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Charter - s.2(d) Association (3). Canadian Union of Postal Workers v. Canada (Attorney General)
In Canadian Union of Postal Workers v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a dismissal of an application for "a declaration that the [SS: Postal Services Resumption and Continuation Act] is of no force and effect under s. 52 of the Constitution Act, 1982" under Charter s.2(d) ['freedom of association'] and s.2(d) ['freedom of expression']. This was back-to-work legislation addressing rotating postal strikes in 2018.
Here the court considers mootness regarding the lower court's (alternative) addressing of Charter s.2(d) issues:[5] In general terms, CUPW’s primary aim in the application was to secure a strong finding that it should be very difficult, if not virtually impossible, for Parliament to enact back-to-work legislation. As the chief negotiator of CUPW’s urban bargaining unit during the 2017-2018 bargaining round put it, CUPW’s objective was to ensure future collective bargaining will proceed “without government influence by way of it introducing – or even signalling that it will introduce – back-to-work legislation.” This sets the frame for the constitutional analysis.
[6] .... In the alternative, and consistent with our reasons in Ontario Public Service Employees Union v. Ontario (Attorney General), 2026 ONCA 74 (“OPSEU”), we find that the Act limited CUPW members’ s. 2(d) freedom of association Charter right, but that Canada justified ending the strike under s. 1 of the Charter. We would not find that the government’s conduct, which consisted of a comment made by Prime Minister Justin Trudeau to reporters, limited CUPW members’ s. 2(d) freedom of association, or that the Act limited CUPW members’ s. 2(b) freedom of expression. We therefore dismiss the appeal.
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b. Application of the Governing Principles on Mootness
[23] As we noted, CUPW argues that its Charter challenges are not moot, at least not all of them. CUPW argues there were three distinct Charter claims before the application judge, which we address in this order:(i) The Act, which ended the strike, limited the rights of CUPW members to freely associate in striking under s. 2(d).
(ii) The Act’s requirement for CUPW members to cease striking, including picketing, and the requirement that the union, its officers and representatives notify members of their obligation to return to work, limited the s. 2(b) rights of the union’s members, officers, and representatives to freedom of expression.
(iii) The Prime Minister’s statement on November 8, 2018 that “all options will be on the table” to resolve the strike limited CUPW members’ s. 2(d) rights. i. The Constitutionality of Back-to-Work Legislation
[24] The core Charter claim in the application was the first one – the constitutionality of back-to-work legislation in the context of the CUPW strike and the Act. The application judge’s mootness determination turned on the fact that CUPW was not seeking a declaration with retroactive effect and did not seek to unwind the collective agreements reached through arbitration. We agree with him, largely for the reasons he gave at paras. 17-20. As he said at para. 18:All of this is to say that there is no further practical effect or legal relevance to the legislation in issue. Both sides agree with that. In bringing this challenge, CUPW has expressed no desire to re-create the 2018 state of affairs. Both CUPW and Canada Post are content to continue abiding by the currently in-force collective agreement regardless of the outcome of the present Application. [25] The application judge added, at para. 19: “Importantly, the [Act’s] limitation on strike activity – i.e. the very thing that this Application challenges as an infringement of the Charter – has expired and is no longer in force.”
[26] The application judge continued, at para. 20, that the Act “is a matter of history – not just because the parties agree to treat it that way, but because there is no other way to view it. Its force is spent.” We see no error in his application of the test for mootness.
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iii. The Prime Minister’s Statement
[31] CUPW points out that the application judge did not expressly address its claim that the Prime Minister’s statement that “all options will be on the table” to resolve the strike also limited union members’ s. 2(d) rights. CUPW argues that the Prime Minister’s statement signalled back-to-work legislation was imminent and in doing so substantially limited collective bargaining. CUPW argues this conduct was distinct from and preceded the impugned Act and entitles it to a Charter remedy.
[32] In our view, it is not necessary to address whether the Prime Minister’s statement was implicitly captured by the application judge’s mootness analysis, because, as we explain below, the s. 2(d) challenge based on this statement would have failed in any event.
c. Application of the Governing Principles on Discretion to Hear a Moot Matter
[33] We turn to the three factors to be assessed in determining whether to hear a moot matter. First, it is common ground that the necessary adversarial context remained, and the parties were well represented to make the arguments.
[34] The second factor concerns judicial economy. CUPW argues that it had assembled a voluminous record and that the additional judicial time to consider it would have been minimal and would have been time well spent. CUPW points out that the significant delays between postal labour disputes and constitutional litigation mean that if the application judge’s mootness analysis is correct, there will be “little to no judicial scrutiny” of governments’ back-to-work laws. CUPW asserts that whether back-to-work legislation limits s. 2(d) of the Charter is a matter of “public importance such that a resolution is in the public interest.”
[35] In our view, the collective bargaining issues raised by CUPW have not been especially evasive of review, as the numerous cases cited in OPSEU and in this appeal demonstrate. Further, the proposition that back-to-work legislation limits the right to strike contrary to s. 2(d) of the Charter has now been established: see OPSEU, at paras. 17-18.
[36] We agree with the application judge’s view that a determination on the merits would have limited precedential value. He noted, at para. 34, that “answering a Charter question – especially a s. 2(d) question – in a factual vacuum is for the most part an exercise in futility.” We agree, and we add that this applies equally to a s. 1 analysis flowing from a s. 2(d) limit. In the labour relations context, s. 2(d) and s. 1 questions turn heavily on the specific legislation at issue and the specific factual context leading to its enactment. The factual context leading to the current dispute is unlikely to be replicated in future labour disputes, and the legislative measure in future back-to-work legislation is unknown. The second Borowski factor regarding judicial economy did not favour hearing the moot application on the merits.
[37] Third, having regard to the limits of its adjudicative law-making function, if a court heard the moot case on the merits, it could not avoid “intruding into the role of the legislative branch” by deciding the matter in the abstract: see Borowski, at para. 40.
[38] The s. 2(d) and s. 1 analysis draw the court into considering the constitutional validity of the legislation. The application judge noted that the parties had the benefit of the decision in Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418, 130 O.R. (3d) 175 (“CUPW 2016”), and that the excesses of the legislation then under attack were not repeated in the Act. The interest arbitration under the Act was not limited in terms of the issues to be arbitrated or tilted in favour of the employer. The application judge noted, at para. 71, that “[t]he parties were free to fashion the issues that were important to them.” The application judge offered this analysis in the alternative, after his mootness analysis. He recognized that to decide these contextual questions on the merits, absent any live dispute between the parties, would be akin to deciding a private reference on the law. To offer an opinion on the constitutionality of the government’s policy choice in these circumstances would trench inappropriately on the role of the legislature.
[39] We defer to and agree with the motion judge’s discretionary decision not to hear CUPW’s constitutional challenges on the merits.
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3. Did the application judge err in finding that the Act’s limit of s. 2(d) of the Charter was justified under s. 1?
[46] The s. 1 Charter analysis we carried out in OPSEU applies to this appeal, with necessary modifications.
[47] CUPW did not concede that the Act’s objective was pressing and substantial, and it disputes the application judge’s finding, at para. 52, that the rotating strikes caused “serious social and economic dislocations”. This finding was open to him, and we defer to it.
[48] Further, in his abbreviated s. 1 Charter analysis, the application judge inferentially adopted, at para. 67, the findings of Firestone J. in CUPW 2016, that “the statute had the pressing and substantial objective of securing a ‘vital’ service to vulnerable and rural Canadians”, and that the “‘prohibition on the right to strike ... is rationally connected to the ... objective.’"
[49] In addressing minimal impairment, the application judge observed, at para. 73:The expert on industrial relations put forward by CUPW, Professor Robert Hebdon of McGill University, confirmed in his testimony that the [Act] is a fair and neutral piece of legislation. Indeed, he went so far as to opine that the government had effectively cured all the deficiencies of the previous legislation [from the CUPW 2016 case]. [50] The application judge concluded, at para. 74:In terms of the final stage of the Oakes test, I will note that the fair arbitral process that accompanied the termination of the strike served to reduce any deleterious effects of the [Act]. As indicated, the statutory arbitration process produced a new collective agreement that the CUPW membership has ratified, and which has, in turn, led to an even newer collective agreement, none of which CUPW seeks to overturn. [51] The application judge found, at para. 78, that the interest arbitration provision in the Act provided an appropriate substitute for the right to strike, citing Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, 491 D.L.R. (4th) 385, at para. 119, per Côté J. (concurring).
[52] To conclude, the application judge did not err in finding that the Act’s limit on the Charter rights of CUPW members was justified under s. 1. . Canadian Union of Postal Workers v. Canada (Attorney General)
In Canadian Union of Postal Workers v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a dismissal of an application for "a declaration that the [SS: Postal Services Resumption and Continuation Act ('PSRCA')] is of no force and effect under s. 52 of the Constitution Act, 1982" under Charter s.2(d) ['freedom of association'] and s.2(d) ['freedom of expression']. This was back-to-work legislation addressing rotating postal strikes in 2018.
Here the court considers this back-to-work anti-strike PSRCA legislation, and the events of the case:[7] CUPW represents employees of Canada Post who process and deliver mail across Canada. Its members are divided into an urban and a rural bargaining unit. Canada Post, the employer, is a Crown corporation whose sole shareholder is the Government of Canada.
[8] CUPW served Notices to Bargain for both the urban and rural bargaining units on November 14, 2017, which triggered the formal collective bargaining process under the Canada Labour Code, R.S.C. 1985, c. L-2. The parties bargained from November 2017 until November 2018 but were unable to reach an agreement. CUPW announced on September 11, 2018 that its membership had voted in favour of strike action. On October 22, 2018, postal workers began a series of rotating strikes in several cities. The strikes lasted for five weeks. The application judge found, at para. 52 of his reasons, that the rotating strikes caused “serious social and economic dislocations”. CUPW strongly disputes the severity of the strike’s impact on appeal.
[9] On November 8, 2018, Prime Minister Justin Trudeau told reporters that “all options [would] be on the table” to resolve the labour dispute if the two parties did not reach a resolution shortly. On November 22, 2018, the Act was tabled in Parliament. The Act received Royal Assent on November 26, 2018. The preamble to the Act noted that the parties had engaged since November 2017 in collective bargaining to reach new collective agreements and that the work stoppages were disrupting the delivery of mail and parcels across Canada and having a significant adverse impact. It also noted the need for an exceptional solution.
[10] The Act:. Required Canada Post to resume regular postal services and employees to resume the duties of their employment (s. 3);
. Required the union, its officers and representatives to notify employees of their obligation to return to work (s. 5);
. Extended previously negotiated collective agreements between Canada Post and CUPW until new collective agreements were reached (s. 6);
. Prohibited lockouts and strikes during the life of the extended collective agreements (s. 7);
. Required the Minister of Labour to refer to a mediator-arbitrator all matters in dispute between the parties related to the amendment or revision of the collective agreements (s. 9); and
. Imposed fines for non-compliance (s. 15). [11] In December 2018, Minister of Labour Patty Hajdu exercised her authority under the Act to appoint Elizabeth MacPherson, who appeared to be acceptable to both sides, as mediator-arbitrator. The 42-day arbitration, which involved oral testimony, took place between February 2019 and May 2020. On June 11, 2020, the arbitrator released her decision. She applied the replication principle in her decision, crafting an award that attempted to mirror what CUPW would have likely achieved in free collective bargaining. The parties agreed that the arbitral award would be effective for four years with a retroactive start date. In September 2021, the parties extended the collective agreements for another two years.
[12] CUPW brought an application arguing that the Act limited its members’ ss. 2(b) (freedom of expression) and 2(d) (freedom of association) Charter rights, and that the Prime Minister’s November 8, 2018 statement limited members’ s. 2(d) rights, all in a manner that was not demonstrably justified under s. 1. They sought three constitutional remedies: (1) a declaration that the Act and the impugned statement unjustifiably limited ss. 2(b) and 2(d) of the Charter; (2) a prospective declaration of invalidity of the Act to the extent of the Charter violations, pursuant to s. 52 of the Constitution Act, 1982; and (3) an order under s. 24(1) of the Charter directing the parties to reach a resolution to the Charter breaches, failing which the court would retain jurisdiction to order remedies. . Amalgamated Transit Union, Local 113 v. Ontario [right to strike]
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court finds that the challenged TTC statute's ['Toronto Transit Commission Labour Disputes Resolution Act, 2011'] prohibition on a 'right to strike' violates Charter s.2(b) freedom of association:(2) The TTC Act violates s. 2(d) by eliminating the “right to strike” at the end of a collective agreement
[51] Ontario emphasizes that the Saskatchewan legislation that was at issue in SFL – the Public Service Essential Services Act, S.S. 2008, c. P-42.2 (“the PSESA”) – did not make binding interest arbitration compulsory or provide any other method for resolving disputes between the government and the public service unions to whom the legislation applied. According to Ontario, this was why the PSESA violated s. 2(d) of the Charter, and why the prohibition on strikes in the TTC Act does not. As summarized in its factum, Ontario’s argument is that:Precluding strikes without substituting a fair and effective alternative, such as arbitration, eviscerates union bargaining power, especially in cases of impasse. The failure to provide an alternative was the unjustified s. 2(d) breach in SFL. [Emphasis in original.] [52] The core underlying premise of Ontario’s argument is its contention that by replacing strikes with compulsory binding interest arbitration, the TTC Act “equalizes bargaining power as both sides face the risk of being unsuccessful before the neutral arbitrator.” According to Ontario, binding interest arbitration “does not undermine employee bargaining power at all”, and therefore should be treated as if it were the functional equivalent of the right to strike, such that legislatures can freely swap one for the other without needing to justify the substitution under s. 1 of the Charter.
[53] In my view, Ontario’s argument that eliminating the right to strike does not violate s. 2(d) of the Charter as long as the right to strike is replaced with a “fair and effective substitute” is based on a misreading of Abella J.’s reasons in SFL. The failure of the Saskatchewan legislation to provide any “fair and effective alternative” to the right to strike was indeed what led Abella J. to find “an unjustified breach” of s. 2(d) of the Charter: that is, a s. 2(d) violation that could not be justified under s. 1. However, her reasons make clear that the presence or absence of a fair and effective alternative to striking in the legislation had no bearing on the threshold s. 2(d) breach analysis, and only became significant at the s. 1 justification stage.
[54] In this regard, Abella J.’s majority reasons in SFL must be read alongside Dickson C.J.C.’s dissenting reasons in the Alberta Reference, which Abella J. substantially adopted. The three statutes that were at issue in the Alberta Reference, unlike the legislation at issue in SFL, did provide for binding interest arbitration. For various reasons the arbitration scheme in the Alberta statutes was less extensive than the arbitration provisions in the TTC Act: the government had to take active steps to trigger the arbitration process, and the legislation made some issues non-arbitrable. It was these deficiencies that would have led Dickson C.J.C. to find that the Alberta legislation could not be justified under s. 1.
[55] For present purposes, however, the important point is that Dickson C.J.C. viewed the adequacy of the arbitration scheme as solely relevant to s. 1. As he explained at p. 372 of his dissenting reasons in the Alberta Reference, the legislative provisions at issue “directly abridge the freedom of employees to strike and thereby infringe the guarantee of freedom of association in s. 2(d) of the Charter” (emphasis added).
[56] Abella J. adopted this approach in her majority reasons in SFL. She explained at para. 60:Alternative dispute resolution mechanisms … are generally not associational in nature and may, in fact, reduce the effectiveness of collective bargaining processes over time. Such mechanisms can help avoid the negative consequences of strike action in the event of a bargaining impasse, but as Dickson C.J. noted in RWDSU v. Saskatchewan, they do not, in the same way, help to realize what is protected by the values and objectives underlying freedom of association:... as I indicated in the Alberta Labour Reference, the right to bargain collectively and therefore the right to strike involve more than purely economic interests of workers . . . . [A]s yet, it would appear that Canadian legislatures have not discovered an alternative mode of industrial dispute resolution which is as sensitive to the associational interests of employees as the traditional strike/lock-out mechanism .... That is why, in the Alberta Reference, Dickson C.J. dealt with alternative dispute resolution mechanisms not as part of the scope of s. 2(d), but as part of his s. 1 analysis. [Citations omitted, emphasis added.] Abella J. went on to characterize the right to strike as “the ‘irreducible minimum’ of the freedom to associate in Canadian labour relations”: SFL, at para. 61.
[57] Earlier in her reasons, at para. 46, Abella J. had observed that the suppression of the right to strike amounts to a substantial interference with collective bargaining:[I]t should come as no surprise that the suppression of legal strike action will be seen as substantially interfering with meaningful collective bargaining. That is because it has long been recognized that the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals. [Emphasis added.] After reviewing academic and judicial commentary, she then concluded, at para. 51 that “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining.”
[58] Later on in her reasons, at para. 78, Abella J. explained that while the “substantial interference” test from Dunmore and Health Services continues to govern, legislation that entirely eliminates the ability of workers to strike in support of their collective bargaining efforts will meet the substantial interference test:The test, then, is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining. The PSESA demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1 of the Charter. [Italics in original; underlining added.] [59] Significantly, Abella J. did not suggest that the “the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses” in the PSESA had any bearing on the s. 2(d) Charter analysis. Rather, she treated this as relevant only to the separate issue of whether the legislation could be justified under s. 1: see SFL, at para. 81.
[60] In summary, I am satisfied that a close examination of Abella J.’s reasons in SFL, including her adoption of Dickson C.J.C.’s dissenting reasons in the Alberta Reference, leads to the conclusion that any law that entirely eliminates employees’ right to strike after the end of a collective agreement will necessarily infringe their s. 2(d) Charter rights. The legislation may still be constitutional – that is, justified under s. 1 – if it provides for an alternative dispute resolution mechanism, such as binding interest arbitration. However, the adequacy of any legislative substitute for the right to strike only comes into play at the s. 1 justification stage of the Charter analysis.
[61] Significantly, the Court of Appeal for Québec recently reached this same conclusion in Alliance des professionnels et des professionnelles de la Ville de Québec c. Procureur général du Québec, 2023 QCCA 626, at para. 93-97, leave to appeal to SCC refused (April 11, 2024). This decision is not binding on me, but I find Mainville J.A.’s interpretation of this aspect of SFL persuasive.
[62] I would add further that the SFL majority’s repeated description of the “right to strike” as a newly-recognized component of the s. 2(d) Charter right of freedom of association would make little sense if legislatures were always free to replace the ability to strike with compulsory binding interest arbitration, without having to justify the substitution under s. 1. Among other things, this would mean that legislatures could abolish the right to strike without any need to demonstrate that they were acting in pursuit of a “pressing and substantial” legislative objective. If this were so, it would be hard to see how the ability to strike could properly be characterized as a “right”, let alone one that Abella J. described in SFL as “an essential part of a meaningful collective bargaining process”, and “an indispensable component” of the s. 2(d) right to collective bargaining: SFL, at para. 3 (emphasis added).
[63] Since the TTC Act entirely eliminates TTC employees’ ability to strike during the collective bargaining process, it necessarily follows that the legislation “substantially interferes” with their s. 2(d) collective bargaining rights to such an extent that these rights are infringed.
[64] It follows that it was not necessary at this stage of the Charter analysis for the application judge to make any case-specific inquiry into exactly how the TTC Act’s removal of the right to strike has affected collective bargaining since 2011. Rather, the application judge could have simply found a breach of s. 2(d) based on the TTC Act’s complete elimination of TTC employees’ right to strike, and then gone on to consider whether this breach could be justified under s. 1.
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[144] To reiterate, the narrow question on this appeal is whether Ontario has demonstrated a constitutionally sound justification for pre-emptively banning all TTC strikes. The separate question of what evidence might be needed to justify back-to-work legislation once a TTC strike is underway is not before us, and I express no opinion about this.
[145] Ontario’s argument seems to be that because it may now be more difficult after SFL for the legislature to constitutionally justify back-to-work legislation, future TTC strikes may last longer than they once did, making it more likely that the harms the legislature was trying to prevent by banning transit strikes will materialize.
[146] However, even if one were to assume that a future TTC strike could eventually cause such severe harms that back-to-work legislation would become justified under s. 1, it does not automatically follow that this gives the legislature a proper s. 1 justification to pre-emptively ban all TTC strikes before they start.
[147] Importantly, the evidence that the application judge accepted supports the conclusion that pre-emptive strike bans have a different and more severe effect on the collective bargaining process than ad hoc back-to-work legislation that is enacted only after a strike is in progress.
[148] As Professor Hebdon noted in his report, the right to strike has a significant impact on the efficacy of collective bargaining:Collective bargaining works when the parties (labour and management) can strike or lockout. Strikes or lockouts can impose significant losses on both parties thus creating the pressure to settle. Where the right to strike exists, there are negotiated settlements without a strike in over 95 percent of the cases. [Citation omitted.] In other words, the mere possibility that there may be a strike or lockout if negotiations fail puts pressure on both sides to reach a negotiated agreement. Even if labour and management both assume that the legislature will eventually intervene to end any strike or lockout, their shared uncertainty about whether and when this might happen can maintain some of this pressure. Former ATU Local 113 President Bob Kinnear made this point in his affidavit evidence, stating that:[B]argaining with a right to strike, even where back to work legislation may be imposed, puts the union and its members in a much more powerful position than bargaining when the union has been stripped of the right to strike. [149] During the pre-TTC Act negotiating era, both sides knew that there was a good chance that any TTC strike or lockout would, if necessary, be ended relatively quickly by back-to-work legislation. However, the application judge accepted the evidence of Mr. Kinnear and the other union officials that the collective bargaining process between the TTC and its unions deteriorated once the TTC Act was enacted in 2011 and the right to strike was eliminated entirely.
[150] Having regard to the application judge’s factual findings, I am not persuaded that his assumption that future strikes would be short undermines his overall conclusion that Ontario had not met its s. 1 burden of justifying a full pre-emptive strike ban. Once a TTC strike has started, Ontario may be able to present better evidence about the actual impact of the strike on public health and safety, the environment, and the economy. Depending on what this evidence shows, Ontario may in the future be constitutionally justified in preventing these harms from continuing by ordering TTC employees back to work. However, the possibility that Ontario might eventually be able to justify ending a future TTC strike with back-to-work legislation does not imply that the application judge was wrong to find that Ontario had not met its burden of justifying the TTC Act’s pre-emptive strike ban, based on his assessment of how the deleterious impact of the ban on TTC employees balanced against the government’s interest in avoiding the public harms that might flow from a transit shutdown.
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