Unlawful Strikes — Ontario Employment Law
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About Unlawful Strikes
In Ontario, the right to strike is heavily regulated, and strict rules govern when and how a work stoppage can legally occur. Under the Ontario Labour Relations Act, 1995 (LRA), an "unlawful strike" refers to any concerted work refusal or slowdown by employees that violates the statutory timelines or prohibitions set out in the legislation. Understanding the boundaries of lawful versus unlawful strikes is a critical component of labour law for both trade unions and employers.
Generally, a strike is illegal if it takes place during the term of an active collective agreement. This is known as the "peace obligation," meaning disputes must be resolved through a grievance and arbitration procedure, not by walking off the job. Furthermore, even if a contract has expired, a union cannot legally strike until it has exhausted the mandatory conciliation process and a specific "cooling-off" period has passed (usually 14 to 17 days after the Minister of Labour issues a "no board" report). Additionally, certain classes of workers—such as police officers, firefighters, and hospital workers governed by the Hospital Labour Disputes Arbitration Act (HLDAA)—are deemed essential. They are entirely prohibited from striking and must resolve bargaining impasses through binding interest arbitration.
When a union or a group of employees engages in a "wildcat strike" (an unauthorized, illegal walkout), the employer's primary remedy is to apply urgently to the Ontario Labour Relations Board (OLRB). The OLRB can issue a declaration that an unlawful strike is occurring or is being threatened, alongside a cease-and-desist order compelling employees to return to work. Moreover, the employer may seek financial damages from the union at arbitration for business losses incurred during the illegal stoppage. As seen in Ontario case law, collective agreements negotiated under the duress of an unlawful strike may even be deemed unenforceable by the OLRB.
In scenarios where an unlawful strike involves secondary picketing, breaches of public safety, or defiance of OLRB orders, the courts may intervene. For example, the Attorney-General can seek court injunctions to halt illegal strikes by essential hospital employees. Because labour disputes move incredibly fast and carry severe economic and employment consequences, these situations require precise strategic maneuvering. The rights and liabilities in these disputes depend heavily on the specific facts at hand, meaning that retaining specialized legal counsel at the very first sign of an illegal work stoppage is essential.
Frequently Asked Questions
What makes a strike unlawful in Ontario?
A strike is generally unlawful if it happens while a collective agreement is still in effect, or before the union has completed the mandatory government conciliation and "cooling-off" periods. It is also unlawful if the workers belong to certain essential services, like hospitals or fire departments, who are prohibited from striking by law.
Can I be fired for participating in a wildcat strike?
Yes. Participating in an unlawful walkout is a serious breach of your employment obligations. Employers often have just cause to heavily discipline or terminate employees who instigate or participate in illegal strikes, though a union can typically challenge the severity of the discipline through the grievance process.
How quickly must an employer act if workers illegally walk off the job?
Employers must act immediately. Applications to the Ontario Labour Relations Board (OLRB) for a declaration of an unlawful strike are treated with extreme urgency and can be scheduled for a hearing within hours or days to quickly restore normal operations.
Can a union be forced to pay for a company's lost profits during an illegal strike?
Yes. If an employer suffers financial losses due to an unlawful strike, they can file a grievance against the union claiming damages. If an arbitrator finds the union authorized, encouraged, or failed to take reasonable steps to stop the illegal strike, the union may have to pay compensation.
What happens if employees just slow down their work instead of walking out?
Under the Labour Relations Act, a "strike" is broadly defined. A coordinated slowdown, an organized refusal to work overtime, or "work-to-rule" campaigns can all be classified as unlawful strikes if they are done to restrict output while a collective agreement is in force.
When should an employer consult a labour lawyer about a threatened walkout?
Management should contact legal counsel the moment rumors of a wildcat strike or illegal work stoppage begin. Preparing urgent OLRB applications or Superior Court injunctions requires immediate action to legally compel employees back to work and minimize financial damage.
Common Scenarios
- Mid-Contract Walkout: A dispute arises over a sudden change in shift scheduling, causing a group of warehouse workers to angrily walk off the job midway through their collective agreement. The employer files an urgent OLRB application for a cease-and-desist order to end the wildcat strike.
- Essential Worker Dispute: Healthcare workers, frustrated by stalled contract negotiations, threaten a mass "sick-out." Because they are governed by the Hospital Labour Disputes Arbitration Act, the strike is illegal, prompting government intervention and requests for court injunctions.
- Construction Sympathy Pickets: Unionized construction workers arrive at a job site to find a picket line set up by a completely different trade union. To show solidarity, they refuse to cross the line, effectively engaging in an unlawful sympathy strike that stalls the entire project.
What You Should Know
- If you are a unionized employee with a workplace complaint, always use the negotiated grievance procedure rather than taking matters into your own hands; participating in an unlawful walkout puts your job in serious jeopardy.
- Employers facing a sudden walkout should meticulously document the timeline of events, including which employees left, what time they clocked out, and what union stewards or leaders were doing during the disruption.
- Union leaders must actively and visibly direct their members to return to work if an unauthorized strike begins; failure to do so can result in significant financial penalties against the union.
- Do not assume that courts will automatically grant an injunction for an unlawful strike; in most cases, you must first apply to the Ontario Labour Relations Board for a declaration and remedial orders.
Featured Cases
Re International Union of Operating Engineers, Local 793 and Traugott Construction Ltd.
1984 CanLII 2011 (ON SC) · 1984-01-20Unlawful Strike and Collective Agreement Enforcement in Ontario
A judicial review case concerning the Ontario Labour Relations Board's refusal to enforce a collective agreement obtained through an unlawful strike. The court upheld the Board’s decision, applying judicial review principles and finding that the Board’s interpretation of its jurisdiction was reasonable.
Re Ajax and Pickering General Hospital et al. and Canadian Union of Public Employees et al.
1981 CanLII 1917 (ON SC) · 1981-02-06Labour Relations: Union Contempt After Compliance with Cease-and-Desist Order
A merits decision addressing whether a union can be punished for contempt after complying with a cease-and-desist order from the Ontario Labour Relations Board. The court ruled that it lacks jurisdiction to punish contempt for past conduct that has ceased, interpreting section 83a of the Labour Relations Act to resolve ambiguity in favor of the respondents.
Attorney-General for Ontario v. Canadian Union of Public Employees
1981 CanLII 1795 (ON SC) · 1981-01-30Unlawful Hospital Strikes: Injunction Granted Against Pat Kenny
A merits decision involving a dispute over whether the Attorney-General for Ontario must exhaust other remedies before seeking an injunction to restrain hospital employees from striking in violation of labor statutes. The court held that the Attorney-General may seek injunctive relief without exhausting alternative remedies when enforcing public interest statutes, and that section 20 of the Judicature Act does not apply to such actions. An injunction was granted only against one defendant, Pat Kenny.
Dewar et al. v. Dwan et al.
1957 CanLII 809 (ON SC) · 1957-03-11Employment Interference Case: Conspiracy and Unlawful Strike Claims Dismissed
A case involving allegations of conspiracy and interference with employment, where plaintiffs claimed defendants conspired to prevent their employment or procure their discharge through threats of an unlawful strike. The court found that the agreement among union members to refuse work alongside non-affiliated members was lawful, and the threat of an unlawful strike was insufficient to establish actionable interference without intent to injure.
Smith Bros. Construction Co. Limited v. Jones et al.
1955 CanLII 152 (ON SC) · 1955-03-14Union Picketing and Unlawful Strike: Injunction Granted Against Interference
A case involving union officers who placed pickets at construction sites, leading to subcontractors' employees refusing work. The court examined whether these actions constituted an unlawful strike or interference with contractual relations under the Labour Relations Act and considered the admissibility of a declaration of unlawful strike from the Ontario Labour Relations Board.
Dabous v. Thibault, Kennedy, Lachance and Mathieu
1954 CanLII 346 (ON SC) · 1954-08-25Unlawful Strike: Injunction Restraining Union Officers from Picketing
A case involving an unlawful strike and the legal limits on union officers' picketing activities. The court considered whether union officers could be restrained from picketing under the Labour Relations Act when the strike was unlawful, and whether the illegality of the strike affected the common law right to picket.
Smith Bros. Construction Co. Ltd. v. Jones et al.
1954 CanLII 348 (ON SC) · 1954-02-12Unlawful Strike and Picketing: Ontario Labour Relations Act Dispute
A merits decision involving a dispute over whether the defendants’ strike activities, including picketing and threats of contractual breaches, constituted an unlawful strike under the Ontario Labour Relations Act. The court considered whether injunctive relief was warranted and whether the actions interfered with third-party contracts.
General Dry Batteries of Canada Limited v. Brigenshaw et al.
1951 CanLII 114 (ON SC) · 1951-05-23Labour Dispute: Peaceful Picketing During Unlawful Strike
A labour and employment case addressing the legality of peaceful picketing during an unlawful strike and the court's jurisdiction to issue injunctions to protect property rights. The case examines whether employees retain a common law right to inform others of a strike, even if the strike is unlawful, and whether courts can restrain acts beyond peaceful picketing, such as intimidation or interference with business operations.