Canada teacher group urges government to engage in good-faith labor negotiations – JURIST

The Canadian Teachers’ Federation on Tuesday called on governments to engage in meaningful labor negotiations and refrain from invoking the “notwithstanding clause.”

The statement urged all governments to respect teachers’ labor rights, including the right to association, collective bargaining and strike. The group called on the government to engage in good-faith negotiations with education workers and refrain from shutting down negotiations by using the notwithstanding clause. Together with the statement, the group launched a petition to end its routine invocation.

The group argued that the pre-emptive use of the clause, barring courts from reviewing legislation altogether, is unconstitutional and “a subversion of the democratic rule of law.” It maintained that only exceptional circumstances justify invoking the clause, and routine invocation is inconsistent with the intent to include it in Canada’s constitution.

Known as the notwithstanding clause, Section 33 of the Canadian Charter of Rights and Freedoms allows federal and provincial legislatures to enact temporary legislation even if it may violate certain constitutional rights in the Charter. The clause is a unique constitutional design to protect provincial autonomy, in response to provinces’ concerns that the Charter would give the judiciary too much power over them during constitutional negotiation in 1982. The section does not require legislatures to justify the invocation, on the rationale that voters will hold their elected representatives accountable if the invocation violates the will of the populace. This understanding is currently facing challenges in two cases relating to Quebec’s secularism law and Saskatchewan’s transgender students policy.

The statement comes after Alberta imposed a blanket prohibition on striking on all employees of the Alberta Teachers’ Association, with the explicit invocation of the notwithstanding clause last October. The association argued that the Back to School Act shut down the strike, with an agreement that failed to meet teachers’ needs or improve classroom conditions. Amnesty International similarly condemned the provincial government for its attempt to “silence workers exercising their rights.” The group lodged a judicial review at the provincial court in December. However, the court delayed the case to July 2027, pending the high court’s decision on the above-mentioned cases.

The statement also comes after the International Court of Justice (ICJ) affirmed the right to strike in a key labor treaty on May 22. Canada has affirmed its commitment to protecting the right to strike, including a 2015 high court ruling and Canada’s 2024 submission to the ICJ. Amnesty International previously raised a related argument: the legislatures’ power to override Charter rights without the need for justification is hardly reconcilable with the country’s human rights obligations under international law. How the Canadian court will address the argument remains to be seen.