Proceed with Caution, or Stop Wherever Possible? Ongoing Paradoxes in Legalized Labour Politics
Canadian Labour and Employment Law Journal, Forthcoming
27 Pages Posted: 26 Nov 2009 Last revised: 5 Feb 2010
Date Written: September 15, 2009
This paper contributes to the debate over the role of Charter litigation as a vehicle for expanding labour’s power in Canada. Following a period of some consensus around labour’s need for a cautious approach to the Charter, recent court decisions concerning freedom of association have reinvigorated the inquiry into the Charter’s role in labour empowerment. This paper contributes to this debate through an examination of the Ontario Court of Appeal decision in Fraser v. Ontario (Attorney General). The paper provides a critical review of Fraser, understood as a clear expression of a key paradox within legalized politics, namely that while it sporadically offers progressive potential, legalized politics tends to reinforce and further legitimize the status quo, in an era when the ability of Canadian labour policy to remedy labour market and social inequality has clearly declined. On the one hand, Fraser extends recent judicial pressure on legislatures to protect freedom of association, and may have empowering consequences for agricultural workers, a relatively disadvantaged group. On the other, it furthers the legitimization and constitutional entrenchment of the Wagner model of effectuating freedom of association, and the narrow exclusive-majoritarian patterns of organizing and collective bargaining permitted by that model.
Keywords: Labour Law, Constitutional Law, Legal Politics, Freedom of Association
JEL Classification: K31, J53
Suggested Citation: Suggested Citation