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More news on Air Canada: pilots challenge the back-to-work legislation



The Air Canada pre-emptive back-to-work legislation saga continues. Last week, I wrote about the pre-emptive back-to-work legislation. Now the pilots have challenged the legislation in court arguing that it prevents strikes or lockouts, forces the pilots to keep flying, and coerces the pilots to accept a contract imposed by arbitration in a process that is completely skewed given it was designed to favour the airline’s position. The pilots’ main argument is that the legislation is constitutionally invalid as it violates the Canadian Charter of Rights and Freedoms, namely section 2(d), involving the freedom to associate. The president of the pilots’ union called the legislation “Draconian overkill.”

The pilots argue in their application that that forcing them to fly conflicts with their legal obligations under the Canadian Aviation Regulations because the Regulations prohibit pilots from flying if they have any reason to believe they are unfit to properly perform their duties. The union notes that the pilots have been under a significant amount of stress as a result of the  Air Canada’s unwillingness to negotiate a fair collective agreement, along with the Minister of Labour’s and Parliament’s removal of their only means of engaging in meaningful collective bargaining with the back-to-work legislation.

Perhaps limiting the workers’ rights to collectively bargain and strike and the employer’s right to lock out the workers was not the most efficient way to deal tough contract negations where pension security was one of the main issues. Perhaps government interference only made things worse in terms of employee morale and union relations.

Regardless of one’s view, there is now a Charter claim and a decision will have to be made about whether the back-to-work legislation is valid.

What do you think will happen? Given recent case law, we know that unless employees are engaged in essential services (this is quite limited), their right to strike cannot be restricted. In accordance with Canada’s international obligations, if employees are prevented from striking by unilaterally declaring numerous services as “essential,” that legislation could be ruled unconstitutional under section 2(d) of the Charter, unless justified under section 1.

In this case, the pilots’ services were not declared essential, but the pilots were prohibited from striking or collectively bargaining by being forced to fly and participate in a one-sided final selection arbitration.

Do you think that the court will find a section 2(d) Charter violation?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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