Exceptional Exceptionalism: Does Section 107 of the Canada Labour Code Authorize the Federal Government to Terminate or Suspend the Freedom to Strike by Executive Order?

Abstract

Recently the federal government has invoked section 107 of the Canada Labour Code to order the end of otherwise lawful strikes. The government’s claim that the section provides it with this power is in dispute. This research report, adapted from an expert witness report prepared for the law firm representing one of the unions subjected to these orders, investigates the historical understanding of the section and its precursors dating back to its earliest version, enacted in 1918. It finds that the historical understanding of the section was that its purpose was to strengthen statutory conciliation processes, not to empower the government to end otherwise lawful strikes by executive action. This government action not only continues a longer history of exceptionalism in collective bargaining but also marks a rupture by its attempt to enhance the power of the executive.