Docket: A-384-15
Citation: 2016 FCA 92
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CORAM:
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TRUDEL J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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ASSOCIATION OF
JUSTICE COUNSEL
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Respondent
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REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1]
On April 2, 2015, grievance adjudicator Stephan
J. Bertrand (the adjudicator), of the Public Service Labour Relations and
Employment Board (the Board) allowed a policy grievance from the Association of
Justice Counsel (the Association) against a directive from the Immigration Law
Directorate of the Department of Justice, Quebec Regional Office (the employer
or Directorate). This directive imposes a duty on counsel to be available
weeknights and weekends, on a rotational basis, and without compensation. The
adjudicator concluded that this directive infringes on counsels’ right to
liberty under section 7 of the Canadian Charter of Rights and Freedoms,
part I of the Constitution Act, 1982, found in Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (the Charter) and thus violated clause 6.01 of
the collective agreement between the Treasury Board and the Association, in
addition to constituting an unreasonable and unfair exercise of residual
management rights under clause 5.02 of the collective agreement.
[2]
For the reasons that follow, my opinion is that this
application for judicial review against that decision should be allowed. The
adjudicator erred in deciding that the directive does not comply with the
collective agreement and violates the right to liberty guaranteed by section 7
of the Charter.
I.
The facts
[3]
The facts are not disputed and were the subject
of an agreed statement of facts before the adjudicator. I will summarize the
main facts for the purposes of this application.
[4]
Since the early 1990s, the Directorate has
provided client departments with standby staff weeknights and weekends in order
to process urgent stay applications before the Federal Court concerning
immigration. When on standby duty, counsel must be available by pager or cell
phone, ready at all times to arrive at the office within one hour, and, as
needed, be prepared to provide the services required. The agreed statement of
facts illustrates the impact this duty can have by providing the personal
situations of four counsel working for the Directorate.
[5]
The adjudicator summarized the constraints
imposed by the directive on these four counsel as follows (Applicant's file,
page 30, at paragraph 59):
The conditions imposed on counsel directly
affect their abilities and capacities to do certain things and to perform
certain activities such as picking up children from school and taking them
home, in cases in which the school is located more than an hour from the
office; attending opera performances; visiting family members who live more
than an hour from their workplaces; committing themselves to piano lessons;
going on outings with friends during which they could otherwise consume even
moderate amounts of alcohol; accompanying children to arenas to play hockey;
spending time with family at a cottage, when the cottage is located more than
an hour from the counsel's workplace or in an area in which pagers or cell
phones are not functional; skiing with children or accompanying them to water
slides; having friends or family over for dinner; training for a triathlon or
participating in one; and choosing personal or family activities held more than
an hour from their workplace....
[6]
Until the impugned directive came into force in
March 2010, counsel on standby were compensated by days of leave at the
discretion of the employer, and nobody was regained to be on standby when there
were enough volunteers. The employer then notified employees around March 22,
2010, that from then on they would be compensated only for hours actually
worked while on standby and not for the entire period spent on standby. In the
absence of volunteers after that announcement, the employer imposed the
requirement that all counsel of the Directorate be on call on a rotational
basis for. A table was prepared according to the availability and personal
situation of each counsel, who was required to be on standby an average of 1 to
3 times per year. The employer allowed the counsel to arrange with each other
in case they needed someone to fill in for them.
[7]
The working conditions for counsel who were part
of the bargaining unit were initially established by an arbitral award handed
down on October 23, 2009, which served as a collective agreement. It came into
force on November 1, 2009, with the exception of certain provisions that did
not come into force until February 20, 2010. Neither this arbitral award nor
the job descriptions of employees address time spent by counsel on standby or
compensation for such a period. Paragraphs 13.01c) and 13.02c) of
the collective agreement signed July 27, 2010, provide for one normal work week
of 37.5 hours, which extends from Monday to Friday “except
where a lawyer is required to work on what would normally be a day of rest or a
paid holiday in order to carry out his or her professional responsibilities”
(Applicant's file, volume 1, page 142).
[8]
The employer invoked management rights granted
to it under sections 7 and 11.1 of the Financial Administration Act,
R.S.C. 1985, c. F-11 [FAA], as reproduced in Article 5 of the collective
agreement, to justify the directive it issued. Article 5 of the collective
agreement states the following (Applicant's file, volume 1, page 137):
5.01 All the functions, rights, powers and
authority which the Employer has not specifically abridged, delegated or
modified by this Agreement are recognized by the Association as being retained
by the Employer.
5.02 The Employer will act reasonably,
fairly and in good faith in administering this Agreement.
[9]
These management rights are limited by Article 6
of the collective agreement, which provides as follows. (Applicant's file, page
137):
6.01 Nothing in this Agreement shall be
construed as an abridgement or restriction of any lawyer’s constitutional
rights or of any right expressly conferred in an Act of the Parliament of
Canada.
[10]
On May 15, 2010, the Association filed a policy
grievance pursuant to section 220 of the Public Service Labour Relations Act,
S.C. 2003, c.22, s. 2 [PSLRA], alleging that this new directive was an
unreasonable exercise of the employer’s management rights, and calling for the
following corrective measures: (1) that the employer cease to impose mandatory
standby duty; (2) alternatively, that the employer treat standby duty hours as
hours worked; (3) alternatively, that the employer compensate counsel for
standby duty hours according to the former policy; and (4) any other relief
that the court deems appropriate (Applicant's file, volume 1, page 126).
[11]
Following a first hearing, the grievance was
rejected because the adjudicator did not have jurisdiction to address it since
the standby duty policy was not expressly or implicitly addressed in the
collective agreement. That decision was set aside by judicial review, with
Justice Martineau ruling that the grievance did pertain to the alleged
violation of clause 5.02 and Article 6 of the collective agreement, which
incorporates section 7 of the Charter (Association of Justice Counsel v.
Canada (Attorney General), 2013 FC 806, [2013] F.C.A. no. 849).
[12]
On October 28 and 29, 2014, the grievance was
heard by a new adjudicator. At the hearing, the Association withdrew the claims
that appeared in points 2 and 3 of the list of corrective measures cited above,
i.e., the claims of an economic nature aimed at receiving compensation for
standby duty hours. No direct evidence of that withdrawal was filed before this
Court, even though the adjudicator took it into consideration at paragraphs 25 and
32 of his decision.
II.
The impugned decision
[13]
While recognizing that the employer retained
residual management rights pursuant to clause 5.01 of the collective agreement,
the adjudicator added that the employer was required to act reasonably, fairly
and in good faith in exercising its rights and particularly to comply with
section 7 of the Charter. With that in mind, he concluded that the directive
was not reasonable:
[45] Such a directive seems to me quite
simply neither reasonable nor fair. On the contrary, instead, it is reasonable
for counsel to expect to be free to act and to conduct themselves as they see
fit outside their workplace and outside normal work hours, with no interference
from their employer. Instead, it would be fair for them to be compensated for
the time during which the employer continues to exercise a certain control over
their lives.
[14]
The adjudicator also noted that clauses on
compensation are often found in collective agreements for federal employees, where
by the parties agree on the terms addressing the availability of employees
outside of normal work hours, with certain compensation to avoid an
unreasonable exercise of power by management. In his opinion, the fact that a
collective agreement is silent on standby duty hours does not mean that the
employer has free reign to require standby duty and to impose conditions.
[15]
While recognizing that an emergency over which
the employer has no control outside of normal work hours may constitute a
legitimate organizational need, the adjudicator found that the organizational
need in this instance is triggered instead by the employer's choice to provide
and sell its employees' professional services outside their normal work hours.
Otherwise, the employer would have specified availability to work standby duty
as a condition of employment. The adjudicator also noted that no evidence was
presented establishing that the standby duty period is the only way for the
employer to respond to emergencies.
[16]
Finally, the adjudicator distinguished the case
law of the provincial administrative tribunals cited by the applicant on the
grounds that they address the interpretation of a clause in the collective
agreement on standby duty availability. On the contrary, he noted that the
applicant did not refer to any case decided by the Board or federal courts
suggesting that the employer's decision on mandatory standby duty and the
conditions governing the conduct of public servants required to perform such
standby duty outside the workplace and normal work hours, without compensation,
would be a reasonable exercise of the employer's management duties.
[17]
Secondly, the adjudicator concluded that the
directive infringes on the right to privacy protected under section 7 of the
Charter and clause 6.01 of the collective agreement. He begins by referring to
the Supreme Court decision in Godbout v. Longueuil (City), [1997] 3
S.C.R. 844, 152 D.L.R. (4th) 577 [Godbout], where the Court found that
the choice of location where to reside was a right protected under section 7 of
the Charter and section 5 of the Charter of Human Rights and Freedoms,
R.S.Q. c. C-12 (Quebec Charter).
[18]
The adjudicator recognized that the Charter does
not protect all activities that individuals consider essential to their
lifestyles. However, he distinguished between the examples provided in R. v.
Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571 [Malmo-Levine]
(choice to smoke marijuana, play golf, gamble or eat fatty foods), which refer
more to personal preferences, and the examples of restriction provided by
counsel, which are choices that resemble essentially private decisions
bordering on the very nature of personal autonomy. Rather than characterize the
liberties the counsel seek to protect “as recreational,
social and family activities or personal preferences that do not merit any
protection”, he relates them instead to “a
willingness to develop family ties, to assume parental responsibilities, to
structure personal and family lives, to engage in any of the ordinary
occupations of life, and to develop and attain their maximum potential”
(at paragraph 61 of the decision).
[19]
Given his conclusion that the right to liberty
pursuant to section 7 of the Charter includes the right to enjoy a private life
outside of the workplace and normal work hours, the adjudicator concluded that
the directive violates this right to privacy. He concluded his analysis on this
in the following terms:
[63] In my opinion, if the Supreme Court is
sympathetic to the idea that section 7 of the Canadian Charter protects
the right to private life and advocates the importance of personal autonomy and
the fundamental nature of family unit integrity (Children's Aid Society of
Metropolitan Toronto and Godbout), then it goes without saying that
the employer's standby duty directive, through its clearly intrusive nature in
the counsel's private lives, infringes the guarantees set out in that section
by directly interfering with several areas of its employees' personal autonomy.
[20]
As to the question of determining whether the
infringement on the counsel's right to liberty is consistent with the
principles of fundamental justice, the adjudicator answered in the negative.
While acknowledging that a rational link exists between the objective of
responding to stay applications and working overtime hours, he noted that the
deleterious effects of the directive are completely disproportionate to its
objective. In his opinion, other less intrusive ways could achieve the same
result. He mentions, for instance, that the manager could call employees, on a rotational
basis, until a counsel is reached who is available, failing which a manager
could provide the service; amend the standby duty directive to ensure that it
is carried out voluntarily; or add an availability clause to the collective
agreement.
III.
Analysis
[21]
The case law is well settled. The standard of
review applicable to an adjudicator’s decision on labour relations is that of reasonableness:
Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph
68; British Columbia Teachers’ Federation v. British Columbia Public School
Employers’ Association, 2014 SCC 70, [2014] 3 S.C.R. 492; United
Food and Commercial Workers, Local 503 v. Wal-Mart Canada
Corporation, 2014 SCC 45, [2014]
2 S.C.R. 323, at paragraph 85; Communications, Energy and Paperworkers
Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34,
[2013] 2 S.C.R. 458, at paragraph 7 [Irving]. In this case, the
parties do not dispute that the adjudicator’s decision concerning the fairness
and reasonableness of the impugned directive with regard to clause 5.02 of the
collective agreement calls for deference. This applies notably because of the
privative clause protecting adjudicators of the Board (s. 233 of the PSLRA),
their expertise in the matter and the fact-based nature of the exercise. As my
colleague, Justice Stratas, recently reiterated in Canada (Attorney General)
v. Delios, 2015 FCA 117, [2015] F.C.A. no. 549, at paragraph 20:
… interpretations of
collective agreement provisions involve elements of factual appreciation,
specialization and expertise concerning collective agreements, the disputes
that arise under them, the negotiations that lead up to them and, more broadly,
how the management-labour dynamic
swirling around them plays out in various circumstances. These elements all
point to the standard of reasonableness, not correctness ...
[22]
The parties do not agree, however, on the
standard applicable to the adjudicator’s decision stating that the directive
violates section 7 of the Charter and, by extension, Article 6 of the
collective agreement. The applicant argues that the standard of correctness
should apply because it is a non-discretionary decision related to the
interpretation of the Charter. The Association, for its part, cites primarily Doré
v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and
argue that the standard of reasonableness should apply when an administrative
tribunal does not determine the constitutionality of a law, but seeks only to
protect the rights granted by the Charter in exercising its powers.
[23]
In my opinion, the question of whether the
constraints to which counsel are subjected during periods on standby duty
infringe on the right to liberty guaranteed under section 7 of the Charter does
not call for deference on the part of this Court. This issue goes much farther
than the issue in Doré, which was whether an administrative
decision-maker had sufficiently taken into account the values granted by the
Charter in making a decision following the exercise of discretionary powers. In
other words, the Court was called upon to determine whether the decision-maker
had restricted the right protected by the Charter in a disproportionate, and
thus, unreasonable, manner. In this case, it is the very delimitation of the
right to liberty under section 7 that is at issue. It is then essentially a question
of law, indeed, of constitutional law, that cannot be subject to various
interpretations. While the interpretation of the collective agreement falls
without a shadow of a doubt within the adjudicator's jurisdiction, this is far
from the case for the interpretation of a constitutional text. In the same way
as the scope and meaning of the concept of family status as prohibited grounds
of discrimination (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R.
554, at pages 576 to 578, 100 D.L.R. (4th) 658) and the concept of
discrimination (Canada (Attorney General) v. Sketchley, 2005 FCA 404,
[2006] 3 F.C.R. 392), the determination of that which the notions of private
life and personal autonomy involve shouldn’t lead to inconsistent decisions and
must therefore be scrutinized rigorously. See: Erasmo v. Canada (Attorney
General), 2015 FCA 129, [2015] F.C.A. no 638, at paragraphs 29 and 30; Canada
(Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595, at
paragraphs 36-52. Indeed, the application of the interpretation that must be
given to these concepts in this case must be reviewed on the standard of
reasonableness.
A.
The reasonableness of the interpretation by the
adjudicator of Article 5 of the collective agreement
[24]
There can be no doubt that the Treasury Board,
as a public service employer, has been given broad powers by Parliament. More
specifically, paragraph 7(1)(e) of the FAA provides that the Treasury
Board may act for the Queen’s Privy Council for Canada on all matters relating
to “human resources management in the federal public
administration, including the determination of the terms and conditions of
employment of persons employed in it”. In the exercise of these
responsibilities, the Treasury Board may “determine and
regulate the pay to which persons employed in the public service are entitled
for services rendered, the hours of work and leave of those persons and any
related matters” (at paragraph 11.1(1)(c) of the FAA). The law is
well settled : in exercising its duties, the employer may do anything that is
not expressly or implicitly prohibited by a collective agreement or a law: see Brescia
v. Canada (Treasury Board), 2005 FCA 236, [2006] 2 F.C.R. 343, at
paragraphs 40-45 and 50; Peck v. Canada (Parks Canada), 2009 FC 686,
[2009] F.C.A. no 1707, at paragraph 33; P.S.A.C. v. Canada (Canadian Grain
Commission) (1986), 5 F.T.R. 51 (F.C.1st inst.), [1986] A.J.C.
No. 498, page 19; Public Service Alliance of Canada v. Treasury Board
(Department of Veterans Affairs), 2013 PSLRB 165, [2013] P.S.L.R.B. no 135,
at paragraph 83, aff'd. by 2014 FC 1152, [2014] F.C.A. no 1198; Professional
Institute of the Public Service of Canada v. Treasury Board (Department of
Human Resources and Skills Development), 2014 PSLRB 18, [2014] P.S.L.R.B.
no 18, at paragraph 48. The collective agreement also expressly acknowledges
the employer’s residual management rights in clause 5.01.
[25]
The residual management rights of an employer,
however, are not absolute. In the public service, the powers of the Treasury
Board are subject to a number of restrictions under the terms of the PSLRA and
do not extend to issues addressed in the Public Service Employment Act,
R.S.C. 2003, c. 22, ss. 12 and 13. In more general terms, it is recognized that
the measures taken by an employer in exercising its management rights must not
breach the collective agreement, and must be reasonable and associated with a
legitimate objective. As the Supreme Court stated in Irving, at
paragraph 24:
The scope of management’s unilateral
rule-making authority under a collective agreement is persuasively set out in Re
Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16
L.A.C. 73 (Robinson). The heart of the “KVP test,” which is generally
applied by arbitrators, is that any rule or policy unilaterally imposed by an
employer and not subsequently agreed to by the union, must be consistent with
the collective agreement and be reasonable (Donald J. M. Brown and David M.
Beatty, Canadian Labour Arbitration (4th ed. (loose-leaf)),
volume 1, at topic 4:1520).
[26]
This requirement is essentially reproduced in
clause 5.02 of the collective agreement, which expressly stipulates the
employer's responsibility to act reasonably, fairly and in good faith, while
clause 6.01 states that the employer cannot abridge or restrict any lawyer’s
constitutional rights or any right expressly conferred in an Act of the
Parliament of Canada. I will revisit the latter clause later.
[27]
The applicant contends that the adjudicator erred
in concluding that the directive pertaining to days of standby duty was unreasonable;
he did not abide by the well settled case law where this type of directive was
considered a reasonable exercise of management rights as long as the employee
is not required to remain at home. The applicant also alleges that this
decision is not intelligible or justified given that the adjudicator, first,
cited economic reasons to conclude that the directive is unreasonable even
though the Association had abandoned all conclusions of the grievance that
involved monetary or other compensation and, second, built his rationale on the
erroneous premise that a policy about standby duty hours and days must be
authorized by an availability clause in the collective agreement.
[28]
I do not find that the adjudicator erred in
considering the absence of remuneration for standby duty time even though the
Association was no longer claiming an alternative order relating to
compensation. It is true that the adjudicator highlighted that “instead, it would be fair for them to be compensated”
during the time they are available (at paragraph 45), that an availability
clause provides “certain compensation” for
availability (at paragraph 46), that there is no federal precedent on imposing
periods of availability “without compensation”
and that the parties “usually negotiate an availability
clause setting out favourable terms and conditions for both parties” (at
paragraph 51). A close reading of these paragraphs, however, reveals that these
references to monetary compensation were part of a discussion on the
reasonableness of the directive and the employer’s exercise of its management
rights. I fail to see how the adjudicator could have failed to mention this
important consideration, especially since it is the employer’s decision to no
longer compensate counsel for standby duty, which is the root of the grievance.
Even though the Association had abandoned all claims in damages (for reasons
that seem more related to the argument based on section 7 of the Charter), the
adjudicator was completely justified in considering the absence of compensation
in his assessment of the reasonableness of the directive. Though this is not
necessarily a deciding factor, I find it difficult to deny that it is at the
very least a relevant one.
[29]
Moreover, I do not find that the adjudicator
erred by basing his assessment on a false premise, i.e., whether standby duty
availability should be included in the collective agreement so that the
employer can exercise its powers of management in that area. It is true that
the adjudicator stressed the absence of a standby duty availability clause for
employees, and noted that such clauses are found in other collective agreements
governing federal employees. However, that is one factor among others that
convinced the adjudicator that the directive in this case was unreasonable. As
indicated at paragraph 46 of his reasons, it is precisely to avoid a
potentially unreasonable and unfair exercise of management rights that the
parties often include in collective agreements a clause on employee
availability in exchange for certain compensation. From this, I do not infer
that the adjudicator required that the employer codify every exercise of its
management powers, as the applicant suggests. Instead, he concluded that a
unilateral directive restricting the activities of employees outside of the
workplace and paid work hours, without compensation and when neither the
collective agreement nor letters of employment or descriptions of duties
indicated any obligation to be available, was unreasonable. I consider that
reading to be corroborated by the final paragraph of his analysis on this
issue, which reads as follows:
[52] This case is not about a management
right that the employer tries to exercise at the workplace during normal work
hours. On the contrary, it is about a management right that the employer
exercises outside the workplace and outside its employees' normal work hours.
Hence the increased importance of ensuring that that management right is exercised
"reasonably, fairly and in good faith," which was not so in this
case.
[30]
The applicant also maintained that the
adjudicator's decision deviates from the well settled case law, according to
which imposing mandatory availability would constitute a reasonable exercise of
management rights: United Nurses of Alberta v. Alberta Health Services
(On-Call Program Grievance), [2014] A.G.A.A. No. 24, 2014 CanLII 50285
(A.B. G.A.A.); Shell Canada Ltd. v. Communications Energy and Paperworkers
Union of Canada, Local 835 (Call-Out Grievance), [2001] A.G.A.A. No. 51
(Q.L.); Pembroke General Hospital v. Canadian Union of Public Employees,
Local 1502 (Collective Agreement Grievance), (1974) 6 L.A.C.(2d) 149,
[1974] O.L.A.A. No. 6; Re Corporation of the County of Hastings and
International Union of Operating Engineers, Local 793 (1974), 2 L.A.C.(2d)
78, [1972] O.L.A.A. No. 71. A close reading of this case law does not permit me
to arrive at that conclusion. Instead, what I note is that an adjudicator has
limited discretion when asked to rule on terms and conditions (and especially
compensation) involved in imposing mandatory standby duty otherwise provided in
a collective agreement. Although it was deemed unreasonable to impose mandatory
standby duty on employees requiring that they remain at home throughout the
availability period, compensation was denied when it was not provided for in
the collective agreement. That case law also stands for the proposition that it
will be easier to show the reasonableness of mandatory standby duty if it is
set out in the collective agreement.
[31]
That being said the adjudicator’s decision
appears unreasonable in his analysis of the employer's justifications. Firstly,
the adjudicator notes at paragraph 47 of his reasons that processing a stay
application does not constitute an emergency outside the employer’s control
because the mandatory standby duty flows only from the employer's choice to
provide its clients with legal services outside of normal work hours. This
conclusion goes against the common evidence submitted by the parties, to the
effect that a stay application can arise unexpectedly and should be processed
as an emergency. The employer cannot refuse to provide these services, because
it would then be denying client departments the possibility of being
represented in these proceedings before the Federal Court. This appears to me
to be a legitimate organizational need over which the employer has very little
control.
[32]
Secondly, the adjudicator does not seem to
account for the fact that each counsel is responsible for standby duty only two
or three weeks per year, that the employer considers their availability and
personal situation when preparing the standby duty table, and that counsel are
permitted to make arrangements with each other in case they need someone to
fill in for them. Clearly, that was an important factor in assessing the
reasonableness of the directive, yet the adjudicator did not take it into
account in his analysis.
[33]
Lastly, the adjudicator imposes an excessive
burden on the employer when he notes at paragraph 49 of his reasons that there
was no evidence showing that standby duty is the employer's only way of
responding to emergencies. The employer is not required to demonstrate that its
decision is the only way or the best way to resolve the problem; instead, its
responsibilities consist of demonstrating that its solution is reasonable under
the circumstances. When an adjudicator is called upon to interpret clause 5.02
of the collective agreement, his role is not to determine whether the employer
made the best decision possible; instead, he is to question whether the
employer acted reasonably, fairly and in good faith. Although the adjudicator may
consider other ways that the employer could have achieved its objectives, he must
also leave the employer some flexibility and intervene only when, for instance,
another much less intrusive and more efficient way makes the employer’s
decision unreasonable.
[34]
In this case, the adjudicator not only imposed
an excessive burden on the employer to demonstrate the reasonableness of its
directive, but also ignored the evidence showing that none of the counsel
volunteered after the employer made the announcement that employees would be
compensated only for hours worked while on standby duty. In fact, there is
every reason to believe that only financial compensation would have led the
adjudicator to consider imposing standby duty to be a reasonable exercise of
management rights. In my opinion, such reasoning clearly goes against the
applicable law on this matter.
[35]
For all of the above reasons, I find the
adjudicator’s decision regarding the directive's compliance with Article 5 of
the collective agreement to be unreasonable.
B.
Does the directive violate section 7 of the
Charter?
[36]
There is no doubt that the scope of the right to
liberty in section 7 of the Charter has evolved since 1982. The concept of
liberty was initially interpreted quite narrowly, and focused particularly on
the fact that it appears in a section of the Charter on legal rights. This approach
is found in the reasons given by Justice Lamer in Reference re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pages
1173 and 1174, 109 N.R. 81, which was subsequently reiterated in B.(R.) v.
Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, 122
D.L.R. (4th) 1 [B.(R.)], at paragraph 21:
At pages 1173-1174 of Reference re ss.
193 and 195.1(1)(c) of the Criminal Code (Man.), above, I also expressed
the opinion that "the interests protected by s. 7 are those that are
properly and have been traditionally within the domain of the judiciary"
and, more specifically, when the state "invokes the judiciary to restrict
a person's physical liberty through the use of punishment or detention, when it
restricts security of the person, or when it restricts other liberties by
employing the method of sanction and punishment traditionally within the
judicial realm" (emphasis added). I have not changed my opinion. Since the
principles of fundamental justice are elements that are essentially within the
domain of the justice system, the type of liberty s. 7 refers to must be the
liberty that may be taken away or limited by a court or by another agency on
which the state confers a coercive power to enforce its laws.
[37]
The Supreme Court has progressively moved away
from that interpretation, and now favours a broader approach to the idea of
liberty, likely to include some form of right to a private life and personal
autonomy. However, the Court took care in specifying that the right to liberty
as protected by section 7 of the Charter does not mean the right to act as one
chooses under all circumstances nor to participate in an activity a person may
choose to consider as essential to their lifestyle. It seems to me that the
following excerpt from the decision in Godbout, at paragraph 66,
is an apt statement of the law on this issue:
The foregoing discussion serves simply to
reiterate my general view that the right to liberty enshrined in s. 7 of the
Charter protects within its ambit the right to an irreducible sphere of
personal autonomy wherein individuals may make inherently private choices free
from state interference. I must emphasize here that, as the tenor of my
comments in B. (R.) should indicate, I do not by any means regard this
sphere of autonomy as being so wide as to encompass any and all decisions that
individuals might make in conducting their affairs. Indeed, such a view would
run contrary to the basic idea, expressed both at the outset of these reasons
and in my reasons in B. (R.), that individuals cannot, in any organized
society, be guaranteed an unbridled freedom to do whatever they please.
Moreover, I do not even consider that the sphere of autonomy includes within
its scope every matter that might, however vaguely, be described as “private.”
Rather, as I see it, the autonomy protected by the s. 7 right to liberty
encompasses only those matters that can properly be characterized as
fundamentally or inherently personal such that, by their very nature, they
implicate basic choices going to the core of what it means to enjoy individual
dignity and independence.
[See also: Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraphs
49-54; Malmo-Levine, at paragraph 85; B.(R.), at paragraph 80; R.
v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, at paragraph 31 [Clay].]
[38]
According to that logic, some courts have held
that the right to liberty protects the rights of parents to choose the medical
care provided to their children (B.(R.)) and give them access to their
children (New Brunswick (Minister of Health and Community Services) v. G.
(J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124). Along the same lines,
Justice Wilson said that the right to liberty and security of the person
guarantees women the right to decide to terminate a pregnancy (R. v.
Morgentaler, [1988] 1 S.C.R. 30, pg. 171, 44 D.L.R. (4th) 385). However, it
is important to note that all of these opinions were in the minority, the
majority often preferring an analysis based on the right to security of the
person.
[39]
Conversely, courts have had no difficulty to
decide that the choice of a lifestyle based on sporting or recreational
activities, or the consumption of a product like marijuana, and the rights that
are essentially economic in nature (such as the right to exercise a profession
or to choose not to undergo a medical examination for employment) cannot be
compared to issues that involve “basic choices going to
the core” of what it means to enjoy individual dignity and independence.
See, for example: Malmo-Levine, at paragraph 86; Clay, at
paragraphs 32 and 33; R. v. S.A., 2014 ABCA 191, 575 A.R. 230, at
paragraph 154, leave to appeal to the Supreme Court of Canada refused, 36050
(December 11, 2014); R. v. Schmidt, 2014 ONCA 188, [2014] O.J. No. 1074,
at paragraph 40; Siemens v. Manitoba (Attorney General), 2003 SCC 3,
[2003] 1 S.C.R. 6, at paragraphs 45 and 46; British Columbia Teachers’
Federation v. Vancouver School District No. 39, 2003 BCCA 100, 224 D.L.R.
(4th) 63, at paragraphs 205-210. It is also noteworthy that the Supreme Court
has to this day refused to enshrine the right to choose the location of one’s
residence as a right guaranteed under section 7, despite the minority judgement
in Godbout: see Alberta (Aboriginal Affairs and Northern Development)
v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670, at paragraph 93.
[40]
In concluding that the directive on standby duty
infringes on the right to liberty (and a private life) protected under the
Charter, the adjudicator seems to have erred in several respects. First, the
adjudicator's decision seems to broaden the scope of the right to liberty
considerably, in that he appears to take for granted that participating in
certain sporting or recreational activities are not personal choices, but
rather “choices that resemble essentially private
decisions bordering on the very nature of personal autonomy” (at
paragraph 60). Several of the activities that counsel cannot engage in during
their standby duty period seem to go far beyond what the case law considers to
be choices inherently related to an individual's personal and fundamental
autonomy.
[41]
With regard to the constraints and restrictions
the employer’s directive imposes on parents’ ability to care for their
children, support their development and maintain a rich and harmonious family
life, I would find the Association’s argument based on the right to liberty
more convincing if the mandatory standby duty periods were more frequent. I
find it difficult to seriously consider that the duty not to travel farther
than one hour from one’s residence and to be available to provide professional
services weeknights and weekends two or three times per year could infringe on
a fundamental right. This duty does not jeopardize the rights of parents to
raise their children, to support their development or to make fundamental
decisions for them, as stated in B.(R.). In my opinion, accepting an
argument to the contrary would only trivialize the rights a constitutional
instrument like the Charter aims to protect.
[42]
Lastly, I find that the adjudicator erred in
using the case law pertaining to the Quebec Charter to interpret section
7 of the Charter and the right to liberty there in it. In contrast with
the Charter, the Quebec Charter explicitly protects the right to a private life
in article 5. It was also on that basis that six of the nine justices in Godbout
declared a municipal resolution invalid that required all new permanent
employees to reside within the limits of the municipality. Although the two
charters undeniably overlap in many ways, I find it hazardous to import a
concept specifically mentioned in one Charter to interpret a distinct concept,
although related in some respects, in another Charter the architecture of which
is very different. It is therefore on the basis of the case law developed in
the context of section 7 of the Charter that the rights asserted by the
applicant must be examined; the right to a private life and personal autonomy
that the counsel may claim cannot extend beyond the scope of these concepts in
the interpretation of the right to liberty granted by the Charter. It
goes without saying, also, that the Quebec Charter cannot be directly applied
to areas of federal jurisdiction.
[43]
I will conclude by highlighting that in any
case, a violation of the right to life, liberty and security of the person does
not infringe upon section 7 of the Charter unless it violates the principles of
fundamental justice. The Supreme Court has reiterated many times that this
requirement assumes that the right at issue is weighed against the objectives
of the State in infringing upon that right. As Justice L’Heureux-Dubé wrote in Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425, at page 583, 67 D.L.R.
(4th) 161, “Fundamental justice ... is primarily
designed to ensure that a fair balance be struck between the interests of
society and those of its citizens.” Provisions shall be considered
non-compliant with principles of fundamental justice when they are arbitrary or
infringe upon a right in an overbroad or grossly disproportionate manner: Canada
(Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at
paragraphs 93-123.
[44]
In this case, the adjudicator’s approach is
unsound. First, he seems to consider it disproportionate to infringe on
counsels’ right to liberty “365 days a year and beyond
40 hours per week” while stay applications before the Federal Court
occur on weekends “no more than six times per year”
(at paragraph 65). This premise is not at all consistent with the evidence,
which reveals that each counsel is, instead, responsible for standby duty two
or three weeks per year, and that stay applications occur more frequently on
weeknights, for a total of about 120 applications per year.
[45]
Second, the adjudicator does not seem to give
much weight to the fact that the employer attempted to limit the counsel's
standby duty time, not only by imposing such periods for only a few weeks per
year, but also by stipulating that the counsel were not required to stay at
home so long as they could be reached and were able to arrive at the office in
less than one hour, that they know their periods of availability well in
advance in order to make arrangements, that the periods of availability are
scheduled taking into account the preferences and situations of each counsel,
and that the counsel can make arrangements to fill in for one another.
[46]
Lastly, the adjudicator does not question the
coherence between the approach taken by the employer and the desired objective,
as required by the case law, but instead asks whether there were other ways to
achieve the same objective. Not only is that not the applicable test, but
moreover the alternative approaches proposed by the adjudicator appear to be
quite speculative, to say the least. The adjudicator suggests that the manager
could call counsel until one is reached who is available and able to perform
the task. This approach does not account for the urgency of the services
counsel are called upon to perform on evenings and weekends. As for the
possibility of amending the directive so that standby duty is performed on a
voluntary basis, this overlooks the evidence that this approach was attempted
but proven unsuccessful.
[47]
The possibility remained of adding an
availability clause to the collective agreement, as suggested by the
adjudicator. The success of such an approach is evidently entirely unpredictable.
To the extent that it can be assumed that the insertion of such a clause would
be subject to financial compensation, as suggested by the adjudicator himself,
it would be appropriate to question the economic aspect of the right the
counsel are asserting. This would result, in a sense, in admitting that the
right to liberty is violated by the imposition of mandatory standby periods
only when it is not accompanied by financial compensation. As mentioned above, the
law is clean section 7 of the Charter does not protect economic
interests.
[48]
For all of the above reasons, I rule that the
adjudicator erred in concluding that the directive on mandatory standby periods
violates clause 6.01 of the collective agreement signed July 27, 2010, because
it infringes on the right to liberty guaranteed by section 7 of the Charter,
and that this infringement does not comply with the principles of fundamental
justice.
IV.
Conclusion
[49]
The application for judicial review should
therefore be allowed, with costs. Consequently, the adjudicator’s decision
should be set aside, and the grievance should be returned to another
adjudicator for decision, on the basis that, first, the contested directive
does not infringe on counsel's right to liberty as protected by section 7 of
the Charter and, therefore, does not violate clause 6.01 of the collective
agreement dated July 27, 2010, and, second, that it constitutes a reasonable
and fair exercise of residual management rights set out in clause 5.02 of that
same agreement.
"Yves de Montigny"
"I agree.
Johanne Trudel J.A.”
"I agree.
Richard Boivin J.A.”
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