Alberta uses the notwithstanding clause to order teachers back to work: What you need to know

By ZOE MASON on October 29, 2025.

zmason@medicinehatnews.com

Legislation passed early Tuesday morning ordering teachers back to work is invoking the notwithstanding clause. This will mark the second time the province has used the clause to push through legislation that could otherwise be challenged on the grounds it violates the Charter of Rights and Freedoms.

Alberta first used the clause in 2000 to pass Bill 202, an anti-same-sex marriage amendment to the provincial marriage legislation.

Monday’s Bill 2, also known as the Back to School Act, ordered teachers back to the classroom as the province-wide strike reached its fourth week.

“This strike has gone on long enough. It’s clear there’s no path forward unless we act,” said Premier Danielle Smith in a statement Monday. “The Back to School Act refocuses everyone on what matters most, the education of Alberta’s students. Bill 2 puts students back at the centre of our system, while we continue to work with teachers and families to build lasting stability in Alberta’s schools.”

Retired Medicine Hat-based political science professor Jim Groom says that typically, the Alberta Teacher’s Association would have the opportunity to take the government to court if they were ordered back to work.

“The government jumped to the chase, you might say, and preempted it by putting in place the notwithstanding clause,” said Groom on Tuesday in an interview with the News.

The notwithstanding clause, otherwise known as section 33, was originally introduced in 1982 when Canada repatriated its constitution from Great Britain. The clause was introduced in response to criticisms from provincial governments that the Charter stripped too much power from provinces.

It was Alberta Premier Peter Lougheed who suggested the compromise. The notwithstanding clause could be used to override rights and freedoms outlined in the Charter in sections two and seven through 16 – the sections concerning fundamental freedoms and legal rights, respectively. Legislation invoking the clause expires after five years.

One of the freedoms articulated in section two is the freedom of association. A 2015 supreme court decision, the Saskatchewan Federation of Labour vs. Saskatchewan, established that freedom of association in the Charter amounts to a constitutional right to strike.

The notwithstanding clause has been used to intervene in labour action only once before in Canadian history.

In 2022, Ontario used it to prevent educational assistants from striking. The move was so unpopular that Premier Doug Ford announced he would rescind it just four days later.

If the use of the clause in this case holds, Groom says it leaves a troubling precedent.

“It will mean that nobody in this province has a right to strike anymore,” said Groom. “If the government says, ‘We’re going to order you all back to work,’ the right to strike is being systematically removed from public sector unions.

“It’s against the constitution. It’s against civil rights and it’s against human rights. It’s a clear violation of all those rights.”

Groom says the notwithstanding clause was not the government’s only option. It could have ordered the teachers back under the Labour Code. He says the choice was a political one designed to put pressure on unions.

When the legislation was tabled Monday, government house leader Joseph Schow also brought forward motions to limit debate. As a result, the legislation introduced at 6 p.m had passed by 2:30 a.m.

Critics have described both the use of the notwithstanding clause and the limitation of debate as undemocratic.

According to Groom, the limitation of debate is a tactic the UCP government has used to expedite the passing of controversial legislation before.

The UCP similarly limited debate and pushed through the controversial Bill 22, which included the firing of election commissioner Lorne Gibson, who was responsible for the investigation into the UCP leadership race in 2019. Groom points out that then-premier Jason Kenney was conspicuously absent from the legislature at a conference in Houston when that bill was rushed through the house.

Premier Danielle Smith was also absent Monday, en route to a meeting promoting Alberta energy in Saudi Arabia.

If the teachers defy the back to work order, Bill 2 outlines steep fines of up to $500 per day for individuals and $500,000 per day for the union.

“The teachers are handcuffed. They can’t do anything,” said Groom. “But the rest of the people could.”

President of the Alberta Federation of Labour Gil McGowan told CBC that AFL is considering a province-wide strike in response. AFL represents 24 unions.

Various provincial officials indicated the UCP government is considering the use of the notwithstanding clause on other legislation expected to be tabled this fall, including bills regarding gender-affirming care for minors and the use of pronouns in schools.

The use of the notwithstanding clause multiple times in one legislative session would be unprecedented.

“It used to be really unusual for anybody to do it, except Quebec. Now we see it threatened by Ontario and threatened by Alberta. It’s unfortunate,” said Groom. “My concern is that it doesn’t conform to the original design of the notwithstanding clause.”

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