How Justice Rand devised his famous formula and forever changed the landscape of Canadian labour law.

• Author: Kaplan, William
• Position: Canada Supreme Court judge Ivan Rand

INTRODUCTION

It is a great pleasure to be back at the Faculty of Law of the University of New Brunswick. I spent part of my first sabbatical as a law professor here--the fall of 1992. I had an office in the law library and had an excellent time working at the provincial archives, getting to know some of the truly wonderful faculty members at this great law school and exploring New Brunswick. When former Dean La Forest invited me to be this year's Rand lecturer, I could not have been more pleased. This lecture is dedicated to a giant of a man, a great Canadian and New Brunswicker, and Ivan Rand's chief aide when he was settling the Ford Dispute: Horace Pettigrove.

Ivan Rand was my hero in law school. As a puisne judge of the Supreme Court of Canada (1943-1959) he expanded federal authority, strengthening the centre and preserving the union. But it was his great civil liberties judgments that really attracted my attention: the Japanese deportation case, Boucher, Saumur, and, of course, that truly great contribution to the common law, Roncarelli v Duplessis. (1) Together, with at least two generations of law students, I sat in the law library and read in awe as Rand acknowledged the legitimate rights of Japanese Canadians, brutalized and robbed by their government during the Second World War and threatened, at war's end, with removal to a country most of them did not even know. It was Rand who stood up for the Jehovah's Witnesses during the dark days of Maurice Duplessis's authoritarian rule in Quebec in the 1940s and 1950s when witnesses were beaten and imprisoned by Quebec authorities acting with the blessings of the Roman Catholic hierarchy for the crime of going door to door and peacefully spreading their version of the word of God. It was Rand who upheld the rule of law by calling Premier Duplessis to account for his gross abuse of power. And it was Rand, at the height of the Red Scare, who defended communists and their right to free speech. "Who is this guy?" I used to ask myself, and I resolved to find out.

He was born on 27 April 1884 in Moncton, with a caul. For hundreds of years, the birth of a veiled child--his head covered by a thin membrane, was believed to be an omen. "This boy," the attending physician prophesied, "will have a great and worthwhile life." From very modest beginnings, Ivan Cleveland Rand would build a remarkable career of professional accomplishment and success. He was valedictorian at Mount Allison. He studied law at Harvard. He participated in the opening of the Canadian west before returning to his Moncton home where he served as a reformist Attorney-General. He was Regional Counsel of Canadian National Railways before getting the top legal job, Commission Counsel, in what was, in its day, one of the most important companies in Canada. In 1943, when the Maritime seat on the Supreme Court became vacant, Rand was the choice even though it was not New Brunswick's turn.

Rand had a great and worthwhile life. At the Supreme Court of Canada, Rand, improbably perhaps, became Canada's greatest civil libertarian judge. Where other judges saw a division of powers, and then went about mechanistically attempting to define and compartmentalize it, Rand saw something special in our Constitution. Some freedoms, he wrote, are fundamental to society and are beyond the scope of legislative power. While a judge of the Supreme Court of Canada, Rand took time away from his judicial duties to serve as Canada's representative on the United Nations Special Committee on Palestine and was one of the key drafters of the majority report that led directly to the creation of the state of Israel. When he retired from the Court at age 75 in 1959, he became founding Dean of the University of Western Ontario law school, but also took time off from that assignment to study the Cape Breton coal problem. The fate of the entire population of the island, it seemed, was at stake as the coal-mining industry, propped up for years by government subventions, was in decline, if not already dead. Rand was asked to find a solution to this long-simmering social, political and economic catastrophe, just as he would later be called upon to make recommendations to deal with the fate of an errant judge named Leo Landreville and labour disputes in Ontario. There was a Rand mystique. He was the guy who got things done right.

Rand's Formula is a case in point. This story starts with the 1945 Ford Strike.

THE FORD STRIKE

At ten in the morning on 12 September 1945, the 10,000 workers at the Ford plant in Windsor, Ontario walked out, bringing the assembly line to a halt. The timing, just weeks after Japan's surrender, was not unexpected. During World War II, organized labour had won the right to collective bargaining, and union membership had soared. In the giant automobile plants and the smaller feeder factories, employees knew that there would be a period of adjustment, a slowdown as the industry retooled to meet the demands of a peacetime market. They also expected, with war's end, that the federal government would vacate the labour relations field, leaving the regulation of most industrial activity to the provinces.

Since November 1941, the workers at Ford, Windsor's largest employer, had been represented by a big and powerful trade union, the International Union of United Automobile, Aircraft and Agricultural Implement Workers of America (the UAW). Earlier that year, the UAW had taken on the world's biggest automobile plant--Ford's Rouge Plant in Dearborn, Michigan--and won two key demands: the union shop (everyone had to join the union as a condition of employment) and the union check-off (management deducted union dues from the wages of every employee and forwarded them to the union). (2) This was exactly what the UAW had been trying to achieve at the Ford plant in Windsor.

Tensions simmered on the assembly line, as negotiations began early in 1945 for a new collective agreement geared to peacetime. "We will take action," promised Roy England, the president of Local 200 at Ford Canada. (3)

Ford of Canada was not alone in facing labour unrest. In the United States, Ford had laid off more than 50,000 employees, and the number was growing because of disputes at automotive parts suppliers. Henry Ford II knew who to blame: Communists, he claimed, were deliberately impeding the progress of reconversion. Communists were a convenient target, and indeed, in the 1940s, domestic Communists were a force to be reckoned with. Many Communists were extremely active in the labour movement, especially in the leadership of the Windsor UAW and its Ford local .(4) Canadian UAW director George Burt was "soft" on party members. He claimed that "[m]ost people didn't know communism from rheumatism," but Burt knew the difference. (5)

While Burt was sympathetic to communist goals, the executive of Local 200 was under Communist control, and Roy England was a secret party member. (6) These connections greatly muddied the waters, and it was often unclear whose interests Communist union members put first--those of organized labour or of Moscow. On the one hand, what better way to renew the class struggle than to take 10,000 men and women out on strike and precipitate a crisis in capitalism? On the other, the UAW and its members were well within their rights to withdraw their labour from Ford in pursuit of legitimate collective bargaining demands. Most UAW members...