What colleges need to know about back-to-work decisions
Two recent legal decisions clarify when governments can step into college labour disputes, creating a predictable legal framework for future work stoppages, especially where prolonged strikes threaten academic continuity and student outcomes.
Learn more about the significance of the Ontario Court of Appeal’s decision (Ontario Public Service Employees Union v. Ontario (Attorney General), 2026 ONCA 74 “OPSEU”) and its companion ruling (Canadian Union of Postal Workers v. Canada (Attorney General), 2026 ONCA 75 “CUPW”).
1. Government intervention is constitutionally permissible when student or public harm escalates
In OPSEU, the Court confirmed that Bill 178, which ended the five‑week 2017 college faculty strike and sent outstanding issues to binding arbitration, did infringe on workers’ Canadian Charter of Rights and Freedoms rights under section 2 (d), the freedom of association. However, it also ruled the legislation was justified under section 1of the Charter because the government had a pressing and substantial objective: protecting students from significant harm to their academic year, caused by the prolonged disruption.
The CUPW case involved rotating strikes at Canada Post that significantly disrupted a critical national service. Parliament’s Postal Services Resumption and Continuation Act ended the strike, reinstated regular postal operations, and mandated a mediator‑arbitrator acceptable to both parties. The Court again held that terminating a lawful strike limits section 2(d) rights but affirmed that the federal government met its burden under section 1 by demonstrating broader national harms and providing a neutral, balanced arbitration mechanism that ensured fairness to both parties.
2. Arbitration as a substitute for bargaining: expect this to be the default path
The Court emphasized that back‑to‑work laws are far more likely to pass constitutional scrutiny when they include a neutral interest arbitration process — one that approximates what the parties would have achieved at the bargaining table. In both OPSEU and CUPW, the Court pointed to the neutrality and fairness of arbitration as the key factor that made government interference acceptable.
3. Right to strike is protected - but not absolute
Both decisions reinforce that, while workers do have a constitutionally protected right to strike, that right may be limited when essential public interests are at stake.
In future labour disruptions, especially those extending long enough to risk academic continuity, the government is empowered to act. The Court also signaled that such intervention can become necessary earlier rather than later if public-facing harm becomes substantial.
This provides colleges with a measure of operational predictability: extended academic strikes are less likely to continue indefinitely when they begin causing real harm to students.
4. What this means for colleges
If a future strike threatens semester integrity or student progression, the government has a legal footing to intervene. Colleges can be confident the Court sees student harm as a legitimate basis for legislative action, as students’ interests and educational continuity carry significant constitutional weight.
If a dispute escalates to the point of government intervention, binding arbitration, and not imposed terms, is the likely path forward. To be best prepared for that possibility, colleges should maintain well‑documented operational and financial rationales around educational continuity throughout bargaining.
