In response to a direction from the Minister of Labour under section 107 of the Canada Labour Code, the Canada Industrial Relations Board (“Board”) issued an order on August 24, 2024 ending the work stoppage involving Canadian National Railway Company, Canadian Pacific Kansas City Railway Company, and  Teamsters Canada Rail Conference. The Board also imposed binding arbitration on the parties.

On August 22, 2024, Federal Minister of Labour, Steven MacKinnon, issued an order under section 107 of the Canada Labour Code (“Code”) directing the Board to end the rail labour dispute involving Canadian National Railway Company (“CN”), Canadian Pacific Kansas City Railway Company (“CPKC”), and Teamsters Canada Rail Conference (“TCRC”). Minister MacKinnon was sworn in as Minister of Labour on July 19, 2024, replacing Seamus O’Reagan after his resignation from Cabinet.

The Minister directed the Board to:

• Order CN, CPKC and their employees to resume their duties;
• Assist the parties in reaching a settlement of the outstanding terms of their collective agreements by imposing final binding interest arbitration; and
• Extend the term of the existing collective agreements until the new collective agreements are determined by an arbitrator.

The TCRC questioned the constitutionality of the Minister’s direction; and, more specifically, requested that the Board exercise discretion and refuse to implement it. Instead, the Board concluded that s. 107 gives it no discretion or ability to refuse or modify a Ministerial direction and any challenge would have to be brought before the Federal Court.

The TCRC has already announced its intention to challenge the Minister’s order in Federal Court.  

Section 87.4(1) the Canada Labour Code Inapplicable to CN and CPKC

The Ministerial direction and Board order ending the work stoppage and imposing binding arbitration came after the Board determined on August 9, 2024 that s.  87.4(1) of the Code did not apply to the operations of CN and CPKC.  

Section 87.4(1) is the provision that requires an employer, a union and affected employees to continue working during a legal strike or lockout to the extent necessary “to prevent an immediate and serious danger to the safety or health of the public.”

Earlier this year, then Minister O’Regan referred to the Board the question of whether certain activities of CN and CPKC fell within the scope of s.  87.4(1) and would have to be continued by the railways in the event of a work stoppage (i.e. due to being an essential service).

The Board stated that while a rail stoppage would result in inconvenience, economic hardship and potential harm to Canada’s trading reputation, it would not result in “immediate and serious danger to the safety or health of the public” thereby triggering s.  87.4(1). This set the stage for work stoppages at both CN and CPKC, which began on August 22, 2024.

Why the 2024 WestJet Strike Continued when the Railway Work Stoppages were Ended

Many travellers will recall the work stoppage at WestJet at the beginning of the summer, and you may be asking – how is this dispute different? 

On June 27, 2024, Minister O’Regan issued an order under s. 107 of the Code ordering the Board to require WestJet and the Aircraft Mechanics Fraternal Association (“AMFA”) to reach a first collective agreement through final binding arbitration.

The next day, AMFA went on strike. AMFA claimed that the Minister’s order did not take away their ability to strike. The Board agreed.

At the Board, WestJet argued that the Minister’s direction removed AMFA’s ability to strike because a strike or lockout would no longer have any practical effect. AMFA countered that without a direct order by the Minister, the Board should respect the constitutional right to strike.

The Board concluded that an order under s. 107 of the Code requiring the imposition of binding arbitration does not automatically prevent the commencement or continuation of a strike or lockout. Since the Minister’s order was silent on the issue of a strike or lockout, the Board concluded that there was no basis to end the strike at WestJet. The Minister’s silence on that point is the key difference between the two disputes.  

In addressing the labour dispute involving CN, CPKC and TCRC, the Minister explicitly directed the Board to order the parties to resume operations and to extend their collective agreements. This was presumably to address the gap that permitted the strike to continue at WestJet.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

The authors acknowledge the assistance of Michel Hajjar, an Articling Student, in the firm’s Toronto office.