Air Canada flight attendants protest for higher wages outside Toronto Pearson Airport on Monday.Sarah Espedido/The Globe and Mail
Over the past year, the federal government has infuriated unions by repeatedly turning to the same contentious tool in labour law to force the end of strikes in key sectors.
The now-illegal strike by Air Canada AC-T flight attendants is the most direct challenge that Ottawa’s power to quash labour unrest this way has yet faced.
After the strike began Saturday morning, federal Jobs Minister Patty Hajdu invoked Section 107 of the Canada Labour Code, which gives the minister the unilateral power to order binding arbitration and end work stoppages in the name of securing “industrial peace.”
She directed the Canada Industrial Relations Board, or CIRB, to order the airline and its workers to resume their duties, which it promptly did.
The federal government has a long history of intervening to end strikes, but in the past it largely did so by passing back-to-work legislation in Parliament. Then, in 2015, the Supreme Court of Canada determined that the right to strike is constitutionally protected, making such legislation more difficult.
Instead, since 2024, Ottawa has repeatedly turned to Section 107, a little-used part of labour law, to shut down strikes at ports in British Columbia and Montreal, railway strikes and December’s postal strike.
In each case, workers returned to their jobs.
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So far, that’s not the case with Air Canada’s flight attendants, who are represented by the Air Canada Component of the Canadian Union of Public Employees.
The continuing strike, which the CIRB declared illegal on Monday morning, is a rare show of defiance that could challenge the federal government’s resolve in the disruptive labour dispute that has affected 500,000 passengers worldwide.
“This is going to be a test case for unions fighting against Section 107,” said Stephanie Ross, an associate professor of labour studies at McMaster University. “The government will have to decide if it wants to double down on using coercion to enforce the CIRB order.”
On Monday, CUPE national president Mark Hancock said the strike will continue despite the labour board’s latest order, regardless of the consequences.
“We’ll do whatever it takes to get them a collective agreement that they can vote on,” he said at a press conference. “If it means folks like me going to jail, so be it. If it means our union being fined, so be it.”
It’s unclear what penalty the union, its leadership or members could face for their defiance of the back-to-work order.
The CIRB’s website said failure to comply with orders “can result in significant fines” if the board decides an offence should be prosecuted.
However, it doesn’t specify the size of a fine, which would be decided by a federal court.
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In instances where governments have passed back-to-work legislation in Parliament, fines are spelled out. The two such federal bills passed in the past decade carried fines of up to $100,000 per day of a strike or lockout.
Yet cases of unions defying back-to-work orders are rare.
The most high-profile example occurred in 1978 when the Canadian Union of Postal Workers defied back-to-work legislation for one week, for which union president Jean-Claude Parrot was sentenced to three months in prison.
Last fall, the Ford government in Ontario repealed legislation that imposed a collective agreement and made it illegal for CUPE’s education workers to go on strike after a mass walkout by 55,000 employees.
Labour experts and unions have been critical of the government’s embrace of Section 107 to enforce labour peace in federally regulated sectors.
“Section 107 has been around for a long time in various incarnations, but it didn’t get used very often and not in the way we see it used now,” said Alison Braley-Rattai, an associate professor of labour studies at Brock University.
Unions representing railway, port and postal workers who were ordered back to work under Section 107 have all filed numerous court challenges against the provision.
But the process of the cases moving through Federal Court is a slow one, meaning the government’s use of Section 107 this way has yet to be tested.
The union for 10,000 striking Air Canada flight attendants said on Monday they won’t return to work even though the strike, now in its third day, has been declared illegal. The job action at Canada’s largest airline is affecting about 130,000 travelers a day at the peak of the summer travel season.
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Teamsters Canada has filed six applications for judicial review on behalf of employees at Canadian National Railway and Canadian Pacific Kansas City, challenging the federal orders on constitutional grounds and the legality of how the orders were carried out.
“Ottawa seems to believe it has discovered a legislative magic button to end labour disputes,” said Christopher Monette, a spokesperson for Teamsters Canada, who said the union “fully expects” the cases will eventually reach the Supreme Court of Canada. “We are likely years away from a final decision.”
Labour experts see the flight attendants’ strike as a unique opportunity for a union to more directly challenge “this piece of the law that employers in the federal sector have gotten addicted to because it gives them a way out of a negotiations process,” Prof. Ross said.
Striking flight attendants have so far enjoyed public support, while their previous 10-year contract was reached after airline unions were similarly pre-emptively prevented from going on strike, she said.
Prof. Ross added the fact Air Canada settled with its pilots after a similar 10-year agreement last fall but “refuses to bargain meaningfully with mostly female flight attendants has mobilized flight attendants to a degree we haven’t seen in a long time.”
This all puts Ottawa in a bind, Prof. Braley-Rattai said.
“Will the government go to war against a union leader? Will they throw him in jail? What do they want to be seen doing to this group of flight attendants, 70 per cent of whom are women, who are not being paid for work they do?” she said, referring to the fact flight attendants aren’t currently paid for work they do before a flight takes off or after deplaning.
Other major unions have rallied behind the striking flight attendants.
In a statement released Sunday night, the Canadian Labour Congress called on Ottawa to withdraw the order and remove Section 107 from labour law.
The CLC also said it was prepared to “coordinate financial contributions” from its union affiliates to cover legal and other costs the Air Canada Component of CUPE may face.
Are you affected by the Air Canada flight attendant strike?
The union representing around 10,000 Air Canada flight attendants has been on strike since Aug. 16 after negotiations between the two sides reached an impasse, and the company has cancelled flights. Our reporters want to hear from passengers that have had their plans affected by the strike. Have you had to switch your flights or change your travel schedule? Share your story in the box below.