Striking 101

It feels like every day in the news, there are workers going on strike. For example, right now the Canada Post workers are on strike. This summer there were dramatic twists in the Air Canada workers’ strikes which cost Air Canada millions. But what rules govern striking and what does one need to legally understand about an employee’s right to strike?

What Exactly is a Strike?

The term "strike" is defined broadly in the Ontario Labour Relations Act (OLRA). A strike is generally understood as cessation or refusal to work by two or more employees who are acting in combination or with a common understanding. It also explicitly includes a deliberate collective slowdown or work-to-rule designed to restrict or limit output. Engaging in a work-to-rule campaign is considered striking activity (C.W.C v Graham Cable). The definition is objective, meaning motive is irrelevant. Even actions that would be acceptable for individual employees can constitute an unlawful strike if done in concert and in accordance with the objective definition.

When is a Strike Lawful?

A strike in Ontario is unlawful unless all legal preconditions are met. If these steps are not followed, the resulting action is an unlawful strike.

The key mandatory steps required by the OLRA include:

• Notice to Bargain (s. 16).

• Negotiations must be conducted in accordance with the duty to bargain in good faith (s. 17).

• Mandatory Conciliation (s. 18).

• A "cooling off period" of 14 days after the "no board" report is issued by the Minister (s. 79(2)).

• A mandatory strike vote must be held where more than 50% of those voting support the strike (s. 79(3)). This vote must be taken 30 days or less before the collective agreement (CA) expires or at any time after it expires.

What Happens to Employees During a Strike?

Strikers maintain statutory job protection. They are protected from dismissal for lawful strike activity. An employee is not deemed to have ceased to be an employee simply because they stop working as a result of a lawful strike or lockout (s. 1(2) OLRA). Furthermore, an employee cannot be deprived of any terms and conditions of employment due to participating in a lawful strike (CALPA v Eastern Provincial Airways).

The OLRA provides statutory reinstatement rights (s. 80). If a striking employee applies to return to work within six months of the strike commencing, the employer must reinstate them if the job still exists. After six months, the right to reinstatement is not automatic if the reasons for non-reinstatement are non-discriminatory. However, the employer's continued retention of replacement workers must not be motivated by anti-union animus or the intent to punish the strikers (United Steelworkers of America v. Shaw-Almex Industries Limited). Returning strikers may be entitled to displace others if the length of service of the displaced worker was less than that of the striker when the strike began (s. 80(5)).

What Can Employers Do During Strikes?

The employer is able to respond to employee strikes with a number of tools. A lockout involves the closing of the workplace to pressure employees to agree to certain terms. Unlike the objective definition of a strike, the definition of a lockout includes a subjective purpose element. This means that it must be done with a view to compel or induce employees to agree to terms. Employers are generally allowed to hire replacement workers during a strike in Ontario. However, significant restrictions apply. The employer cannot hire "professional strike-breakers," defined as those whose purpose is to interfere with or obstruct the exercise of rights under the Act (s. 78). Hiring permanent replacement workers is likely an Unfair Labour Practice as it may indicate an intent to destroy the bargaining unit and withdraw recognition, which is inconsistent with a temporary economic dispute (s. 70 violation). An employer breaches the duty to bargain if it insists on a clause that prefers replacement workers over striking employees (UFCW v WHL Management). The employer cannot rely on loyalty to strikebreakers as justification for not reinstating legal strikers, as strikers are also legally employees (CALPA v Eastern Provincial Airways).

Are There Charter Protections That Address Striking?

Picketing is considered a form of expression protected by section 2(b) of the Charter of Rights and Freedoms, Freedom of Expression. It is seen as a means to convey a message to the public, colleagues, and the employer. The Supreme Court of Canada has also recognized the collective bargaining process, which relies on the right to strike, as protected under Section 2(d) of the Charter, Freedom of Association. Following cases like BC Health Services and Saskatchewan Federation of Labour, the SCC has recognized that Section 2(d) protects the capacity of members of labour unions to engage in collective bargaining on workplace issues. In Saskatchewan Federation of Labour, the Saskatchewan provincial government introduced legislation that prohibited “essential” workers from striking, which unions argued violated s. 2(d) of the Charter. The Supreme Court of Canada recognized that the right to strike is an indispensable component of meaningful collective bargaining. The prohibition of the right to strike, which is integral to the process through which workers can pursue their collective goals, amounts to a substantial interference with the right to meaningful collective bargaining. Accordingly, in this case, the Saskatchewan legislation infringed s. 2(d). The court emphasized that the right to strike is essential to realizing the values and objectives in a collective bargaining process because it permits workers to withdraw their services when bargaining reaches an impasse.

The two significant 2024 cases addressing the constitutional protection of the right to strike under Charter section 2(d) offer contrasting outcomes depending on the nature and timing of the legislative intervention. In Amalgamated Transit Union, Local 113 v. Ontario, the Court of Appeal upheld the finding that the TTC Act's pre-emptive, complete ban on strikes for Toronto transit workers inherently violated freedom of association because the right to strike is an "indispensable component" of meaningful collective bargaining. Conversely, in OPSEU v. Ontario, the Superior Court upheld back-to-work legislation ending a 5-week college staff strike, concluding that the Act did not infringe section 2(d) because negotiations were already at a "complete deadlock" following the overwhelming rejection of the employer's final offer, and the government acted prudently to protect 257,000 students from academic harm by immediately imposing content-neutral binding interest arbitration. This means that while the complete, permanent elimination of the right to strike for unionized public service workers is likely unconstitutional, temporary legislative intervention replacing a strike with an impartial dispute resolution mechanism may be permissible. This is more likely to be the case if negotiations have demonstrably stalled and the intervention is necessary to mitigate serious public harm.

-SWO