Canada’s Top Court Constitutionalizes the Right to Strike

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court of Canada established that the right to strike is constitutionally protected by the freedom of association guaranteed by section 2 of Canadian Charter of Rights and Freedoms (the “Charter”).

The Saskatchewan Federation of Labour on behalf of several unions challenged the constitutionality of the Public Service Essential Services Act, S.S. 2008, c. P‑42.2 (PSESA), and the Trade Union Amendment Act, 2008, S.S. 2008, c. 26 (TUAA) shortly after their introduction by the provincial government.

Under the PSESA, in the event of a work stoppage, the government has the unilateral authority to maintain essential services. The PSESA then prohibits public sector employees who perform essential services from participating in strike action. These employees must continue their duties in accordance with existing terms and conditions of their employment and must not limit their duties to only those that are truly essential. Furthermore, no meaningful alternative mechanism for resolving bargaining impasses, such as arbitration, is provided.

At trial, the judge concluded that the right to strike was a fundamental freedom protected by section 2 of the Charter, accordingly, the PSESA’s interference with the right to strike was unconstitutional and unjustifiable. At the Court of Appeal, the government was successful in having this decision overturned.

On appeal to the Supreme Court of Canada, it concluded that collective bargaining is a constitutionally protected right, and that striking, as a vital and indispensable aspect of collective bargaining is also a constitutionally-protected right. The Supreme Court supported its conclusion on a historical, jurisprudential and international landscape:

  • First, the Supreme Court reviewed its prior decisions on the issue to establish that a meaningful process of collective bargaining supports the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” further entrenching collective bargaining as a Charter-protected right.


  • Secondly, the Supreme Court found that striking allows workers to participate in collective bargaining through the collective action of withdrawing their services and refusing to work under terms and conditions imposed by the employer, essentially stating that striking is an indispensable and crucial component of collective bargaining.


  • Third, the Supreme Court concluded that striking promotes equality in the bargaining process to remedy what it termed as the “deep inequalities” between employees and employers by providing employees with “bargaining leverage”.


  • Fourth, the Supreme Court determined that Canada’s international human rights obligations and general recognition of international law mandate a constitutional protection of the right to strike.

Turning to the PSESA in general, the Supreme Court found that:

  1. its prohibition on striking for designated employees is a substantial interference with a meaningful process of collective bargaining and,


  1. this breach could not be justified because while the maintenance of an essential public service is a pressing and substantial objective, the means chosen by the government of Saskatchewan were not minimally impairing.

Accordingly, the Supreme Court concluded that a right to collectively withdraw labour must not be interfered with, and if such interference occurs, there must be a meaningful alternative dispute resolution process for workers.

This decision has a tumultuous impact on the jurisprudence regarding the right to strike as the Supreme Court has effectively overruled its own decisions and those of provincial Courts of Appeal which for the last thirty (30) years had denied constitutional protection of the right to strike. Employers can expect constitutional challenges in the future when provincial or federal governments attempt to limit the right to strike through legislation.