The Canadian Charter of Rights and Freedoms (the Charter) guarantees that everyone has the “freedom of association” (section 2(d)). The Charter’s guarantee of freedom of association has often been leveraged to protect employees’ rights in the labour relations context. According to recent media reports, the union that represents the Toronto Transit Commission (TTC) employees is looking to rely on section 2(d) to combat provincial legislation that declares the TTC an essential service and prohibits its employees from striking.
In January 2015, section 2(d) was successfully used to persuade a majority of the Supreme Court of Canada to declare Saskatchewan’s Public Service Essential Services Act (“PSESA”) as invalid. The PSESA included similar prohibitions against striking for those employees working for “essential services,” as defined in the legislation. At paragraph 51 of its decision, the Supreme Court of Canada held that the ability of employees to strike is essential to meaningful collective bargaining and that, in the circumstances of that case, the right to strike was constitutionally protected under section 2(d) of the Charter.
While the Saskatchewan decision certain gives some support TTC employees’ argument, the outcome of any legal challenge will ultimately depend on a court’s analysis of the specific legislation at issue. Freedom of association is not absolute; if the Ontario legislature can demonstrate that its essential services legislation is reasonable and justified in the circumstances, then a court may uphold the law and the TTC employees’ will remain unable to strike.