Labour Law and the New Inequality

By Lynk, Michael | University of New Brunswick Law Journal, Annual 2009 | Go to article overview

Labour Law and the New Inequality


Lynk, Michael, University of New Brunswick Law Journal


The different sorts of equality are finally inseparable but up to a certain point they are sufficiently distinguishable, and one may speak of political equality, equality before the laws and economic equality. Without the last, the first and second exist only measurably, and they tend to disappear as it shrinks.

William Dean Howells

INTRODUCTION

Thank you very much for the invitation to deliver this year's Rand Memorial Lecture. This is both an honour and a special moment for me, not the least because of the ways in which I have found myself connected to Ivan Rand. I never met him, of course, but I sometimes feel that he hovers nearby. He and I were both born and raised in the Maritimes, sons of this salty soil. And, like many Maritimers, we both wound up working someplace else, far from our homes, which leads to my second connection. Ivan Rand was the founding Dean of the Faculty of Law at the University of Western Ontario, where I have taught for the past decade. Indeed, there is somewhat of a friendly rivalry between Western and UNB over our respective claims to him, but I think his legacy is rich enough to nurture both law schools. To add a further connection, Ivan Rand was Canada's representative on the 1947 United Nations Special Committee on Palestine (UNSCOP), which ultimately recommended the partition of that tormented land. I have worked for the United Nations in Jerusalem, and I am presently researching Rand's role in UNSCOP, with the intention of publishing this research in the near future. The literature on UNSCOP to date plainly shows that Ivan Rand was recognized at the time, and long afterwards, as one of the intellectual driving forces on that historic committee. (1)

The fourth connection I can claim, and the one that is woven into tonight's Lecture, comes from my professional interest in Canadian labour law. Ivan Rand was, of course, the author of the famous Rand Formula, based on his arbitration decision that settled the protracted 1945 Ford auto strike in Windsor, Ontario. (2) This strike was one of the epic labour battles that forged our modern industrial relations system. (3) The pre-war laissez-faire legal approach towards unions--where they were tolerated but unprotected--was in the process of being statutorily eclipsed at the time of the Windsor Ford strike by the more intensely regulated structure that was based upon the principles of the American Wagner Act (its statutory title is the National Labour Relations Act). This nouvelle epoch would positively affirm the collective voice of unions in the Canadian workplace, recognize the legal status of collective agreements, and replace the courts' jurisdiction to regulate the workplace with expert panels of labour relations boards and arbitration boards. (4) In the wake of this legal transformation, unionization in Canada would jump from 18 percent of the non-agricultural workforce in 1941 to 28.4 percent by 1951, a gain of 63 percent. (5) A brave new world of labour law and industrial relations was being born, but it needed sturdy intellectual and judicial foundations to stand up. Ivan Rand would provide some of these vital pillars.

Rand had been chosen to arbitrate the terms of the Windsor Ford collective agreement by the federal cabinet, with a big push from Paul Martin Sr., who was a new Liberal cabinet minister from Windsor (and the father of Paul Martin Jr., the future Prime Minister). At the time, Ivan Rand was sitting as a Justice on the Supreme Court of Canada, with his famous ruling on civil liberties and the abuse of executive power in the Roncarelli v. Duplessi case still ahead of him. Reflecting on the Ford strike and Ivan Rand, Paul Martin Sr. would later say:

   I talked to him about these problems ... I knew his views ... he
   was a man who knew the evolution that was taking place in social
   thinking ... he had been thinking about these questions for a long
   time ... and it just happened I was in a position to help bring
   about his appointment. … 

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