Developments in Employment Law: The 1989-1990 Term

Abstract

In this review of the Supreme Court's decisions regarding employment law in the 1989-1990 term, the author notes that one of the most striking features of employment law is the extent to which the judiciary and labour boards are self-consciously wedded to contractualist premises in the formulation of roles governing work. He argues that there are a number of factors that render the contractualist vision of employment fundamentally misguided. First, employment law has never fully embraced the contractualist ideal. Second, the contractualist vision presupposes that economic power is somehow distinct from legal right and obligation, and that legal rights and obligations are simply the outcome of the exercise of economic power, mediated by consent. In this article, the author argues that the employment law cases decided by the Supreme Court of Canada in the 1989-90 term both illustrate the inadequacy of the contractualist vision and implicitly suggest ways in which employment law might move away from its historic fixation with contractualist values. The author's discussion includes reference to the following cases: Bank of Montreal v. Ng; Knight v. Indian Head School Division No.19; CAIMAW v. Paccar of Canada Ltd.; Saskatchewan (Human Rights Commission) v. Saskatoon (City); Saskatchewan (Human Rights Commission) v. Moose Jaw (City); Gendron v. Supply and Services Union of PSAC, local 50057; Centre hospitalier Regina Ltee v. Labour Court ("Montigny "); Hemond v. Cooperative Federee du Quebec.