Howard Levitt: Is the Air Canada strike Mark Carney's Ronald Reagan moment?

An Air Canada flight attendant walks through the terminal to her scheduled flight at Pierre-Elliott Trudeau Airport in Montreal, Que. (Credit: ANDREJ IVANOV/AFP via Getty Images)

“They are in violation of the law, and if they do not report for work within 48 hours, they have forfeited their jobs and will be terminated,” Ronald Reagan, Aug. 3, 1981.

Is this Mark Carney’s Ronald Reagan moment? Reagan famously ordered striking U.S. air traffic controllers back to work. Those who disobeyed were fired, more than 11,000 of them. Their union, the Professional Air Traffic Controllers Organization, never recovered.

If Air Canada’s tentative agreement with the Canadian Union of Public Employees (CUPE) falls apart, will Carney be forced to take a similar approach and fire flight attendants who defied federal directives? After repeatedly invoking Section 107 to get striking workers back to work over the past year, the government seems prepared to take a harder line than at any point in decades. If unions openly resist, the fallout could be catastrophic — for them, and the credibility of the entire Canadian labour system.

Yes, the right to strike is a Charter–protected freedom. But it is not unlimited. Parliament recognized this long ago, giving the federal labour minister powers under Section 107 of the Canada Labour Code to maintain industrial peace and shut down strikes that endanger the economy.

That is precisely what jobs minister Patty Hajdu did by ordering Air Canada’s flight attendants back to work. Her words were blunt: “Now is not the time to take risks with our economy.”

The union’s response? Open defiance. As of Tuesday morning, it appeared the parties had arrived at a tentative deal, but that does not mean the dispute is over or that consequences are out of the question.

In modern Canadian labour relations, this blatant defiance of the law has been unheard of for some time. It is extraordinarily dangerous. The law is not a polite suggestion. Unions that treat it as optional invite repercussions they may not survive. CUPE leaders said they were prepared to go to jail. Were they? Or was it simply bluster as they assumed Air Canada would cave.

History shows what happens when unions cross the line. Courts have never hesitated to jail leaders, fine organizations into insolvency or hold individual workers personally liable:

In 1981, CUPE president Grace Hartman and 17 members defied a court injunction and a labour board cease-and-desist order. Hartman spent 45 days in custody. Others were jailed or fined. In 1978, Canadian Union of Postal Workers (CUPW) president Jean-Claude Parrot ignored an order to end a postal strike, resulting in two months’ jail time. In 1988, the United Nurses of Alberta was fined more than $425,000 for striking illegally. Individual nurses faced contempt charges, threats of jail time and $1,000 fines. In 2020, the Alberta Union of Provincial Employees was fined $400,000 after healthcare workers ignored a back-to-work directive.

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Union leaders today may have forgotten that real consequences exist when they refuse to follow the law. The courts and labour boards have not.

And the risk extends beyond fines. Individual workers who follow unlawful strike calls risk not only contempt charges but termination. “I was just following my union’s orders” is no defence.

Air Canada should have taken the offensive and acted quickly. If I had been advising them, I would have recommended not “making a deal” as they did, but moving for a quick injunction, asking the Canada Industrial Relations Board (CIRB) to impose fines on the union and its representatives, suing the union for all damages and ordering the workers back to work immediately, with a Reagan–like ultimatum.

Facing no collective agreement at present, Air Canada could bypass arbitration and take the union to court to recover tens of millions of dollars in financial losses. And they would win. The damages suffered by the airline in lost revenue are clearly established, and the continued strike clearly violates the CIRB’s and minister of labour’s order. Such a lawsuit could potentially bankrupt CUPE. It would certainly have the collateral impact of depriving the union of any strike funds.

Strikes are a legitimate right and a collective bargaining weapon. Illegal strikes are not. Defiance of lawful orders is not labour relations. It is lawlessness. While the flight attendants may be a sympathetic party with legitimate grievances, they must fight for their interests legally. Binding arbitration would have provided an opportunity to do just that. Instead, the union put themselves in jeopardy.

Air Canada’s strike is not just another dispute. It is a reckoning. If the law is allowed to be flouted without consequence, the message is clear: no law binds unions. And other unions and their members will take note. If, on the other hand, the government and courts enforce the law, this dispute may mark the end of union brinkmanship as we know it.

Sydney Sweeney’s American Eagle campaign was meant to sell jeans. Instead, it sold a lesson in employment law Howard Levitt: The strike threat from Air Canada's flight attendants is a moonshot — and unlikely to land

CUPE is gambling that Canada has grown too timid to punish them. It is time for the government and Air Canada to prove that this country is governed by laws, not by lawbreakers.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario and Alberta, and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Lavan Narenthiran is an associate at Levitt LLP.