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A Good Day to Revisit the Most Famous Dissent in Labour Law History

by David Doorey January 29, 2015
written by David Doorey January 29, 2015

January 29, 2015

The Most Famous Dissent in Canadian Labour Law History Revisited

On the eve of the Supreme Court of Canada’s decision in Saskatchewan v. Saskatchewan Federation of Labour, it is helpful to look back at the most famous dissent in Canadian

Chief Justice Dickson's decision in Alberta Reference is most famous  dissent in Canadian Labour Law

Chief Justice Dickson’s decision in Alberta Reference is most famous dissent in Canadian Labour Law


labour law history:  the dissent of Chief Justice Dickson and Justice Wilson in the Alberta Reference decision of 1987.  That is the decision in which a majority of 4-2 ruled that Section 2(d) of the Charter [freedom of association] does not protect a right of workers to strike.  The dissent would have found that a right to strike was protected.
Chief Dickson’s dissent looms large over tomorrow’s decision, because the SCC has in a series of decisions, including last week’s 8-1 majority ruling in Mounted Police Association of Canada ruling, referred positively to Dickson’s dissent as properly constructing Section 2(d).  If the Court continues with this line of reasoning—and it is difficult to imagine the Court suddenly slamming on the breaks and saying Dickson CJC is still wrong about the right to strike—then a betting person would predict that the Court will recognize some form of a Constitutional right to strike tomorrow.
If you are interested in what a Constitutional right to strike might look like, take some time and read what Chief Justice Dickson and Justice Bertha Wilson said in their famous dissent.
Here is an abridged PDF version of the famous Dickson dissent.

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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Law Prof. Talking #labor & #employment #law to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

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TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
2h

lol. Classic.

I was told by a Saskatchewan arbitrator that he wasn’t interested in arguments about how similar statutory language is interpreted ‘out east’. Because they do things their own way in Saskatchewan.

Eric Sherkin@ericsherkin

@TheLawofWork I was a 1st yr associate arguing a motion in Guelph on short notice (partner on the file was speaking at a conference and didn't want to miss it) and being told by the judge that "I know how things are in Toronto, but sharp practice stops when you cross the Humber River."

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TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
2h

America is a shit show.

Seth Moulton@sethmoulton

Just so everyone knows, these are the states - including Massachusetts - that had one of their gun laws overturned today.

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TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
2h

Supporting point I’ve long made, which is that most employees are much better off without a written employment contract in Canada.

Only if employee has unusual bargaining power and a lawyer negotiating the contract is a written contract better for employees.

Kent Employment Law@Kent_Employment

Most employers do not use written #employmentagreements in their business. Unfortunately, they can miss out on an opportunity to limit their financial liability from employee dismissals and achieve clarity around all aspects of the employment relationship.

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