Recognizing the Charter Value of Employee Freedom of Association at Common Law

This article systematically explores, for the first time in the published literature, how the development of the common law of employment could advance in light of the Charter values doctrine, focusing on freedom of association. It contends that courts must scrutinize the common law’s impairments of that freedom, and unless they are necessary to similarly important common law values, eliminate them where it is possible to do so within courts’ powers to incrementally change it. A number of such paths are open. If asked to do so, courts probably can and should provide Canadians with a common law of employment that better respects employee freedom of association. Nonetheless, any reconciliation between the common law and freedom of association is likely to remain incomplete for some time, or perhaps indefinitely. Policymakers, seeing the potential for a period of legal uncertainty and the likely persistence of residual but important impairments of freedom of association, should consider legislative reform.