Labour Studies Index

Updated: 2020-03-01

Three Essays on Legal Issues Impacting the Employment Relationship in Canada

Document type Thesis
Author Curran, Bruce John
Degree Ph.D., Centre for Industrial Relations and Human Resources
Publisher University of Toronto; Toronto
Date 2015-11
Pages 173 pages
URL https://tspace.library.utoronto.ca/handle/1807/97283

Abstract

The first of three papers helps resolve the substantial debate about the impact of Honda v. Keays, a 2008 Supreme Court of Canada decision modifying the principles for compensating employees for improper employer conduct during dismissal (called “moral damages”). I performed content analysis on all relevant Canadian cases in the four years after Honda and an equivalent period before Honda and then used a tobit model to test legal scholars’ and lawyers’ predictions. I find that moral damages are less probable after Honda. Furthermore, the size of awards is smaller in those cases where moral damages are granted, partly because certain levels of employer misconduct now produce lower damages. However, I also find that, since Honda, high levels of mental distress are compensated more richly. The second paper is motivated by the absence of recent studies that investigate delay in grievance arbitration, despite increasing concerns being voiced about the issue. I performed content analysis on a random sample of about 400 Ontario arbitration awards, and then used a proportional hazards model to examine the extent of delay and its determinants. Consistent with common perception, the results suggest that delay has become a worse problem over the past two decades. I find that certain legalistic factors and the expanded jurisdiction of arbitrators over specific types of issues are associated with delay. The results also show that certain dispute resolution procedures are related to decreased delay, and this suggests some practical solutions. Prompted by a recent series of Supreme Court of Canada (SCC) decisions on freedom of association (FOA) in the labour context, the third paper critically examines the Canadian jurisprudence. The state of this law in Canada has been roundly criticized by various prominent labour law academics. This paper relies on Sheldon Leader’s theory of FOA to argue that the SCC should have interpreted s. 2(d) of the Charter as protecting collective bargaining and striking as independent rights, rather than as rights necessary for the realization of the FOA. Having done so would have yielded jurisprudence that was more consistent and coherent.