in which independent labour boards possess the authority to determine what services are essential, and which employees are required to perform those services.

The Supreme Court concluded that Saskatchewan’s legislation violates the right to strike as it significantly interferes with a meaningful process of collective bargaining and that this violation cannot be saved by section 1 of the Charter. The Court explained that there is no justification for granting public employers a unilateral right to limit the right of their employees to strike. The Court further held that the legislation in this case went well beyond what was necessary to provide essential services to the public: for example, the legislation permitted employers to require workers to perform non-essential duties, and it failed to provide an alternate dispute resolution mechanism for those workers who are determined to be essential.

RavenLaw congratulates the appellants and their counsel on this historic victory for workers.

Andrew Raven, Andrew Astritis, and Morgan Rowe from our firm represented the Public Service Alliance of Canada, who appeared as an intervener before the Supreme Court of Canada in support of the right to strike.