The Freedom to Strike in Canada: A Brief Legal History

Abstract

In the B.C. Health Services Subsector case [2007] 2 S.C.R. 391, the Supreme Court Canada relied, in part, on the history of Canadian labour law to support the conclusion that collective bargaining was an activity that was protected under the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Thus, it is likely that the Court will consider Canadian labour law history to determine whether or not constitutional protection also extends to the freedom to strike. The two principal purposes of this paper are: 1) to provide an analytic framework for approaching the history of the right to strike; and 2) to sketch out the contours of that history. First, we claim that it is only possible to understand the legal “right” to strike in the labour relations context in relation to the freedom to associate and the freedom to bargain collectively. Second, the paper draws upon W.N. Hohfeld’s typology of jural relations in order to analyze and to evaluate the rules that shape the legal relationships between individuals and social groups. Third, we map the complex and historically evolving legal relations governing the freedom of association, collective bargaining and striking during successive regimes of industrial legality in Canada.

Keywords: stikes, Canada, legal history