Back to Work! Did the Government Blow It?

Author: Tim Platnich

Date: October 31, 2025

On Tuesday, October 28, 2025, the Alberta government passed Bill 2 - Back to School Act. [Please note that the link provided is to the Bill before it was assented to. I was unable to find the actual legislation online].

This legislation has three main components for our purposes in this post. First, it orders the teachers back to work. Second, it imposes a four year collective agreement between the various school boards (defined as 'employers') and the ATA. Third, it invokes section 33 of the Canadian Charter of Rights and Freedoms allowing the legislation to operate notwithstanding sections 2 and 7 to 15 of the Charter.

I submit the government went too far.

Legislating the teachers back to work was appropriate given that the strike had lasted three weeks and there was no end in sight. Harm to students became the paramount concern. So, what would have likely happened if the legislation stopped there? Or, if it simply went on to require the ATA back to the bargaining table?

The teachers would have gone back to work as required by the legislation. The ATA could have then commenced legal proceedings challenging the legislation under the Charter - probably under section 2(d) - freedom of association. It is under this freedom that the Supreme Court of Canada, in its new found wisdom, found a constitutional right for unionized public workers to strike. See Saskatchewan Federation of Labour v. Saskatchewan. I say 'new found wisdom' because only 28 years earlier, the wisdom of the Supreme Court was that there was no such right to strike in the Charter. See the analysis by Kerry Sun writing in the National Post.

The Court found that the right to strike is an important part of the collective bargaining process. Leaving aside whether this right is merely statutory and not a fundament right, I agree. The teacher's had a right to strike. Provincial law permits this. However, the right is not absolute. Teachers cannot remain on strike for the whole school year, for example. At some point the right of students to an education must gain paramountcy and the answer cannot possibly be that the government has to give in to whatever demands the teachers make.

The Alberta government honoured the right to strike for 3 weeks, then said enough is enough. The teachers made their point. They got the public's attention. The strike put pressure on the government to negotiate. The value of the right to strike was realized. Any further harm to students (and their parents) was not warranted by strike action.

Without the use of s. 33 of the Charter, the ATA could have brought legal action. The ATA would have needed to obtain an injunction to prevent the operation of the legislation in requiring teachers back to work while the issue of the Charter breach was litigated. To obtain such an injunction the ATA would have to show that teachers would be irreparably harmed if the injunction was not granted. The ATA would have to also show that the status quo before the legislation was passed - being on strike - was more fair than the situation if the legislation was allowed to continue in effect. In legalese, the ATA would have to show that the 'balance of convenience' favoured the teachers. Although the merits of the case are not determinative when emergency interim injunctions are sought, they do get some consideration. The ATA would have to make an arguable case that the right to strike, in the circumstances, is not subject to any reasonable limitations. In making this argument they would run into the limitation set out in section 1 of the Charter - that rights are subject 'to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'.

It is far from clear that such an injunction would be granted. The court would likely have regard to the rights of the students and parents as well as the rights of the teachers. Harm to the teachers, at least in terms of their demands for a pay increase, is measurable in money. If they are forced to work at rates of compensation that are ultimately increased, back pay will alleviate any harm suffered. Where harm is calcuable and compensable in monetary damages, it is not irreparable harm and cannot be grounds for an injunction. In contrast, the harm to students who are missing substantial amounts of school is incalcuable. This has been demonstrated by the harm to students resulting from Covid shutdowns. The balance of convenience likewise arguably favours the students over the teachers.

If no injunction was granted, and but for the imposed collective agreement, the ATA would be left with bargaining with the Province, obviously in a weakened position, but this is a consequence of not getting a deal done while the strike was ongoing. As an aside, I think imposing a 4 year collective agreement was heavy handed. It does fly in the face of provincial legislation relevant to the issue: Public Education Collective Bargaining Act; and Labour Relations Code. Hence with Bill 2 also overrides these statutes.

If an injunction was granted, the government could then pass amended legislation including the notwithstanding clause (s.33). This course of action could be seen as contempt of court, but, in effect, that is what section 33 was intended for. It was intended as a counter-weight to judicial activism. If a court aggressively strikes down legislation using the Charter, the legislator can thumb its nose at the court and re-pass the legislation using the notwithstanding clause. Indeed, then Alberta Premier, Peter Lougheed, in arguing for section 33 during constitutional negotiations, mentioned a finding of a constitutional right to strike by an activist court as an example of where section 33 could be used.

The big question is not so much a legal one as a political one. Has the Alberta government gone too far by legislating a four year collective agreement and using the notwithstanding clause at this early stage? The worry is that relations between the government and all public unions, not just the ATA, has been poisoned. This could have both short-term and long-term political repercussions. In the short-term it may prompt a general strike, as some have threatened. In the long-term it may lead to an over-supportive NDP government getting elected which will double-down on public union pay and power.

Yes, the kids needed to get back to school. Everyone agrees with that. No, this didn't mean that the union and teachers should get everything they wanted. Beyond pay, the problems with education in Alberta are complex matters of policy that cannot be resolved in the context of a strike. Education policy is the domain of the government. The ATA is one of several sources of input for policy. It is not the only source of input. It does not have the right to solely set education policy. Demanding a cap on class size is an example where the ATA is off side. Class size is a function of several factors. One factor is the number of classrooms available which is a function of the number of schools available. Should the ATA determine how many schools are appropriate given that schools must be paid for by taxpayers who did not elect the ATA? Another factor is the number of teachers (and aides). Should the ATA make this decision? The ATA is an advocate for its members. Fair enough. But this puts the ATA in a conflict of interest when it comes to broader policy issues like how much should the Alberta government allocate of its budget to education when there are competing demands such as health care.

Am I wrong?