Executive Summary: Key Legal and Evidentiary Issues

• Whether CUPW’s constitutional challenge to the 2018 Postal Services Resumption and Continuation Act was moot once the strike had ended, arbitration was completed, and new collective agreements were in place.
• The extent to which the Act, as back-to-work legislation, limited union members’ freedom of association under s. 2(d) of the Charter by terminating a lawfully called strike and related strike activity.
• The alleged impact of the Act and the Prime Minister’s public comments on union members’ freedom of expression under s. 2(b), including arguments about picketing and compelled speech by union officials.
• The evidentiary dispute over the seriousness of the social and economic disruption caused by the rotating postal strikes and whether this disruption supported a “pressing and substantial” legislative objective.
• Whether any Charter limits arising from the Act were demonstrably justified under s. 1, particularly in light of the detailed interest arbitration scheme and the parties’ eventual acceptance and extension of the arbitral award.
• The characterization of the Prime Minister’s “all options will be on the table” statement as non-infringing political speech, given the parties’ bargaining history and sophistication in anticipating potential legislative intervention.

Factual background

The Canadian Union of Postal Workers (CUPW) represents employees of Canada Post in two main bargaining units, urban and rural, who process and deliver mail and parcels across Canada. Canada Post is a Crown corporation whose sole shareholder is the federal government. CUPW served Notices to Bargain for both bargaining units on 14 November 2017, triggering collective bargaining under the Canada Labour Code. Over the following year, the parties bargained but could not reach new collective agreements. In September 2018, CUPW announced that its members had voted in favour of strike action. On 22 October 2018, CUPW began a series of rotating strikes in several cities. These strikes continued for about five weeks. The application judge later found that the rotating strikes caused “serious social and economic dislocations”, a characterization CUPW disputed on appeal but which the Court of Appeal held was open to the judge on the evidentiary record. During the dispute, on 8 November 2018, Prime Minister Justin Trudeau told reporters that “all options will be on the table” if the parties did not reach a resolution soon. CUPW argued this public statement materially affected the bargaining dynamics by signalling that back-to-work legislation was imminent.

The back-to-work legislation and arbitration process

On 22 November 2018, the federal government introduced the Postal Services Resumption and Continuation Act, S.C. 2018, c. 25. The Act received Royal Assent on 26 November 2018. Its preamble noted that the parties had been engaged in collective bargaining since November 2017, that the rotating work stoppages were disrupting mail and parcel delivery nationwide, and that an exceptional legislative response was required. Substantively, the Act required Canada Post to resume regular operations and required employees to resume their duties. It obliged CUPW and its officials to notify members of their obligation to return to work, extended the existing collective agreements until new ones were in place, and prohibited strikes and lockouts during the extended term. The Act also directed the Minister of Labour to refer all outstanding issues to a mediator-arbitrator and created an interest arbitration process to resolve the dispute, backed by fines for non-compliance. In December 2018, the Minister appointed Elizabeth MacPherson, a mediator-arbitrator who appeared acceptable to both sides. Arbitration, including oral evidence, took place between February 2019 and May 2020. On 11 June 2020, the arbitrator issued an award, applying the “replication principle” to approximate what the parties would likely have agreed to in free collective bargaining. The parties agreed that the award would govern for four years, retroactive in effect. In September 2021, they voluntarily extended the collective agreements for another two years and ultimately negotiated subsequent agreements without seeking to undo the award.

The constitutional application and lower court ruling

CUPW and individual applicants brought a constitutional application challenging both the Act and the Prime Minister’s 8 November 2018 statement. They argued that the Act unjustifiably infringed members’ freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms by terminating a lawfully called strike and barring further strike activity. They also claimed that the Act violated freedom of expression under s. 2(b) by ending strike and picketing activity and by compelling union officers and representatives to notify members that postal services would resume and that employees were required to return to work. In addition, they asserted that the Prime Minister’s public statement, by signalling that back-to-work legislation might follow, independently interfered with collective bargaining and limited freedom of association. CUPW sought declarations that these limits were not justified under s. 1, a prospective declaration of invalidity under s. 52 of the Constitution Act, 1982, and remedial orders under s. 24(1) of the Charter, including a direction that the parties resolve the Charter breaches, with the court retaining jurisdiction to impose remedies if they failed. The application judge dismissed the application primarily on mootness grounds. By the time of the hearing, the statutory strike prohibition had expired, the arbitration was complete, the award had been implemented, and new or extended collective agreements were in place. Both CUPW and Canada Post were content to operate under the existing agreements, and CUPW did not seek retroactive relief or to unwind the arbitrated contract. The judge held that the Act was “spent”, that there was no live controversy affecting the parties’ rights, and that CUPW’s challenge was therefore moot. He then exercised his discretion under the Supreme Court’s Borowski framework not to decide the constitutional issues on the merits, emphasizing that resolving such Charter questions in the absence of a live dispute would risk issuing an abstract opinion on labour policy and trench on the legislature’s domain. In the alternative, he provided a brief merits analysis. He accepted that this form of back-to-work legislation limited s. 2(d) rights by ending a lawful strike, but he concluded that the limit was justified under s. 1. Relying in part on an earlier decision (CUPW 2016) that had struck down more unbalanced postal back-to-work legislation, he found that the 2018 Act had a pressing and substantial objective and that its structured, neutral interest arbitration process minimally impaired the right to strike. He rejected CUPW’s broader arguments under s. 2(b) and regarding the Prime Minister’s statement.

Issues on appeal and the Court of Appeal’s reasoning

On appeal, CUPW advanced three central issues. First, it argued that the application judge erred in finding the case moot and in declining, as a matter of discretion under Borowski, to hear the application on its merits. Second, it contended that even in the judge’s alternative analysis, he had mischaracterized and underestimated the scope of Charter violations under ss. 2(d) and 2(b). Third, CUPW maintained that any limit on the right to strike or expressive activity could not be justified under s. 1. On the first issue, the Court of Appeal agreed that the challenge to the 2018 Act, including the strike-ending provisions and the associated s. 2(b) claims, was moot. The key consideration was that the legislation no longer had operative force, its central prohibitions had expired, and CUPW did not seek to reopen or set aside the collective agreements that emerged from the arbitral process. As the application judge noted, there was “no further practical effect or legal relevance” to the legislation between these parties, and the Act’s force was “spent”. The Court further held that the associated s. 2(b) claims about picketing and compelled notice to members were inherently strike-related and fully subsumed within the broader s. 2(d) analysis. It declined to adopt a fragmented approach that would treat freedom of expression and freedom of association as separate avenues to prolong the litigation over back-to-work laws already analyzed under s. 2(d). Turning to the Borowski discretion, the Court accepted that an adversarial context remained, but it upheld the application judge’s decision that judicial economy and institutional limits weighed against hearing a moot application. The court emphasized that constitutional questions about back-to-work legislation are highly fact-specific, and issuing a broad, abstract ruling in the absence of a live dispute would essentially function as a private reference on Parliament’s policy choices. It also noted that labour-related Charter issues are not “evasive of review” in general; a substantial body of case law already deals with the right to strike, statutory collective bargaining regimes, and back-to-work statutes, including the companion OPSEU decision released the same day. In that companion case, the Court confirmed as a matter of principle that back-to-work legislation terminating a lawfully called strike is a limit on freedom of association under s. 2(d) and must therefore be justified under s. 1. In its brief alternative analysis on the merits, the Court endorsed the application judge’s approach. It accepted that the 2018 Postal Services Resumption and Continuation Act limited CUPW members’ s. 2(d) right to strike but held that the limit was justified under s. 1. The court deferred to the factual finding that the rotating postal strikes caused serious social and economic disruption, supporting a pressing and substantial objective of securing a vital public service, particularly for vulnerable and rural Canadians. It found a rational connection between prohibiting further strike activity and restoring that essential service. On minimal impairment and proportionality, the Court placed weight on the neutral design of the interest arbitration process and on CUPW’s own expert evidence, which acknowledged that the 2018 Act had effectively corrected the constitutional flaws identified in earlier postal back-to-work legislation. The imposition of an arbitral mechanism that allowed both parties to advance their issues and that resulted in agreements CUPW later extended voluntarily was viewed as an appropriate substitute for continued strike action. The Court rejected CUPW’s attempt to transform the Prime Minister’s “all options will be on the table” comment into a freestanding Charter breach. It characterized the statement as political speech about a matter of national concern, delivered late in a lengthy strike to parties well aware, from experience, that legislative intervention was a possibility. In that context, the Court held that the Prime Minister’s comment did not meaningfully alter the bargaining landscape or limit freedom of association. Similarly, it concluded that s. 5 of the Act, which required union officers and representatives to notify employees of their obligation to resume work, did not infringe their personal freedom of expression. The duty attached to them in their institutional roles as union officials, not as private individuals, and they remained free to criticize and oppose the legislation in their own voices while complying with their statutory responsibilities.

Outcome and relief

In the result, the Court of Appeal dismissed CUPW’s appeal in full. It upheld the application judge’s finding that the challenge to the 2018 Postal Services Resumption and Continuation Act was moot and that, even if the merits were reached, the Act’s limit on the s. 2(d) right to strike was demonstrably justified under s. 1 of the Charter. The court confirmed that the Prime Minister’s statement and the notice obligations imposed on union officials did not create additional, compensable Charter violations. The successful party on appeal was the federal government, represented by the Attorney General of Canada. The court did not fix a specific amount for damages, costs, or other monetary relief; instead, it invited brief written submissions on costs if the parties could not agree. On the face of this decision, no total monetary award, including any final costs figure, can be determined.