Law360 Canada (August 19, 2025, 2:15 PM EDT) — The Air Canada conundrum: A nation holds its breath 

Well, dear reader, if you’ve been keeping a keen eye on things in the backyard, you’ll have undoubtedly caught wind of the rather sticky wicket that Air Canada and its flight attendants have found themselves in. It’s a tale as old as time, or at least as old as organized labour: the delicate dance between workers’ rights and economic stability.

But this particular tango has taken a rather dramatic turn, with the federal government stepping in to force a resolution, much to the chagrin of the unions involved. What is evident is that this isn’t merely a spat over wages and working conditions; it’s a full-blown legal and constitutional kerfuffle, and it raises some rather profound questions about the very essence of the right to strike in a modern, interconnected economy.

The recent walkout by Air Canada flight attendants marked a significant moment, being the first such strike since 1985. For days, the skies over Canada were in a state of flux, with countless flights cancelled and thousands of passengers left in limbo. The airline, naturally, cited economic urgency as the justification for government intervention, arguing that a prolonged strike would cripple their operations and have a ripple effect across the Canadian economy.

Indeed, the disruption was palpable, affecting not just holidaymakers but also business travellers and cargo operations. It’s a stark reminder of how integral air travel has become to the fabric of daily life and commerce.

However, the unions — particularly the Canadian Union of Public Employees (CUPE), which represents the flight attendants — have been quick to decry the government’s heavy-handed approach. Their argument is a compelling one: that forcing them into binding arbitration, effectively stripping them of their right to strike, is a fundamental onslaught on freedom of association, a right enshrined in the Canadian Charter of Rights and Freedoms. It’s a classic standoff, isn’t it? The government, caught between a rock and a hard place, attempting to balance the economic interests of the nation with the fundamental rights of its citizens.

But is it a balance, or a blatant trampling of hard-won freedoms? That, my friends, is the million- dollar question.

The legal labyrinth — Canada’s Labour Code and the Charter

To truly grasp the gravity of this situation, one must delve into the rather intricate legal framework that governs labour relations in Canada. At the heart of this dispute lies the Canada Labour Code, a piece of legislation that grants the government considerable power to intervene in industrial disputes, particularly when they are deemed to affect the national interest or economy. Specifically, s. 107 of the Code allows the minister of labour to refer a dispute to the Canada Industrial Relations Board (CIRB), which can then impose binding arbitration. This is precisely what transpired in the Air Canada case, with Minister of Jobs and Families Patty Hajdu invoking this very section.

Now, binding arbitration, for those unfamiliar with the term, is essentially a process where an independent third party, an arbitrator, is brought in to hear both sides of a dispute and then make a final, legally binding decision on the terms of a new collective agreement. It’s a bit like having a referee step in when two teams simply can’t agree on the rules of the game. While it offers a swift resolution and prevents prolonged industrial action, it also means that neither party has the final say. For unions, I imagine, imposing arbitration can feel like a betrayal, as it removes their most powerful bargaining chip: the ability to withhold labour.

But here’s where it gets truly fascinating, and indeed, constitutionally charged. The right to strike in Canada isn’t just a matter of collective bargaining; it’s a fundamental right protected under s. 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association. The Supreme Court of Canada, in a landmark 2015 decision, affirmed that the right to strike is an integral part of collective bargaining and is protected by the Charter (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4).

This creates a rather thorny legal dilemma: how can the government invoke powers under the Canada Labour Code to force an end to a strike when the very act of striking is a constitutionally protected right? It’s a question that legal scholars and labour activists alike are grappling with, and it highlights the inherent tension between parliamentary supremacy and Charter rights.

This is part one of a two-part series. Part two will discuss the strike by Air Canada flight attendants in 1985, other instances of government intervention into labour relations, and what happens when economic urgency conflicts with a constitutionally protected right.

Hodine Williams has over 20 years of experience in law, corporate governance and regulatory compliance across the legal, financial, hospitality and engineering sectors. A former prosecutor and expert in digital forensics, financial crimes and cyber law, he has advised corporations in Jamaica, Canada and the United Kingdom. Holding a master of laws in international business law from Osgoode Hall Law School, along with degrees in management and economics and law, Williams is also an educator, philanthropist and advocate for youth development and racialized communities. You can reach him at hodine.williams@gmail.com.

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