Canada: Guidance from Ontario’s Top Court: The Constitutional Legality of Back-to-Work Legislation

Author: Aman Atwal

Summary

Section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) provides everyone with a fundamental freedom of association, which includes the right to participate in a strike when collective bargaining between an employer and a bargaining agent (e.g. a union) breakdown.

The Ontario Court of Appeal (“ONCA”) recently considered the constitutionality of back-to-work legislation under section 2(d) of the Charter in two landmark decisions, providing guidance on when back-to-work legislation enacted by either the federal or provincial government can be justified under the Charter.

In this article, we review the ONCA’s landmark decisions and how the courts may assess back-to-work legislation enacted in the future.

Ontario Public Service Employees Union v. Ontario (Attorney General), 2026 ONCA 74 (“OPSEU”)

In OPSEU, the issue was the Ontario government’s enactment of back-to-work legislation in 2017 to end a 5-week strike by full-time academic employees at 24 of Ontario’s Colleges of Applied Arts and Technology (“Bill 178”). Under Bill 178, the union, OPSEU, and the government-mandated bargaining agent for the colleges, were subject to binding interest arbitration. At interest arbitration, a labour arbitrator issued an award imposing the terms of the parties’ new collective agreement.

In an application before the Ontario Superior Court of Justice, OPSEU challenged the constitutionality of Bill 178 as an unjustifiable interference with the rights of its members to bargain collectively under section 2(d) of the Charter. The Court held that Bill 178 did not violate section 2(d) of the Charter, since Bill 178’s imposition of interest arbitration as an alternative to negotiations which were at an impasse did not amount to a substantial interference with meaningful collective bargaining. The Court further held that, even if Bill 178 violated section 2(d) of the Charter, it was justified under section 1 of the Charter, which allows governments to impose reasonable limits on Charter rights if such limits can be demonstrably justified.

OPSEU appealed the Court’s decision to the ONCA. While the ONCA ultimately dismissed OPSEU’s appeal and upheld the lower court’s ruling, it held that Bill 178 did substantially interfere with the right to strike as an essential part of the collective bargaining process, thereby significantly affecting meaningful collective bargaining. Accordingly, Bill 178 limited the rights of OPSEU members under section 2(d).

However, the ONCA found that Bill 178’s violation of section 2(d) of the Charter was justified under section 1 of the Charter. The ONCA held that Bill 178’s legislative objective was pressing and substantial (i.e. mitigating the harm inflicted on students by a lengthy strike) and that Bill 178 was rationally connected to this objective.

The ONCA further found that the implementation of “an impartial and effective dispute resolution process” with binding arbitration was a minimal impairment to OPSEU members’ section 2(d) rights. Notably, the ONCA acknowledged that “minimal impairment” no longer plays a dominant role in the section 1 analysis, especially in areas of complex social policy and given that significant deference is accorded to the legislature. Interest arbitration under Bill 178 was an adequate substitute for the strike.

The ONCA further rejected OPSEU’s argument that the government of Ontario acted prematurely in enacting Bill 178 and not providing the parties with enough time to bargain. Deference is owed to governments in setting policy objectives, and specifically in labour relations, “which engages the core government competencies of making complex policy decisions, allocating resources in society, and responding to situations of crisis”. The ONCA reaffirmed that courts will not “micromanage” government policy choices.

Canadian Union of Postal Workers v. Canada (Attorney General), 2026 ONCA 75 (“CUPW”)

CUPW was released concurrently with OPSEU. In CUPW, the ONCA considered the Postal Services Resumption and Continuation Act, S.C. 2018, c. 25 (the “PSRCA”). The PSRCA was back-to-work legislation enacted in 2018 by the federal government of Canada to end five weeks of rotating strikes by units of the Canadian Union of Postal Workers (“CUPW”). Among other things, the PSRCA, imposed an interest arbitration process in which CUPW and Canada Post could continue to negotiate toward a new collective agreement, failing which an established mediation-arbitration process would be used to resolve issues on which an agreement could not be reached.

CUPW applied to the Ontario Superior Court of Justice for a declaration that the PSRCA limited its members’ freedom of association under section 2(d) of the Charter and could not be demonstrably justified under section 1.

The application judge dismissed the application as moot because the PSRCA’s limitation on strike activity had expired. Further, the interest arbitration process imposed by the PSRCA was completed and the parties had reached new collective agreements. Notwithstanding the finding of mootness, the application judge briefly considered the constitutional question raised by CUPW, finding the PSRCA violated section 2(d) but was justified under section 1.

CUPW appealed the application judge’s decision. Similar to OPSEU, the ONCA dismissed CUPW’s appeal.

On mootness, the ONCA deferred to the application judge and agreed with the discretionary decision not to hear CUPW’s constitutional challenge on the merits because the declaration would have no practical effect on the rights of the parties. The ONCA found that a determination on the merits would have limited precedential value, holding that in the labour relations context, section 2(d) and section 1 questions turn on the specific legislation at issue and the specific factual context of its enactment. CUPW did not seek a declaration of retroactive effect, nor was it asking to unwind the collective agreements reached through arbitration.

Additionally, the ONCA briefly addressed the Charter issues in dispute and held that the application judge did not err in their Charter analysis. While the PSRCA limited CUPW members’ right to strike, the ONCA held that it was justified under section 1 of the Charter. The PSRCA had a pressing and substantial objective of securing vital postal services for vulnerable and rural Canadians, and the interest arbitration was an appropriate substitute for the right to strike.

Interestingly, CUPW advanced an argument that because the PSRCA required CUPW, its officers and representatives to notify employees of their obligation to return to work, it limited their personal freedom of expression. The ONCA rejected this argument, finding that there is a distinction between personal expression and responsibilities as union officers or representatives. Labour relations legislation not only provides official status to union officers and representatives, but also imposes duties, such as adhering to back-to-work legislation. The ONCA held that nothing in the PSRCA limited the personal expressive rights of CUPW members.

Takeaways

Constitutional jurisprudence is always evolving and advancing. Union members have a right to strike as a meaningful part of the collective bargaining process. However, legislation can be imposed by governments in a manner that may acceptably, but adversely, impact that very right to strike and freedom to associate. Most importantly, the courts will defer to governments for their policy choices and drafting of back-to-work legislation and may find that interest arbitration is a valid substitute for strike action in some contexts.

Need More Information

For more information or assistance, contact Aman Atwal at aatwal@filionlaw.com or your regular lawyer at the firm.