Leave to Appeal Granted: Association of justice counsel v Attorney General of Canada

supreme_court_of_canada_by_night

On Thursday, the Supreme Court granted leave to appeal [1] from the Federal Court of Appeal to the Association of Justice Counsel.

The Association represents a group of employees who provide legal advice on immigration matters, employed by the Immigration Law Directorate. The employees were required to provide “on-call” services on weeknights and weekends, two or three times per year, and to be able to be present for work within the hour [2].

The Arbitration

An arbitrator had sided with the Association following its grievance on the matter, finding that the employer’s directive was an unfair exercise of its management rights, was a violation of the collective agreement, and was a violation of the Charter at section 7 (pertaining to the right to liberty) [3]. The Association had argued that the employer had exercised too much control over its employees during “non-work hours” with the implementation of on-call work [4]. The arbitrator agreed, not thinking that it was fair for employees to have to always be prepared to work when “standby duty” was not specified in the collective agreement [5]. In this sense, there was thought also to be a violation of the Charter’s liberty guarantee.

Judicial Review

The Federal Court of Appeal allowed an application for judicial review, finding that the arbitrator’s decision was unreasonable as there was no violation of the Charter, nor was there a violation of the collective agreement [6].

A central and interesting component of the Federal Court of Appeal’s ruling is its finding that the Charter was not violated by the requirement that employees work on-call hours on week nights and weekends. The Court had to determine what sorts of personal activities fall within the “irreducible sphere of personal autonomy” protected by section 7 [7]. The Court concluded that the on-call regime did not violate this right:

“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” [8].

Moreover, the Court found that the employer’s regime was flexible-enough to accommodate essential, non-work duties of employees such as parental responsibilities. It emphasised that employees would only be called in two or three times per year, and that granting Charter protection in this regard would trivialize the importance of human rights [9].

Analysis: A Charter Right to a Personal Life?

The Federal Court came down hard on the notion that a personal life, and the right to take part in certain activities in one’s private time, is protected under the Charter’s liberty guarantee. Apparently, Charter rights do not protect your ability to play pick-up hockey or master the art of quilting (though perhaps the former has a better chance). However, I think that one can agree with this analysis, but still find that the Court should have broadened its somewhat narrow approach regarding what sorts of personal interests should be protected.

First, although employees would only be required to work two to three days per year, they were nonetheless required to be available during many more nights throughout the year. Whether or not they would be required to show up for work, they would be required to be available. This restricts what employees can do during their personal lives in a broader manner than the Court suggests.

Second, although it would seem strange to extend Charter protection to one’s personal hobbies, there are some important duties such as childcare that the employer’s regime captured. It is this sort of reasoning that led to the inclusion of “family status” as a ground of discrimination under the Canadian Human Rights Act [10]. In Johnstone, the Federal Court ruled that unpredictable shift work for parents amounted to discrimination based on their parental status [11]. Perhaps this existing avenue is sufficient to protect such “important” interests (that is, pursuing discrimination claims via human rights legislation).

However, a broader understanding of liberty might serve to be beneficial. For instance, it would allow a forward-looking approach to the protection of individuals against various “wrongs” that our legislatures have not yet explicitly recognized. This might not include the right to play pick-up hockey specifically, though perhaps the right to have a personal life, in general, is something that liberty should protect where existing laws against discrimination are lacking.

 

Notes:

[1] http://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/16226/index.do

[2] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92.

[3] Canadian Charter Rights and Freedoms, at s 7.

[4] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 13.

[5] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 15.

[6] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 2.

[7] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 37.

[8] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 40.

[9] Canada (Attorney General) v Association of Justice Counsel, 2016 FCA 92, at paragraph 41.

[10] Canada (Attorney General) v Johnstone, 2014 FCA 110.

[11] Canada (Attorney General) v Johnstone, 2014 FCA 110.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.