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This thesis explores the role played by law in the current breakdown of the employment pension system, focusing on the legal status of pension plans within the employment relationship, and on the way lawmakers have defined, shaped and enforced employee pension rights. It traces the legal status of employment pensions from their 19th Century characterization as gifts to reward employees for long and faithful service, to their current 21st Century construction as terms of the contract of employment. The thesis argues that Canadian lawmakers within all three legal regimes structuring rights and obligations within the employment relationship – the common law, collective bargaining law and statute law – have contributed significantly to the overall dysfunction of the system by cultivating both substantive and procedural legal rules that locate critical issues concerning the scope, design, durability and distribution of employee pension rights within the control of employers. Predictably, Canadian employers have used that control to shape pension plans to meet their distinct business needs, needs that frequently collide with worker needs and expectations for good pensions. Even in the heyday of the ‘Fordist’ work structures that fostered employment pension plans, the system delivered benefits very unequally, privileging the interest of elite workers who fit the ‘male breadwinner’ mould, and failing to provide adequate and secure pensions for the majority of Canadian workers. Changes in the organization of work in Canada, including trends towards more precarious work, will continue to exacerbate the problems inherent in the system, escalating its distributional inequalities. In the current round of pension law reform, Canada’s policy makers should abandon the effort to repair a system which is flawed at its core, and should instead seek a new foundation for pensions outside the employment relationship, a foundation which will not subordinate the pension interests of workers to the business interests of employers.

Some years ago, both Ontario and British Columbia amended their employment standards legislation to require employees in unionized workplaces to adjudicate their employment standards claims through their collective agree- ments. Unions at the time objected to the downloading of costs of public rights enforcement onto grievance arbitration - rightly, in the author's view, because grievance arbitration is designed to resolve disputes arising from private law generated by collective bargaining, not to enforce individual rights conferred by public law. By placing employment standards claims within the exclusive juris- diction of arbitrators, the amendments made those statutory rights part of the "bundle" that is subject to the compromises and tradeoffs inherent in collective agreement dispute resolution. The author acknowledges that there are compel- ling reasons to consolidate the adjudication of workplace disputes, including the potential for duplicative litigation, and the fact that private and public rights are closely intertwined in the modern workplace. What is needed, she suggests, is a custom-designed public tribunal, along the lines of a "labour court," with plenary jurisdiction to enforce both public and private rights, operating on prin- ciples that recognize society's interest in access to justice and equality before the law. She calls for further research to determine the impact of blending public and private rights enforcement systems on collective bargaining as an institution and on the welfare of unionized employees.

In the Weber case, the Supreme Court of Canada enlarged the scope of jurisdiction of labour arbitrators by holding that they have exclusive jurisdiction over all disputes arising not only expressly, but also "inferentially," from a collective agreement. Unfortunately, the expanded jurisdiction conferred on arbitrators was not accompanied by any direction as to where they should look for the normative standards necessary to adjudicate claims where those stan- dards are not provided by the collective agreement, creating the potential for what scholar and arbitrator Brian Etherington has called a Weber gap. There is the potential for such a Weber gap in relation to workplace pension issues, which have traditionally been dealt with by the courts. In Bisaillon v. Concordia University, the Supreme Court of Canada applied a liberal version of the Weber test to a pension dispute, holding that it belonged within the exclusive jurisdic- tion of an arbitrator. Courts and arbitrators have had starkly different responses to this decision: courts have embraced the Court's liberal approach and refused jurisdiction over many pension claims they would previously have dealt with, while arbitrators have taken a narrower view and have been hesitant to expand their own jurisdiction. This divergence has led in practice to an enforcement gap that may leave some unionized employees without access to an effective forum in which to vindicate pension rights. The author proposes that this problem could be addressed through a liberalization of arbitral practice, through collective bargaining, or through legislative reform.

In this paper, the author argues that by imposing a duty to accommodate on unions in the Renaud case, the Supreme Court of Canada intended primarily to encourage unions to cooperate with employer efforts to accommodate, and did not seek to make unions co-liable for all discrimination embedded in collect- ive agreements. The Court's decision was ambiguous, however, and subsequent tribunals and courts have distorted its original intent by imposing joint (and sometimes sole) liability on unions for discrimination in situations in which they had no meaningful control over bargaining outcomes or no independent abil- ity to accommodate the claimant, or in which unions' representative role was not properly considered. Unions have largely avoided Renaud-based liability because, in the decades since that decision, workplace human rights claims have increasingly been dealt with through grievance arbitration (where unions are not vulnerable to co-liability claims) rather than before human rights tribunals. The author sees this as a generally positive development which permits human rights claims to be integrated with collective agreement claims and places pri- mary accountability for workplace discrimination on employers, who are best placed to remedy the discrimination. She acknowledges, however, that dealing with workplace discrimination at arbitration could create conflicts of interest, which may require reconsideration of some aspects of current procedure. She concludes that Renaud has largely done the job the Supreme Court intended, although it has done so by influencing union behaviour in arbitration rather than by making unions directly accountable for compliance with statutory human rights norms. She expresses continuing concern about Renaud's ambiguities and calls on the Supreme Court to clarify Renaud's message in light of modern conceptions of the duty to accommodate and the realities of workplace power distribution.

Current policy debates about Canada's retirement income system have failed to consider "gender risk" - i.e. the risk that Canadian women will bear a disproportionate share of welfare loss in old age. This paper argues that the continuing gender disparity in retirement income reflects Canada's heavy reli- ance on private pension instruments generated and shaped by labour markets. The author begins by looking at the relationship between gender and Canada's three-pillar retirement income system, noting that while public pensions distrib- ute benefits based on explicit policy goals, private pensions distribute them based on the "hidden hand" of market principles. She then considers the differential impact of employment-based pension plans on men and women as a function of the distinct patterns of male and female engagement in the labour market. Noting the close relationship between pension design choices and gender outcomes, she goes on to discuss the pension reforms introduced by Canadian governments in the 1960s and 1980s, in which those governments saw gender inequality as an issue to be addressed primarily by mandatory public plans rather than by voluntary private plans. Ultimately, the author contends, the gendered impact of Canada's pension system flows from the complex interaction between women's paid employment and their reproductive and caregiving work. A gender-equal pension system would recognize the unequal burden borne by women in labour markets and in families, and would pool and share the welfare risks which that inequality entails. Voluntary employment-based pension plans shaped by market imperatives at the enterprise level will not address these issues, in the author's view, nor will the type of individualized pension contemplated by the federal government's recent PRPP legislation providing for pooled savings vehicles to which employers do not contribute. What is needed, she argues, is a broad- based collective risk-sharing vehicle such as the CPP/QPP.

[E]xamines the structure and functioning of teacher bargaining under both the Conservative government (1997-2001) and the subseuqent Liberal government, including the latter's innovative and informal introduction of centralizaiton, and the effects of these approahces on fostering or impeding bargaining. --Editors' introduction