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Back-to-Work Legislation Justified Under Section 1 of the Charter, Ontario Court of Appeal Holds in Landmark Decisions
Date: February 6, 2026
The Ontario Court of Appeal has, for the first time, considered the constitutionality of back to work legislation under the Canadian Charter of Rights and Freedoms (Charter). As Canadian courts have previously recognized, section 2(d) of the Charter protects the rights of workers to advance their workplace goals through a collective bargaining process and to collectively withdraw their services via a strike as part of that process.
In two landmark decisions released concurrently today, the Ontario Court of Appeal found that back-to-work legislation imposed by the federal and provincial governments respectively were in breach of section 2(d) of the Charter but could be justified under section 1.
OPSEU v Ontario (Attorney General), 2026 ONCA 74
The first of these decisions arose from a strike at Ontario’s public colleges in 2017. Following a five week strike, the provincial government imposed back to work legislation which ended the strike and directed the parties to binding interest arbitration (Bill 178). An arbitrator subsequently issued an award prescribing the terms for a new collective agreement. The union, OPSEU, commenced an application challenging the constitutionality of Bill 178 as an unjustifiable interference with its members’ rights to collective bargaining protected by section 2(d) of the Charter.
As described in our prior Case in Point, the application judge found that the legislation did not constitute a substantial interference with a meaningful process of collective bargaining under section 2(d), and, in the alternative, that the legislation would have been justified under section of the Charter. The Ontario Court of Appeal dismissed the union’s appeal of the application decision, finding that the provincial government had limited union member’s section 2(d) rights in enacting Bill 178 to end the strike, but that the government was justified in doing so under section 1.
Because it ended a legal strike action, the Ontario Court of Appeal found that Bill 178 substantially interfered with a meaningful process of collective bargaining. The Court found, however, that the limit on section 2(d) rights was demonstrably justified under section 1 of the Charter. The Court accepted the application judge’s finding that the legislation had a pressing and substantial objective – namely, mitigating the harm inflicted on college students by a lengthy strike – and that it was rationally connected to that objective.
Notably, the Court observed that “minimal impairment no longer plays a dominant role” in the section 1 analysis, “especially in areas where complex social policy is under consideration and significant deference is accorded to the legislature.” Applying this approach, the Court accepted the application judge’s finding that Bill 178’s implementation of an impartial and effective arbitration process in lieu of a strike satisfied the minimal impairment requirement of section 1. The Court concluded that the interest arbitration process prescribed by Bill 178 was a meaningful alternative mechanism for resolving the bargaining impasse.
The Court also rejected the union’s submission that the application judge had erred in failing to find that the government ought to have waited longer to allow the bargaining process to unfold before imposing back-to-work legislation. The Court agreed with the application judge’s finding that “this kind of sociological assessment is within the core competence of government” which was entitled to a degree of deference. The Court noted particular deference was appropriate “in the area of labour relations, which engages core government competencies of making complex policy decisions, allocating resources in society, and responding to situations of crisis.” The Court also rejected the union’s argument that the government acted prematurely in bringing in back to work legislation, and the Court observed that this was an invitation to micromanage the government’s response, which it declined to accept.
Canadian Union of Postal Workers v. Canada (Attorney General), 2026 ONCA 75
The companion decision released concurrently by the Court arose from a postal workers’ strike in 2018. The federal government enacted back-to-work legislation called the Postal Services Resumption and Continuation Act (Act) which ended five weeks of rotating strikes by CUPW members in favour of arbitration. The parties subsequently achieved a new collective agreement at arbitration.
The union applied for a declaration that the Act violated their rights to engage in collective bargaining under section 2(d) of the Charter and that the government’s conduct violated their freedom of expression under section 2(b). On that basis, the union sought a declaration that the legislation was of no force or effect and sought Charter damages. The application judge dismissed the application as moot because the Act was “spent” but provided an abbreviated analysis explaining why he would have found that the Act violated section 2(d) but was justified under section 1.
As in the college sector case, the Ontario Court of Appeal dismissed the union’s appeal, agreeing with the lower court that the application was moot and, in the alternative, finding that the legislation was justified under section 1.
With respect to mootness, a court will ordinarily decline to decide a matter if its decision will have no practical effect on the rights of the parties, subject to residual discretion. The application judge’s finding of mootness turned on the fact that the union was not seeking a declaration of retroactive effect and did not seek to unwind the collective agreements reached through arbitration. The Court of Appeal accepted that a determination on the merits would have limited precedential value and declined to exercise its jurisdiction to hear the moot matter.
In the alternative, the Court of Appeal found that the application judge did not err in his Charter analysis.
The Court of Appeal found the application judge was right to dismiss the freedom of expression claim, noting that adopting a section 2(b) analysis in the context of back-to-work legislation would upset the labour relations balance established by statutory collective bargaining regimes, undermine the principled application of the section 2(d) framework and place sections 2(d) and 2(b) in potential conflict.
While the Act was found to have limited CUPW members’ section 2(d) rights to strike, the Court found it was justified under section 1. Deferring to the application judge’s finding that the Act had a pressing and substantial objective securing vital postal services for vulnerable and rural Canadians, the Court also accepted the finding that the Act’s interest arbitration provision was an appropriate substitute for the right to strike.
Takeaways
The Court of Appeal’s decisions represent an important advancement of the jurisprudence under sections 2(d) and 1 of the Charter. The decisions underscore the significant deference that courts are prepared to afford to governments in deciding to introduce, and in crafting back-to-work legislation, and the importance of interest arbitration as an alternative to strike action in the context of back to work legislation.
Hicks Morley’s Frank Cesario and Eleanor Vaughan represented the College Employer Council in the OPSEU appeal.
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