Chapter 1: Introduction
This casebook has two purposes. One is to provide some familiarity with the legal regimes
that purport to regulate workplace relations, and with the normative foundations of those
regimes. The other, undoubtedly more important in the long run, is to encourage reection
on whether changes in the organization of work, and changes in the capacity of govern-
ments to regulate employment relations in Canada and elsewhere, are outstripping labour
and employment law as we know it and undermining its eectiveness.
In recent decades, it has become clear that collective bargaining cannot be relied on to
provide as much protection as was once expected of it. According to Statistics Canada, as of
, . percent of workers belonged to a union or were covered by a collective agreement,
and unionization rates varied signicantly by province, from about  percent in Alberta
to almost  percent in Quebec. This means that close to  percent of Canadian workers
remain beyond the reach of collective bargaining. That is so for historical, social, and eco-
nomic reasons, and because of the length and diculty of the legal procedures for setting
up collective bargaining relationships. Those factors will become apparent in the chapters
that follow. At this point it is enough to note that the factors limiting the spread of collective
bargaining through the workforce have proved to be very persistent and not easily remedied
by changes in collective bargaining legislation or in the interpretation and application of
that legislation by labour relations boards. Even where collective bargaining has been able
to penetrate hard-to-organize sectors of the workforce, the balance of economic power in
those sectors often remains such that unions cannot negotiate terms that are considered
minimally acceptable in our society. In addition, even long-standing collective bargaining
relationships commonly fail to come to grips with important but often overlooked issues
such as health and safety in the workplace and the persistence of unacceptable forms of
employment discrimination.
Canadian labour lawyers, and those in many other countries as well, have long under-
stood labour law as constituted in a certain way. They have had a narrative about the reality
of the working world and how the law applies to that world. The narrative has explained and
provided a framework for the details of the various labour laws which apply to work, and has
made them part of a more or less coherent whole. This received wisdom evolved in the twen-
tieth century against the backdrop of the economic and social organization which prevailed
throughout much of that century. Most productive activity was organized through continu-
ing employer-employee relationships: employers (rms) entered into long-term contracts
of employment, giving employees security and stability in return for being subordinated to
the control of the rm. The law that applied to employees and employers was understood
at its most general level as seeking to achieve justice in the contractual relationship known
as employment. This is a familiar, if controversial, picture for lawyers re-regulating con-
tract power in the name of justice. A problem with that understanding of labour law, how-
ever, is that it often overlooked the lack of bargaining power of specic groups of workers
(agricultural and domestic workers, for example), some of whom have been the subject
of long-standing and tenacious exclusions from legal protection and collective bargaining.
More generally, discrimination embedded in how work is organized and remunerated has
also undermined the role of labour and employment law in the quest for justice at work.
Changes in technology and in the social and economic organization of productive activ-
ity, as well as the increasingly integrated nature of global systems of consumption and pro-
duction, have altered the reality that labour law seeks to comprehend and address. As we will
see, the resulting problems are quite fundamental. Are the basic categories of employment
law’s subjects (“employee” and “employer”) still relevant? Has the existing paradigm in fact
brought justice, in any accepted meaning of that term? Are there any new paradigms which
might do so? Is the state regulation of labour markets still viable? In short, has labour law
lost its grip on what it was meant to take hold of? Can it get a grip?
In this chapter, we will begin with a look at the historical development and sources of
labour and employment law. Next, we will explore the controversies, both normative and
empirical, which arise out of the received wisdom in this area of law. Then we set out some
reections on the changing world of work and how labour and employment law might
respond to it. We end the chapter with an overview of constitutional divisions of powers
relating to labour and employment relations.
In planning this casebook, a basic pedagogic decision we had to make was whether to
treat the three regimes together, by considering how all three deal with a particular substan-
tive question (for example, the types of workers that are considered to be employees), then
moving on to see how all three treat another such question (for example, the principles that
govern the termination of employment). This approach would have had the virtue of putting
into the same chapter all of the law on a particular substantive question, but at the cost of
obscuring the overall structure of each of the three regimes and making it hard to discern
their distinctive features. We judged this cost to be too high. Therefore, after the next chapter,
in which we consider international and transnational labour and employment law, we will
proceed through each of the three regimes in the roughly chronological order in which they
are arranged by the received wisdom: the common law rst, then collective bargaining law,
and nally, direct statutory regulation.
Labour relations and employment law in Canada are conventionally seen as consisting of
three closely interrelated regimes that regulate the employer-employee relationship. Out-
side of Quebec, the rst of those regimes is the common law of employment, which treats
employers and employees as free and equal contracting parties in the buying and selling
The Contract of Employ ment in Canadian Common Law and Quebe c Civil Law | :
of labour. It is based on the notion of a contract of employment between employer and
employee, formed by negotiation between individuals and enforced by the courts, much
like the classic commercial contract. The common law of employment is the subject matter
of Chapter  of this book. In Quebec, which is governed by civil rather than common law,
legislation codies contractual obligations of employers and employees. Quebec’s labour
and employment law system is distinct in other ways as well. We briey consider these in
Section :, below.
Collective bargaining, which is examined in Chapters  to , is the second regime. It is
based on the realization that the usually inferior economic position of the employee vis-à-vis
the employer keeps the individual employment contract from being a satisfactory regula-
tory mechanism. For the negotiation of terms and conditions between individual employers
and employees, the collective bargaining regime substitutes collective negotiation between
union and employer or between groups of unions and groups of employers. The individual
employment contract is replaced by the collective agreement. When adjudication is needed
under collective bargaining, it is usually done by specialized administrative tribunals (labour
relations boards and arbitration tribunals) rather than by the courts.
Direct statutory regulation is the third regime governing the employer-employee relation-
ship and is the subject of Chapters  and . Chapter  deals with employment standards
legislation on such matters as minimum wages, limitation of working time, and health and
safety. Legislation of this sort has existed for a long time to protect employees against some
of the excesses of the individual contract regime. Until fairly recently, such legislation was
seen as having a very subordinate role as being little more than a stop-gap to provide
basic protection for employees who remained outside the reach of collective bargaining or
whose bargaining power, even when marshalled collectively, was insucient to secure min-
imally acceptable employment terms. Chapter  deals with what has been the fastest-grow-
ing aspect of labour and employment law in recent years: legislation designed to advance
human rights and equality in the workplace.
In recent years, Canadian courts interpreted and applied constitutional freedoms under
the Canadian Charter of Rights and Freedoms so as to protect worker rights to organize, bar-
gain collectively and strike. Further, courts have increasingly had recourse to international
law in interpreting and applying such Charter protections. Constitutional and international
law have thus become additional important sources of labour and employment law.
1:210 The Contract of Employment in Canadian Common Law and Quebec Civil Law
Working for wages under a negotiated contract is a relatively recent historical phenomenon,
and took several centuries to emerge. In feudal times, production was based on status rela-
tions: servants owed duties of fealty to their masters, who had complete control over them.
In the eighteenth century, new contract doctrines that facilitated the use of free wage labour
emerged. Sir Henry Maine acclaimed the evolution of modern contract as a marvellously
progressive development. The following excerpt suggests, however, that the principles of
individual freedom and equal treatment embodied in the common law contract of employ-
ment were infused with paternalistic elements, and operated within an overarching system
of unequal power.

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