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Full-Text Articles in Law
Inequality And Identity At Work, Jennifer Koshan
Inequality And Identity At Work, Jennifer Koshan
Dalhousie Law Journal
A clinic at the University of Calgary law school in 2014 worked with unions and workers'rights groups to develop constitutionalchallenges to the historic exclusion of farm workers from labour and employment legislation in Alberta. After exploring arguments under sections 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms, we concluded that, based on the existing jurisprudence, the equality rights arguments under section 15 were the weakest. This article explores what is lost when we fail to recognize the identity-based harms that flow from government violations of equality rights. It considers the nature of these harms, why they …
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
Dalhousie Law Journal
This article critically examines the Supreme Court of Canada's treatment of the contract of employment in its wrongful dismissal jurisprudence over the last 25 years, with the aim of challenging the view that only by exempting the contract of employment from the ordinary workings of contract doctrine or by resorting to public policy considerations can the common law of dismissal provide adequate protection for employees. The Court's jurisprudence reveals a commitment to what this paper calls the presumption of employer freedom, a view of the contract of employment which has its origins in the status-based master and servant relationship and …
Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil
Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil
Dalhousie Law Journal
For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did notprovide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter's rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could …
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Dalhousie Law Journal
The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …
Why The Right-Freedom Distinction Matters To Labour Lawyers-And To All Canadians, Brian Langille
Why The Right-Freedom Distinction Matters To Labour Lawyers-And To All Canadians, Brian Langille
Dalhousie Law Journal
This lecture is about very basic legal ideas such as rights, freedoms, and the distinction between them. It makes the argument that clear thinking about these basic ideas is required and that when these ideas are neglected we have a recipe for real legal confusion. More than that, a failure to attend to these basic concepts and their relationship can produce, as it has in recent Supreme Court of Canada Charter cases on "Freedom of Association," a real threat to the fundamental freedoms of all Canadians
Non-Majority Union Representation Conforms To Ilo Freedom Of Association Principles And (Potentially) Promotes Inter-Union Collaboration: New Zealand Lessons For Canada, Mark Harcourt, Helen Lam
Non-Majority Union Representation Conforms To Ilo Freedom Of Association Principles And (Potentially) Promotes Inter-Union Collaboration: New Zealand Lessons For Canada, Mark Harcourt, Helen Lam
Dalhousie Law Journal
North American union certification violates workers' freedom of association, a fundamental human right well established by the International Labour Organization (ILO); by denying workers the right to be represented when a majority of their co-workers does not favour a union. In Canada, the Supreme Court has drawn on ILO standards to recognize a constitutional right to bargain collectively and organize as part of freedom of association under section 2(d) of the Charter of Rights and Freedoms. However, such recognition of the ILO principles has, as yet, to translate into legislation that would provide non-exclusive, non-majority union representation, at least in …
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Dianne Pothier Collection
The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Dianne Pothier Collection
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 …
Bcgseu: Turning A Page In Canadian Human Rights Law, Dianne Pothier
Bcgseu: Turning A Page In Canadian Human Rights Law, Dianne Pothier
Dianne Pothier Collection
The Supreme Court of Canada's decision in British Columbia Government and Service Employees' Union (BCGSEU) v. British Columbia (Public Service Employee Relations Commission)' starts like a classic Lord Denning judgment. Within the first few lines, without even knowing what the legal issue really is, you know who is going to win because of how that person is presented. Justice McLachlin's judgment, speaking for a unanimous nine-person Court, begins by noting that the grievor, Tawney Meiorin, "did her work well" but nonetheless "lost her job."' It was that dissonance that made the facts of the case compelling for reinstatement. But what …
Crossing The Lines In Dolphin Delivery: Some Thoughts On The Parameters Of The Charter Application - Unpublished, Dianne Potheier
Crossing The Lines In Dolphin Delivery: Some Thoughts On The Parameters Of The Charter Application - Unpublished, Dianne Potheier
Dianne Pothier Collection
A threatened picket line which never materialized turned into the unlikely setting out of which the Supreme Court of Canada drew the demarcation lines between litigation to which the Charter does and does not apply. I use the description "unlikely setting" not because it is odd that labour picketing was the context for debating the issue of Charter application. The considerable extent to which Canadian law leaves labour picketing to the common law makes it an obvious place to assess the Charter's application to the common law. But it could not have been less planned than Retail, Wholesale and Department …
Recent Developments In Labour Law In Nova Scotia, Geoff England, Brian Hansen, Greg North
Recent Developments In Labour Law In Nova Scotia, Geoff England, Brian Hansen, Greg North
Dalhousie Law Journal
In the eighteen months since "Recent Developments in Labour Law in Nova Scotia" were last noted, the labour scene, both in Nova Scotia and generally across Canada, has been very active. Both the Supreme Court of Nova Scotia and the Supreme Court of Canada have been involved in several interesting decisions, and of particular interest is the fact that the Nova Scotia Labour Relations Board has issued several written decisions involving sections that hitherto had not been extensively considered. The following subject areas are noted here: first, unfair labour practices, where the Board has come down with several interesting decisions; …