I’m back from a week of travels, and have a backlog of interesting issues and cases to deal with on the blog this week.
I begin with a fascinating new article on the Supreme Court of Canada’s decision in Ontario v. Fraser by two of Britain’s foremost labour law scholars, Professor Alan Bogg (Oxford) and Keith Ewing (Kings College, University of London). The article is forthcoming in the Comparative Labor Law & Policy Journal. This version is an almost final proof kindly sent to me by Alan.
Here is the paper in pdf format.
The article provides one of the clearest and thorough summaries of the Fraser decision to date, including a careful comparison of the Court’s contradictory analyses both within the majority reasons in Fraser, and in comparison with the majority reasons in B.C. Health Services.
The authors are highly critical of Canadian scholars who engaged in an “extraordinary attack” on B.C. Health Services, which they believe was one of the most positive decisions for w0rkers’ rights in decades:
In its most recent decision in Fraser, however, the Canadian court appears to have beaten a retreat, responding in part it seems to the remarkable interventions of law professors critical of BC Health Services, in what was perhaps one of the most extraordinary attacks on one of the most positive decisions on workers’ rights in any common law jurisdiction for at least a generation.
Thus, the article is not only critical of the arguments made by Canadian academics against B.C. Health Services, but also of the motivation or utility of attacking judges who dared to take a positive step towards recognizing that Canada should indeed pay attention to international norms and standards regarding freedom of association. They fear that Canadian judges are now losing confidence in this approach, and a retreat from it will only certainly not benefit workers. Thus, they raise questions about the role of progressive legal scholars in critiquing worker-friendly decisions.
Most of the paper is a fascinating critique of what the authors call the “thin” interpretation of freedom of association that has been advanced most forcefully by Professor Brian Langille of the University of Toronto. They fear that this interpretation is gaining momentum in Canada, as demonstrated most clearly in the strong dissent by Justice Rothstein in Fraser, who they claim adopted Langille’s analysis almost completely. The authors deconstruct Langille’s interpretation of freedom of association, which Bogg and Ewing assert reflects a misunderstanding of the principals upon which Langille claims to rely.
They assert that Langille’s “narrow” interpretation of freedom of association is just one of many possible interpretations of Freedom of Association, and there is nothing particularly compelling about the approach as compared to other “thicker” interpretations that add more substance to associational rights. Moreover, they assert that Langille’s claims about the difference between “rights” and “freedoms” is wrong and involves a misunderstanding of the work of Wesley Hohfeld, upon which Langille draws inspiration.
In the end, they call for a thicker approach to freedom of association that is tied to recognized international principles that include a right to collective bargaining and strike. Failure to do so creates a great risk that freedom of association could devolve into nothing more than a right to hold a union membershup card:
Langille and Rothstein J have argued for delinking by the SCC of Canada’s constitutional commitment to freedom of association from its obligations under international law to respect freedom of association. We believe that this position is ill-advised and that any attempt to set the constitutional standard below the international standard to be strongly deprecated. Let us imagine a legal universe where Freedom of Association, as protected by the Canadian Charter, floats perilously free in its application to labour relations from its corresponding elaborative standards as specified in ILO Convention 87 and the associated Committee jurisprudence. The risk involved in such a delinking is that there would be everything to play for in filling up content-less principles with whichever interpretive theory seems to suit a particular interlocutor. Perhaps we are seeing the effect of this asserted evacuation of normative content at the international level in recent work in labour law theory. If adopted in other jurisdictions, this approach risks dragging down standards at national level (as is obvious in Fraser), with the possible risk that standards will be dragged down at international level as well, as international agencies contemplate what is possible rather than desirable. It is not outlandish again to suggest that the core of freedom of association as a fundamental right is simply the right to hold a union card…. This underscores the need to ensure that fundamental labour rights are fully connected with their elaborative jurisprudence and supporting legal norms, especially in the ILO context.
This paper will attract a lot of attention in the labour law community, and will probably provoke a thoughtful response from Professor Langille. Must reading for anyone interested in the ongoing “freedom of association” debates.