Canadian Unions: From Repression and Resistance to the Right to Strike - LawNow Magazine

Canadian Unions: From Repression and Resistance to the Right to Strike

A streetcar is overturned in 1919 in the Winnipeg General Strike in front of the old city hall building on Main Street.

A streetcar is overturned in 1919 in the Winnipeg General Strike in front of the old city hall building on Main Street. (Manitoba Archives)

The history of Canadian unions is a long and storied one. The Canadian labour movement of the  past was a fusion of many disparate groups, often at odds with one another. For many years, the law was inhospitable to unions, with the balance tilted in favour of employers and government. Since the mid-twentieth century, trade unions have notched some legal victories, but also accepted some serious concessions. In the milestone 2015 decision of Saskatchewan Federation of Labour v Saskatchewan, the Supreme Court of Canada recognized a constitutional right to strike, reflecting over a century of worker’s action. One thing is quite clear in the development of Canadian labour law: the legal protections afforded to unions ebbed and flowed with economic, social, and political changes.

Unions also enjoyed increased economic safeguards through the introduction of the Rand formula. Justice Rand, for whom the formula was named, introduced the formula in the midst of a strike dispute. Early Canadian union development was largely influenced by developments in the United States and Great Britain. A number of Canadian unions formed prior to the Industrial Revolution, typically in industries requiring skilled craftsmanship such as printing or shoemaking. British immigrants established local unions similar to the ones they left at home. The legal status of unions for most of the 1800s was unclear; even concerted efforts of legal archaeology have had difficulty pinning down how the law viewed unions. However, there was a general social tolerance for unions in Upper Canada, as there was a sense among employers that these highly skilled craftspeople were respectable and worthy of mutual dealings. Still, unionization was risky business. Conspiracy charges were laid against a strike of ‘hatters’ in Quebec as early as 1815, and criminal charges were pursued against bakers who attempted to bargain collectively in Ontario in 1837.

Of particular note in early Canadian labour history was the Nine Hours Movement. With twelve or more hours at work being commonplace, the movement campaigned for their namesake: a nine-hour workday. Nine Hours groups engaged in strikes in early 1872 in order to draw greater attention to the cause, but co-ordinated action was the ultimate goal. A series of general strikes had been planned for May of 1872 in Hamilton, Ontario. However, deviating from the plans, Toronto printers walked off the job in March. George Brown, editor of the Globe newspaper, attempted to break the strike by having the union leaders hauled into court on conspiracy charges.

At c the judge held that despite the union’s 25-year presence in the community, labour unions were nonetheless illegal at common law. Prime Minister John A. MacDonald was a political foe of Brown, and took the opportunity to pass the Trade Unions Act, which precluded union members from being charged with conspiracy at common law. Critically, the Act legalized unions, settling earlier uncertainty in the law. However, uncertainty remained about which activities of unions were legal, and which were not. Picketing was deemed illegal later that year.

For Canadian workers, the interwar period was one of unemployment and underemployment, with little legal recourse. As the Industrial Revolution marched on, increased specialization of labour diminished the importance of skilled craftspeople. This shift drove the development of international, industrial unions. Union members recognized the benefits of associating with larger, well- established organizations south of the border. In an attempt to harmonize conditions of work across North America, local Canadian unions began affiliating with American organizations, forming international labour groups. Industries which required large groups of labourers, such as mining or shipping, also unionized rapidly. Industrial unions were spurred forward by the newly constructed Canadian Pacific Railway, which facilitated increased movement of people and ideas, while simultaneously putting hefty market pressures on the working class.

One of the first international and industrial unions to operate in Canada was the Knights of Labour. Formed in Philadelphia in 1869, the Knights organized both unskilled workers and those who belonged to particular trades and crafts. Ultimately, the Knights of Labour collapsed in the United States and withered away in Canada shortly after. Not only were there divisions between craft unions and the umbrella organization, but the 1886 Chicago Haymarket riot caused public outrage against the Knights. The Haymarket rally, initially an attempt to protest police violence directed at union members, devolved into a melee of violence when a bomb was lobbed at police. At least eight people were killed and the American public became suspicious of union activity. Membership dropped dramatically in the following years, and the American Federation of Labour developed in its stead. The Canadian Knights syndicate suffered in the wake of these events. In its weakened state, it ultimately succumbed to the pressures of economic depression.

Despite these setbacks and legal uncertainties, labour groups were determined to make legal and political gains in the 20th century. The growth of labour unions was accompanied by a strong pushback from employers and government. Strike action in the early 1900s was repressed largely through civil law causes of action. Injunctions, coupled with restrictions on picketing in the Criminal Code, provided employers with potent weapons to combat union activism and strikes. Police were often deployed, sometimes provoking violence among otherwise peaceful picketers. Union leaders were often arrested. Still, unions made some gains in the years preceding World War I. Industrial unionism bloomed out of the craft unions of past, and organizations like the Alberta and British Columbia Federations of Labour cemented themselves in Canadian labour history.

Conflict between unions, government, and business came to a head in June of 1919 during the Winnipeg General Strike. Nearly 30,000 workers walked out of their jobs in solidarity with the metal worker’s union. The Winnipeg General Strike was remarkable not only for its size, but also for the co-ordinated effort by all three levels of government and business to break the action and send workers back to their jobs without making any concessions. Federal troops and specially-recruited police were sent to break up demonstrations and force the strikers back to work. In order to intimidate and dissuade unionists, the federal government arrested and threatened to deport union leaders. They also engaged in extensive surveillance of labour movement activities, and attempted to bolster conservative elements in unions by offering modest reforms. By 1921, many unions had imploded and morale was shattered.

Unfortunately for Canadian unionists the social, political, and legal conditions would remain unfavourable for nearly two decades. Court decisions between the wars would frustrate union attempts to have comprehensive labour legislation enacted. As a result of the Judicial Committee of the Privy Council’s decision in Toronto Electric Commissioners v Snider, unions could only be regulated by the provincial governments, except for less common federal jobs. For Canadian workers, the interwar period was one of unemployment and underemployment, with little legal recourse. The most powerful deterrent to the development of legal infrastructure for unions was economic – few wanted to risk losing their jobs and crumble under the weight of abject poverty.

World War II would prove to be a period of tremendous upheaval and change for unions. Emboldened by its emergency war powers, the federal government passed laws regulating industries associated with the war effort. In effect, this covered most industries, temporarily suspending the effects of the Snider decision and the “watertight compartments” of federal and provincial jurisdiction. The labour laws passed by the federal government were consolidated into the Wartime Labour Relations Regulations in 1944, also known as PC1003. PC1003 was a monumental shift in labour politics, attempting to balance the legal rights of unions, union members, and employers.

Prior to 1944, it was necessary for workers to use collective economic action to force their employer to the bargaining table. This arrangement was not ideal for unions, given the potential for legal liability. PC1003 altered the status quo by compelling employers to recognize and bargain with trade unions. It gave legal recognition to unions for the first time, and established a system of union certification for federally-regulated industries. Once unions were certified, employers were forced by law to negotiate at the bargaining table. Essentially, a comprehensive system of collective bargaining recognizing unions and employers as equals at the negotiating table was established.

The Winnipeg General Strike was remarkable not only for its size, but also for the co-ordinated effort by all three levels of government and business to break the action and send workers back to their jobs without making any concessions. With the close of the war, wartime labour legislation was no longer permissible under the federal emergency power. Provincially-regulated industries could no longer be governed by PC1003. It was thus necessary to create a universal labour code which would apply to all industries in the post-war years. In an attempt to create this nation-wide policy, a conference of federal and provincial labour ministers met to arrange the details of this more-or-less universal scheme. Parliament passed the 1948 Industrial Relations and Disputes Investigations Act, which was a consolidation of PC1003 and other legislation. Provinces followed suit, each passing their own versions of this Act in order to create a uniform legislative scheme. Unions also enjoyed increased economic safeguards through the introduction of the Rand formula. Justice Rand, for whom the formula was named, introduced the formula in the midst of a strike dispute. The formula establishes that workers will not be able to opt out of the payment of union dues if they receive the benefits of collective bargaining.

For several decades, Keynesian economic policy, mass production, and consumer society created an environment conducive to union flourishing. Given the sunny economic times, unions and employers had little to argue over. However, economic uncertainty in the 1970s and 1980s ushered in new political and legal dynamics. Privatization and deregulation, coupled with the pressures of free trade and globalization, once again tipped the scales against unions. Additionally, the newly-enacted Charter of Rights and Freedoms contained a right to “freedom of association,” but the outer limits of this right were not well understood. Against the backdrop of economic uncertainty, the courts were forced to establish the legal contents and boundaries of this nascent right.

The Charter of Rights has had an extremely significant effect on labour relations, although there were initial setbacks for unions. In a series of 1987 decisions termed the “Labour Trilogy,” the Supreme Court examined s. 2(d) of the Charter of Rights and came to the determination that “freedom of association”  contained neither  a right to bargain collectively nor a right to strike. Essentially, the Court established that freedom of association was an individually held and individually exercised freedom. Because collective bargaining and striking are by definition collective endeavours, they could not be performed by an individual person and thus fell outside of section 2(d) protection. Still, the Labour Trilogy was not a complete disappointment for organized labour; it established that there was a constitutional right to join and belong to a labour union.

One thing is quite clear in the development of Canadian labour law: the legal protections afforded to unions ebbed and flowed with economic, social, and political changes.This legal interpretation persisted until quite recently. The Court revisited its position in the 2007 Health Services case, taking a broader interpretation of the Charter. The Court reversed its previous holdings from the Labour Trilogy, finding that section 2(d) does contain a protection for collective bargaining. This decision laid the groundwork for the landmark 2015 Saskatchewan Federation of Labour decision. The Supreme Court finally recognized a constitutional right to strike, protected through section 2(d) of the Charter. The Court provided a policy rationale for the decision, noting that there is a “fundamental power imbalance” between employers and employees, “which the entire history of modern labour legislation has been scrupulously devoted to rectifying.” As in the past, labour law developed in dialogue with social and political policy.

Punctuated by setbacks and victories, the history of Canadian unions before the law has steadily trended towards increasingly powerful legal protections. From their seeming illegality at common law to a constitutionally enshrined right to strike, Canadian unions have fought tooth and nail for legal protections for two centuries. History demonstrates that labour law blossomed in tandem with social and political attitudes, and this discourse is likely to continue as unions carry the torch into an uncertain future.

Authors:

Paul Maas
Paul Maas is a law student at the University of Alberta in Edmonton, Alberta. This article was produced as a project in the Pro Bono Students Canada program.
 

Owen Le Blanc
Owen Leblanc is a law student at the University of Alberta in Edmonton, Alberta. This article was produced as a project in the Pro Bono Students Canada program.
 


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