Labour Minister Steven MacKinnon speaks at a press conference about the rail labour disputes between the Teamsters Canada Rail Conference, Canadian Pacific Kansas City and Canadian National Railway, in Ottawa on Aug. 22.PATRICK DOYLE/The Canadian Press
The federal Labour Minister has asked the Canadian Industrial Relations Board to put the dispute between Canada’s two railways and its union before an arbitrator and end a lockout that began Thursday just after midnight.
Canadian Pacific Kansas City railway and Canadian National Railway each locked out workers and shut down their rail networks after labour negotiations failed, prompting loud calls from business groups for Ottawa to intervene.
But legal experts say decade-old rulings from the Supreme Court of Canada strengthening collective-bargaining rights – and political questions in a precarious minority Parliament – could complicate the referral to the CIRB, as well as the federal government’s ability to use back-to-work legislation if the CIRB process fails to end the lockout.
Here’s what you need to know about Ottawa’s options to intervene in the dispute.
What are the options?
There are two ways for the federal government to intervene in a labour dispute.
One is to have the federal labour minister issue a direction to the Canadian Industrial Relations Board, or CIRB, to put the dispute before an arbitrator and order an end to any lockout or strike. The other is to pass back-to-work legislation in Parliament that would also put the final resolution in the hands of an arbitrator.
Labour Minister Steven MacKinnon announced Thursday that Ottawa had picked the first option, putting the dispute in the hands of the CIRB.
What happens now?
It’s not clear how quickly the CIRB will act and how soon rail service could resume.
Mr. MacKinnon used Section 107 of the Canada Labour Code, which empowers him to “refer any question” to the CIRB “or direct the Board to do such things as the Minister deems necessary.” The railways and a chorus of business groups had urged Mr. MacKinnon to do just that.
The Minister told a news conference that he directed the board to impose binding arbitration and to ensure that rail operations begin “forthwith.” He said the CIRB process would unfold “over the coming hours and the coming days,” but he noted that the board has its own independent process. He also would not say whether he expects the Teamsters union to co-operate with the move or to launch a court challenge.
The Teamsters, in a statement Thursday evening, said the union will work with legal counsel to determine next steps. “Meanwhile, picket lines remain in place,” said Paul Boucher, president of the Teamsters Canada Rail Conference.
Both railways responded to the announcement by announcing plans to restart operations. CN said it immediately ended the lockout and would resume service “as soon as possible.” CPKC said it would begin hauling freight once it received the order from the CIRB.
Just last week, Mr. MacKinnon refused CN’s request to send the dispute to the board, saying bargaining teams needed to solve their own issues. As well, the CIRB ruled in August that a looming strike or lockout at the two railways would not cause sufficient health or safety concerns to require declaring the workers “essential” and pre-empt a work stoppage. The ruling was in response to a request from the federal government,
Bruce Curran, an associate law professor at the University of Manitoba, said referring the dispute to the CIRB to order binding arbitration is the “legally safest” route, though he added that a CIRB referral could face a legal challenge based on a 2015 Supreme Court of Canada ruling that enshrined union rights. In that case, the court ruled against the Saskatchewan government in a case over a law declaring health care workers an essential service and ruled that the right to free association in the Charter protected collective bargaining and the right to strike.
Prof. Curran said that whether a legal challenge of this kind of minister-ordered arbitration would succeed is an “open question” because the Supreme Court ruling is relatively new and the minister’s powers to refer matters to the CIRB are also rarely used.
“With any of these options, there are flies in the ointment,” Prof. Curran said.
In June, Mr. MacKinnon’s predecessor in the labour portfolio, Seamus O’Regan, had told the CIRB to use binding arbitration to resolve the contract talks between WestJet Airlines and the Aircraft Mechanics Fraternal Association – but a strike went ahead anyway.
Jean-Daniel Tardif, director of dispute resolution services at the CIRB, said a referral to arbitration does not necessarily prevent a lockout or strike and that each ministerial referral is dealt with separately by the board.
“It would depend on the way the minister makes the referral,” Mr. Tardif said in an interview before Mr. MacKinnon’s announcement on the rail lockout.
What about back-to-work legislation?
If the CIRB referral fails to stop the lockout – for example, because of a legal challenge – the federal government could turn to back-to-work legislation. The most significant barriers to this path have more to do with politics than Charter rights, although there are also potential legal headaches.
Parliament is currently on summer break, meaning the minority government would have to recall the House of Commons – and likely convince the Conservatives to support back-to-work legislation, since the NDP has ruled out supporting such a move. (The Bloc Québécois has not said whether it would support such a bill, but a spokesperson this week noted the party has never supported back-to-work legislation in the past.)
While in government, the Conservatives used back-to-work legislation to end a strike at CP Rail in 2012. This week, in a Quebec radio interview, Conservative Leader Pierre Poilievre said he hopes there will be a negotiated settlement and that the companies will be generous with employees who have seen their paycheques diminished by inflation.
The Liberals introduced back-to-work legislation in 2021 to end a dockworker strike at the Port of Montreal, passing it with Conservative support.
Could back-to-work legislation stand up to a court challenge?
Like a CIRB referral, back-to-work legislation is also complicated by the 2015 Supreme Court ruling.
That ruling and subsequent decisions, including an Ontario Court of Appeal ruling earlier this year that upheld the right of Toronto transit workers to strike, set a high bar for interfering with the right to strike. In the Ontario case, for example, the court concluded there wasn’t enough evidence that a potentially short strike by Toronto Transit Commission workers would endanger “public health and safety, the environment, and the economy” to such a degree that it would justify removing the right to strike.
In the case of the rail lockout, the federal government would need to meet that bar to withstand a legal challenge.
Michael Lynk, associate professor of law at Western University in London, Ont., said that hurdle could require allowing a lockout or a strike to continue for a period of time in order to demonstrate to courts that the economic impact or impacts on safety and security made passing a back-to-work bill necessary.
“The Minister of Labour would have to allow the strike or lockout to proceed, and at some point, this is always a bit of guesswork, but it would probably mean a week or two or three at the very minimum,” Prof. Lynk said.
Still, Ottawa and other governments have passed back-to-work legislation since the 2015 ruling, including in 2021, when the Liberals used it to end the strike at the Port of Montreal.
With reports from Eric Atkins and Marieke Walsh