Alberta teachers’ union threatens to go to court over Smith’s notwithstanding clause use

Alberta teachers are gearing up for a court battle against Premier Danielle Smith’s Back to School Act, slamming the government’s use of the notwithstanding clause as a “reckless abuse of power.”

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Alberta teachers are gearing up for a court battle against Premier Danielle Smith’s Back to School Act, slamming the government’s use of the notwithstanding clause as a “reckless abuse of power.” However, legal experts are quick to point out that the teachers’ case might not hold up.

The ATA accused the government of using “an extraordinary measure to override the rights of Albertans” and described the bill as “a gross violation of the foundational principles of collective bargaining.”

“This fight has just begun,” the union wrote, adding that it will “pursue all legal alternatives” to challenge the legislation.

The Back to School Act, which passed first reading Monday, legislates an end to the province-wide teachers’ strike and imposes a four-year contract that includes salary increases and class-size measures. Justice Minister Mickey Amery confirmed the government will rely on Section 33 of the Charter of Rights and Freedoms—the notwithstanding clause—to prevent court injunctions that could delay students’ return to school.

Christine Van Geyn, litigation director for the Canadian Constitution Foundation, said any lawsuit from the Alberta Teachers’ Association (ATA) would face the same hurdles as ongoing constitutional challenges in Quebec over the notwithstanding clause.

She explained that a case, Hak v. Quebec, is headed to the Supreme Court about the notwithstanding clause’s scope. This case challenges Quebec’s Bill 21, which prohibits public workers in positions of authority from wearing religious symbols.

Van Geyn explained that this case will include various arguments also relevant to any prospective challenge to Alberta’s Bill 2. Some of those include pre-emptively using the notwithstanding clause and being able to claim damages after Section 33 is invoked.

“In Hak, the federal government is making novel and shocking claims that the courts must consider inventing limits to the use of Section 33 in instances where repeated invocations or ‘exorbitant’ laws extinguish a right permanently,” she said.

She added that this constitutional amendment would impose new limits on the use of the notwithstanding clause that “appears nowhere in the text, and would allow judges to review and overturn an invocation of the notwithstanding clause.”

Van Geyn said these amendments and arguments would contradict the intentions of the original drafters. She added that the ATA will likely echo these points in any legal challenge to Bill 2.

Former Alberta premier Jason Kenney previously defended the clause as an essential part of Canada’s constitutional balance in an interview with True North. Speaking at the Canada 2020 conference in September, he warned that federal attempts to limit its use would be “strange and dangerous.”

“The provinces only signed on to the repatriation of the Constitution, including the Charter of Rights, back in 1982 because they included the Section 33 notwithstanding clause,” Kenney told True North. “Carney has no democratic mandate to pursue it, and I think it’s going to be very divisive in the federation.”

Constitutional lawyer Eva Chipiuk explained on X that the notwithstanding clause is a legitimate legal tool available to all levels of government. She noted it allows federal, provincial and territorial legislatures to pass laws that operate despite certain Charter rights, provided its use is stated explicitly in the law and renewed every five years.

Chipiuk said the clause was included in 1982 as a constitutional compromise to balance power between the courts and elected governments. It ensures legislatures retain authority to make final decisions on some issues even when courts disagree. She added the clause has been used previously in several provinces, including Quebec and Saskatchewan, and reflects Canada’s system of parliamentary democracy.

“Whether one agrees with its use or not, the clause highlights that democracy depends on both independent courts and accountable governments working together, or at least, that is what it is supposed to do,” she said. “So, if it is a legal tool meant to maintain this balance, why is there so much controversy when a government chooses to use it, especially when it is being used to ensure the public sector serves the public?”

Legal experts warned the Liberals’ bid to limit the notwithstanding clause could divide the country.

The ATA also argued that Bill 2 does not address classroom complexity.

However, the Alberta government announced a Class Size and Complexity Task Force to address growing challenges with classroom aggression and diverse learning needs.

“Teachers have made it clear that addressing classroom complexity and safety are among the most critical improvements needed in our education system,” said Smith. “We are taking real action to meet those needs by strengthening classroom supports, hiring more teachers and educational assistants, and acting on the recommendations of the Aggression and Complexity in Schools Action Team.”

The province received a draft report from the Aggression and Complexity in Schools Action Team. The team consulted teachers, school boards and disability organizations over the summer, and its recommendations will guide the new task force.

Budget 2025 allocates $55 million to address classroom complexity, a 20 per cent increase over last year.