Developments in Employment Law: The 1990-1991 Term
Supreme Court Law Review, Vol. 3, No. 2, p. 227, 1992
22 Pages Posted: 7 Jul 2008
Date Written: 1992
The author writes that all of the employment law cases for the 1990-1991 term implicate issues relating to freedom of association in the context of employment. For the purposes of the article, freedom of association refers generally to the freedom or ability of individuals to associate with one another in pursuit of certain common goals or objectives. Dominating the field is Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), where the Court held that section 2(d) of the Canadian Charter of Rights and Freedoms, which constitutionally guarantees freedom of association, does not include the right to bargain collectively. Other cases discussed include Lavigne v. OPSEU; Caron v. Canada (Employment & Immigration Commission); W.W. Lester (1978) Ltd. v. U.A ., Local 740; Canada (A.G.) v. Public Service Alliance of Canada; and Central Alberta Dairy Pool v. Alberta (Human Rights Commission). In addition to the fact that they implicate freedom of association concerns, the author argues that the judgments present two common themes. First, the judgments illustrate the logical indeterminacy of general constitutional and statutory provisions and, simultaneously, how such provisions can be and often are rendered concrete by reference to a world view that stresses individual autonomy. Second, they demonstrate the constitutive power of legal decision-making. By interpreting constitutional and statutory provisions by reference to a narrow vision of trade unionism, the Court facilitates the realization of its own preconceptions concerning the nature and meaning of unionism. The presence of these two themes illustrates that the Court's employment law jurisprudence manifests a deep antipathy toward the concept and exercise of union power.
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