The Constitutional Politics of Labour: From Confederation to the Quiet Revolution - Part One

Constitutional politics has dominated the study of Canadian political science. However, between Confederation and the Quiet Revolution, Canadian citizens generally paid little attention to constitutional questions. According to Peter Russell, “Constitutional politics throughout this period was a relatively low-key affair. There was no sense anywhere that the country needed a new Constitution or that national unity was at issue. Failure to patriate was more of an embarrassment than a practical inconvenience.”[1] Although most Canadians showed little interest in Canada’s “constitutional odyssey”, trade union leaders were not completely oblivious to the country’s constitutional questions. In fact, in matters where the constitutional division of powers impacted the Canadian labour movement, trade unions consistently made their views known.

Trade Unions and Constitutional Reform

As early as 1887, the Trades and Labour Congress of Canada was urging the federal government to revise the British North America Act.[2] However, it was the British Privy Council’s controversial decision in the Snider case which renewed the labour movement’s interest in Canada’s constitutional affairs. At the 1925 TLC convention, delegates were presented with the following executive report recommendation concerning constitutional reform in Canada:
"Your executive believes that the time has arrived when amendments to the British North America Act should be secured which would give greater authority to the Dominion Parliament and bring about more centralization of our laws which vitally affect the conditions of wage earners in this country, and that it is only by such a step that any essential social reform can be brought about and made equally applicable to all citizens of Canada."[3]

The report was adopted despite the protest of one delegate who complained “that any request which might come to the Federal Parliament should not be at the expense of the provinces.”[4] The next year, in its brief to the federal cabinet, the TLC delegation enumerated its requests for amendments to the BNA Act:
(a) Enable necessary steps to be taken to abolish the Senate as a non-elective body and introduce such reform as would prevent the vetoing of legislation passed by the elected representatives of the people.
(b) Abolish appeals to the Privy Council and establish the Supreme Court of Canada as the highest court of appeal.
(c) To give the Federal Government the necessary power to effectively administer to the Industrial Disputes Act, 1907, and later amendments.
(d) To foster “national unity” by giving greater powers to the Federal Government to deal with social and labour legislation and particularly that covered in the recommendations and conventions of the International Labour Conferences (League of Nations).[5]

The TLC made the same request, more or less, to the federal cabinet for the rest of the decade and throughout most of the 1930s. In 1929, the Quebec Provincial Council of Carpenters presented a successful resolution to the TLC’s convention which called on the federal government to request amendments to the BNA Act in order to accommodate the labour movement’s demand for an eight-hour work day and a forty-hour work week.[6] The resolution did not concern itself with the Quebec Question at all.

Soon after its creation in 1927, the All-Canadian Congress of Labour joined the TLC in calling for constitutional changes. In a report to delegates at the 1929 convention, the ACCL executive wrote “The amendment of the British North America Act to enable the Dominion parliament to pass social legislation, such as unemployment insurance, is a reform which all labour organizations should endeavour to secure.”[7] The fact that the Snider decision had overruled previous decisions by Canadian judges likely gave the labour movement the impression that its call for constitutional reform would find support in Ottawa. Canadian jurist H.E. Smith, for example, commented that “I do not think it is going too far to say that this result is the precise opposite of that which our fathers hoped and endeavoured to attain.”[8] Despite domestic protestations from both the Canadian judiciary and the labour movement, union requests for constitutional change were ignored.

Trade unions renewed their efforts to amend the BNA Act after 1931 when Canada became an autonomous dominion within the British Empire under the terms of the Statute of Westminster. In the new political climate created by the Statute of Westminster there were calls for a new constitutional order that would strengthen the central government. Trade unions were joined in their quest for centralization by the newly formed Cooperative Commonwealth Federation (CCF). Adopted at the CCF’s first national convention, the party’s socialist “Regina Manifesto” declared that:
"The labour code should be uniform throughout the country. But the achievement of this end is difficult so long as jurisdiction over labour legislation under the BNA Act is mainly in the hands of the provinces. It is urgently necessary, therefore, that the BNA Act be amended to make such a national labour code possible."[9]

The CCF argued that Canada’s regional and linguistic divisions, exacerbated by Canada’s federal system of government, “are unnecessary and are the result of the inherent contradictions of capitalism.”[10] In 1935, the Royal Commission on Price Spreads, which was appointed in 1934, released its report which called for a “thorough exploration of the constitutional possibility of the enactment of Dominion labour legislation” and “the necessary amendments to the BNA Act” to attain them.[11] After the Supreme Court of Canada ruled that certain federal social legislation is ultra vires under the terms of the BNA Act, the ACCL urged in a memorandum that:
"the matter of jurisdiction, as between the Dominion and the provinces, is one which ought to be dealt with at the earliest possible moment. It may be pointed out, without reflection upon the framers of the British North America Act, that they could not possibly have forseen the developments of modern industry, and the need for legislative control of industry which is interprovincial or national in scope. Not only the workers, but the people of Canada generally have the right to demand that the basic constitutional document of Canada be amended in such a manner as to permit the proper exercise of the will of the people through Parliament."[12]

While the Royal Commission on Dominion-Provincial Relations deliberated between 1937 and 1940, the TLC, the ACCL, and the Railway Transportation Brotherhood all pressed, once again, for constitutional reform. The British Columbia Executive Committee of the TLC, in a brief to the provincial government, drew the attention of the provincial cabinet to:
"the need of uniform labour and social laws throughout this Dominion. It is impossible to have adequate standards of living in the face of unrestricted inter-provincial competition. The need of uniformity in labour laws must be recognized. Further, we request the Provincial Government co-operate with the Dominion Government to bring about the desired changes in the British North America Act, as exemplified by the need of a Dominion Act governing unemployment and other forms of essential social insurance."[13]

The independent Canadian and Catholic Confederation of Labour (CCCL), in a 1939 memorandum submitted to the Quebec provincial cabinet, argued in favour of a national system of unemployment insurance. The memorandum stated specifically that the CCCL “est en faveur d’un système d’assurance chômage à base contributoire... notamment, en faveur d’une assurance chômage contributoire, établie sur le plan national...”[14]

In its final report, the Royal Commission on Dominion-Provincial Relations declared that “The experience of the last decade is conclusive evidence that unemployment relief should be a Dominion function.”[15] The findings of the Commission, and the subsequent adoption of federal unemployment insurance legislation, by way of constitutional amendment temporarily calmed the labour movement’s demands for amendments to the BNA Act.

[1] Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd ed., (Toronto: University of Toronto Press, 2004), 57.
[2] Labour Gazette vol. 37 (1937), 1082.
[3] Labour Gazette vol. 25 (1925), 894.
[4] Labour Gazette vol. 25 (1925), 894.
[5] Labour Gazette vol. 26 (1926), 337.
[6] Labour Gazette vol. 29 (1929), 1014.
[7] Labour Gazette vol. 29 (1929), 1365.
[8] H.E. Smith, “The Residue of Power in Canada,” (1926) 4 Can. Bar Rev. 432 at 434.
[9] Article 7 of the Regina Manifesto as cited in Edwin Black, Divided Loyalties: Canadian Concepts of Federalism, (Montreal: McGill-Queen’s University Press, 1975), 47-48.
[10] Lewis, David and Frank Scott, Make this your Canada: a review of C.C.F. history and policy, (Toronto: Central Canada Pub. Co. 1943), 104.
[11] Labour Gazette vol. 35 (1935), 408.
[12] Labour Gazette vol. 37 (1937), 45.
[13] Labour Gazette vol. 37 (1937), 171.
[14] Labour Gazette vol. 40 (1940), 549.
[15] Royal Commission on Dominion-Provincial Relations recommendations as reprinted in Labour Gazette, vol 40 (1940), 545.