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

in I. Entchev & L. Kelly, eds, Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein (Toronto: LexisNexis, 2016), pp. 251-304.

56 Pages Posted: 15 Aug 2017

See all articles by Brian A. Langille

Brian A. Langille

University of Toronto - Faculty of Law

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP

Date Written: September 1, 2016

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

Suggested Citation

Langille, Brian A. and Oliphant, Benjamin J., From Rand to Rothstein: Labour Law, Fundamental Values and the Judicial Role (September 1, 2016). in I. Entchev & L. Kelly, eds, Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein (Toronto: LexisNexis, 2016), pp. 251-304., Available at SSRN: https://ssrn.com/abstract=3016517

Brian A. Langille

University of Toronto - Faculty of Law ( email )

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

Benjamin J. Oliphant (Contact Author)

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

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