John Hilton-O’Brien is the Executive Director of Parents for Choice in Education, www.parentchoice.ca.Nobody likes back-to-work legislation. The fact that Alberta’s legislation ordering teachers back to work invokes Canada’s “notwithstanding” clause pre-emptively doesn’t make it any more comfortable. People who note that workers have a constitutionally protected right to strike have a good point. But that doesn’t make this piece of legislation illegal, or even unjust. The heart of the legal and rights problem is the uncertain nature of the organization running the strike.The Alberta Teachers’ Association is neither fish nor fowl. It’s not quite a professional college, limited to setting standards and disciplining members. It’s not a voluntary union, either: the Legislature created it, membership is mandatory, and it literally reports to the Minister. It can be amended or dissolved at will. Yet, it wields union powers — strike authorization, collective bargaining, and political advocacy funds. .RATH: Revenge of the Smith.This is the oddity: the ATA is a statutory corporation, created by and accountable to government, acting as if it were an independent adversary with constitutional protections. When Smith orders teachers back to work, she’s not overriding Charter rights: she’s revoking powers that the Legislature granted in the first place. The ATA has no more inherent right to strike than any other government agency.While the Supreme Court has recognized constitutional protection for the right to strike, those cases involved unions that workers formed voluntarily to bargain against their employers. The ATA wasn’t formed by teachers, but created by the Legislature. That distinction matters: when you're asserting rights against the very authority that created you and granted you those powers, you're not exercising a constitutional protection — you're wielding a delegated authority that can be withdrawn..If this were purely about law, Smith would be on solid ground. But politics isn’t law, and here her footing is less certain. In 2022, the ATA put aside $16 million into a “Defence and Advocacy Fund” for “non-core objectives.” That’s enough to match both major parties in advertising in every election. Its confrontational approach to the government often creates the appearance that it acts like a faction jockeying for ever more control of government functions — or even control of the government itself. The UCP’s best interest lies in discrediting the leadership of the ATA, and in causing it to expend resources frivolously.The strike did provide that opportunity. The ATA is not providing strike pay: if the strike were to go on, it would exhaust the reserves of teachers and ultimately turn them against the current union leadership. The best political move would have been to legislate teachers back to work, but not invoke the Notwithstanding clause, which is controversial in itself. When ATA management got an injunction to allow the strike to continue, it would have worn the entirety of the consequences. If Smith had followed this route, she could have scored a political win while watching the ATA damage its own credibility and exhaust members' patience with their leadership. But that is not the route she chose. .OLDCORN: Judges who ban poppies have forgotten what they stand for.When someone does something that hurts their own position for no obvious gain, you can usually trust their stated reason. Here, Smith took the politically costly path when an easier one was available. That means we should take her at her word when she says she is doing this to protect kids. And when she says that she will start a commission to investigate and address the concerns raised by teachers, we should believe her.So what principle is Smith actually following? She appears to recognize an order among competing rights claims. First come the rights of children and their parents. Second come the teachers, who serve the province in fulfilling that duty. The Alberta Teachers’ Association, as a state-created body meant to serve teachers, has no independent claim to rights at all. Smith has not infringed anyone’s rights — she is simply acting according to the moral order of her responsibilities.In a political world driven by calculation, Smith chose conviction. That deserves respect — and encouragement. But the underlying problem is that we have a statutory corporation trying to act as an independent union. The Legislature created an institutional absurdity — and the Legislature must fix it.John Hilton-O’Brien is the Executive Director of Parents for Choice in Education, www.parentchoice.ca.
