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- Title
The Legal Structure of Freedom of Association.
- Authors
Langille, Brian; Oliphant, Benjamin
- Abstract
Though law is often assessed against a normative framework, structural soundness is also important. This article argues that inattention to law's structural requirements in recent freedom of association cases, specifically those recognizing derivative rights to strike and meaningful collective bargaining, has created confusion about the nature of the Charter's protection of freedom of association, as well as the legitimate role of the courts in applying it. In order to illustrate this, the authors provide a detailed account of the basic purpose of law, the building blocks that it uses and each building block's specific function. Together, these make up the law's structure. The authors then illustrate how this structure has set up freedom of association at the common law, statutory and constitutional levels. The leading freedom of association cases are then analyzed with this structure in mind, demonstrating that the Supreme Court's inattention to structure has led to the creation of complicated derivative rights where none were required. The authors then explore the resulting legal and political implications, and provide their own solutions by considering novel ways in which courts may consider freedom of association that adhere to law's structural demands while still ensuring that recognized section 2(d) protections remain in place. In order to get back on the right track, the Court must pay attention to law's structural requirements and recognize that the judiciary may not create derivative rights frequently or broadly.
- Subjects
CANADA; FREEDOM of association; FREEDOM of association lawsuits; COURTS; CANADA. Supreme Court; EMPLOYEE rights
- Publication
Queen's Law Journal, 2014, Vol 40, Issue 1, p249
- ISSN
0316-778X
- Publication type
Article