Alberta's government has mandated teachers to return to work following a prolonged strike that disrupted education for students. This directive comes after the passage of Bill 2, known as the Back to School Act, earlier this week. The legislation marks a significant shift in the handling of labor disputes, as it invokes Section 33 of the Canadian Charter, commonly referred to as the notwithstanding clause.

The use of back-to-work legislation is not unprecedented, but it has become less common since the Supreme Court of Canada recognized a constitutional right to strike. Critics of Bill 2, including the Alberta Teachers’ Association, argue that the government is undermining democratic rights and engaging in an “assault on the rights of every Albertan.” They claim that the legislation silences democratic processes. Similarly, the Alberta Union of Provincial Employees has labeled the law as a “dangerous precedent,” describing the use of the notwithstanding clause as “reckless, authoritarian and ideological overreach.”

Supporters of the bill, however, contend that the invocation of Section 33 is a necessary measure to address the current labor situation. They argue that the right to strike, as interpreted by the Supreme Court, has evolved in a way that distorts the balance of labor relations in Canada. The Supreme Court's 2015 ruling in Saskatchewan Federation of Labour v. Saskatchewan established a constitutional right for public-sector employees to strike, a decision that has been met with criticism.

Justice Rosalie Abella, who authored the majority opinion in that case, stated it was time to provide constitutional validation to the right to strike. Dissenting justices, including Marshall Rothstein and Richard Wagner, argued that this interpretation inflated the scope of the right to freedom of association beyond its original intent.

The ongoing debate highlights the tension between labor rights and legislative authority. Critics of the Supreme Court's interpretation assert that it has shifted labor relations from a political arena to a judicial one, making the use of the notwithstanding clause a practical necessity for governments. This shift has led to significant legal challenges, as seen in a 2022 Ontario case where a trial court used the Saskatchewan ruling to invalidate wage restraint legislation.

As Alberta navigates this contentious issue, the implications of Bill 2 and the use of the notwithstanding clause will likely continue to be a focal point of discussion among educators, unions, and lawmakers.