Work on Trial: Canadian Labour Law Struggles (review)

Abstract

Reviewed by: Work on Trial: Canadian Labour Law Struggles James Muir Work on Trial: Canadian Labour Law Struggles edited by Judy Fudge and Eric Tucker. Toronto: Irwin Law for the Osgoode Society for Legal History, 2010, 426 pp. Cloth $40.00. Work on Trial: Canadian Labour Law Struggles is a collection where every one of its 11 substantive chapters is good, and several are excellent. Labour law in Canada in the twentieth and twenty-first [End Page 583] centuries is policy driven, and through detailed case studies, this book wonderfully illustrates how legislative and tribunal policy are brought into effect, or not, by affected parties and courts often reluctant to embrace government policy goals. All of the chapters tell their stories economically, with interesting details about the events and players involved to help explain why these cases became the cause celebres they became. The substantive chapters are grouped into five topical sections. The first section contains a pair of chapters, one by Jennifer Llewellyn and Blake Brown on Toronto Electric Commissioners v. Snider and the other by Beth Bilson on John East Iron Works v. Saskatchewan Labour Relations Board, which speak to the origins of Canada’s current labour law regime. The first case led to limits on federal jurisdiction regarding labour; the second concerned whether a provincial government could create a non-judicial tribunal, like a labour relations board, that exercised judge-like powers. In both cases, the courts imposed limits on the state’s capacity to implement its labour relations policy. The second part, entitled “Responsible Unions,” contains William Kaplan’s study of the origins of the Rand Formula, Mark Leier’s chapter on a case testing a union’s power to police its own members, Kuzych v. White et al., and Sean Cadigan’s analysis of the legal and regulatory regime that shaped the organizing of Newfoundland’s offshore oil workers in the 1990s and 2000s. Each of the chapters offers new and interesting findings: Leier effectively recasts Kuzych as a case about the authority of union executives in the face of (however limited) rank and file dissent. The story in Cadigan’s chapter has not yet been told with the thoroughness here, and it underscores how government labour policy, legislation, and trade union success are shaped by immediate local conditions. Of the three, the Kaplan chapter is the most enlightening and the most frustrating. At times, Kaplan seems to view many of the people and organizations involved with some distaste, implied in the tone but not supported through well-documented historical argument. For example, he notes the reluctance of Windsor’s chief constable and mayor to interfere with the picket lines. Kaplan concludes, “Union towns are often like that” (p. 79). As a historically testable statement this is debatable; moreover, it fails to explain why the mayor and the police chief acted as they did. Despite this, Kaplan’s chapter is exceptional in its detailed account of the hearings Ivor Rand conducted as he arbitrated an end to the dispute, a rare close description of how an arbitration was run. Likewise, Kaplan’s dissection of Rand’s award is useful and welcome: the Rand Formula it contained has become central to Canadian labour relations, but the award itself is actually difficult to access. The third section, with essays by Malcolm Davidson, Eric Tucker, and Philip Girard and Jim Phillips, addresses collective action: whether a worker can be fired for participating in a legal strike, and the law regarding information pickets either at third parties to labour disputes or on shopping mall property. In each case there is a significant amount of complex common law principle and precedent that has to be explained before the legal elements of the dispute and the legal rulings can be fully understood. The authors do a nice job at presenting this background without letting it interfere with their narratives. This trio is the strongest section of the book. The fourth part deals with the development of human rights in the workplace over the last 40 years. Joan Sangster starts at the beginning of this period with a study of the fight by flight attendants at PWA to continue working while pregnant...