LABOUR RELATIONS
LABOUR RELATIONS ........................................................................................................................................ 1
UNITED KINGDOM ............................................................................................................................................ 2
Freedom of Labor Relations .............................................................................................................................. 2
Trade Union and Labour Relations Act 1974 ................................................................................................ 2
Unions and Individuals: ................................................................................................................................. 2
Collective bargaining: .................................................................................................................................... 2
Lockouts: ....................................................................................................................................................... 2
CANADA .............................................................................................................................................................. 2
Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3 C.H.R.R. D/781 (S.C.C.) [Eng. 5 pp.]
S.C.C. Rules on Test for Bona Fide Occupational Qualification ---the retirement of firefighters at age 60
constitutes a violation of the Ontario Human Rights Code because the employer in the case did not
discharge the onus of proof necessary to establish that the early mandatory retirement age was justified by
a bona fide occupational requirement -- Collective agreement provision used to contract out of human
rights legislation -- employment policy discriminatory for economic reasons .............................................. 3
Canada (Treasury Board) v. Robichaud (1987), 8 C.H.R.R. D/4326 (S.C.C.) [Eng./Fr. 10 pp.] The
Supreme Court of Canada unanimously finds that employers are liable for the discriminatory acts of their
employees in the course of their employment. .............................................................................................. 3
McKinney v. University of Guelph (1990), 13 C.H.R.R. D/171 (S.C.C.) [Eng./Fr. 146 pp.] Supreme
Court rules that mandatory retirement at age 65 is a reasonable limit on the s. 15 right to be protected from
discrimination because of age ---- relationship between equality under human rights legislation and
equality under the Charter ............................................................................................................................. 4
Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.) [Eng./Fr. 17 pp.]
S.C.C. finds union has duty to accommodate religious beliefs. ..................................................................... 8
Canada (Human Rights Comm.) v. Toronto Dominion Bank (1996), 25 C.H.R.R. D/373 (F.C.T.D.)
[Eng. 6pp.] drug testing as a condition of employment -- adverse effect discrimination -- rational
connection between drug-testing and job performance ................................................................................. 9
Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre)
[1996] 2 S.C.R. 3 Discrimination -- Bona fide occupation qualification -- Collective agreement more
stringent than legislation with respect to discrimination -- Whether collective agreement can impose
conditions beyond those provided in provincial human rights code -- Judicial review -- Standards of review
-- Patently unreasonable or correctness standards -- Collective agreement more stringent than provincial
human rights code .........................................................................................................................................10
Canadian Broadcasting Corp. v. Canada (Labour Relations Board) [1995] 1 S.C.R. 157: Unfair
labour practices -- Interference -- Justification -- CBC forcing journalist to choose between his position as
union president and his position as radio host following publication of his article against free trade in union
newspaper --- Standard of review -- Interpretation of external statute -- Standard of review applicable
where administrative tribunal interprets external statute ..............................................................................13
Slaight Communications Incorporated v Davidson [1989] 1 S.C.R. 1038: --Adjudicator ordering
employer to give unjustly dismissed employee letter of recommendation with specified content -Adjudicator also ordering employer to answer request for information about employee only by sending
letter --Whether orders infringe employer's freedom of expression -- Unjust dismissal -- Jurisdiction of
adjudicator ....................................................................................................................................................17
Labour relations
23. (1) Everyone has the right to fair labour practices.
(2) Every worker has the right a. to form and join a trade union;
b. to participate in the activities and programmes of a trade union; and
c. to strike.
(3) Every employer has the right a. to form and join an employers' organisation; and
b. to participate in the activities and programmes of an employers' organisation.
(4) Every trade union and every employers' organisation has the right -
1
a. to determine its own administration, programmes and activities;
b. to organise; and
c. to form and join a federation.
(5) Every trade union, employers' organisation and employer has the right to engage in
collective bargaining. National legislation may be enacted to regulate collective bargaining.
To the extent that the legislation may limit a right in this Chapter, the limitation must comply
with section 36(1).
(6) National legislation may recognise union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter, the limitation
must comply with section 36(1).
UNITED KINGDOM
This section requires elaboration
Freedom of Labor Relations
Trade Union and Labour Relations Act 1974
Unions and Individuals:
1. Goring v British Actors Equity Association 1987 IRLR: breach of union rules; Thomas v
National Union of Mineworkers 1985 ALL ER: Industrial action; contemplation of
further disputes; peaceful picketing; union liability; interference with contract; relief;
intimidation.
Collective bargaining:
2. Associated Newspapers ltd v Wilson; Associated British Ports 1995 2 All ER: trade
union membership and activities; rights of worker against employer; unfair industrial
practice; action short of dismissal; derecognition of union; salary differential to those
who switched from collective bargaining to individual contracts of employment.
Lockouts:
3. Manifold Industries Ltd v Sims and Ohters 1993 EAT
CANADA
2
Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3 C.H.R.R.
D/781 (S.C.C.) [Eng. 5 pp.] S.C.C. Rules on Test for Bona Fide Occupational
Qualification ---the retirement of firefighters at age 60 constitutes a violation of the
Ontario Human Rights Code because the employer in the case did not discharge the
onus of proof necessary to establish that the early mandatory retirement age was
justified by a bona fide occupational requirement -- Collective agreement provision
used to contract out of human rights legislation -- employment policy discriminatory
for economic reasons
Keywords: EMPLOYMENT -- contracting out of human rights legislation -- TRADE
UNIONS -- collective agreement provision used to contract out of human rights
legislation -- BUSINESS NECESSITY -- employment policy discriminatory for
economic reasons -- RETIREMENT -- mandatory retirement for firefighters -- BONA
FIDE OCCUPATIONAL QUALIFICATION -- age for firefighter -- Etobicoke test -OCCUPATIONAL HEALTH AND SAFETY -- age and potential impairment -- safety
risk to self and others -- BURDEN OF PROOF -- elements of a prima facie case
Summary: In a unanimous decision, the Supreme Court of Canada rules that the
retirement of firefighters at age 60 by the Borough of Etobicoke constitutes a
violation of the Ontario Human Rights Code because the employer in the case did
not discharge the onus of proof necessary to establish that the early mandatory
retirement age was justified by a bona fide occupational requirement.
This appeal is from a decision of the Ontario Court of Appeal which, along with the
Divisional Court, reversed the original Board of Inquiry ruling that the firefighters
were discriminated against because of their age. The Board of Inquiry found that the
Borough of Etobicoke failed to discharge the burden of proof upon them to show that
the discrimination was based on a bona fide occupational requirement. The Board
found that the evidence provided was "impressionistic" and noted the insufficiency of
general assertions by witnesses that firefighting is a "young man's game".
The Supreme Court unanimously restores this decision of the Board of Inquiry. The
Supreme Court rules that the evidence adduced before the Board of Inquiry was
inadequate to discharge the burden of proof lying upon the employer, finding that the
evidence did not cover the detailed nature of the duties to be performed, the
conditions existing in the workplace, and the effect of such conditions upon
employees, particularly upon those at or near the retirement age sought to be
supported.
The Supreme Court also rejects the respondent's argument that because the early
mandatory retirement age had been agreed to in the terms of the collective
agreement with the union representing the appellant firefighters, the early retirement
age should be considered bona fide. The Court rules that parties cannot contract out
of the provisions of an enactment like the Ontario Human Rights Code which
constitutes public policy and that contracts having such effect are void.
Canada (Treasury Board) v. Robichaud (1987), 8 C.H.R.R. D/4326 (S.C.C.)
[Eng./Fr. 10 pp.] The Supreme Court of Canada unanimously finds that employers
are liable for the discriminatory acts of their employees in the course of their
employment.
3
Keywords: EMPLOYMENT -- LIABILITY -- vicarious liability -- employer liability for manager -mitigation of effects of discrimination -- DISCRIMINATION -- adverse effect discrimination -- direct
discrimination -- intention to discriminate -- SEXUAL HARASSMENT -- sexual advances by supervisor
-- HUMAN RIGHTS -- nature and purpose of human rights legislation
Summary: The Supreme Court of Canada unanimously finds that employers are liable for the
discriminatory acts of their employees in the course of their employment.
This is an appeal by Bonnie Robichaud and the Canadian Human Rights Commission from a decision
of the Federal Court of Appeal which ruled that, although Ms. Robichaud was sexually harassed by
her supervisor while she was employed by the Department of National Defence, the Department of
National Defence was not liable for the contravention of her rights.
The Supreme Court of Canada in overturning this decision finds that the purpose of human rights
legislation is to remove discrimination. The legislative emphasis is not on finding fault, but on
remedying discrimination. The purpose of the Canadian Human Rights Act which is to prevent
discrimination and eliminate the effects of discriminatory acts would be thwarted by an interpretation
which deemed employers not liable for the conduct of their employees. The Act is concerned with the
effects of discrimination not causes, and only an employer can remedy undesirable effects.
Reinstatement of an employee, compensation for lost wages, and a discrimination-free environment
are remedies only an employer can provide. The remedial objectives of the Canadian Human Rights
Act would be stultified if remedies were not available as against the employer.
It is unnecessary to attach any label to this liability; it is purely statutory. It serves the purpose of
placing responsibility for an organization on those who control it and are in a position to take effective
remedial action.
While the conduct of an employer is irrelevant to the imposition of liability, a quick and effective
response to remedy discrimination and prevent its recurrence is likely to affect the remedial
consequences of a violation of the law.
In a concurring judgment, The Honourable Mr. Justice Le Dain finds that employers are liable under
s. 7 of the Act because the section prohibits discriminatory acts undertaken directly or indirectly.
Because indirect discrimination is prohibited the employer is liable for discriminatory practices
whether or not they were authorized or intended by the employer.
The appeal is allowed.
McKinney v. University of Guelph (1990), 13 C.H.R.R. D/171 (S.C.C.) [Eng./Fr.
146 pp.] Supreme Court rules that mandatory retirement at age 65 is a reasonable
limit on the s. 15 right to be protected from discrimination because of age ---relationship between equality under human rights legislation and equality under the
Charter
Keywords: EMPLOYMENT -- RETIREMENT -- mandatory retirement contravenes
Charter -- eduction sector -- EDUCATION -- mandatory retirement for teachers and
professors -- EXEMPTIONS -- age -- CANADIAN CHARTER OF RIGHTS AND
FREEDOMS -- s. 1 (reasonable limits) to right to be protected from discrimination on
basis of age -- s. 15 (1) (equality) -- s. 32 (application of Charter) -- application of
three-part test -- EQUALITY -- relationship between equality under human rights
legislation and equality under the Charter -- INTERPRETATION OF STATUTES -definition of "age"
Summary: By a majority, the Supreme Court of Canada rules that mandatory
retirement at age 65 is a reasonable limit on the s. 15 right to be protected from
discrimination because of age. In five different judgments, the Supreme Court hands
down a split 5-2 decision.
This is an appeal from a decision of the Ontario Court of Appeal which dismissed the
applications of eight professors and a librarian at four Ontario universities for
declarations that the policies of the universities requiring them to retire at age 65
4
violate s. 15, and that s. 9(a) of the Ontario Human Rights Code, by failing to protect
those over age 65, also violates s. 15.
The issues before the Court are:
1. whether the Canadian Charter of Rights and Freedoms applies to universities;
2. if the Charter does apply to universities, whether mandatory retirement
policies violate s. 15;
3. whether the limitation of the prohibition against age discrimination in the
Ontario Human Rights Code to persons between the ages of 18 and 65
violates s. 15; and
4. if the limitation does violate s. 15, whether it is justifiable under s. 1 as a
reasonable limit on an equality right.
La Forest J., writing for the majority, states that the Charter is essentially an
instrument for checking the power of government over the individual. Private activity
was deliberately excluded from the Charter's ambit. While it is true that the rights of
individuals can be offended by private actors, governments can regulate in this
sphere or create distinct bodies for the protection of human rights. Constitutional
review of private action is not mandated by the Charter and it would diminish the
area of freedom within which individuals can act.
Section 32 of the Charter states that the Charter applies to the legislature and
government of each province. The majority finds that universities are not part of
government within the meaning of s. 32. The Court rejects arguments that the
Charter applies to universities because they are creatures of statute carrying out an
important public service, or because their survival depends on government funding,
or because their powers, objects, activities and governing structures are determined
by government. Despite all of these controls, the majority finds, universities are
legally autonomous; they control their own affairs and enjoy independence from
government regarding all important internal matters. Their decisions are not
government decisions.
Though the majority of the Court rules that the Charter does not apply to universities,
they nonetheless consider the question of whether university mandatory retirement
policies offend s. 15.
First, the majority decides that if the universities were part of the fabric of
government, their policies on mandatory retirement would amount to "law" within the
meaning of s. 15. All actions taken pursuant to powers granted by law, not merely
legislative activities, will fall within the ambit of s. 15 of the Charter.
The majority then finds that the mandatory retirement policies of the universities
violate s. 15. Mandatory retirement deprives a person of work, which is one of the
most fundamental aspects of a person's life, based on the assumption that, because
of age, the individual is less competent than younger persons.
However, the mandatory retirement policies would be saved by s. 1 because they
are a reasonable limit on the equality rights guaranteed to older persons.
The universities' objectives for the mandatory retirement policies are pressing and
substantial. These objectives are to enhance their capacity to seek and maintain
excellence by permitting flexibility in resource allocation and faculty renewal, and to
preserve academic freedom and the collegial form of association by minimizing
intrusive modes of performance appraisal.
Mandatory retirement, the majority finds, supports the tenure system by obviating
the need for elaborate evaluation schemes, and ensures continuing faculty renewal
by making spaces available in a closed system for new and younger faculty
5
members. Therefore, there is a rational connection between the university policies
and the objectives sought to be achieved.
On the issue of whether the policies impair the rights of older workers as little as
possible, the majority rules that the test to be applied is not whether the right is
impaired as little as possible but whether the university had a reasonable basis for
concluding that the policy impaired the right as little as possible. This is a relaxed s.
1 test, adopted in Irwin Toy Ltd. v. Quebec (Attorney General) to provide greater
flexibility in assessing those cases where legislatures have had to make difficult
choices between the claims of competing groups.
In this case, the majority concludes that there was a reasonable basis for concluding
that the policy impaired the right as little as possible because mandatory retirement
is not wholly detrimental to the group affected. The policy ensures that faculty
members have a large measure of academic freedom and it is generally beneficial
both to the universities and the individuals in them. Consequently, the minimal
impairment of rights does not outweigh the universities' pressing and substantial
objectives.
However, since the majority has ruled that the Charter does not apply to universities,
the Court turns to the issue of whether the limitation of protection from age
discrimination in s. 9(a) of the Ontario Human Rights Code to persons between 18
and 65, which allows mandatory retirement policies to exist for those 65 and over, is
unconstitutional because it violates s. 15. Some of the faculty members who are the
appellants in this case attempted to file complaints with the Ontario Human Rights
Commission, but their complaints were refused because of the restricted jurisdiction
of the Commission with respect to age discrimination.
The majority of the Court finds that policies of mandatory retirement were developed
with the introduction of private and public pension plans. Mandatory retirement
policies have had a profound impact on the organization of the workplace and on the
structuring of pension plans, on fairness and security of tenure in the workplace, and
on work opportunities for others. One of the objectives of s. 9(a) of the Ontario
Human Rights Code was to arrive at a legislative compromise between protecting
individuals from discrimination and giving employers and employees freedom to
agree on a date of termination considered beneficial to both.
The objectives of government in passing s. 9(a) of the Code, the majority concludes,
were pressing and substantial. Government objectives were to preserve the integrity
of pension plans and to foster the prospects of younger workers. The majority of the
Court finds that the legislature was faced with a complex socio-economic problem. In
these circumstances, the majority considers that the limitation of protection in the
Code is rationally connected to the objectives and that it minimally impairs the
equality rights of older workers. Government had a reasonable basis for imposing
what is a generally beneficial rule. The courts should adopt a stance that
encourages legislative advances in the protection of human rights. But the courts
should not lightly use the Charter to second-guess the judgment of a legislature as
to just how quickly it should proceed in moving forward towards equality.
The appeal is dismissed.
In dissent, Wilson J. rejects the view, adopted by the majority of the Court, that the
freedom guaranteed by the Charter is freedom for private individuals from
government intervention. She finds that in Canada government has traditionally
played a role in the creation and preservation of a just society. The state has been
looked to and has responded to demands that Canadians be guaranteed adequate
health care, access to education and a minimum level of financial security. Freedom
6
has often required the intervention and protection of government against private
action.
Wilson J. finds that where entities are not self-evidently part of the legislative,
executive or administrative branch of government, some questions should be asked
to determine whether the Charter applies. Does government control the entity in
question? Does it perform a traditional government function or a function recognized
as a responsibility of the state? Does it act pursuant to statutory powers given to it to
further a government or public interest objective? Given the connections between
governments and universities, and given that education at every level is a traditional
function of government in Canada, Wilson J. concludes that universities form part of
government for the purposes of s. 32 of the Charter.
Mandatory retirement is the law of the workplace at the universities, and, as such,
Wilson J. finds that it is "law" within the meaning of s. 15. But s. 15 does not require
that there be a discriminatory law, only that there be discrimination which must be
redressed by the law.
Section 15 is infringed, Wilson J. concludes, because the mandatory retirement
policies of the universities were based on the assumption that with age comes
increasing incompetence.
Turning to s. 1, Wilson J. finds that the mandatory retirement policies are not saved
by s. 1 because they do not impair the equality right as little as possible. There is no
justification in this case to apply a relaxed s. 1 test. Where the legislature is forced to
strike a balance between the claims of competing groups, and particularly where the
legislature has sought to promote or protect the interests of vulnerable or less
advantaged groups, the Court should approach the application of the minimal
impairment test with a healthy measure of restraint. However, the universities seek
to reap the benefit of this more flexible test fashioned in Irwin Toy on the basis that
their mandatory retirement policy was intended to make available positions for
younger academics. Young academics are not the kind of "vulnerable" group
contemplated in Irwin Toy.
Wilson J. also finds that s. 9(a) of the Ontario Human Rights Code violates s. 15
because it strips persons over age 65 of all protection against employment
discrimination. Once the government decides to provide protection it must do so in a
non-discriminatory manner.
Section 9(a) should be struck down in its entirety, Wilson J. concludes. It cannot be
saved by s. 1 since it cannot pass the minimal impairment test. The majority of
individuals affected by s. 9(a) will suffer greater hardship because of the
infringement of their rights. Therefore, the provision cannot be said to impair their
rights as little as possible.
Wilson J. would declare that the university policies requiring mandatory retirement at
age 65 violate s. 15 of the Charter and are of no force and effect. She would also
order reinstatement in employment for the appellants with all the attendant benefits,
and compensation for losses incurred because of the breach of rights. 'HeureuxDubé J., dissenting, concludes that the Charter does not apply to universities.
However, she finds that s. 9(a) of the Ontario Human Rights Code violates s. 15 and
cannot be saved by s. 1.
7
Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425
(S.C.C.) [Eng./Fr. 17 pp.] S.C.C. finds union has duty to accommodate religious
beliefs.
Keywords: EMPLOYMENT -- TRADE UNIONS -- union supports discriminatory
policy -- LIABILITY -- union liability -- RELIGION AND CREED -- employment
terminated -- BONA FIDE OCCUPATIONAL QUALIFICATION -- Friday night shift -relationship to individual employee -- REASONABLE ACCOMMODATION -- duty to
accommodate where bona fide occupational qualification exists -- complainant's duty
to accommodate -- duty to accommodate short of undue hardship -- work shift -definition of undue hardship
Summary: In a unanimous decision, the Supreme Court of Canada restores the
decision of the B.C. Council of Human Rights, which found that Larry Renaud was
discriminated against by both his employer and his union because of his religious
beliefs.
Mr. Renaud, a school custodian, is a Seventh Day Adventist. His religious beliefs
prevented him from working from sundown Friday to sundown Saturday. The work
schedule, which required him to work a Friday shift from 3 p.m. to 11 p.m. was set
out in the collective agreement between the Okanagan School Board and C.U.P.E.,
Local 523. Accommodating Mr. Renaud's religious beliefs would have required
allowing him to work hours different than those specified. The respondent school
board and union could not agree on a means of accommodating Mr. Renaud and as
a result he was dismissed from his job. The B.C. Council of Human Rights found that
though it was a bona fide requirement that a custodian be present in the schools, it
was not a bona fide requirement that a custodian in Mr. Renaud's school work the 3
p.m. to 11 p.m. shift on Fridays. The Council concluded that Mr. Renaud should
have been accommodated and that both the employer and the union were liable for
the failure to do so.
Relying on the Supreme Court of Canada's decision in Canadian National Railway
Co. v. Canada (Human Rights Comm.) and Bhinder, the B.C. Supreme Court
overturned the B.C. Council of Human Rights decision. It ruled that once a bona fide
occupational requirement is established no accommodation is necessary. The B.C.
Court of Appeal upheld the B.C. Supreme Court's judgment.
There are two grounds of appeal in this case:
1. whether regular attendance which is in accordance with a schedule
established by an employer is a bona fide occupational requirement providing
a complete defence to a complaint of discrimination on the grounds of
religious belief; and
2. whether an employer or a trade union is under any obligation to
accommodate an employee who, because of his religious beliefs, is unable to
work a particular shift.
The Supreme Court of Canada, with Sopinka J. writing for the Court, finds that even
where a bona fide occupational requirement is established an employer has an
obligation to accommodate. The Court cites its earlier decision in Central Alberta
Dairy Pool v. Alberta (Human Rights Comm.). There Sopinka J. writing for the
minority of the Court and Wilson J. writing for the majority agreed that when adverse
effect discrimination is at issue an employer can uphold a general rule but must
consider whether the employee can be accommodated without undue hardship. The
employer must show that no reasonable alternative to the discriminatory rule was
possible.
8
On the first issue, therefore, the Supreme Court finds that the B.C. Council of
Human Rights did not err when it found that there was a duty on the respondents to
accommodate Mr. Renaud.
The Court then considers the nature of the duty to accommodate and what
obligations that duty imposes on a trade union.
The Court rejects the respondents' argument that the duty to accommodate is a de
minimus one. This standard is one derived from American jurisprudence, and the
legal context is very different. The case of Trans World Airlines Inc. v. Hardison, in
which the de minimus rule was articulated, was argued on the basis of the
establishment clause in the American constitution which prohibits the establishment
of religion. The de minimus rule is inappropriate for the Canadian social context.
The employer argued that it refused to accommodate Mr. Renaud because it feared
that a grievance would be filed if it violated the terms of the collective agreement by
allowing him to work different hours. The Court finds that the existence of a
collective agreement and the possibility of a grievance cannot be allowed to absolve
parties to it of a duty to accommodate. Further, an employer's need to defend itself
from a grievance, which will be unsuccessful in any case because employers and
unions cannot contract out of human rights law, will not constitute an undue
hardship. However, it will be relevant to assess a collective agreement to determine
the degree of hardship involved for an employer or a union in interfering with its
terms. Also the objections of other employees to an accommodation can be taken
into account when assessing hardship but not where those objections are based on
attitudes inconsistent with human rights. The Court finds no evidence in the record to
suggest that the rights of other employees would have been affected by an
accommodation of Mr. Renaud.
The Court finds that the union, like the employer, has a duty to accommodate. It
rejects the argument that a union cannot be required to adopt measures which
conflict with the collective agreement until an employer has exhausted reasonable
accommodations that do not affect the collective rights of employees. It is not
incumbent on the employer to exhaust all other possibilities first; the most
reasonable accommodation may be one for which union approval is required, as it
was in Mr. Renaud's case.
In Mr. Renaud's case, the Court finds that accommodation attempts failed because
the union refused consent to allow Mr. Renaud to work a Sunday to a Thursday shift
instead of Monday to Friday, and the employer refused to act unilaterally. The Court
concludes that the Council was correct in finding both parties liable for discrimination
against Mr. Renaud.
Canada (Human Rights Comm.) v. Toronto Dominion Bank (1996), 25 C.H.R.R.
D/373 (F.C.T.D.) [Eng. 6pp.] drug testing as a condition of employment -- adverse
effect discrimination -- rational connection between drug-testing and job
performance
Keywords: EMPLOYMENT EVALUATION AND TESTING -- drug testing as a
condition of employment -- BONA FIDE OCCUPATIONAL QUALIFICATION -- drug
testing for bank employee -- DISABILITY -- testing required to determine drug
dependence -- DISCRIMINATION -- adverse effect discrimination -- REASONABLE
ACCOMMODATION -- duty to accommodate short of undue hardship
9
EMPLOYMENT -- contracting out of human rights legislation -- JURISDICTION -authority to hear case under the Charter -- CANADIAN CHARTER OF RIGHTS AND
FREEDOMS -- s. 8 (search or seizure) -- PROCEDURE -- adjournment to allow
review of book of authorities -- procedural fairness
Summary: This is an application for judicial review, in which the Canadian Human
Rights Commission seeks an order quashing a decision of the Human Rights
Tribunal made August 16, 1994. In the decision below, the Tribunal dismissed a
complaint brought by the Canadian Civil Liberties Association alleging that employee
drug-testing by the Toronto Dominion Bank constitutes discrimination based on
disability. The disability in issue was described as perceived drug-dependence.
The Tribunal decided there was no discrimination because termination of
employment under the policy applied to both drug-dependent employees, who are
protected by the Act, and to persistent casual users, who are not protected by the
Canadian Human Rights Act. The Tribunal concluded that any termination as a
result of the policy was not based on discrimination, but rather resulted from an
employee's breach of the policy which the Tribunal described as a condition of
employment.
The Tribunal then considered what the outcome would be if it were mistaken in its
initial analysis. In obiter, the Tribunal found the discrimination, if any, was adverse
effect discrimination because all new and returning employees were required to
undergo drug-testing, and only those who tested positive more than once would be
negatively affected. The Tribunal also decided that the employer satisfied the
obligation of reasonable accommodation by providing for rehabilitation at its
expense. Also in obiter, however, the Tribunal observed that if the drug-testing
constituted direct discrimination the Bank had not established that it had a bona fide
occupational requirement to justify the policy because it had not shown that being
drug-free was necessary for the efficient and safe performance of jobs in the Bank.
The Federal Court holds that this is a case of adverse effect discrimination, and that
in cases of adverse effect discrimination there will be a group that is negatively
affected by an apparently neutral rule, and within that group a sub-group to which
the rule applies in a negative and illegal fashion. In this case, all those facing
termination because of drug use are negatively affected, but there is a sub-group
who experience adverse effect discrimination because they are drug-dependent, and
are persons with disabilities under the Canadian Human Rights Act.
The Court finds further that the Tribunal erred in failing to explicitly identify a rational
connection between drug-testing and job performance. The Tribunal decision is set
aside and the matter is referred back to the Tribunal to deal with the question of
whether the drug-testing policy is rationally related to the employment.
Newfoundland Association of Public Employees v. Newfoundland (Green Bay
Health Care Centre) [1996] 2 S.C.R. 3 Discrimination -- Bona fide occupation
qualification -- Collective agreement more stringent than legislation with respect to
discrimination -- Whether collective agreement can impose conditions beyond those
provided in provincial human rights code -- Judicial review -- Standards of review -Patently unreasonable or correctness standards -- Collective agreement more
stringent than provincial human rights code
10
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND
Civil rights -- Discrimination -- Bona fide occupation qualification -- Collective
agreement more stringent than legislation with respect to discrimination -- Whether
collective agreement can impose conditions beyond those provided in provincial human
rights code -- Human Rights Code, 1988, S.N. 1988, c. 62, s. 10(1).
Labour law -- Collective agreements -- Human rights legislation -- Discrimination -Whether collective agreement can impose conditions beyond those provided in provincial
human rights code.
Judicial review -- Standards of review -- Patently unreasonable or correctness standards -Collective agreement more stringent than provincial human rights code -- Arbitration board
deciding that agreement's definition of discrimination must be the same as the Code's -Whether the patently unreasonable standard should apply or the correctness standard in
review of Board's decision.
The Green Bay Health Care Centre issued a job posting for a personal care attendant but
did not specify that the applicants must be male. The employer, however, had determined
that a male would be needed to meet the staffing requirement as the position involved
intimate personal care of elderly male residents. The Newfoundland Human Rights Code,
1988 provided that discrimination could be excused for a bona fide occupational qualification
(BFOQ). The collective agreement, however, provided that there should be no discrimination
in hiring by reason of sex and that union members were entitled to be hired ahead of external
candidates. A female union member's application was rejected in favour of a male applicant
who was not a member of the bargaining unit. An arbitration board decided that the
employer, notwithstanding the collective agreement, was entitled to rely on a BFOQ to
excuse the discrimination in hiring. This decision was reversed on judicial review. The Court
of Appeal restored the decision of the Board. At issue were whether the parties could contract
out of the Code, whether the collective agreement must be read in harmony with the Code,
and whether the parties had bound themselves to the application of the Code. Underlying
these issues was the standard of judicial review which governs on the appeal.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major
JJ. A court should not interfere with a labour arbitration board's interpretation of a collective
agreement unless that decision is patently unreasonable. When a tribunal interprets and
applies questions of general law, however, its decision is reviewable on a standard of
correctness.
The posting of a position merely sets out the technical requirements for application and
cannot be the basis for demonstrating either that the parties contracted out of the Code or that
the employer is estopped from relying on the BFOQ provision. Not mentioning the
requirement that the applicant be male in the job posting did not preclude putting the
requirement forward as a BFOQ.
11
The matter was not necessarily a contracting out situation even though it was dealt with
on that assumption. Contracting out of human rights legislation is not permitted because, if it
were, those without bargaining power might be coerced or forced to give up their rights
under human rights legislation. No conflict existed with any of the provisions of the human
rights legislation. The collective agreement did not affect any remedy under the Code and
dealt only with remedies available by way of grievance.
Human rights legislation sets out a floor beneath which the parties cannot contract out.
Parties can contract out of human rights legislation if the effect is to raise and further protect
the human rights of the people affected. Here, the parties were entitled to contract out of the
BFOQ provision contained in s. 10(1) of the Code. The contract could prevent the employer
from discriminating in the employment process where a BFOQ might plainly exist. This
conclusion has no effect on the rights of third parties.
The court will not interfere with a board's interpretation of a collective agreement unless
that interpretation is patently unreasonable. The Board's decision that parties could not
contract out of the BFOQ provision of the Code was wrong. It was not patently unreasonable,
however, as the Board considered the relevant collective agreement provision and
jurisprudence in its deliberations. Moreover, using the Code's definition of discrimination,
which incorporated the concept of BFOQ, as the province's prevailing definition could
reasonably result in a decision that the parties did not intend to further alter that definition
when they added protection against discrimination based on union membership.
Per L'Heureux-Dubé J.: Parties to an employment contract or collective agreement may
negotiate a non-discrimination clause conferring greater protection than the minimum
guaranteed by human rights legislation. The ability to do so could not possibly offend the
general policy behind human rights legislation. In particular, parties may freely negotiate a
clause that prohibits all discrimination and need not allow an exception for a bona fide
occupational qualification (BFOQ). The term "contracting out" was misapplied here. The
parties were not "contracting out" of the Code so long as the collective agreement did not
purport either to authorize discrimination or to affect the remedies which are available under
the Code in proceedings before the human rights commission. The collective agreement left
intact all remedies available under the Code and added remedies by means of the grievance
procedure in the event of discrimination on the part of the employer.
The Board erred in holding that parties are not permitted to negotiate a non-discrimination
clause that does not provide for a BFOQ defence. Moreover, while an arbitration board may
refer to a human rights statute for guidance when interpreting an analogous provision of a
collective agreement, the Board did not do so here. Rather, the Board found that the
contractual non-discrimination clause must be read as incorporating a BFOQ because any
other interpretation would amount to "contracting out" of the Code. The Board made no
finding on the crucial issue of whether the parties actually wished to incorporate a BFOQ
provision; it merely deemed the parties to have intended to include such a provision.
As this appeal arose out of an application for judicial review, the remedies sought by the
appellant were discretionary. Given that almost eight years had passed since the Board
convened, that the collective agreement has long expired, and that the Board would almost
certainly dismiss the grievance if it were sent back, the normal course of sending the
grievance back for redetermination would serve no purpose. The appeal accordingly should
be dismissed.
12
Canadian Broadcasting Corp. v. Canada (Labour Relations Board) [1995] 1
S.C.R. 157: Unfair labour practices -- Interference -- Justification -- CBC forcing
journalist to choose between his position as union president and his position as radio
host following publication of his article against free trade in union newspaper --Standard of review -- Interpretation of external statute -- Standard of review
applicable where administrative tribunal interprets external statute
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour relations -- Unfair labour practices -- Interference -- Justification -- CBC forcing
journalist to choose between his position as union president and his position as radio host
following publication of his article against free trade in union newspaper -- Canada Labour
Relations Board deciding CBC's action constituting unfair labour practice under s. 94(1)(a)
of Canada Labour Code and rejecting CBC's journalistic policy as justification for its action - Whether Board's decision should be set aside -- Standard of review applicable to Board's
decision.
Judicial review -- Standard of review -- Interpretation of external statute -- Standard of
review applicable where administrative tribunal interprets external statute -- Whether
administrative tribunal entitled to curial deference.
The respondent G was the host of a current affairs radio program on CBC and the
president of the union which represents writers, journalists and performers. Under the union's
by-laws, the president is also its official spokesperson. In the midst of an election campaign
in which free trade was a central issue, G wrote an
article against free trade in the union newspaper. The CBC was concerned that his article and
his public involvement as president of the union violated the CBC's journalistic policy
requiring impartiality of journalists. It was agreed that, as an interim measure, G would cease
hosting his program until after election day. After the
election, G offered to relinquish his duties as the union's spokesperson, while remaining its
president, in order to accommodate the CBC's concerns. The CBC rejected the offer and
forced him to choose between his job as host of a radio program and his role as the president
of the union. G resigned as union president and resumed hosting his radio program. The
union filed a complaint with the Canada Labour Relations Board, alleging that the CBC had
interfered with the activities of a trade union, contrary to s. 94(1)(a) of the Canada Labour
Code. A majority of the Board upheld the complaint. The majority found that G's article was
a union activity protected by s. 94(1)(a) and concluded that the CBC committed an unfair
labour practice in forcing him to choose between the two positions and that the CBC's
journalistic policy did not justify its action. The Federal Court of Appeal dismissed the
CBC's application for judicial review.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Cory, Iacobucci and Major JJ.: The proper standard of judicial review
to be applied to the Board's decision that the CBC had committed an unfair labour practice is
13
one of patent unreasonableness. The issue of whether there was interference with the
administration of a trade union and the representation of employees by that union, when the
CBC asked G to choose between his position as union president and his position as radio
host, is a question of law that Parliament intended to be answered by the Board, and not by
the courts. It is a central part of the issue of whether there has been an unfair labour practice,
and as such forms part of the question which Parliament, through the Code, has given the
Board the exclusive jurisdiction to resolve. This jurisdiction encompasses the authority to
develop a test for when such interference is established, and to define the scope of the
concepts of "administration" of a union and "representation" of employees. The test
developed by the Board to adjudicate the s. 94(1)(a) claims involves (1) a characterization of
the activities of the union and a determination as to whether there has been employer
interference with them; and (2), if such interference is made out by the union, whether there
was justification for the interference. To use this analytical framework to segregate the first
part of the test and label it jurisdictional ignores the fact that this issue is part of the substance
of the s. 94(1)(a) determination. It is also akin to an endorsement of the preliminary questions
doctrine, which this Court in recent decisions has declined to adopt as a useful test for
delineating jurisdiction. Support for the conclusion that this determination is not
jurisdictional in nature is found in a functional analysis of the Canada Labour Code as a
whole. A broad privative clause is combined with wide powers in the Board to deal with
questions put before it. Moreover, the terms at issue in this appeal are not specifically defined
in the Code and the Board has developed an extensive jurisprudence to determine whether an
allegation of a violation of s. 94(1)(a) has been sustained. By virtue of its specialized
expertise, the Board is uniquely suited to that determination and courts should defer to that
expertise unless it can be said that the Board's decision was patently unreasonable.
As a general rule, curial deference need not be shown to an administrative tribunal in its
interpretation of a general public statute other than its constituting legislation, although in
cases where the external statute is linked to the tribunal's mandate and is frequently
encountered by it, a measure of deference may be appropriate. This does not mean, however,
that every time an administrative tribunal encounters an external statute in the course of its
determination, the decision as a whole becomes open to review on a standard of correctness.
The tribunal may have to be correct in an isolated interpretation of external legislation, but
the standard of review of the decision as a whole, if that decision is otherwise within its
jurisdiction, will be one of patent unreasonableness. The correctness of the interpretation of
the external statute may affect the overall reasonableness of the decision. Whether this is the
case will depend on the impact of the statutory provision on the outcome of the decision as a
whole. Here, the fact that the CBC is a creation of, and is governed by, an external statute -the Broadcasting Act -- does not raise the overall standard of review to one of correctness,
even though no deference will be shown to the Board in its interpretation of the provisions of
that statute.
The Board's delineation of the relevance of external statutory imperatives in its s. 94(1)(a)
analysis is within its jurisdiction. Moreover, the Board's treatment of the relationship
between the Broadcasting Act, or the related journalistic policy, and the obligations imposed
on the CBC by the Canada Labour Code was not in error. The general requirement in the
Broadcasting Act to provide a balanced information service must be interpreted in a way that
is consistent with the specific obligations contained in the Code. The Board's own analytical
framework for s. 94(1)(a) contemplates such an accommodation. The journalistic policy
itself, however, does not enjoy the status of legislation. It is an internal management directive
promulgated by the CBC based on its own interpretation of its obligations under the
14
Broadcasting Act. This policy cannot oust the CBC's legal obligations as found in the Canada
Labour Code.
The Board's decision that the CBC had interfered with the administration of a trade union
or the representation of employees by that union was not patently unreasonable. The Board,
while recognizing that s. 94(1)(a) has its limits, found that the publication by a union and its
officer of an article in a union newsletter expressing an opinion that a government economic
policy constituted a threat or a benefit to its members was protected by s. 94(1)(a). Given the
context, the extension of the content protection was not wholly unwarranted. The substance
of the article was not aimed at the employer, but rather at gathering support from members
for the union's official position. Further, the decision of the majority was arrived at in a
principled manner and was not irrational. The Board was entitled to apply the law as found in
existing decisions to new and analogous facts. It is not unreasonable to find a connection
between the collective bargaining relationship and the activities of unions as they relate to
external social issues affecting their members.
Alternatively, the Board also found that the CBC's action in refusing to accept G's offer
that he retain his position as union president while no longer serving as its spokesperson had
the effect of preventing any broadcast journalist from being the president of the union, and
thus affected the right of the union to choose its president from among its entire membership.
This act alone amounted to a violation of the Code. On any standard of review, the Board
was entitled to find that the election of whichever person the union members wish to have as
their president is an activity that falls within the concept of "administration" of a trade union
or "representation" of employees by that union.
Finally, the Board's conclusion that the CBC had failed to show a valid and compelling
business justification for its interference is not unreasonable. The Board considered the
journalistic policy but did not find that it compelled the CBC to take the action that it did in
order to fulfil its requirement of impartiality. Even if there were obligations relating to
impartiality imposed by the Broadcasting Act on the CBC, they were not determinative,
given the Board's finding that there was no causal connection between the requirement of
impartiality and the continued presidency of G.
Per Gonthier J.: Subject to the comment of L'Heureux-Dubé J., the reasons of Iacobucci J.
were agreed with.
Per L'Heureux-Dubé J.: Subject to the following comment, Iacobucci J.'s reasons were
substantially agreed with. An administrative tribunal protected by a full privative clause, as is
the Board, is entitled to curial deference in its interpretation of an external statute. The
interpretation of an external statute cannot be characterized as a jurisdictional question as
such. Consequently, denying curial deference to such a tribunal in this respect seems
inconsistent with the jurisprudence of this Court concerning the standard of review of
decisions of these tribunals. The Board's interpretation of an external statute thus has no
effect on the appropriate standard of judicial review, which, in this case, is one of patent
unreasonableness since the decision reached by the Board is entirely within its jurisdiction.
Per La Forest J.: This case raises a very narrow issue. The alternative ground upon which
Iacobucci J. supports the Board's decision is agreed with and there is no reason to interfere
with the Board's finding with respect to the absence of justification.
15
Per Sopinka J.: The pragmatic and functional approach is to be used to ascertain whether
Parliament intended that the determination of the matters included within s. 94(1)(a) of the
Canada Labour Code be left to the Board or whether the section was a provision intended to
limit the Board's jurisdiction. In making this determination, the focus is not on whether the
union's activity in opposing free trade was intended by Parliament to be included in s.
94(1)(a), but rather on what activity in general Parliament intended to include in the section
and its possible reach if not interpreted correctly in accordance with the legislative intention.
Given the range of union activity which could be the subject of a complaint under s. 94(1)(a),
much of which has little or nothing to do with the purposes of the Code, Parliament cannot
have intended to leave it to the Board to determine which part of this activity can be swept
into its jurisdiction so as to enable it to subject an employer to sanctions for engaging in
"unfair labour practices". Accordingly, s. 94(1)(a) is a provision intended to limit the Board's
jurisdiction and the standard of review applicable to the Board's decision is correctness.
The alternative ground upon which Iacobucci J. supports the Board's decision, however, is
agreed with and there is no reason to interfere with the Board's finding with respect to the
absence of justification.
Per McLachlin J. (dissenting): The functional test is question-specific and must be applied
to each question which the Board considered, and the appropriate standard of review must
then be applied to its answers. This requirement is not obviated by the fact that a question is
part of the substance of the dispute, nor by the fact that it may be "preliminary" or
jurisdictional.
The first question the Board was required to consider was whether the union's statements
on political matters outside the collective bargaining context were protected by s. 94(1)(a) of
the Canada Labour Code. A functional analysis clearly demonstrates that the interpretation of
the ambit of s. 94(1)(a) lies at the core of the Board's mandate and was intended by
Parliament to be left to the Board, notwithstanding that the question goes to the Board's
power or "jurisdiction". A court can therefore only interfere with the Board's conclusion that
G's statements were protected by the Code if its conclusion is patently unreasonable. This
conclusion is patently unreasonable from the perspective of both the purpose of the Code and
the authorities. The purpose of the Code is to promote and preserve the collective bargaining
system and the protection provided by s. 94(1)(a) to employees who speak out is confined to
that purpose. Thus, only union statements relating to the collective bargaining process fall
within the ambit of s. 94(1)(a) protection; statements made for personal or political reasons
are not protected. The courts have made the same distinction. In arriving at the conclusion
that all statements of union officials are protected by the Code, except those which are
abusive, the majority of the Board failed to address the real issue and made an unsupportable
conclusion. The inclusion of all non-abusive union statements within the ambit of s. 94(1)(a)
is not a rational extension of the law into analogous areas but rather an attempt to take
protection into areas where there is neither precedent nor practical justification for protection.
On the question of interference with a union activity, the applicable standard of review is
also patent unreasonability. Had the CBC's action in putting G to a choice between
continuing as union president and continuing as host of his program been in response of a
statement made by G in the course of collective bargaining, it would clearly have constituted
interference with a union activity under s. 94(1)(a).
16
Finally, assuming the CBC interfered with a union activity protected by the Code, the
standard of review applicable to the Board's conclusion on the question of the justifiability
of the CBC's conduct under its statutory regime is correctness. This question is outside the
special competence of the Board, which has no expertise in interpreting this Broadcasting
Act or its regulatory regime. Given the CBC's obligation under the Broadcasting Act to
maintain the perception of impartiality in its public affairs broadcasts, the majority of the
Board erred in finding that the legislation, policy and administrative review process
governing the CBC did not justify it in interfering. In treating the CBC as a private enterprise
governed only by a flexible management directive which must yield to the superior legal
demands of s. 94(1)(a), the Board failed to consider the special obligation imposed on the
CBC by law. The CBC policy was capable of being considered a "compelling
reason" for interfering with the activity of the union.
Slaight Communications Incorporated v Davidson [1989] 1 S.C.R. 1038: -Adjudicator ordering employer to give unjustly dismissed employee letter of
recommendation with specified content -- Adjudicator also ordering employer to
answer request for information about employee only by sending letter --Whether
orders infringe employer's freedom of expression -- Unjust dismissal -- Jurisdiction of
adjudicator
Constitutional law -- Charter of Rights -- Freedom of expression --Adjudicator ordering
employer to give unjustly dismissed employee letter of recommendation with specified
content -- Adjudicator also ordering employer to answer request for information about
employee only by sending letter --Whether orders infringe employer's freedom of expression
guaranteed by s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation
on freedom of expression justifiable under s. 1 of Charter -- Canada Labour Code, R.S.C.
1970, c. L-1, s. 61.5(9)(c).
Labour relations -- Unjust dismissal -- Jurisdiction of adjudicator -- Adjudicator ordering
employer to give unjustly dismissed employee letter of recommendation with specified
content -- Adjudicator also ordering employer to answer request for information about
employee only by sending letter -- Whether s. 61.5(9)(c) of Canada Labour Code authorizes
adjudicator to make such orders -- Whether orders infringe employer's freedom of expression
guaranteed by s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation
on freedom of expression justifiable under s. 1 of Charter -- Whether orders unreasonable in
administrative law sense.
Respondent had been employed by appellant as a "radio time salesman" for three and a half
years when he was dismissed on the ground that his performance was inadequate.
Respondent filed a complaint and an adjudicator appointed by the Minister of Labour under
s. 61.5(6) of the Canada Labour Code held that respondent had been unjustly dismissed.
Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on
appellant an obligation to give respondent a letter of recommendation certifying (1) that he
had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales
quotas he had been set and the amount of sales he actually made during this period; and (3)
that an adjudicator had held that he was unjustly dismissed. The order specifically indicated
the amounts to be shown as sales quotas and as sales actually made. A second order
prohibited appellant from answering a request for information about respondent except by
sending the letter of recommendation. The Federal Court of Appeal dismissed an application
by appellant to review and set aside the adjudicator's decision. The purpose of the appeal at
bar is to determine whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such
17
orders; and in particular, whether the orders infringed appellant's freedom of expression
guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms.
Held (Beetz J. dissenting and Lamer J. dissenting in part): The appeal should be dismissed.
The orders infringe s. 2(b) of the Charter but are justifiable under s. 1.
The Charter applies to orders made by the adjudicator. The adjudicator is a creature of
statute. He is appointed pursuant to a legislative provision and derives all his powers from
statute. The Constitution is the supreme law of Canada, and any law that is inconsistent with
its provisions is, to the extent of the inconsistency, of no force or effect. It is thus impossible
to interpret legislation conferring discretion as conferring a power to infringe the Charter,
unless, of course, that power is expressly conferred or necessarily implied. Such an
interpretation would require this Court to declare the legislation to be of no force or effect,
unless it could be justified under s. 1 of the Charter. It follows that an adjudicator, who
exercises delegated powers, does not have the power to make an order that would result in an
infringement of the Charter.
The word "like" in the English version of s. 61.5(9)(c) of the Canada Labour Code does not
have the effect of limiting the powers conferred on the adjudicator by allowing him to make
only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection.
Interpreting this provision in this way would mean applying the ejusdem generis rule. It is
impossible to apply this rule in the case at bar since one of the conditions essential for its
application -- the presence of a common characteristic or common genus -- has not been met.
The interpretation according to which the word "like" in the English version of para. (c) does
not have the effect of limiting the general power conferred on the adjudicator is also more
consistent with the general scheme of the Code, and in particular with the purpose of
Division V.7, which is to give non-unionized employees a means of challenging a dismissal
they feel to be unjust and at the same time to equip the adjudicator with the powers necessary
to remedy the consequences of such a dismissal.
Per Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ.: The adjudicator's orders
were reasonable in the administrative law sense. Administrative law unreasonableness, as a
preliminary standard of review, should not impose a more onerous standard upon
government than would Charter review. While patent unreasonableness is important to
maintain for questions untouched by the Charter, such as review of determinations of fact, in
the realm of value inquiry the courts should have recourse to this standard only in the clearest
of cases in which a decision could not be justified under s. 1 of the Charter.
The adjudicator's first order infringed s. 2(b) of the Charter but is saved under s. 1.
The adjudicator's second order also infringed s. 2(b) of the Charter. It was an attempt to
prevent the appellant from expressing its opinion as to the respondent's qualifications beyond
the facts set out in the letter. But this order, too, was justifiable under s. 1. First, the objective
was of sufficient importance to warrant overriding appellant's freedom of expression. Like
the first order, the objective of the second order was to counteract the effects of the unjust
dismissal by enhancing the ability of the employee to seek new employment without being
lied about by the previous employer. The adjudicator's remedy was a legislatively-sanctioned
attempt to remedy the unequal balance of power that normally exists between an employer
and employee. The governmental objective, in a general sense, was that of protection of a
particularly vulnerable group, or members thereof. To constitutionally protect freedom of
expression in this case would be tantamount to condoning the continuation of an abuse of an
already unequal relationship. Second, the means chosen were reasonable. Like the first order,
the second order was rationally linked to the objective. With the proven history of promoting
a fabricated version of the quality of respondent's service and the concern that the employer
would continue to treat him unfairly if he went back to work for the employer, it was rational
for the adjudicator to attach a rider to the order for a reference letter so as to ensure that the
18
employer's representatives did not subvert the effect of the letter by unjustifiably maligning
its previous employee in the guise of giving a reference. Further, no less intrusive measure
could have been taken and still achieved the objective with any likelihood. Monetary
compensation would not have been an acceptable substitute because it would only have been
compensation for the economic, not the personal, effects of unemployment. Labour should
not be treated as a commodity and every day without work as exhaustively reducible to some
pecuniary value. The letter was tightly and carefully designed to reflect only a very narrow
range of facts which were not really contested. The appellant was not forced to state opinions
which were not its own. The prohibition was also very circumscribed. It was triggered only
in cases when the appellant was contacted for a reference and there was no requirement to
send the letter to anyone other then prospective employers. In short, the adjudicator went no
further than was necessary to achieve the objective. Finally, the effects of the measures were
not so deleterious as to outweigh the objective of the measures. The objective in this case
was a very important one, especially in light of Canada's international treaty commitment to
protect the right to work in its various dimensions. For purposes of this final stage of the
proportionality inquiry, the fact that a value has the status of an international human right,
either in customary international law under a treaty to which Canada is a State Party, should
generally be indicative of a high degree of importance attached to that objective.
Per Lamer J. (dissenting in part): The adjudicator did not exceed his jurisdiction by ordering
appellant to give respondent a letter of recommendation with a specified content. Apart from
the Charter, the only limitation imposed by s. 61.5(9)(c) is that the order must be designed to
"remedy or counteract any consequence of the dismissal". That is the case here. The order
prevents appellant's decision to dismiss respondent from having negative consequences for
the latter's chances of finding new employment. Ordering an employer to give a former
employee a letter of recommendation containing only objective facts that are not in dispute is
not as such unreasonable and there is nothing to indicate that the adjudicator was pursuing an
improper objective or acting in bad faith or in a discriminatory manner.
However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a
request for information about respondent other than by sending the letter of recommendation.
Though the order is also meant to remedy or counteract the consequences of the dismissal, its
effect, by prohibiting appellant from adding any comments whatever, is to create
circumstances in which the letter could be seen as the expression of appellant's opinions. This
type of penalty is totalitarian and as such alien to the tradition of free nations like Canada.
Parliament therefore cannot have intended to authorize such an unreasonable use of the
discretion conferred by it. The adjudicator lost this jurisdiction when he made a patently
unreasonable order.
The first order limits appellant's freedom of expression but this limitation, which is
prescribed by law -- the order made by the adjudicator is only an exercise of the discretion
conferred on him by statute -- can be justified under s. 1 of the Charter. The purpose of the
order is clearly, as required by the Code, to counteract the consequences of the unjust
dismissal. Such an objective is sufficiently important to warrant a limitation on freedom of
expression. It is essential for the legislator to provide mechanisms to restore equilibrium in
employer/employee relations so the employee will not be subject to arbitrary action by the
employer. Additionally, the means chosen to attain the objective are reasonable in the
circumstances. The order is fair and was carefully designed. The purpose of the letter of
recommendation is to correct the false impression given by the fact of the dismissal and it
contains only facts that are not in dispute. It is rationally connected to the dismissal since in
certain cases it is the only way of effectively remedying the consequences of the dismissal.
Finally, the consequences of the order are proportional to the objective sought. The latter is
important in our society. The limitation on freedom of expression is not what could be
19
described as very serious. It does not abolish that freedom, but simply limits its exercise by
requiring the employer to write something determined in advance.
Per Beetz J. (dissenting): Except for the attestation relating to the unjust dismissal, the first
order violated the appellant's freedoms of opinion and of expression and could not be
justified under s. 1 of the Charter. This order forced the employer to write, as if they were his
own, statements of facts in which, rightly or wrongly, he may not believe, or which he may
ultimately find or think to be inaccurate, misleading or false. In short, the order may force the
appellant to lie. To order the affirmation of facts, apart from belief in their veracity by the
person who is ordered to affirm them constitutes a prima facie violation of the freedoms of
opinion and expression. Such a violation was totalitarian in nature and could never be
justified under s. 1 of the Charter.
The second order, coupled with the first, also violated the former employer's freedoms of
opinion and of expression in a manner which was not justified under s. 1 of the Charter. The
sending of the letter as drafted by the adjudicator, coupled with the prohibition to say or write
anything else could lead to the implication that the former employer had no further comment
to make upon the performance of the respondent and that, accordingly, the letter reflected the
opinion of the former employer. In any event, the second order was disproportionate and
unreasonable. One should view with extreme suspicion an administrative order or even a
judicial order which has the effect of preventing the litigants from commenting upon and
even criticizing the rulings of the deciding board or court.
Further, in cases of unjust dismissal, the issuance by an adjudicator of a blanket and
perpetual prohibition against a former employer to write or say anything to a prospective
employer but what the adjudicator has dictated in the letter of recommendation can lead to
absurd and even counter-productive results. The adjudicator cannot foresee all the possible
types of exchanges which are susceptible to occur between former and prospective
employers. The absurdity which results from the adjudicator's second order is sufficient to
warrant its reversal. If it is disproportionate and unreasonable from a practical point of view,
then it has to be unreasonable from an administrative law point of view and it is difficult to
conceive how it could be reasonable within the meaning of s. 1 of the Charter.
20