From Rand to Rothstein: Labour Law, Fundamental Values and the Judicial Role

Abstract

Labour relations in Canada is regulated by an intricate statutory regime that reflects an ongoing and contentious balancing of interests, a task uniquely apposite to the functions of deliberative, responsive democratic bodies. At the same time, labour relations regimes also implicate fundamental constitutional interests of the highest order, including freedom of association and equality, which the Courts are both well placed and commanded to uphold. As a result, it is unsurprising that the field of labour relations has always been a crucible for the murky, but critically important, issue of the appropriate division of labour between the democratic and judicial branches in a liberal democracy. This tension has animated the contributions of Justice Rothstein to constitutional labour law throughout his tenure on the top court, and the purpose of this paper is to place labour law’s historic struggle with this issue alongside Justice Rothstein’s more recent contributions. In doing so, the authors seek to clarify what is still at stake in this debate, and to draw out some key insights shared by our best thinkers, from Rand to Rothstein.

Keywords: Labour Law, Labor Law, Constitution, Constitutional Interpretation, Freedom of Association, Equality