Freedom to Strike in Canada: A Brief Legal History

This paper looks at the "deep roots" of striking as a social prac-

tice in Canada, by providing an analytic framework for approaching the

history of the right to strike, and then sketching the contours of that his-

tory. Focusing on the three key worker freedoms - to associate, to bar-

gain collectively, and to strike - the authors trace the jural relations

between workers, employers and the state through four successive

regimes of industrial legality in Canada: master and servant; liberal

voluntarism; industrial voluntarism; and industrial pluralism, the latter

marked by the adoption of the Wagner Act model. On the basis of their

review of those regimes, the authors argue that long before the modern

scheme, workers enjoyed a virtually unlimited freedom to strike for col-

lective bargaining purposes. Although government-imposed restrictions

on the freedom have increased significantly, especially under industrial

pluralism, legislatures have typically provided workers with compensat-

ing trade-offs, including rights enforceable against their employers.

However in contrast to the historical pattern, public-sector workers

have with growing frequency been subjected to "exceptionalism," i.e. the

suspension or limitation of freedoms without a grant of compensatory

rights. In the authors'view, it is the imposition of such measures that will

likely provide the context for consideration of whether the Canadian

Charter of Rights and Freedoms protects the right to strike.