OTTAWA – Labour experts indicate that the Liberal government’s recent legislative initiative will test the boundaries of Ottawa's authority to intervene in collective bargaining, especially when economic interests are involved.
The Liberals introduced Bill C-39, the Building Canada Strong Act, proposing measures aimed at expediting project approvals nationwide, along with amendments to the Canada Labour Code.
The most significant revisions target Section 107 of the Labour Code, a provision established in 1984. Over recent years, the Liberal government has utilized this contentious section to halt strikes across federally regulated sectors, including rail, ports, and air transportation.
This section allows the minister to direct the Canada Industrial Relations Board to undertake measures deemed necessary to resolve disputes and maintain industrial peace. However, the extent of the federal government's power to compel the industrial board to end strikes remains debatable. Ongoing court challenges arise from the government's recent decisions to resolve disputes affecting Canada's railways, ports, Air Canada, and Canada Post.
Bill C-39 modifies the language in Section 107, explicitly empowering ministers to order federally regulated businesses to resume operations or to mandate binding arbitration between involved parties. The bill further stipulates conditions that the government must satisfy prior to activating this section, including the requirement to consider a special mediator's report and to assess whether a work stoppage adversely impacts the "national interest."
The federal government defends this revised Section 107, asserting that it does not provide new powers for intervening in labour disputes. Maja Stefanovska, a spokesperson for Employment and Social Development Canada, stated that the bill aims to clarify existing ministerial authority by instituting clear guidelines governing the use of Section 107.
Labour experts who commented on the bill suggest that the new language actually grants the minister enhanced powers, which may face constitutional challenges under the Charter of Rights and Freedoms. Adam King, an assistant professor in the labour program at the University of Manitoba, argued that the revision significantly boosts the minister's capabilities, likening it to "Section 107 on steroids."
As of Thursday afternoon, the federal government had yet to release a Charter statement regarding Bill C-39, which would inform Canadians of any potential implications for their rights and freedoms. Bethany Hastie, an associate professor in law and director of the Centre for Law in the Contemporary Workplace at Queen’s University, indicated that the government is establishing a "clearer process" for utilizing Section 107 to intervene in collective negotiations.
Hastie warned that such an approach could "significantly impact" workers' rights to strike, a right upheld by the Supreme Court of Canada in 2015. The government must demonstrate that its use of these powers constitutes a reasonable limitation on the right to strike. Historically, rational limits on this right in Canada have typically revolved around essential services, like emergency response and healthcare, where work stoppages pose immediate threats to health and safety.
There are arguments suggesting that the right to strike could be reasonably limited based on significant adverse economic consequences; however, this perspective has not been formally recognized by the Supreme Court. This is where the proposed "national interest" condition in Bill C-39 comes into play. The legislation permits the minister to consider “any relevant considerations” to gauge if the “national interest” is at stake, including economic effects and social disruption, while also accounting for workers’ rights.
Critics have urged the federal government to clarify what constitutes "national interest," especially pertaining to the Building Canada Act passed last year, which allows for expedited approvals of projects deemed to be of national significance, including potential exemptions from certain environmental regulations.
Jobs Minister Patty Hajdu has stated that the national interest standard is a "high bar" to meet and emphasized that there is no "blanket answer" for where the bar is set, as each strike situation is unique. She noted that pressure peaks significantly in the transportation sector when essential and perishable goods are involved.
Brent Marks, a lawyer in the labour and employment division at Nelligan Law, remarked that strikes should induce economic discomfort and asserted that it is reasonable to claim that a strike at Air Canada, which disrupts numerous flights and services, would qualify under the parameters established in the bill.
The federal government currently has the option to intervene in labour disputes in federally regulated sectors by enacting back-to-work legislation through Parliament. Minister Hajdu argued that this option is not always feasible in a timely manner. The adjustments to Section 107 appear to suggest that Ottawa is seeking an alternative, less overt method to resolve labour disruptions.
King cautioned that broadening the acceptable limits on the right to strike by invoking the ambiguous national interest condition is a "dangerous road to go down." Both King and Hastie believe that if the Liberals advance the proposed modifications to Section 107, they may face significant pushback from unions and strained labour relations in the future.
