Canada labour bill would test limits of strike prevention
Labour experts say Bill C-39 will test the limits of Ottawa’s power to intervene in collective bargaining when economic interests are at stake. The legislation proposes changes to the Canada Labour Code that could reshape how federal government handles labour disputes.
What Bill C-39 Actually Changes
The Liberal government tabled Bill C-39, the Building Canada Strong Act, on Monday. While the legislation focuses primarily on streamlining project approvals across Canada, the most consequential changes target Section 107 of the Canada Labour Code—a provision introduced way back in 1984.
For years, federal ministers have used Section 107 to shut down strikes in federally regulated sectors such as rail, ports, and air transportation. The original wording grants the minister authority to direct the Canada Industrial Relations Board to “do such things as the minister deems necessary” to settle disputes and ensure industrial peace.
The problem is vague. That broad language has sparked ongoing court challenges stemming from government actions to settle recent disputes affecting Canadian railways and ports, at Air Canada, and at Canada Post. It’s unclear whether the minister’s existing powers actually allow the federal government to direct the industrial board to end strikes outright.
How the Bill Would Tighten These Powers
Bill C-39 changes the language in Section 107 to be explicit about what a minister can do. Under the new wording, a minister can order a business under federal jurisdiction to resume operations or force parties into binding arbitration.
The legislation also adds guardrails. The federal government must consider a special mediator’s report and determine whether a work stoppage is adversely affecting the “national interest” before triggering the section.
Employment and Social Development Canada spokesperson Maja Stefanovska defended the changes in an email statement: “The changes proposed in the bill would clarify the minister’s existing ability to direct the board to take specific measures by establishing clear guardrails around the use of Section 107.”
What Labour Experts Actually Think
Labour experts who spoke to The Canadian Press this week disagree with the government’s framing. They argue the new language likely confers additional powers on the minister—powers that will face Charter challenges questioning their constitutionality.
Adam King, assistant professor in the labour program at the University of Manitoba, was blunt about the characterization: “They’re pitching it as trying to clarify it and, as they said, put some guardrails around Section 107. But I think that’s a mischaracterization. What they’ve done is really enhanced that power. It’s really Section 107 on steroids.”
Bethany Hastie, associate professor in law and director of the Centre for Law in the Contemporary Workplace at Queen’s University, raised a critical concern. She said the federal government is setting out a “clearer process” to use Section 107 to interfere in collective bargaining. That approach has the potential to “significantly impact” workers’ rights to strike—rights the Supreme Court of Canada upheld in 2015.
Here’s the constitutional tension: the government will have to prove that the way it uses these powers constitutes a reasonable limit on the right to strike. But most reasonable limits in Canadian labour law have revolved around essential services—occupations like firefighting or nursing where work stoppages create immediate threats to health and safety.
The “National Interest” Problem
The bill’s biggest vulnerability may be its undefined “national interest” test. The legislation says the minister can take into account “any relevant considerations” to determine if the “national interest” is at stake—including economic impacts, social disruption, but also potentially the right to free association and workers’ right to strike itself.
Critics called on the federal government to define “national interest” when the term appeared in the Building Canada Act passed last year. Under that legislation, projects deemed to be in the “national interest” became eligible for faster approval processes, which could include exemptions from certain environmental laws.
Jobs Minister Patty Hajdu said the national interest qualifier is a “high bar” to meet. She also said in a Monday interview there is no “blanket answer” to where that bar is set, since each strike is different.
“I think the pressure is extremely high when it’s in a transportation sector that is transporting essential goods, transporting perishable goods,” Hajdu said. “There are a number of different scenarios where the pressure really mounts. And it’s intended to mount. That’s a point of a strike.”
When Would the Government Actually Use This?
Brent Marks, a lawyer in the labour and employment division at Nelligan Law, said strikes are supposed to impose economic discomfort on employers. He noted it appears easy to justify claiming that a strike at Air Canada disrupting thousands of flights and related services would trigger the national interest conditions Ottawa has set out in the bill.
“Obviously that’s something that engages the national interest,” Marks said.
But here’s what makes this legally risky for the government: expanding reasonable limits on the right to strike through a vague national interest condition is what King called a “dangerous road to go down.” That language will almost certainly face Charter challenges in court.
Why Not Just Pass Back-to-Work Legislation?
The government already has a tool to intervene in labour disputes in federally regulated sectors—passing back-to-work legislation through Parliament. Hajdu argued it’s not always possible to convene the House of Commons when necessary to resolve a dispute quickly.
Marks said the changes to Section 107 seem to suggest Ottawa is looking for a less overt way to end labour disruptions without needing to bring legislation to a floor vote. That’s the real political calculation behind Bill C-39.
The Broader Labour Law Changes
Bill C-39 includes other changes to the labour environment that seek to resolve long-standing grievances and get parties to the table earlier when bargaining has ended in acrimony. Both King and Hastie acknowledge some of those measures have merit.
But both experts argue the Liberals risk a wider backlash from unions and a fraught period for labour relations if they proceed with the proposed changes to Section 107 as currently written.
What Happens Next
As of Thursday afternoon when the analysis was published, the federal government had not yet released a Charter statement regarding Bill C-39 to advise of any potential consequences the legislation might have for Canadians’ rights and freedoms. That statement will be critical.
The legislation has triggered ongoing court challenges from government actions to settle recent disputes. Additional legal challenges are virtually certain once the bill becomes law, particularly from labour groups and unions concerned about the erosion of strike rights.
Watch for whether the government publishes a detailed Charter statement explaining its legal reasoning. Watch also for how unions respond during parliamentary debate. These signals will indicate whether the government intends to actually use these expanded powers aggressively or whether it’s simply creating a negotiating tool to pressure parties toward settlement without triggering full confrontation.
