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

Document Type

Article

Publication Date

5-26-2016

Publication Title

Industrial Law Journal

Volume

45

Issue

2

First Page

176

Last Page

206

Abstract

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.

DOI

10.1093/indlaw/dww012

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