Book Review – Unions in Court: Organized Labour and the Charter of Rights and Freedoms

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By Ken Fox

Unions in Court: Organized Labour and the Charter of Rights and Freedoms. By Larry Savage & Charles W Smith. Vancouver: UBC Press, 2017. x, 268 p. Includes bibliographic references and index. ISBN 9780774835381 (hardcover) $85.00; ISBN 9780774835398 (softcover) $32.95.

When an employer hires a new employee, they meet as equals in contract. This is a basic assumption of our liberal democratic society. The economic untruth of this alleged equality, from the perspective of history and politics, has been discussed in many books. In Unions in Court, the authors offer a detailed review of the role Canadian courts have played in this ongoing dynamic from the pre-Charter era to 2015.

The book is organized into six chapters, each covering a period of history and arranged chronologically, and there is a brief introduction and conclusion. All parts of the book are jointly authored by Savage and Smith, both political science professors at Canadian universities.

If one were to limit this history to the unions’ encounter with the judicial system, it would begin with defeat, followed by some ups and downs, and a string of victories beginning in 1999 and culminating in the Supreme Court of Canada’s 2015 ruling that strike action is a Charter right in Saskatchewan Federation of Labour v Saskatchewan. There are many who would adopt such a narrative as an accurate reflection of reality, and it is essentially the teleology of the six main chapters of this book. But over every union victory, the book casts a shadow of doubt. Despite obvious sympathies with unions and workers, the authors do not celebrate court victories, but treat them with caution and skepticism. The shadow appears in full colour only in the introductory and concluding sections of the books, where Smith and Savage express their doubts and counter-arguments in their own voices, rather than via  quotations by players contemporary with the reported events.

The strength of this book is that it looks at the judicial system in the larger political and social context of which it is a part. It sees the opponent of working people’s struggle for the right to bargain collectively and withhold their labour not as any government or private company, or even an inherent legal bias in favour of individual rights, but as a self-consciously anti-worker philosophy known as neoliberalism. By identifying this non-legal entity as the workers’ principle adversary, the authors implicate the court system as a political player, rather than neutral mediator.

They see what a strictly judicial history would leave out; for example, that the Supreme Court’s ruling that workers have a Charter right to strike comes at a time when actual strikes are low in number and intensity, and when an historically small percentage of Canadian workers are union members. With their encyclopedic knowledge of labour history and keen eye for paradox, Savage and Smith never lose sight of the fact that strikes and picket lines are worker inventions, not creations of the legal system, and that the initial reason the law encountered unions was to protect business interests. Traditionally, the labour movement avoided the court, seeing it as an institution supporting a liberal, rights-based model that favoured business over workers’ collective action. Now, as union victories begin to pile up, the book takes a step back and identifies political factors hidden in such victories, offering a realistic assessment of the actual state of working people, and suggesting more radical, and potentially more effective, alternatives to the court system.

The main weakness in this book, I would argue, is that Savage and Smith reserve their own insights, for the most part, to the introductory and concluding sections. Despite their lucidity and interest, they allow their subjective engagement to recede in favour of objective reportage. I understand this as a valid academic strategy—stand back and let history speak for itself. But it makes for some dull pages. Given the quality of the authors’ minds, I would have found the book more entertaining and enlightening if they had given themselves license to drop strong opinions and arguments throughout.

Unions in Court is a key account of a vital piece of Canadian history and is a must-read for anyone involved in labour law. It should find its way into public, academic, courthouse, and government libraries, and, of course, the collection of any private firm with a labour department.

[Originally published in Canadian Law Library Review, vol. 43, no. 2 (2018)]

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