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“Political Strikes” Not Protected by the Charter
January 30, 2009

The British Columbia Court of Appeal recently confirmed that “political strikes” are not protected by the Canadian Charter of Rights and Freedoms. This case is of importance to employers, particularly public sector employers, as it confirms that all mid-contract strikes, regardless of their purpose, are prohibited under the Labour Relations Code.

In early 2002, the BC Teachers’ Federation and the Hospital Employees’ Union organized a day of walkouts and rallies to protest legislation which imposed several collective agreements in the public sector. The employers applied to the Labour Relations Board for declarations that the intended work stoppages were illegal strikes. The unions challenged the constitutionality of the definition of “strike” in the Labour Relations Code. They argued that their members’ actions were political protests protected by the right to freedom of expression under section 2(b) of the Charter.

A series of Labour Relations Board hearings concluded with a finding that the Code’s definition of “strike” was constitutionally sound. The unions applied to the BC Supreme Court for judicial review.

The BC Supreme Court held that the definition of strike in the Code did not infringe section 2(b) because it did not prohibit political expression. The Court observed that the right to such speech has “never been associated with a right to breach employment contracts” and that political messages can be effectively communicated by attendance at political rallies and by other means. The Court further noted that the definition of strike would be saved by section 1 of the Charter in any event, as the overall objectives of certainty, stability and the preservation of industrial peace justified restrictions on mid-contract work stoppages in a free and democratic society. The unions appealed and on February 5, 2009, the Court of Appeal issued its decision.

The Court of Appeal found that the lower court’s analysis failed to adequately reflect the expressive effect of strike action as an economic weapon to convey a message. Further, mid-contract strike prohibitions restrict an effective means of expressive action. For that reason, it infringes upon the guarantee of free expression under Section 2(b).

However, the Court of Appeal agreed with the lower court’s conclusion that the definition of strike is an infringement justified under Section 1 of the Charter.

An exception to the prohibition of mid-contract work stoppages based on a distinction between collective bargaining strikes and political protest strikes would create a vague test that would leave the Board or the courts a broad discretion incompatible with Charter standards. As a result, the unions’ appeal was dismissed.

HEU & BCTF et al v. HEABC & BCPSEA(2009) BCCA 39