| Reviews / Comptes Rendus | Labour/Le Travail, 59

Reviews / Comptes Rendus

Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: The Osgoode Society for Canadian Legal History, University of Toronto Press 2005)

THIS BIOGRAPHY is a new volume produced by the Osgoode Society for Canadian Legal History. Its productiveness and quality of publications is a tribute to the directors of the society presided over by its president, R. Roy McMurtry, and particularly to the long-term editor-in-chief, Peter N. Oliver, whose recent death will be a great loss.

Philip Girard has completed a study, which is well written, balanced, and thorough. He faced an impediment because, unaccountably, Bora Laskin's family did not cooperate with him and did not give him access to personal papers or correspondence. The result is an analytical account of various aspects of his career, but few details and only those on the public record about his personal life. Hence while a reader can be impressed with Laskin's intellectual and juridical talents, the book is unable to convey, except in brief snatches, the force of his personality. What was it about Laskin that made him stand out, which contributed to his reputation as a talented individual with great authority, who attracted people's admiration and attention?

Using vast legal and historical research, Girard has written an interesting and fair biography. The eldest son of Russian Jewish immigrants who arrived in Canada early in the 20th century and settled in the Lakehead and later Fort William, Bora Laskin rose to be the Chief Justice of the Supreme Court of Canada. His father ran a small business; his mother oversaw the family; and both parents emphasized education, religious training, and involvement in the small Jewish community. At high school Laskin was exposed to the Anglo-Celtic middle classes for the first time and "he not only adapted socially, but excelled academically and athletically in this new environment." (31) This ability to fit in and do well was characteristic at every stage of his professional life, despite pervasive anti-Semitism in Canadian society until well after World War II. Laskin faced discrimination in the law profession and the challenge of finding articling work during the Depression of the 1930s. But he always had friends and allies to assist him, and though very competitive, he was not combative.

Laskin took his law degree at the University of Toronto. Several characteristics of this educational experience stand out. Jewish and Gentile students did not mix; education took place in an almost exclusively male environment, and it was a time of considerable discussion and debate about the law school curriculum, which Girard goes into in detail. The trend over many years was towards the professionalization of the law degree within universities and in this process Laskin was involved with W.P.M. Kennedy at the University of Toronto and Cecil Augustus Wright at Osgoode Hall, both of whom were mentors and sources of academic employment.

Laskin did well academically although he was not at the very top of his class. Through social contacts he had made in Jewish fraternities, he found an articling job with Samuel Gotfrid and was able to complete his LLB at Osgoode Hall. Though well aware of discrimination against Jews by the legal profession, he was always reticent about it. He graduated in 1936, by which time he had determined to become a legal academic rather than practitioner. He did graduate work at Harvard for a year, returned to Toronto, performed various jobs such as writing case notes for the Canadian Abridgement project to support himself and eventually, after some delay, he was hired initially to teach at the University of Toronto, later Osgoode Hall, then again at Toronto until 1965.

As a result of living through the social ferment during the Great Depression, and his work experiences, education, and temperament, Laskin, the public person, began to emerge. As a student of Jacob Finkelman, he studied labour law and wrote a paper on "The Law Relating to Collective Bargaining Agreements in Canada" in the mid-1930s. For the Workers Educational Association [WEA], he taught courses to workers, and did research and broadcasting as he strengthened his connections to the labour movement. As an educator, he believed that law should be responsive and serve social ends, including the rights of labour and "human rights." Girard makes a good case that Laskin's 'signal contribution' to Canadian society was that he "articulated, popularized, and symbolized a new rights-oriented discourse in post-war Canada" and persistently espoused a set of ideas about law and society which Girard calls "legal modernism." (5) As an arbitrator and a judge he got to translate these ideas into law.

While he was a professor, Laskin also was associated with constitutional law, and l a t e r as a judge with a wide cross-section of issues, but the readers of Labour/LeTravail will probably find Chapters 10 to 12 most interesting. They deal with his work as an arbritrator, his activism in the post-war period in the area of human rights, and his support for academic freedom as a co-author of the report on the notorious Harry Crowe case at United College. On academic matters his views were conditioned by his service on university boards at several institutions and his active work in the early years of the Canadian Association of University Teachers [CAUT]. He believed quaintly in a "community of scholars," and supported the enhanced role of the faculty in university governance shortly before the students of the late 1960s espoused a similar concept to increase the role of students. Thus he opposed the old, closed business-driven university boards, did not understand or approve of the unionization of professors, and probably would have been appalled by the current bureaucratization and corporatism in today's institutions of higher learning.

As an arbitrator, Laskin gained a lasting reputation for integrity and impartiality. Beginning as a union nominee on 32 conciliation boards between 1944 and 1946, he became known and acceptable to both sides as an arbitrator in 137 cases between 1947 and 1965. Labour arbitration gave Laskin ample scope "to implement his vision of legal modernism," as well as develop experience and contacts. (226) One insight of this book is that Laskin's arbitration cases in the post-war period contributed to an emergent arbitral jurisprudence, to develop a "common law of the shop." The new area of labour law was a break with the past, and with existing common law, and was thus in Girard's mind 'a revolution'. Laskin developed it on a case-by-case basis making fluid, socially aware interpretations, which treated workers with respect, balanced different interests, and stressed procedural fairness in decision-making. In his generation, gender was not much of a factor, and he ignored it when it was. He enhanced the role of arbitration boards and single arbitrators by insisting that they had remedial powers such as awarding compensation for breaches in collective agreements. He also consistently advocated a 'hands-off' policy by the courts towards labour boards and labour arbitrators in all but exceptional circumstances. His work helped to train a new generation of arbitrators, contributed to the developing jurisprudence in labour law, and broadly educated the parties and the public about their industrial relations system. Thus he participated in an emerging, distinctive labour relations 'culture' in Canada.

Another important insight in this biography is that the post-war development of human rights legislation, codes, and commissions, was modeled on the administrative law approach to labour relations. Anti-discrimination policy was motivated by revelations about the Holocaust and resulted from activism by individuals such as Laskin in the Jewish community and Kalman Kaplansky in the labour movement. After several court cases failed to end discrimination, Laskin's goal "was to supersede the courts and the common law entirely by creating statutory prohibitions on discrimination and confiding the tasks of public education and enforcement to an expert tribunal based on the labour relations model." (248) In 1961 the Ontario Human Rights Commission and in 1962 the Ontario Human Rights Code largely implemented this vision. The other interesting aspect of this activism was that Laskin chose to work behind the scenes as the Joint Public Relations Committee of the Canadian Jewish Congress and the B'nai Brith fought anti-Semitism and discrimination in general in employment and housing situations, through legal challenges and by pressing for human rights policy and legislation. Laskin served on committees, drafted and lobbied for anti-discrimination legislation, but he cautiously chose his battles and even censored himself on occasion to protect himself. His approach was to make friends and allies and to avoid making enemies, because as a Jew he remained vulnerable and knew that "one false step could prove fatal" to his ability to progress in his career or even make a living. (268)

In 1965 Laskin left teaching when he was appointed to the Ontario Court of Appeal and in 1970 to the Supreme Court of Canada. In 1973 Trudeau made him Chief Justice, which was seen as a bold innovative move at the time. Girard is very good at describing the male culture of the day which led to such appointments. Laskin was initially an outsider in the courts because he came from academe, but he used his talents to write important dissents in many cases, which often had a long-term impact on legislation or judicial interpretation. He sometimes was able to convince majorities to side with him on certain issues, such as the issue of courts respecting the decisions of expert administrative tribunals, which were proliferating. This was an important accomplishment. He was successful at gaining promotion to the highest judicial position in the country because he had a progressive image, became known internationally, and had an impact on the rituals of the courts to make them more open.

On constitutional issues his court ruled on Trudeau's move to patriate the constitution unilaterally without the provinces. It supported the prime minister but drew the public's attention to the 'convention' that Parliament would not request constitutional changes from the UK Parliament without provincial agreement. The decision stimulated further negotiations, which brought all of the provinces on side except Quebec, at that time governed by René Lévesque's Parti Québécois.

As Laskin was a centralist on questions of federalism and headed the Supreme Court in pre-Charter days, many of his decisions on constitutional law are no longer important. His lasting legacy is in his modernism, his determination to create a more open legal culture, and his application of knowledge and experience in labour and administrative law fields to convince his peers in the judiciary to respect (in most cases) the decisions of other tribunals, which made judicial-like decisions. As Girard notes, Laskin's education of his peers in this way was good preparation for the post-Charter days when the judiciary had a larger role to play but was measured in determining in which areas it would exercise its newfound powers.


Laurel Sefton MacDowell University of Toronto

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