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Papers by Claire Mumme

Research paper thumbnail of Questions, Questions: Where Are We Now in Regards to Unions’ Post-Weber Representational Responsibilities For Human Rights in the Workplace?

Weber: One Law for All? Has Weber v. Ontario Hydro Transformed Collective Agreement Administratio... more Weber: One Law for All? Has Weber v. Ontario Hydro Transformed Collective Agreement Administration and Arbitration in Canada? Essays in Honour of Bernard Adell, Elizabeth Shilton and Karen Schucher eds. (Toronto: Irwin Law, March 2017) pp.229-254.

This paper examines to what extent Weber v Ontario changed trade unions' human rights obligations towards their members by examining the case law on the Duty of Fair Representation, and issues of intra-member discrimination. It concludes by setting out the areas in which empirical data is d needed to fully assess trade unions' current efforts to protect the human rights of their members in the workplace.

Research paper thumbnail of The role of law in global value chains: a research manifesto, by The IGLP Law and Global Production Working Group

Most scholars attribute the development and ubiquity of global value chains to economic forces, t... more Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right. Across a growing number of sectors and industries, value production is not just transnational in scope; it is organised and coordinated via global networks that link activities across as well as within firms and nations. These networks are increasingly referred to as 'Global Value Chains', or GVCs. The asserted causes of this phenomenon are multiple, and scholars debate which deserves designation as primary. 1 We

Research paper thumbnail of From Control through Command to the Control of Discretion: Labour Time, Labour Property and the Tools of Managerial Control in Early Twentieth Century Ontario

Forthcoming, (2016) 45(2) Industrial Law Journal. Advanced online access currently available. T... more Forthcoming, (2016) 45(2) Industrial Law Journal. Advanced online access currently available.

The common law contract of employment is often described as the ‘original’ form of modern work regulation, and tales of its origins feature in many historical narratives about the development of modern labour law. But despite its reputed pedigree and normative centrality, the historical development of the common law of employment contracts has not received significant attention. This paper begins to address this gap by investigating the evolution of the common law of employment contracts in the early twentieth century in one common law jurisdiction, the Canadian province of Ontario. Between the 1890s and 1930s the courts of Ontario applied a newly emerging legal paradigm from England, constructed around changing notions of property in employment, employment duration and the tools of managerial control. These ideas served to reorganise the common law of employments by simultaneously placing limits on the content of the exchange in an employment contract, while expanding employers’ rights of control so as to permit them to regulate workers’ exercise of discretion. Together these developments solidified Ontario’s first modern common law paradigm regarding work, ideas that would remain more or less in place until the early 1960s.

Research paper thumbnail of Bhasin v. Hrynew: A New Era For Good Faith in Canadian Employment Law, or Just Tinkering at the Margins

*This is a pre-edited version of an article that has been accepted for forthcoming publication in... more *This is a pre-edited version of an article that has been accepted for forthcoming publication in the International Journal of Comparative Labour and Industrial Relations in 2016.

In Commonwealth Bank Australia v Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority. Issued a bare two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court acknowledged good faith as a central organizing principle of contract law, and announced a new duty of honest performance applicable to all contracts. A few months later the Court applied the new organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission. This paper will assess the potential impact of Bhasin and Potter on the shape of Canadian employment law. In particular, it will reflect on whether these two cases open to the door to greater judicial oversight of the day-to-day interactions between employers and employees, an area as yet relatively unregulated by the Canadian common law.

Research paper thumbnail of The Ontario Human Rights Code's Distributive and Recognitional Functions in the Workplace

(2014) 18 Canadian Labour and Employment Law Journal 145

In her analysis of the purpose of the Ontario Human Rights Code, the author draws on Nancy Fraser... more In her analysis of the purpose of the Ontario Human Rights Code, the author draws on Nancy Fraser’s distinction between the two main strategies that have been used to combat inequality. Strategies of redistribution, which prevailed among equality activists in the early twentieth century, see inequality as arising from unequal access to economic resources. Strategies of recognition, which have come into prominence more recently, see inequality as arising from sociocultural prejudices that deny equal recognition to disadvantaged groups. Although the Ontario Human Rights Code is often seen as focusing on recognitional issues, the author argues that through the market relationships the Code regulates and the remedial powers it grants, it also adopts a redistribution strategy designed to address the economic impact of prohibited discrimination: that is, the Code aims to change how resources and opportunities are to be allocated for those with protected identity traits. An understanding of the interaction between the Code’s recognitional and redistributive functions sheds light on its purpose and method of operation, as well as on its relationship to other equality-seeking legal mechanisms such as collective bargaining and the equality rights provisions of the Canadian Charter of Rights and Freedoms. Thus, the need for a range of legal tools to counter inequality in different contexts comes more clearly into focus.

Research paper thumbnail of Property in Labour and the Limits of Contract

Political Economy and Law: A Handbook of Contemporary Practice, Research and Theory, Ugo Mattei and John Haskell eds. (Edward Elgar Publishing, 2015) pp.400-421.

Research paper thumbnail of Tranchemontagne - Statutory Challenges to Statutory Enactments: what is the appropriate standard?

In this case note, I comment on a recent lower court decision, Tranchemontagne, which was then th... more In this case note, I comment on a recent lower court decision, Tranchemontagne, which was then the latest instalment of a decade-long Canadian judicial saga. This case has already been heard once by the Supreme Court of Canada, and is now due to be heard again by the Court in its upcoming session. The narrow question at issue in this case is whether, despite the historically separate jurisprudential tests for establishing equality/discrimination in the constitutional and statutory human rights (domestic civil rights) contexts, it is now appropriate to also use the constitutional equality test for claims arising under the statutory human rights regimes in regards to challenges against legislated governmental programs. At a broader level, however, what is at stake is the continued availability of a route for socioeconomic claims, which have been effectively foreclosed in the constitutional realm. In this note I argue that the court needs to look beyond the narrow question described and to take the question back to first principles, to interrogate itself on the conceptual and historical relationship between these two instruments, so as to understand how this specific question has arisen. Specifically, it needs to ask itself the following questions: whether constitutional equality and statutory non-discrimination provide the same right? Whether the two instruments seek to achieve the same ends, and if so, whether they do so in the same way, and finally, whether, in light of the preceding questions, the same standard should be applicable to governmental and private actors in regards to equality/discrimination claims?

Research paper thumbnail of From Governance To Political Economy: Insights From A Study Of Relations Between Corporations And Workers

OSGOODE HALL LAW JOURNAL, Jan 1, 2007

Research paper thumbnail of Labour Arbitration As Translation: The Transformation of Canadian Labour Arbitration In the Twentieth Century From a Semi-Autonomous Institution of the Shop to An …

papers.ssrn.com

This paper offers a legal pluralist description of the transformation of Canadian labour arbitrat... more This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.

Talks and Reports by Claire Mumme

Research paper thumbnail of 2011: A Year of Living Dangerously for Public Sector Labour Rights in North America

Research paper thumbnail of Questions, Questions: Where Are We Now in Regards to Unions’ Post-Weber Representational Responsibilities For Human Rights in the Workplace?

Weber: One Law for All? Has Weber v. Ontario Hydro Transformed Collective Agreement Administratio... more Weber: One Law for All? Has Weber v. Ontario Hydro Transformed Collective Agreement Administration and Arbitration in Canada? Essays in Honour of Bernard Adell, Elizabeth Shilton and Karen Schucher eds. (Toronto: Irwin Law, March 2017) pp.229-254.

This paper examines to what extent Weber v Ontario changed trade unions' human rights obligations towards their members by examining the case law on the Duty of Fair Representation, and issues of intra-member discrimination. It concludes by setting out the areas in which empirical data is d needed to fully assess trade unions' current efforts to protect the human rights of their members in the workplace.

Research paper thumbnail of The role of law in global value chains: a research manifesto, by The IGLP Law and Global Production Working Group

Most scholars attribute the development and ubiquity of global value chains to economic forces, t... more Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right. Across a growing number of sectors and industries, value production is not just transnational in scope; it is organised and coordinated via global networks that link activities across as well as within firms and nations. These networks are increasingly referred to as 'Global Value Chains', or GVCs. The asserted causes of this phenomenon are multiple, and scholars debate which deserves designation as primary. 1 We

Research paper thumbnail of From Control through Command to the Control of Discretion: Labour Time, Labour Property and the Tools of Managerial Control in Early Twentieth Century Ontario

Forthcoming, (2016) 45(2) Industrial Law Journal. Advanced online access currently available. T... more Forthcoming, (2016) 45(2) Industrial Law Journal. Advanced online access currently available.

The common law contract of employment is often described as the ‘original’ form of modern work regulation, and tales of its origins feature in many historical narratives about the development of modern labour law. But despite its reputed pedigree and normative centrality, the historical development of the common law of employment contracts has not received significant attention. This paper begins to address this gap by investigating the evolution of the common law of employment contracts in the early twentieth century in one common law jurisdiction, the Canadian province of Ontario. Between the 1890s and 1930s the courts of Ontario applied a newly emerging legal paradigm from England, constructed around changing notions of property in employment, employment duration and the tools of managerial control. These ideas served to reorganise the common law of employments by simultaneously placing limits on the content of the exchange in an employment contract, while expanding employers’ rights of control so as to permit them to regulate workers’ exercise of discretion. Together these developments solidified Ontario’s first modern common law paradigm regarding work, ideas that would remain more or less in place until the early 1960s.

Research paper thumbnail of Bhasin v. Hrynew: A New Era For Good Faith in Canadian Employment Law, or Just Tinkering at the Margins

*This is a pre-edited version of an article that has been accepted for forthcoming publication in... more *This is a pre-edited version of an article that has been accepted for forthcoming publication in the International Journal of Comparative Labour and Industrial Relations in 2016.

In Commonwealth Bank Australia v Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority. Issued a bare two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court acknowledged good faith as a central organizing principle of contract law, and announced a new duty of honest performance applicable to all contracts. A few months later the Court applied the new organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission. This paper will assess the potential impact of Bhasin and Potter on the shape of Canadian employment law. In particular, it will reflect on whether these two cases open to the door to greater judicial oversight of the day-to-day interactions between employers and employees, an area as yet relatively unregulated by the Canadian common law.

Research paper thumbnail of The Ontario Human Rights Code's Distributive and Recognitional Functions in the Workplace

(2014) 18 Canadian Labour and Employment Law Journal 145

In her analysis of the purpose of the Ontario Human Rights Code, the author draws on Nancy Fraser... more In her analysis of the purpose of the Ontario Human Rights Code, the author draws on Nancy Fraser’s distinction between the two main strategies that have been used to combat inequality. Strategies of redistribution, which prevailed among equality activists in the early twentieth century, see inequality as arising from unequal access to economic resources. Strategies of recognition, which have come into prominence more recently, see inequality as arising from sociocultural prejudices that deny equal recognition to disadvantaged groups. Although the Ontario Human Rights Code is often seen as focusing on recognitional issues, the author argues that through the market relationships the Code regulates and the remedial powers it grants, it also adopts a redistribution strategy designed to address the economic impact of prohibited discrimination: that is, the Code aims to change how resources and opportunities are to be allocated for those with protected identity traits. An understanding of the interaction between the Code’s recognitional and redistributive functions sheds light on its purpose and method of operation, as well as on its relationship to other equality-seeking legal mechanisms such as collective bargaining and the equality rights provisions of the Canadian Charter of Rights and Freedoms. Thus, the need for a range of legal tools to counter inequality in different contexts comes more clearly into focus.

Research paper thumbnail of Property in Labour and the Limits of Contract

Political Economy and Law: A Handbook of Contemporary Practice, Research and Theory, Ugo Mattei and John Haskell eds. (Edward Elgar Publishing, 2015) pp.400-421.

Research paper thumbnail of Tranchemontagne - Statutory Challenges to Statutory Enactments: what is the appropriate standard?

In this case note, I comment on a recent lower court decision, Tranchemontagne, which was then th... more In this case note, I comment on a recent lower court decision, Tranchemontagne, which was then the latest instalment of a decade-long Canadian judicial saga. This case has already been heard once by the Supreme Court of Canada, and is now due to be heard again by the Court in its upcoming session. The narrow question at issue in this case is whether, despite the historically separate jurisprudential tests for establishing equality/discrimination in the constitutional and statutory human rights (domestic civil rights) contexts, it is now appropriate to also use the constitutional equality test for claims arising under the statutory human rights regimes in regards to challenges against legislated governmental programs. At a broader level, however, what is at stake is the continued availability of a route for socioeconomic claims, which have been effectively foreclosed in the constitutional realm. In this note I argue that the court needs to look beyond the narrow question described and to take the question back to first principles, to interrogate itself on the conceptual and historical relationship between these two instruments, so as to understand how this specific question has arisen. Specifically, it needs to ask itself the following questions: whether constitutional equality and statutory non-discrimination provide the same right? Whether the two instruments seek to achieve the same ends, and if so, whether they do so in the same way, and finally, whether, in light of the preceding questions, the same standard should be applicable to governmental and private actors in regards to equality/discrimination claims?

Research paper thumbnail of From Governance To Political Economy: Insights From A Study Of Relations Between Corporations And Workers

OSGOODE HALL LAW JOURNAL, Jan 1, 2007

Research paper thumbnail of Labour Arbitration As Translation: The Transformation of Canadian Labour Arbitration In the Twentieth Century From a Semi-Autonomous Institution of the Shop to An …

papers.ssrn.com

This paper offers a legal pluralist description of the transformation of Canadian labour arbitrat... more This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.

Research paper thumbnail of 2011: A Year of Living Dangerously for Public Sector Labour Rights in North America