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Until recently, parties to a contract did not owe any obligations of good faith towards each other in Canadian common law jurisdictions. There was no obligation of good faith in the negotiation process, none in the performance of contractual obligations, and only limited such obligations in contract termination.[1] There was, for example, no obligation not […]

Since the publication of the first edition in 1970, Labour and Employment Law: Cases, Materials, and Commentary has become the standard resource for labour and employment law courses across Canada. Prepared by a national group of academics -- the Labour Law Casebook Group -- the book has continued to evolve with each new edition, reflecting the considerable changes that have occurred in Canadian workplaces and the laws governing them. A great many changes throughout the book respond to the numerous developments in labour and employment law since 2011. The most high-profile of these has been the set of Charter decisions that extend the protection of freedom of association to include the right to choose an independent bargaining agent and the right to strike, and which rely significantly on international labour standards in doing so. Additionally, this new edition responds to the growing importance of international and transnational law with a completely revised chapter; focuses on the gig economy and the proliferation of contracting networks that have fissured workplace relations; provides examples of caselaw and policy discussions grappling with the reach of legal responsibility to workers in these new relationships; and deepens the treatment of the rights of dependent contractors at common law and under labour and employment legislation. New cases and other source material have been added, and material that appeared in previous editions has been updated. The result is a comprehensive and thoroughly contemporary volume that benefits from over forty-five years of use in law schools across the country, while at the same time taking advantage of cutting-edge scholarship in assessing issues of contemporary concern.

This essay attempts to put forward a research agenda for properly evaluating the changing nature of unions’ human rights representational obligations since Weber. I begin by investigating two legal questions: first, whether unions are held to a more stringent duty of fair representation (DFR) standard in regards to members’ discrimination grievances than prior to Weber and Parry Sound, and second, whether there has been a broadening of the concept of union discrimination under human rights codes, such that unions may be held liable for failing to bring forward discrimination grievances. With the legal picture in place, I then set out a series of empirical questions that need further research to properly assess whether, and to what extent, Weber and Parry Sound have altered unions’ human rights obligations in the administration of collective agreements, and more generally, their approaches to dealing with human rights issues in the workplace. The essay intentionally raises more questions than it answers, with the objective of provoking further research on important issues regarding labour law in action.

Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right.

Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right.

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice. This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individuals' proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employer's rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract. This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.

In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes have gained increasing visibility. In such cases a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.

This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.