Book Review: One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell
Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.
One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell. Edited by Elizabeth Shilton & Karen Schucher. Toronto: Irwin Law, 2017. vii, 382 p. Includes bibliographic references, table of cases, and index. ISBN 978-1-55221-454-1 (softcover) $65.00.
Reviewed by Catherine Cotter
Head Law Librarian
Gerard V La Forest Law Library, University of New Brunswick
In CLLR 43:2
One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell is a collection with two motivations: the first, to discuss how Weber v Ontario Hydro (SCC, 1995) (Weber) has had an impact on Canadian labour law; the second, to honour the late labour law professor, arbitrator, and mediator Dr. Bernard Adell. The majority of the book is dedicated to the Weber case, but Dr. Adell’s contributions to labour law are elegantly described in the introduction. He was a giant in the area of Canadian labour law.
Labour law has evolved a great deal over the past several decades; similarly, the labour arbitration system has also matured and weathered a great deal of change. The case of Weber is an example of evolution. In Weber, an employee sought to sue his employer under various tort and Charter claims. The Supreme Court of Canada held such claims fell within the jurisdiction of labour arbitration, not the courts. As Brian Etherington states, “[t]his model went far beyond the Court’s previous calls for judicial deference” (p 25). Accordingly, the essays reflect on the shift in labour arbitration in the 20 years since Weber.
The essays are wide-ranging, on topics such as access to justice issues, arbitral delays, Weber’s impact on human rights, how Weber has been applied in Quebec, a view from the United States, and more. As well, some essayists take contrary positions, ensuring a broad range of opinions. Etherington argues, for example, that one difficulty with Weber is its failure to consider the access to justice and institutional appropriateness concerns that arise from making collective bargaining institutions—designed for the effective pursuit of collective interests—the exclusive mechanism for the enforcement of fundamental, individual constitutional and statutory rights, and certain common law rights (p 81).
Brian Langille takes an opposite view: “Weber stands for an entirely sound proposition in basic legal thinking—that the work contract, whether individual or collective, speaks to and alters the normal set of rights, responsibilities, and remedies that apply between strangers” (p 127). Similarly, Karen Schucher posits that
Etherington’s access-to-justice critique of Weber places excessive value on the opportunity to pursue common law and Charter claims. When examined in the broader context of the overall benefits that unionized employees generally enjoy, a claim that individual, unionized employees are denied access to justice … when they cannot pursue common law and Charter claims either in the courts or at arbitration cannot be sustained (p 144).
Such divergent opinions provide the reader with much to ponder, making for an engaging read.
Of course, no case should be viewed in a vacuum, and the essayists include references to several cases that function alongside Weber in determining what is within the jurisdiction of labour arbitration and collective agreements. For example, Renée-Claude Drouin writes that the court in Parry Sound (District) Welfare Administration Board v Ontario Public Service Employees Union Local 324 (SCC, 2003) “implicitly incorporated human rights and statutory labour rights into the content of collective agreements” (p 259). This works alongside Weber in having a significant effect on Canadian labour law. The integration of these related cases allows for a more nuanced understanding of the issues at hand.
The essays are well written, giving the reader an overview of some issues that have arisen since Weber and contributing new theories on how Weber has influenced Canadian labour law and arbitration (such as its impact on statutory tribunals). Additionally, a chapter on US labour arbitration broadens the book’s overall scope, allowing the reader a greater understanding of labour arbitration in other jurisdictions (including their benefits and drawbacks). This book sits very well within the ethos of Canadian labour law.
This book would be of most use to academics and law students. Practitioners will also find it beneficial, but as theoretical commentary rather than practical resource. It would also be of interest to labour arbitrators and those who negotiate collective agreements given that understanding the issues brought forward by Weber and other related cases would be vital to their work.