Charter Statement - Bill C-58: An Act to amend the Canada Labour Code and the Industrial Relations Board Regulations, 2012

Tabled in the House of Commons, November 28, 2023

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-58 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

The Bill would amend various provisions of the Canada Labour Code to strengthen the prohibition on the use of replacement workers during legal strikes and lockouts. Currently, the Canada Labour Code prohibits employers from using replacement workers during a legal strike or lockout for the demonstrated purpose of undermining a union’s representational capacity. The amendments would prohibit employers from using the services of employees, persons who perform management functions, or persons employed in a confidential capacity in matters relating to industrial relations, to perform the duties of the employees on strike or lockout. The prohibition would apply to employees and other persons hired after notice to bargain was given. This prohibition would also apply to contractors and to employees of another employer, irrespective of when they were hired.

The Bill would also prohibit employers from using the services of any employee in the bargaining unit on strike or lockout if all the employees in the bargaining unit stop working, subject to the requirements of sections 87.4 or 87.7 of the Canada Labour Code, which allow, among other things, for the maintenance of services necessary to prevent an immediate and serious danger to the safety or health of the public. There are also proposed amendments to the maintenance of activities process to expedite the process. This includes timelines that would encourage the parties to resolve issues earlier and additional powers that would expedite decisions from the Canada Industrial Relations Board.

The prohibition on using replacement workers is also subject to an exception to allow employers to use the services of any person to deal with imminent or serious threats. This would include an imminent or serious threat to life, health or safety of any person, threat of destruction or damage to the employer’s property or premises, or threat of serious environmental damage affecting the employer’s property or premises. The use of replacement workers to deal with these imminent or serious threats must be necessary and the employer must not be able to address these issues by any other means.

The amendments are designed to improve labour relations, protect workers’ right to strike, limit interruptions to collective bargaining, and provide greater stability to Canadians during federal labour disputes.

Prohibition related to replacement workers (section 2(d) of the Charter)

Section 2(d) of the Charter provides that everyone has freedom of association. Freedom of association has been interpreted as preventing a substantial interference with the process of collective bargaining, which includes the right to strike.

The proposed amendments would strengthen the prohibition relating to employers using replacement workers in strikes and lockouts, and would amend the maintenance of activities process, and so would support freedom of association and the right to strike. The proposed exceptions to the prohibition on using replacement workers are carefully tailored to allow the use of services to deal with imminent or serious threats, such as a threat to the life, health or safety of any person, or threat of destruction or damage to the employer’s property. The amendments to the maintenance of activities process impose timelines on the parties to help prevent delays and support the collective bargaining process and the right to strike.

Prohibition related to employees in bargaining unit (section 2(b) of the Charter)

Section 2(b) of the Charter protects freedom of thought, belief, opinion and expression. Section 2(b) has been interpreted broadly to encompass any activity or communication, aside from violence or threats of violence, which conveys or attempts to convey meaning.

The prohibition on employers using the services of employees who are part of a bargaining unit where the whole unit stops working while on strike or lockout, could potentially engage an employee’s freedom of expression. Certain aspects of a strike may involve expressive activity, such as picketing. The proposed prohibition would prevent employees from crossing the picket line and continuing to work despite the strike, which could itself be considered an expressive action meant to convey meaning. As such the proposed prohibition could potentially engage freedom of expression.

The following considerations support the consistency of this aspect of the Bill with the Charter. The prohibition would support free and fair collective bargaining and the right to strike, and could reduce tension and potential violence among those employees who are on strike or lockout. Employees would continue to be free to express opinions including disagreement with the strike or lockout and could express their views in ways other than crossing the picket line and attempting to continue to work despite a strike or lockout. The prohibition would only apply in the context of a full work stoppage and would not apply to other forms of strike action.