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Full-Text Articles in Law
Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker
Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker
Articles & Book Chapters
Platform-mediated work, whether location-based, as in the case of Uber, or cloud-based, as in the case of Amazon Mechanical Turk, poses severe challenges to effective occupational health and safety (OHS) regulation. While the work performed in the platform environment is not usually very different from work performed in more traditional employment settings, the platform environment often exacerbates those risks by, for example, increasing stress and incentivizing long hours and work intensification. Regulating these hazards is impeded by ambiguities surrounding the legal relationship between platform operators and platform workers that make it uncertain whether the OHS regime even applies. As well …
Class Crimes: Master And Servant Laws And Factories Acts In Industrializing Britain And (Ontario) Canada, Eric Tucker, Judy Fudge
Class Crimes: Master And Servant Laws And Factories Acts In Industrializing Britain And (Ontario) Canada, Eric Tucker, Judy Fudge
Articles & Book Chapters
This chapter compares the historical development and use of criminal law at work in the United Kingdom and in Ontario, Canada. Specifically, it considers the use of the criminal law both in the master and servant regime as an instrument for disciplining the workforce and in factory legislation for protecting workers from unhealthy and unsafe working conditions, including exceedingly long hours work. Master and servant legislation that criminalized servant breaches of contract originated in the United Kingdom where it was widely used in the nineteenth century to discipline industrial workers. These laws were partially replicated in Ontario, where it had …
Regulating Strikes In Essential Services - Canada, Eric Tucker
Regulating Strikes In Essential Services - Canada, Eric Tucker
Articles & Book Chapters
This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.
Using Tickets In Employment Standards Inspections: Deterrence As Effective Enforcement In Ontario, Canada?, Rebecca Casey, Eric Tucker, Leah F. Vosko, Andrea M. Noack
Using Tickets In Employment Standards Inspections: Deterrence As Effective Enforcement In Ontario, Canada?, Rebecca Casey, Eric Tucker, Leah F. Vosko, Andrea M. Noack
Articles & Book Chapters
It is widely agreed that there is a crisis in labour/employment standards enforcement. A key issue is the role of deterrence measures that penalise violations. Employment standards enforcement in Ontario, like in most jurisdictions, is based mainly on a compliance framework promoting voluntary resolution of complaints and, if that fails, ordering restitution. Deterrence measures that penalise violations are rarely invoked. However, the Ontario government has recently increased the role of proactive inspections and tickets, a low-level deterrence measure which imposes fines of $295 plus victim surcharges. In examining the effectiveness of the use of tickets in inspections, we begin by …
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
Osgoode Hall Law Journal
In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Osgoode Hall Law Journal
In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. My analysis casts doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic, and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo …
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Osgoode Hall Law Journal
Legislation enacted in many states following the 2010 elections in the United States strengthened unilateral public employer control and weakened employee voice. This rebalancing of power occurred in the context of state public employee labour relations acts modeled on the National Labor Relations Act (NLRA), but with a narrower scope of bargaining than in the private sector. This narrow scope channels unions’ voice away from the quality of public services and towards protecting members from the effects of decisions unilaterally imposed by management. The Supreme Court of Canada has held that the freedom of association guaranteed by the Charter of …
'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia
Articles & Book Chapters
This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders, …
Assessing The Regulation Of Temporary Foreign Workers In Canada, Sarah Marsden
Assessing The Regulation Of Temporary Foreign Workers In Canada, Sarah Marsden
Osgoode Hall Law Journal
There has been an increase in the number of incoming temporary migrant workers to Canada over the past decade. In this article, I critically assess recent changes in the law governing temporary migration to Canada by using theoretical tools from the fields of sociology, geography, and legal geography. A multidisciplinary framework to understand Canada's labour migration policies is provided. Within the socio-historical context of migrant labour regulation in Canada, I argue that political and regulatory developments function to further entrench segregation and exclusion of foreign workers by maintaining a subclass of flexible labour. Specifically, I show that Canada's current temporary …
Who’S Running The Road?: Street Railway Strikes And The Problem Of Constructing A Liberal Capitalist Order In Canada, 1886-1914, Eric Tucker
Articles & Book Chapters
Street railway strikes in the late nineteenth and early twentieth centuries were frequently the occasion for large-scale collective violence in North American cities and challenged the capacity of local authorities to maintain civic order. However, this was only the most visible manifestation of the challenge that street railway workers’ collective action posed to the order of liberal capitalism, an order constructed on several intersecting dimensions. Using the example of Canadian street railway workers from 1886 to 1914, a period of rapid urbanization and industrialization, this article explores the ways the collective action by workers and their community sympathizers challenged the …
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Osgoode Hall Law Journal
This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
Osgoode Hall Law Journal
Under Canadian and American labour law, organized workers must be divided into bargaining units. In order to negotiate with employers on behalf of workers, these bargaining units must be certified. This entails receiving the approval of the appropriate labour relations board. The author argues that this requirement informs the outcomes of collective bargaining. This article takes the position that certification is a subtle method for maintaining the existing social order and the consequent distribution of power, without actually appearing to do so. Certification can be understood as a tool for fragmenting the potential power of labour's unity. The present analysis …
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Osgoode Hall Law Journal
This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
Osgoode Hall Law Journal
Workers' compensation has entered a period of rising complexity and increasing pressures for system change. This article explains the extent to which important assumptions and assertions made in this process are historically correct. The discussion includes the historical interaction of tort liability with workers' compensation, and the current proposals for "privatization."
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Osgoode Hall Law Journal
This article explores the appropriate relationship between human rights and collective bargaining laws through an examination of the Supreme Court of Canada's jurisprudence on the duty to accommodate. While collective bargaining can be an important force to promote equality for disadvantaged groups, resistance to changing the terms of collective agreements to accommodate those groups can arise, especially when other employees' seniority rights are affected. The emerging jurisprudence suggests that seniority rights will be respected in many situations, especially in layoffs, but the article outlines circumstances in which accommodation will be necessary to vindicate equality rights.
Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek
Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek
Osgoode Hall Law Journal
Statutory collective bargaining has been the linchpin of Canadian industrial relations since World War I. It yielded benefits to large segments of workers, although its reach and impact were always exaggerated. As the economic entente which underpinned the scheme is unravelling, workers fight desperately to hang onto a system which, in retrospect, looks even better than it did before. But the narrow, male-centred, economic premises of collective bargaining make statutory collective bargaining reform a poor vehicle with which to offset employer attacks on the working classes. An agenda which seeks to link the economic and the political, men and women, …
Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan
Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan
Osgoode Hall Law Journal
The authors analyze the interconnections between space, law, and power and forge links between critical studies in law and geography. Analytical categories of space-for example, the divide between public and private space, or the concept of national citizenship-are all politically constructed. The authors analyze Canadian and American concepts of federalism and their impact on regulating worker safety. A common judicial mapping of work, local space, and state regulation determines whether local officials have enforcement authority in contexts where national worker safety regulations apply. Through this analysis, the authors illustrate the potential for future studies in critical legal geography.
Labouring Outside The Charter, David M. Beatty
Labouring Outside The Charter, David M. Beatty
Osgoode Hall Law Journal
In this essay, Professor Beatty reviews the leading Charter cases decided by the Supreme Court of Canada which consider the constitutionality of a variety of different labour laws. In reasoning and result, he finds that by and large these cases provide strong support for those legal scholars who are generally sceptical of the law and critical of the courts and who predicted that, even with the Charter, it was unlikely the Court would change the antipathy judges have historically displayed to the interests of workers and their associations. However, while these legal theorists may draw some comfort from these decisions …
Contempt For Workers, Harry J. Glasbeek
Contempt For Workers, Harry J. Glasbeek
Osgoode Hall Law Journal
Charter proponents have been hopeful that the courts will use the constitutional entrenchment of rights to enlarge the political freedom of Canadians. Charter opponents have been doubtful of the court's ability to do so and, more importantly, of their willingness to do so where the enhancement of rights would undermine existing power relations. While many cases which come before the courts do not raise this issue squarely, the contradictory propositions are tested where capital labour conflicts are the subject of litigation. The argument is that it is the courts' historic mission to safeguard capital from working class challenges. Two recent …
The New Fordism In Canada: Capital's Offensive, Labour's Opportunity, Daniel Drache, Harry J. Glasbeek
The New Fordism In Canada: Capital's Offensive, Labour's Opportunity, Daniel Drache, Harry J. Glasbeek
Osgoode Hall Law Journal
The breakdown in the links of mass production and mass consumption poses problems throughout the advanced industrial world. In each nation-state the ensuing struggles will take different forms. In postwar Canada, the link between mass consumption and mass production did not lead to the same kind of trade union participation in decision-making as it did in much of Europe. Workers were unable to establish embedded rights of worker participation. What was known as the fordist model in Europe did not have deep roots in Canada. Canadian workers are now being attacked by employers whose bargaining powers were never seriously blunted, …
Shop Talk: Conversations About The Constitutionality Of Our Labor Law, David M. Beatty
Shop Talk: Conversations About The Constitutionality Of Our Labor Law, David M. Beatty
Osgoode Hall Law Journal
In this essay Professor Beatty joins the debate as to how, if at all, the Charter of Rights and Freedoms and the process of judicial review can be integrated with our tradition of democratic rule and the sovereignty of the popular will. Rather than deal directly with the arguments of those who are critical of the entrenchment of a written bill of rights, Professor Beatty endeavors to cast the Charter and the new role of the judges in the best possible light. Analogizing the process of constitutional review to "conversations of justification" (using examples drawn from the labour law field), …