Why are Canadian Judges Drafting Labour Codes - and Constitutionalizing the Wagner Act Model?
Bibliographic record
Abstract
In BC Health Services, a revolutionary 2007 decision of the Supreme Court of Canada, the guarantee of “freedom of association” in the Canadian Charter was interpreted to comprehend a constitutional “right” to bargain collectively. Further, this new constitutional guarantee was held to include a duty to bargain on the part of the employer. This legal duty was non-existent at common law, and is in fact a very prominent innovation of the of the American Wagner Act model of collective labour relations which has been in place, with some local modification, in Canada since the 1940s. BC Health constituted an invitation to constitutional litigators and judges in Canada to get on with the job of constitutionalizing other structural elements of the Wagner Act Model. This invitation was accepted and dramatically acted upon in the 2008 decision of the Ontario Court of Appeal in Fraser v Ontario (appeal to be heard by the Supreme Court of Canada on December 17, 2009) where other idiosyncratic but critical elements of the model, including the idea of “exclusive” union representation, were constitutionalized. This paper argues that the twin ideas of judges creating a “judicial labour code”, cut and pasted from the Wagner Act Model, and giving it the status of a constitutional guarantee, are both undesirable and avoidable. In particular, the paper questions whether ILO jurisprudence concerning freedom of association can be relied upon, as it has been by the Supreme Court and some authors, to underwrite this enterprise.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.036 | 0.099 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.005 | 0.005 |
| Science and technology studies | 0.034 | 0.033 |
| Scholarly communication | 0.025 | 0.008 |
| Open science | 0.007 | 0.006 |
| Research integrity | 0.015 | 0.018 |
| Insufficient payload (model declined to judge) | 0.004 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".