Alberta teachers are taking Premier Danielle Smith’s UCP government to court for passing a law to end their strike and for using the Charter’s notwithstanding clause to do it.
Jason Schilling, head of the Alberta Teachers’ Association, said on Thursday the union has filed an application asking for a judge to immediately pause the law until a full constitutional challenge is heard.
The case over Bill 2, the Back to School Act, is scheduled to be heard Nov. 20 in Edmonton Court of King’s Bench.
“In this action, teachers will ask the court to declare that the government’s use of the notwithstanding clause was improper and invalid,” Schilling told reporters.
He said the law violates teachers’ rights to freedom of association and expression, and, if left unchallenged, sets a dangerous precedent that could be used against other workers and citizens.
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“This legal action is not symbolic. It is necessary,” he said.
“We are standing up for the Charter itself, for the rule of the law and for the limits that protect citizens from arbitrary government decisions.”
Justice Minister Mickey Amery’s office could not immediately be reached for comment.
The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for up to five years.
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Smith used it last week to end the three-week provincewide teachers strike, saying the complexity of bargaining, the size of the walkout and the growing toll on students left her government with no other option.
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Smith faces pushback for using notwithstanding clause to end Alberta’s teachers’ strike
The move has renewed the debate over how best to balance the rules of the Charter with the responsibility of governments to determine and act on what is best for its citizens.
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Smith’s law not only invoked the notwithstanding clause, it imposed on 51,000 teachers a collective bargaining agreement they previously rejected. It also imposed severe fines of up to $500 per day per person for refusing to follow the law.
It has been condemned as dangerous government overreach by labour groups, civil rights advocates, lawyers’ organizations, Amnesty International and the Anglican Diocese of Edmonton.
Canada’s premiers are too quick to use the notwithstanding clause for “marginal reasons” and have lost sight of its original purpose, former prime minister Jean Chrétien said Wednesday evening.
Chrétien, who as justice minister negotiated the clause’s inclusion in the Charter of Rights and Freedoms in 1981, said provinces are using it “for anything” 40 years later.
“It was not designed for that. It was designed (for) when there was a court going too far, politicians can intervene,” he said of the provision, which gives legislatures the ability to override certain portions of the Charter for up to five years.
“That worries me very, very much.”
The Anglican Diocese of Edmonton said denying one group’s fundamental rights has deeper implications that could interfere with people’s freedom of conscience and religion.
On Tuesday, four major criminal defence organizations in Alberta said they were worried, noting residents should also be a alarmed by the use of the clause.
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“It is deeply concerning that this may be just the beginning, with the government confirming it is prepared to use the notwithstanding clause in other areas,” said a joint statement by the Criminal Defence Lawyers Association in Calgary, the Criminal Trial Lawyers’ Association in Edmonton, the Red Deer Criminal Defence Lawyers Association and the Southern Alberta Defence Lawyers Association.
“This reflects a flagrant disregard for fundamental rights and freedoms, and a cavalier attitude which is shocking to Albertans and to Canadians.”
— More to come…
— With files from Karen Bartko, Global News and Cassidy McMackon, The Canadian Press
© 2025 The Canadian Press
