The Freedom of Association Mess: How We Got into it and How We Can Get Out of it

McGill Law Journal, Vol. 54, pp. 177-212, 2009

36 Pages Posted: 26 Sep 2009

See all articles by Brian A. Langille

Brian A. Langille

University of Toronto - Faculty of Law

Date Written: June 22, 2009

Abstract

Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

Keywords: freedom of association, collective bargaining, constitutional rights and freedoms

Suggested Citation

Langille, Brian A., The Freedom of Association Mess: How We Got into it and How We Can Get Out of it (June 22, 2009). McGill Law Journal, Vol. 54, pp. 177-212, 2009, Available at SSRN: https://ssrn.com/abstract=1478088

Brian A. Langille (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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