The Freedom to Strike in Canada: A Brief Legal History

(2010), 15:2 Canadian Labour and Employment Law Journal, 333-53

23 Pages Posted: 11 Mar 2010 Last revised: 12 Jul 2010

Eric Tucker

York University - Osgoode Hall Law School; Cleveland-Marshall College of Law, Cleveland State University (Visiting)

Judy Fudge

Kent Law School

Date Written: February 25, 2010

Abstract

In the B.C. Health Services Subsector case [2007] 2 S.C.R. 391, the Supreme Court Canada relied, in part, on the history of Canadian labour law to support the conclusion that collective bargaining was an activity that was protected under the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Thus, it is likely that the Court will consider Canadian labour law history to determine whether or not constitutional protection also extends to the freedom to strike. The two principal purposes of this paper are: 1) to provide an analytic framework for approaching the history of the right to strike; and 2) to sketch out the contours of that history. First, we claim that it is only possible to understand the legal “right” to strike in the labour relations context in relation to the freedom to associate and the freedom to bargain collectively. Second, the paper draws upon W.N. Hohfeld’s typology of jural relations in order to analyze and to evaluate the rules that shape the legal relationships between individuals and social groups. Third, we map the complex and historically evolving legal relations governing the freedom of association, collective bargaining and striking during successive regimes of industrial legality in Canada.

Keywords: stikes, Canada, legal history

Suggested Citation

Tucker, Eric and Fudge, Judy, The Freedom to Strike in Canada: A Brief Legal History (February 25, 2010). (2010), 15:2 Canadian Labour and Employment Law Journal, 333-53. Available at SSRN: https://ssrn.com/abstract=1567449

Eric Tucker

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 736-5578 (Phone)
416 636-5736 (Fax)

Cleveland-Marshall College of Law, Cleveland State University (Visiting) ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

Judy Fudge (Contact Author)

Kent Law School ( email )

Keynes College
Canterbury, Kent CT2 7NP
United Kingdom

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