Carney says Labour Code change will 'protect' right to strike. Experts say it still spells legal trouble

Air Canada flight attendants picket in Toronto last year. The union that represents those flight attendants launched a series of court challenges against the government's use of a controversial section of the Labour Code to order an end to that strike. (Sammy Kogan/The Canadian Press)Social SharingThe Liberal government is proposing changes that it says will establish a "guardrail" around a controversial portion of the Labour Code — but experts say even if the bill goes through as written, the legal battles will be far from over.

Section 107, which gives the minister responsible broad powers to "maintain or secure industrial peace," has been on the books for decades. But since 2024, the federal government has come under fire for using the section to order striking workers back on the job and begin binding arbitration.

Most recently, Labour Minister Patty Hajdu used the provision to order Air Canada flight attendants back to work last summer. But the union ultimately defied that order and a tentative agreement was reached days later.

The Canadian Union of Public Employees (CUPE), which represents Air Canada flight attendants, launched a series of court challenges against the government's use of 107, one of which questions the constitutionality of that Labour Code section.

Andrea Talarico, a University of Ottawa law professor who specializes in labour law, said even with the government looking to change the parameters of Section 107, the question of whether it can override the right to strike will "absolutely" end up before the Supreme Court.

"In this context where we have this major controversy, a major controversy that affects Charter rights, in a context of economically turbulent times, this is going to have to go all the way to the Supreme Court because we need clarity," she said.

The government introduced Bill C-39 on Monday, an omnibus piece of legislation that includes changes to how Section 107 is used. If passed, the minister would have to declare that a strike is adversely affecting the "national interest" and would have to consider a report from a new special mediator tasked with setting out the parties' positions.

Prime Minister Mark Carney said on Tuesday that the bill "absolutely reinforces the right to strike."

But the Canadian Labour Congress (CLC) began forcibly denouncing the proposed changes before the bill was even introduced.

Mark Rowlinson, a lawyer working with the CLC, told reporters on Tuesday that the new bill is "the clearest possible violation" of the Charter and that the bill "circumvents" ongoing court challenges to Section 107.

But CLC president Bea Bruske said the organization is still weighing its options on whether to launch a legal challenge of the new legislation.

Brian Gottheil, human resource adviser and lawyer, told CBC News that if the new legislation passes, the government might try to argue that the ongoing court challenges are "moot" and no longer relevant.

"I expect that the government will try to make the argument that because they have changed Section 107 and the issues that are being challenged in the previous one are no longer there, they will say that this is all moot and those cases should get thrown," he said.

Gottheil said the courts may entertain that argument in cases where unions are challenging specific instances where 107 was used to end a strike. But he said cases challenging the law on Charter grounds will likely go ahead.

"Canadians have a constitutional right to freedom of association. That has been interpreted by the Supreme Court as including a right to collective bargaining and it's been interpreted to include a right to strike," he said.

"The real key [question] is, does a fairly open-ended right for the minister to direct the federal labour board to end strikes and lockouts — does that violate the Constitution? And I think that this new legislation still keeps that as a live issue."

The Teamsters union launched its own legal battle after the government used Section 107 to end a rail workers strike in 2024. Because the union is seeking damages, Talarico said an argument of mootness from the government might fail.

"The courts need to examine what happened to the unions and can those damages be given," she said.

The Labour Code only covers federally regulated industries, such as airlines, banks, ports and railways. But Talarico argued that provinces are likely watching to see how the battle over 107 plays out.

Darren Major is a senior writer for CBC's parliamentary bureau in Ottawa. He previously worked as a digital reporter for CBC Ottawa and a producer for CBC's Power & Politics. He holds a master's degree in journalism and a bachelor's degree in public affairs and policy management, both from Carleton University. He also holds a master's degree in arts from Queen's University. He can be reached at darren.major@cbc.ca.