Alberta Teachers’ Association explores legal fight against strike ban

The Alberta Teachers’ Association (ATA) is considering its legal options to challenge the provincial government's back-to-work legislation, which forces teachers to end their recent walkout and return to classrooms.

Speaking to reporters on Tuesday, ATA president Jason Schilling condemned the government’s decision.

“The association will fight this abuse of power with every tool the law provides, and every ounce of conviction we possess,” he said.

The provincial government passed the Back to School Act using the notwithstanding clause—a rarely invoked provision that allows governments to override certain Charter rights for up to five years. By doing this, the legislation prevents teachers from striking and shields the law from being overturned in court.

The government argues this move was necessary to prevent further disruptions to students’ education. “Schools cannot go through another localized strike,” provincial officials stated.

Can the Notwithstanding Clause Be Challenged?

The question of whether Alberta’s law can face judicial scrutiny—despite the use of the notwithstanding clause—is a central concern in this unfolding legal landscape.

Although invoking the clause blocks courts from striking down the legislation, it doesn’t entirely prevent legal challenge, according to Marion Sandilands, a partner at Conway Litigation.

“Even if it can't be struck down because of the notwithstanding clause, the court can declare whether or not it violates Charter rights,” Sandilands said. “So in this case, the court might ask itself, does this violate the right to collective bargaining?”

This Issue May End Up at the Supreme Court

The uncertainty around how courts can respond to laws enacted under the notwithstanding clause isn’t limited to Alberta. Recent cases in Saskatchewan and Quebec have added to the debate.

In Saskatchewan, the government used the clause in 2023 to prevent minors from changing their names or pronouns in school without parental consent. Meanwhile, Quebec invoked the clause in 2019 to pass its controversial secularism law. Legal outcomes in both provinces differed, creating confusion about how much courts can intervene when the clause is used.

“These cases raise philosophical questions about whether courts can review and make declarations about Charter rights being violated—even after the clause is invoked,” said Vibert Jack, litigation director at the BC Civil Liberties Association.

Both cases are now set to reach the Supreme Court of Canada, though the court hasn’t yet agreed to hear the Saskatchewan appeal.

Symbolic Victory Still Matters

Even if Alberta’s law cannot be struck down, Sandilands said a court ruling could still hold symbolic weight.

“A declaration by the court that the law violates freedom of association would be a moral victory for the union. It could also sway public opinion,” she explained.

Jack echoed that sentiment.

“It's not meaningless. It puts the government and citizens on notice that there’s a problem with this law that needs to be addressed,” he said.

While teachers have returned to classrooms in compliance with the legislation, several legal groups have expressed concerns about how the clause was used.

The Canadian Bar Association’s Alberta branch criticized the pre-emptive invocation of the clause, saying it undermines the judiciary’s role. “It should only be used as a tool of last resort, after the courts have had a chance to examine the legislation,” said President Christopher Samuel.

Civil liberties groups, including the Canadian Civil Liberties Association, have signaled interest in participating if the ATA launches a legal challenge.

“This use of the clause is anti-democratic and undermines people’s confidence in systems we’ve long taken for granted—like collective bargaining,” said executive director Howard Sapers.