Labour experts say the Liberal government’s proposed changes to Section 107 of the Canada Labour Code in Bill C-39 could strengthen Ottawa’s ability to end federally regulated strikes and are likely to face Charter challenges.
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Labour experts say the Liberal government’s latest major labour bill will test the limits of federal power to intervene in collective bargaining, arguing that proposed changes to Section 107 could expand Ottawa’s authority to end strikes in federally regulated industries.
The government tabled Bill C-39, the Building Canada Strong Act, on Monday, with measures that include streamlining project approvals across Canada and amendments to the Canada Labour Code. The most consequential labour provisions, experts said, focus on how and when the federal labour minister can use Section 107 to resolve labour disputes.
Section 107, introduced in 1984, has already been used in recent years to shut down strikes in federally regulated sectors such as rail, ports and air transportation. The provision allows the minister to direct the Canada Industrial Relations Board to “do such things as the minister deems necessary” to settle disputes and preserve industrial peace.
Whether the current wording gives the federal government authority to direct the industrial board to end strikes has been the subject of debate and legal challenge. Those court issues stem from past government actions to settle disputes affecting Canadian railways and ports and labour disruptions involving Air Canada and Canada Post.
Bill C-39 would revise the language in Section 107 to make it explicit that a minister can order a business under federal jurisdiction to resume operations or direct parties into binding arbitration. In addition, the minister would have to meet new conditions before triggering the section, according to the bill’s described text.
Under the proposed changes, the federal government would be required to consider a special mediator’s report and determine whether a work stoppage is adversely affecting the “national interest.” The government argues the revised approach does not create a new power to intervene, but instead clarifies how Section 107 can be used by setting “guardrails.”
Employment and Social Development Canada spokesperson Maja Stefanovska said in an email that the changes would clarify the minister’s existing ability to direct the board by “establishing clear guardrails around the use of Section 107.”
Labour scholars interviewed suggested that any narrowing in discretion is likely to be offset by a more direct ability to stop strikes, creating constitutional exposure. Adam King, assistant professor in the labour program at the University of Manitoba, said the bill is better understood as an expansion than a clarification.
King said that while the government is pitching the changes as guardrails, “it’s really Section 107 on steroids.” He added that the enhanced authority would likely be challenged under the Canadian Charter of Rights and Freedoms, including arguments about constitutionality.
Bethany Hastie, associate professor in law and director of the Centre for Law in the Contemporary Workplace at Queen’s University, said the government is setting out a clearer process to use Section 107 to interfere with collective bargaining. Hastie said that process could significantly affect workers’ right to strike, which the Supreme Court of Canada upheld in 2015.
Hastie said the federal government would have to demonstrate that the way it uses the powers in the bill constitutes a reasonable limit on the right to strike. She noted that in the Canadian labour context, reasonable limits have typically centered on essential services—roles such as firefighting or nursing where work stoppages can create immediate threats to health and safety.
In her view, the Supreme Court has not yet pronounced that the right to strike can be limited simply because the economic consequences are significant. She said that is where the “national interest” condition proposed in Bill C-39 could matter.
The bill text described in the reporting states that the minister can consider “any relevant considerations” to determine whether the national interest is at stake. Those considerations could include economic impacts and social disruption, but they could also include the right to free association, including the workers’ right to strike.
Critics, according to the report, have asked the government to define “national interest” since it previously appeared in legislation passed last year to speed approvals for projects deemed to be in the national interest, including possible exemptions from certain environmental laws. The bill’s use of the term could therefore have consequences beyond labour relations, depending on how broadly it is interpreted.
Jobs Minister Patty Hajdu has said the national interest qualifier sets a “high bar.” She said in a Monday interview there is no “blanket answer” for where that bar sits and that the threshold depends on the specific circumstances of each strike.
Hajdu described how pressure can mount in transportation sectors, particularly where strikes affect the transporting of essential or perishable goods. She characterized the intent as mounting pressure as the situation worsens rather than a one-size-fits-all approach.
Brent Marks, a lawyer in the labour and employment division at Nelligan Law, said strikes are meant to impose economic discomfort and that the bill’s conditions could be easy to argue in some circumstances. He pointed to a potential Air Canada strike, saying that disrupting thousands of flights and related services would likely engage the national interest threshold.
Marks said the federal government already has a tool to intervene in labour disputes in federally regulated sectors through back-to-work legislation. He argued that the changes to Section 107 suggest Ottawa is seeking a less overt method to end labour disruptions.
King said the bill’s reliance on a broad and “vague” national interest condition could allow limits on strike rights to expand beyond what unions and courts may accept. He warned that expanding reasonable limits through that condition presents a “dangerous road,” with implications for labour relations.
Both King and Hastie said the broader changes in Bill C-39 aimed at resolving bargaining-related grievances and bringing parties to the table earlier could still leave labour relations volatile if Section 107 is used in ways that unions view as overly intrusive. They said unions could respond with backlash if the government proceeds with the proposed changes.
As of Thursday afternoon, the federal government had not yet published a Charter statement for Bill C-39 explaining potential consequences for rights and freedoms. The reporting described ongoing legal uncertainty as a central issue for whether the changes can withstand constitutional scrutiny.
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