Introduction
Make no mistake: Section 107 of the Canada Labour Code is not just a technical clause in labour law. It is a constitutional fault line. By giving sweeping discretionary powers to the Minister of Labour and the Canada Industrial Relations Board (CIRB), Section 107 creates conditions where democratic accountability is sidelined, workers’ Charter rights are undermined, and the regulatory process itself risks capture by corporate and political interests.
This article takes a hard look at Section 107, its legality under Canadian constitutional law, and the CIRB members who wield its powers. The evidence is clear: Section 107 is a blank cheque for government intervention in labour disputes and a codified pathway for regulatory capture.
What Section 107 Authorizes
Section 107 allows the Minister of Labour to intervene directly in labour disputes by referring matters to the CIRB and granting the Board authority to:
- Regulate its own procedures,
- Decide questions of fact and law,
- Issue binding orders, and
- “Do all things necessary” to resolve disputes and secure “industrial peace.”
On paper, it is meant to prevent economic paralysis. In practice, it is a Henry VIII clause: a sweeping, open-ended delegation of authority that hands government and the CIRB extraordinary power with minimal checks.
Legal Pitfalls of Section 107
Ultra Vires Delegation
Parliament can delegate administrative powers, but not unlimited legislative authority. Section 107 comes perilously close to an unconstitutional transfer of power, allowing both the Minister and the CIRB to bypass normal democratic constraints.
Charter Violations
When invoked, Section 107 can impair fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms, including:
- Freedom of Association (s. 2(d)) – limiting workers’ right to strike or organize,
- Freedom of Expression (s. 2(b)) – restricting collective protest or speech,
- Equality Rights (s. 15) – creating differential treatment between federally and provincially regulated workers.
A tribunal acting under Section 107 could impose rulings that would not survive Charter proportionality analysis under the Oakes test.
Rule of Law and Natural Justice
The Supreme Court has recognized the rule of law as an unwritten constitutional principle. Section 107 undermines this by granting the CIRB authority to act arbitrarily—“to do all things necessary”—without clear boundaries. This erodes fairness, reasonableness, and transparency, all essential elements of administrative justice.
Regulatory Capture
Regulatory capture occurs when a body meant to act in the public interest becomes the tool of those it regulates. Section 107 institutionalizes capture by giving the CIRB sweeping discretion while insulating it from effective oversight. When the Board’s leadership has deep industry ties, the appearance and risk of bias is magnified.
The CIRB’s Membership and Industry Ties
The CIRB is the tribunal that exercises Section 107 powers. Who sits on the Board matters, because their past affiliations can tilt outcomes.
Chairperson
- Maryse Monique Marie Tremblay (Appointed May 1, 2025, for five years)
- Over 32 years in labour and employment law.
- Former Senior Legal Counsel at Air Canada for seven years.
- Partner at Borden Ladner Gervais LLP before appointment.
- Active in the Canadian and American Bar Associations and the Canadian Association of Counsel to Employers.
Her direct professional history with Air Canada raises serious questions about impartiality, especially when Section 107 has been invoked in disputes involving Air Canada, such as the 2025 flight attendants’ strike.
Vice-Chairpersons
- Louise Fecteau (since Dec 2020)
- Sylvie Monique Denise Guilbert (since Jul 2024) – also President of the Administrative Labour Relations Association (ALRA), a body that networks regulators and practitioners.
- Roland Anthony Henry Hackl (since Jul 2024)
- Jennifer Leigh Webster (since Oct 2024)
Employee Representatives
- Lisa Clare Addario
- Angela Michelle Talic
- Daniel Thimineur
Employer Representatives
- Richard Georg Rolf Brabander
- Thomas Erskine Frank Brady
- Elizabeth Cameron
Part-Time Members
- Paul Raymond Moist – Employees’ representative.
- Barbara Leah Mittleman – Employer’s representative.
Why Industry Ties Matter
- Air Canada Connection: With Tremblay at the helm, the CIRB is led by someone who previously defended the interests of one of the most frequent subjects of Section 107 interventions. This creates at minimum an apprehension of bias—a legal standard recognized by the Supreme Court in Committee for Justice and Liberty v. NEB (1978).
- Union-Government Nexus: Appointees tied to ALRA and other labour-law networks blur the line between regulator and industry insider.
- Systemic Risk: When those empowered under Section 107 come from the very corporations and associations most affected by it, the CIRB ceases to be an impartial tribunal and becomes an enforcement arm of entrenched interests.
Why Section 107 May Be “Illegal”
- Ultra Vires – Parliament cannot constitutionally hand over unlimited discretion.
- Charter Infringements – Rights to strike, bargain, and express dissent are curtailed.
- Rule of Law Violations – Arbitrary discretion undermines constitutional order.
- Regulatory Capture – The CIRB’s structure and appointments create the conditions for captured governance, undermining democratic accountability.
Remedies and Reforms
- Judicial Review – Courts can strike down CIRB rulings made under Section 107 as unreasonable, biased, or unconstitutional.
- Constitutional Challenge – Section 107 itself could be challenged for violating Charter rights or the rule of law principle.
- Legislative Reform – Parliament must amend or repeal Section 107 to rein in unchecked discretion.
- Conflict of Interest Safeguards – Mandatory recusal rules for Board members with industry ties are essential.
Conclusion
Section 107 of the Canada Labour Code is not a neutral mechanism for resolving labour disputes—it is a statutory lever for state intervention and corporate influence. Its overbreadth, Charter vulnerabilities, and facilitation of regulatory capture make it arguably unconstitutional.
The CIRB’s current composition only underscores this problem: when its leadership has deep ties to the very industries it regulates, the risk of bias becomes systemic. Allowing Section 107 to remain in force without challenge normalizes illegality, erodes the rule of law, and opens the door to authoritarian governance.
The line must be drawn here: unchecked state power in labour relations cannot be tolerated if Canada is to remain a constitutional democracy.