In October 2025, the Government of Alberta invoked the notwithstanding clause to pass Bill 2 in response to a three week strike by teachers, ordering them back to work and imposing a contract on them to prevent further strikes.
Education workers in Alberta had been on strike because they felt the government’s offers for a new collective agreement did not adequately address their core concerns of salaries failing to keep up with inflation, insufficient support for children with special needs in the classroom, and the general underfunding of public education in Alberta. Outside of Prince Edward Island, Alberta has the lowest level of spending per student in the country .
Bill 2, the Back to School Act, imposed a four year contract on teachers which included wage increases and a commitment to hire more educators. However, the increases fell short of what the teachers association had been demanding and, importantly, Bill 2 precludes local collective bargaining which prevents teachers from engaging in local strikes.
The Alberta Teachers’ Association released a statement calling Bill 2 a “reckless and historic abuse of power” and “a gross violation of collective bargaining rights and the freedom of association”.
Similarly, the government of Ontario under Doug Ford used the notwithstanding clause to pass Bill 28 in the fall of 2022, to end a strike and force education support workers, such as custodians, educational assistants, and early childhood educators, back to work.
Concerns from activists
The legislation imposed a four-year collective agreement on the workers and prohibited strikes for its duration. Due to intense public backlash the government eventually repealed Bill 28.
Despite Ontario’s provincial government backtracking, labour advocates still fear the precedent the combination of these two actions has set for workers rights in the future.
“Once one party or government starts to do it, it opens the door to being able to do it more and more to every single person,” said Laura Walton, the President of the Ontario Federation of Labour (OFL) in an interview with rabble.ca.
Walton notes that in August 2025, in response to the Air Canada strike, the federal Liberal government declared the strike illegal and ordered flight attendants back to work through using section 107 of the Canada Labour Code, which empowers the federal government to end strikes. Walton used this example to underscore that it has become the new normal for workers to prepare for the possibility that legislation or legal orders may deem their actions unlawful.
Collective bargaining and freedom of association rights
In 2007 and 2015, the Supreme Court ruled that collective bargaining and the right to strike are both constitutionally protected rights under section 2, Freedom of Association.
The courts deemed collective bargaining to be an essential part of freedom of association rights because, in the view of the majority of justices, without the ability to organize to pursue collective goals as a group freedom of association has no practical impact. The right to strike was later seen as necessary for the right to meaningfully engage in collective bargaining.
“Everything we have in Ontario and in Canada has been on the backs of workers fighting for it, whether we went on strike or whether they were able to achieve it at a bargaining table, nobody gives you anything for free… the fact that we have a 40 hour work week, the fact that we have maternity leave, sick days, pensions, and benefits…None of these things happen without other people fighting for them,” Walton stated.
“There is an old adage of a rising tide lifts all boats… When workers fight for what they need it has the impact of making it so other workers in other sectors also have the ability to do the same,” Walton added.
This right being increasingly disregarded by governments has activists calling for the public to pay greater attention to the use of the notwithstanding clause and the implications it may have on democracy in Canada.
“Workers are democracy…Democracy means for the people by the people.. Worker’s rights are people’s rights…Anytime you have the government… interfering with charter rights in order to achieve their means people in general should be watching them and asking why they have to use the nuclear option,” Walton said.
In response to the invocation of the notwithstanding clause in Ontario the Canadian Civil Liberties Association released a statement at the time saying: “The notwithstanding clause was never meant to be used in contract negotiations, or as a casual tool to disrupt basic human rights safeguarded in our Charter. This misuse, and the flagrant disregard for individual rights is wrong and it is dangerous to our constitutional democracy.”
The notwithstanding clause then and now
Walton stated that the government’s invocation of the notwithstanding differs from how it was originally intended to be used and calls for safeguards to be implemented in the future.
Alan Blakeney, the NDP Premier of Saskatchewan from 1971 to 1982, advocated for the inclusion of the notwithstanding clause from a progressive lens.
“The rights enumerated in the Charter are not more important than other human rights. … The Charter should not be regarded as creating a hierarchy of rights,” Blakeney said.
“Section 33… was included in the Charter to ensure that the state could, for economic or social reasons, or because other rights were found in the circumstances to be more important, choose to override a Charter-protected right,” Blakeney added.
This view suggests that there are rights, social, economic, and labour rights, that are not enumerated in the charter that are just as worth protecting. The belief by Blakeney was that the notwithstanding clause could be used to protect those rights when court decisions interfere with them.
“People perceive things based on your belief system.. put into the hands of a right wing premier they used it in a completely different fashion… I don’t think that the population ever intended one person or one party to have that kind of power,” said Walton.
A shift in union tactics
Walton stated that with this new norm taking shape, it is incumbent upon workers to engage in civic education on the notwithstanding clause so the public is aware of its implications, build capacity within workers so they can strike illegally if they have to, and forge solidarity between workers across different sectors to build more power.
