IDRL 320: Labour Law in Canada (Rev. C5) Report a Broken Link

Required Readings/ Assignments

Unit 1

Fudge, J., & Tucker, E. (2000, Fall). Pluralism or fragmentation? The twentieth-century employment law regime in Canada. Labour/Le travail, 46, 251–306. This paper broadens the focus from collective bargaining law to include other forms of the legal regulation of employment relations, such as the common law, minimum standards, and equity legislation. In doing so, it examines the extent to which liberal pluralism regime was implicated in constructing and reinforcing a deeply segmented labour market in Canada. It also probes whether (he recent assault on trade union rights may be the trajectory for the reconstruction of a new regime of employment relations.
Fudge, J. (2004). Labour is not a commodity: The Supreme Court of Canada and the freedom of association. Saskatchewan Law Review, 67, 425–452. This article charts the shift in the Supreme Court of Canada's interpretation of the Charter of Rights and Freedom's guarantee of freedom of association in the context of claims by trade unions for protection of their collective bargaining rights.

Unit 2

Lynk, M. (2000). Union democracy and the law in Canada. Journal of Labor Research, 21(1), 37–63. This article examines some crucial and oft-debated questions, issues, and developments concerning union democracy.
Foster, J. Tips for reading court decisions.

This is a handy guideline to assist you in reading and interpreting court decisions and judgments.

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901. This important case illustrates that, while trade unions may no longer be considered illegal entities under common law, they are not immune from criminal offences, including criminal contempt of court.
Kellythorne, M. (2003). Toward a theory of the duty of fair representation. Appeal, 9, 32–44. The aim of this paper is to illuminate the development of the duty of fair representation and the discourse surrounding it, in the wider context of pluralism ideology.

Unit 3

Adams, R. J. (2005). Organizing Wal-Mart: The Canadian campaign. Just Labour, 6/7, 1–11. Wal-Mart has long fought any efforts by its employees to organize. This article describes efforts by Canadian Wal-Mart workers to become unionized.

Unit 4

Fudge, J. (2012). Constitutional rights, collective bargaining and the Supreme Court of Canada: Retreat and reversal in the Fraser case. Industrial Law Journal, 41(1), 1–29.

The scope of labour rights that are protected by constitutional protections of freedom of association is highly contested and, increasingly, is being litigated before courts. In Canada, an incremental expansion of the freedom of association to include core labour rights came to a halt in the Supreme Court's April 2011 decision Attorney General of Ontario v Fraser. This article provides a history of the successive rounds of litigation leading to the Supreme Court's decision in Fraser. The article then examines the four judgments that make up the Supreme Court of Canada's decision in Fraser. The implications of the Fraser decision for the immediate future of constitutional litigation and labour rights in Canada are discussed in the final section.

Unit 5

Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369. This case outlines some factors that should be taken into account when determining whether the scope of remedial orders by labour relations boards is reviewable by the courts.
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.

This Supreme Court of Canada case finally settled a controversial question concerning the interplay of individual and collective rights as they apply to trade unions.

Unit 6

Fudge, J., & Tucker, E. (2009). The freedom to strike in Canada: A brief legal history. Paper presented to the University of Toronto Right to Strike Workshop. Striking is a deeply embedded social practice in Canadian history. Strikes, more than any other dispute resolution mechanism, enable workers to participate directly in the process of determining their wages and working conditions. According to its authors, this paper aims, first, to provide an analytic framework for interpreting the history of the right to strike, and second, to outline the contours of that history.
Adell, B. (2003). Secondary picketing after Pepsi-Cola: What's clear, and what isn't. Canadian Labour and Employment Law Journal, 10, 135–159. In Pepsi-Cola, the Supreme Court of Canada overturned the common law prohibition against secondary picketing set out in the Hersees case on the basis that it offends the Charter value of freedom of expression. However, as the author points out, the decision in Pepsi-Cola leaves unanswered several key questions.

Unit 7

Alexandrowicz, J-P. (2003). Restoring the role of grievance arbitration: A new approach to Weber. Canadian Labour and Employment Law Journal, 10, 269–327. In Weber, the Supreme Court of Canada conferred exclusive jurisdiction on arbitrators to determine disputes which, in their "essential character," arise either "expressly or inferentially" out of the collective agreement. As the author notes, the approach adopted in Weber was an attempt to reconcile the industrial pluralist regime of private collective bargaining with the emergent regime of direct statutory regulation, in which both unionized and non-unionized employees are granted statutory rights under legislation that contains its own enforcement mechanism. The author argues, however, that Weber has proven difficult to apply in a consistent manner, resulting in a patchwork of contradictory decisions as to the appropriate forum for a dispute.