SUPREME COURT OF CANADA DECISIONS AND THE COMMON LAW OF EMPLOYMENT IN THE 1990'S: SHIFTING THE BALANCE BETWEEN RIGHTS AND EFFICIENCY CONCERNS?
AbstractIn this article, the author examines the decisions of the Supreme Court of Canada in the 1990's on the common law of employment to determine whether they are consistent with the view that we are in the midst of a shift from a rights paradigm to an efficiency paradigm in our approach to regulation of the employment relationship. The author begins by identifying the primary characteristics of the rights and efficiency paradigms. He notes that some academic writers have suggested that significant changes in our social and economic context since the 1980's have created pressures on our regulators to move toward the efficiency paradigm. He then moves on to an analysis of the Court's 1990's rulings on a variety of common law of employment issues to see if the Court has been affected by such pressures. The author concludes that there is little evidence of a recent shift on the part of the Court toward greater commitment to the tenets of the efficiency paradigm. Instead there is significant evidence of recognition on the part of members of the Court of the importance of the common law as a device to protect the interests of vulnerable employees in their dealings with employers.
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