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In Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 S.C.R. 391, the Supreme Court of Canada overturned precedent and concluded “that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected” (at para. 22). The author explores the Supreme Court of Canada’s change of heart and what this change implies, not only for constitutional doctrine, but also for what the Court understands about the governance of the postFordist world of work. She situates the Court’s reasoning in a few key cases dealing with labour’s distinctive rights – to bargain collectively and to strike – in the social context that both shapes the legal discourse about labour rights and influences organized labour’s power. She considers the paradox of the Supreme Court’s embrace of Fordist labour rights in a post-Fordist economy, and suggests a modest, though important, role that the Court could play in fostering social justice in the brave new world of work.
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Work on Trial is a collection of studies of eleven major cases and events that have helped to shape the legal landscape of work in Canada. While most of the cases are well-known because of the impact they have had on collective bargaining, individual employment law, or human rights, less is known about the social and political contexts in which the cases arose, the backgrounds and personalities of the judges and the litigants, the legal manoeuvres that were employed, or the ultimate fate of all those who were involved. These studies, written by some of Canada's leading labour and legal historians, provide this context. Beginning with Toronto Electric Commissioners v. Snider, one of the earliest and most important cases involving the division of powers in the Canadian federation, to the events leading to the articulation of the "Rand Formula" in the immediate post Second World War period, and on to the struggles of women workers in the late 20th century in challenging the continu-ing employment practices based on hegemonic gender-based assumptions, each study tells a compelling story, rich in detail and full of perceptive insights into the complex relationship between law and work. -- Publisher's description.
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This paper looks at the “deep roots” of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms — to associate, to bargain collectively, and to strike — the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of their review of those regimes, the authors argue that long before the modern scheme, workers enjoyed a virtually unlimited freedom to strike for collective bargaining purposes. Although government-imposed restrictions on the freedom have increased significantly, especially under industrial pluralism, legislatures have typically provided workers with compensating trade-offs, including rights enforceable against their employers. However, in contrast to the historical pattern, public-sector workers have with growing frequency been subjected to “exceptionalism,” i.e. the suspension or limitation of freedoms without a grant of compensatory rights. In the authors’ view, it is the imposition of such measures that will likely provide the context for consideration of whether the Canadian Charter of Rights and Freedoms protects the right to strike.
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