Work on Trial is a collection of studies of eleven major cases and events that have helped to shape the legal landscape of work in Canada. While most of the cases are well-known because of the impact they have had on collective bargaining, individual employment law, or human rights, less is known about the social and political contexts in which the cases arose, the backgrounds and personalities of the judges and the litigants, the legal manoeuvres that were employed, or the ultimate fate of all those who were involved. These studies, written by some of Canada’s leading labour and legal historians, provide this context. Beginning with Toronto Electric Commissioners v. Snider, one of the earliest and most important cases involving the division of powers in the Canadian federation, to the events leading to the articulation of the “Rand Formula” in the immediate post Second World War period, and on to the struggles of women workers in the late 20th century in challenging the continu­ing employment practices based on hegemonic gender-based assumptions, each study tells a compelling story, rich in detail and full of perceptive insights into the complex relationship between law and work.

Published by Irwin Law Inc. for The Osgoode Society for Legal History

CONTENTS

Foreword

The Osgoode Society for Legal History

Preface

Harry Arthurs

Introduction

Work on Trial: Canadian Labour Law Struggles

Judy Fudge and Eric Tucker

Part One: Constitutions and Institutions

“Capitalist ‘Justice’ as Peddled by the ‘Noble Lords’”: Toronto Electric Commissioners v. Snider et al.

R. Blake Brown and Jennifer Llewellyn

John East Iron Works v. Saskatchewan Labour Relations Board: A Test for the Infant Administrative State

Beth Bilson

Part Two: Responsible Unions: Security, Orderly Production, and Dissent

How Justice Rand Devised His Famous Formula

William Kaplan

Dissent, Democracy, and Discipline: The Case of Kuzych v. White et al.

Mark Leier

Organizing Offshore: Labour Relations, Industrial Pluralism, and Order in the Newfoundland and Labrador Oil Industry, 1997–2006

Sean T. Cadigan

Part Three: Courts and Collective Action in the Post-War Regime

The Royal York Hotel Case: The “Right” to Strike — And Not Be Fired for Striking

Malcolm E. Davidson

Hersees of Woodstock Ltd. v. Goldstein: How a Small Town Case Made it Big

Eric Tucker

ACertain Malaise: Harrison v. Carswell, Shopping Centre Picketing, and the Limits of the Post-war Settlement

Philip Girard and Jim Phillips

Part Four: Human Rights Norms at Work

Debating Maternity Rights: Pacific Western Airlines and Flight Attendants’ Struggle to “Fly Pregnant” in the 1970s

Joan Sangster

Challenging Norms and Creating Precedents: The Tale of a Woman Firefighter in the Forests of British Columbia

Judy Fudge and Hester Lessard

Part Five: Changing Common Law Norms

The Micropolitics of Wallace v. United Grain Growers Ltd.

Daphne G. Taras

Afterword: Looking Back

Harry Glasbeek