Air Canada pilots are challenging the federal government's back-to-work legislation, asking Ontario's Superior Court to rule that the law breaches their charter rights.

A court filing by the pilots union says the legislation, which forces them to fly, conflicts with their legal obligations under the Canadian Aviation Regulations. The regulations prohibit pilots from flying if they have any reason to believe they are unfit to properly perform their duties.

"A right to strike is a necessary incident for employees to meaningfully exercise their freedom to associate in the workplace including their right to collective bargaining," the pilots' application said.

"The right to strike may only be restricted in the case of essential services where a work stoppage endangers the life, personal safety or health of the population. The right to strike is also an essential means by which employees convey information and raise awareness of the various issues in dispute between the parties. The impugned provisions limit both the liberty and 'security of the person' of pilots in a manner inconsistent with the principles of fundamental justice."

Labour Minister Lisa Raitt introduced the legislation March 12. It passed through the House of Commons and Senate and became law on March 14.

Raitt also referred the matter to the Canadian Industrial Relations Board, asking it to evaluate what a work stoppage would mean to Canadians' health and safety. Referring an issue to the CIRB bars the union and the airline from any work stoppage while the board investigates.

The pilots' application to the court says union members "have been under a significant amount of stress" due to the dispute and "Parliament’s removal of their only means of engaging in meaningful collective bargaining." But the back-to-work legislation means they can be prosecuted for refusing work if they feel unfit, the application says.

Raitt said Tuesday in Sudbury, Ont., that both parties can continue bargaining as they wait for an arbitrator to be assigned to conduct final offer selection, under which the sides submit offers and the arbitrator chooses between the two. She said the pilots were in talks for 18 months and had an agreement the union's members wouldn't ratify.

"The problem is at some point, and it would be this point, the Canadian public interest does come into play," Raitt said.

"I understand what is being said with respect to collective bargaining rights, and I understand that there's going to be challenges to it. And that's all appropriate, and that's going to happen. But as far as we're concerned, Air Canada is flying, there are no work stoppages, and the Canadian public interest has been satisfied."

Public servants advised against legislation

The government also used back-to-work legislation during Air Canada's contract dispute with customer service and sales staff last June.

A secret report obtained by The Canadian Press under federal Access to Information laws shows an appeal last summer from federal bureaucrats to use back-to-work legislation only as a last resort appears to have fallen on deaf ears.

The Department of Human Resources and Skills Development advised the governing Conservatives to use the powerful legal measure sparingly after the airline's customer-service and sales staff walked out last June.

In it, senior officials urged the Tories to save the back-to-work law for emergencies.

The bureaucrats were not convinced the walkout by customer-service agents constituted anything more than a nuisance to air travellers.

The Conservatives threatened back-to-work legislation to end labour unrest between Air Canada and unions representing customer-service agents and flight attendants.