The Polical Economy of Fairness: Frank Iacobucci's Labour Law Jurisprudence

Abstract

The Political Economy Of Fairness: Frank Iacobucci's Labour Law Jurisprudence† Brian Langille Faculty of Law, University of Toronto. Patrick Macklem Faculty of Law, University of Toronto. I Introduction Although Frank Iacobucci ran some rather large operations during his magnificent career (as provost of the University of Toronto, the largest university in the country, and as deputy minister of justice, the largest law firm in the country), and probably spent more time than he cares to remember on personnel issues, he was not a labour lawyer in his pre–Supreme Court life. But it is fair to say that he became one while on the Court. A good one. This is no mean achievement, and it is one in which Frank takes, as he has publicly admitted, some pride in having, as he put it, 'played in a minor role in the development of an ongoing debate on this most fundamental part of our lives.'1 It is no mean achievement because to be a good labour lawyer requires an overview, a coherent account, of all of the various and disparate laws (common law, employment-standards law, human-rights law, collective bargaining law – and much else) that bear upon the lives of human beings engaged in productive activity – often, not always, and decreasingly, within the legal category we call 'employment.' Articulating such an overarching and coherent account of the field is both difficult and a necessary precondition to principled decision making. It is a task Frank undertook with insight and passion. In what follows we first discuss this issue of the nature of labour law and Frank's role in articulating its basic theory. Then we discuss Frank's contributions to labour law under three headings: the common and statutory law of dismissal, the law of collective bargaining, and freedom of association under the Charter of Rights and Freedoms. Finally, we attend to several other cross-cutting themes in Frank's judgments that strike us as significant and revealing, not only of Frank's attitudes to law in general, and to labour law in particular, but of his attitude to life itself. Taken [End Page 343] together, these offer, as our title suggests, not simply a compelling view of the underpinnings of labour law but a moving and realistic account of the political economy of fairness. II What is Labour Law? An account of labour law is a complex narrative of a particular sort that can both explain the field – what it is and is not – and tell why it is important. It must lay out the conceptual metes and bounds of the subject and provide a normative justification for it. Frank had a deep understanding of what this part of our law was all about. He passionately and consistently gave voice to this basic understanding of labour law's point and purpose in the decisions he authored. His account was not unfamiliar and indeed it is important that it be familiar in order to be an account of what professional labour lawyers know is labour law. But it is not often that labour lawyers stop to articulate the basic account of their discipline. They are like fluent speakers of a language who have forgotten, if indeed they ever knew, its basic rules of grammar. But in the role in which Frank found himself, and given important elements of his judicial philosophy, he had to articulate the deep grammar of labour law by giving voice to its constituting narrative. Canadian labour law is the better for it, and, as in so many other respects, we are in his debt. Unlike many areas of law, labour law does not derive its coherence as a subject matter from distinctions and labels that traditionally demarcate legal fields, such as constitutional law versus statutory law; public law versus private law; or contract, property, or tort. Labour law straddles private law and public law and many classifications within each. Its private law...