On the heels of its recent decision in Mounted Police Association of Ontario,[1] and with more distant roots in its judgments in BC Health Services[2] and Fraser,[3] the Supreme Court of Canada has breathed new life into section 2(d) of the Charter as it relates to the Canadian workplace. The Court’s decision marks a historic moment, not only for workers, but for the continued vitality of the rights protected by the Charter.

In Saskatchewan Federation of Labour v Saskatchewan (“SFL”), the unions challenged legislation granting public employers in the province the unilateral right to declare workers as performing “essential services”, meaning that they could not participate in an otherwise lawful strike. The Supreme Court found that this legislation violated workers’ freedom of association under 2(d) of the Charter: writing for the majority, Justice Rosalie Abella held that the right to strike is an essential part of meaningful collective bargaining and is protected by 2(d), and further held that the essential services regime in Saskatchewan could not be saved under section 1 of the Charter because, among other things, there was no independent check on employers’ unilateral right to prevent workers from striking.

In reaching this conclusion, the Court expressly overruled its prior holding in the Alberta Reference,[4] nearly 30 years earlier, that freedom of association did not protect the right to strike. The analysis of the Court in SFL relies heavily on the dissenting reasons of Chief Justice Dickson in Alberta Reference, adopting his conclusion that “effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter.”

The Court’s wholesale endorsement of Chief Justice Dickson’s dissent shows that the Charter is indeed a “living tree”, and the Court is not afraid to permit it to grow and develop over time. In her majority reasons, Justice Abella writes that, in now including the right to strike, “s. 2(d) has arrived at the destination sought by Dickson C.J. in the Alberta Reference”. This language—likening section 2(d) to a kind of traveller—is a bold affirmation that Charter rights are not stagnant and will be interpreted to give effect to their underlying values, even as our understanding and acceptance of those values evolves over time.

In this way, the judgment in SFL can be seen as further validation of the approach in BC Health Services and Canada (Attorney General) v Bedford:[5] when the Court is faced with compelling arguments supported by a strong evidentiary record, it is prepared to revisit its past conclusions in order to give life to the fundamental rights enshrined in the Charter.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

[1] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

[2] Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27

[3] Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20

[4] Alberta Reference (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313)

[5] Canada (Attorney General) v. Bedford, 2013 SCC 72

On January 7 and 8, 2015, Andrew Astritis appeared in the Supreme Court of Nova Scotia to argue a judicial review application. The application seeks to overturn a decision of an arbitrator on the right of employees to accumulate vacation credits.

The Supreme Court’s recent decision in Saskatchewan Federation of Labour v Saskatchewan (“SFL”) will be remembered primarily for its historic conclusion that freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms includes a protection for workers’ right to strike.

But the comprehensive reasons of the majority also offer strong confirmation of the persuasive role that international law and Canada’s international commitments play when interpreting Charter rights.

International Law and the Charter

In determining that the freedom of association protects the right to strike, the Supreme Court gave significant, substantive consideration to the development of the right to strike within international law.

The Court concluded that there is an emerging international consensus that meaningful collective bargaining requires a right to strike and that this consensus, when combined with similar historical and legal developments, required recognition of the right to strike within the Charter.

That international law plays some role in interpreting Charter rights comes as no surprise. The Supreme Court has long recognized that Charter rights should be interpreted consistently with Canada’s international human rights obligations. As the often-cited passage by former Chief Justice Dickson recognized:

…the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Without more specific guidance from the Supreme Court, however, the use of international instruments as interpretive tools has often been stalled by practical questions as to how they may be used and by significant resistance from the provincial and federal governments to their use in the first place.

In fact, before the courts in SFL, many of the government interveners argued that little weight should be given to the status of the right to strike internationally. They argued that the Charter does not incorporate Canada’s international commitments and that there is no obligation to constitutionally protect rights recognized in international law. They also suggested that courts should not rely on international instruments to which Canada is not a party.

Impact of the Supreme Court’s Decision

In its reasons, the Court soundly rejected all arguments to limit the persuasiveness or relevance of international law. Instead, the Court confirmed that international law plays a crucial role in interpreting rights under the Charter.

The Court’s reasons also offer a number of broader lessons about the use of international law going forward.

• First, international law, particularly in areas of growing international consensus, can and should play a central role in informing the evolving content of rights under the Charter. Developments in international law over time are, consequently, relevant when assessing whether to recognize rights in Canada. The Saskatchewan Court of Appeal had previously rejected this position.
• Second, courts should give consideration to a wide range of international instruments, even those which do not formally bind Canada. The Supreme Court looked beyond the well-established sources of Canadian legal obligations, such as international treaties which Canada has ratified, and relied on other authorities whose potential interpretive power had previously been unclear, including decisions of the International Labour Organization’s Committee on Freedom of Association, decisions made under the European Convention on Human Rights, and labour legislation and decisions from other countries.
• Finally, the Court recognized that the expertise of certain specialized international bodies will provide their decisions with “considerable persuasive weight.” The Court made this statement particularly with regards to the ILO’s Committee on Freedom of Association, suggesting that its decisions will continue to guide future labour cases under section 2(d).

Conclusion

While some questions may remain in terms of how to practically apply international instruments as interpretive aids, the above principles – and the Supreme Court’s unequivocal support for their application – provide clear and decisive confirmation that international law considerations will form an essential part of Charter claims going forward.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Our firm is renewing its partnership with the University of Ottawa and continues its commitment and funding to the Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Human Rights/Social Justice Internship. This exciting opportunity provides an excellent and meaningful summer work experience to students who are particularly interested in issues pertaining to social justice, human rights or equality rights. This is the 10th consecutive year that this paid internship has been sponsored by RavenLaw.

This is a program that we are very proud of as it gives students excellent experience in these areas but also provides legal support to social justice organizations. This year, the host organizations include the Workers History Museum.

Students seeking information about the internship should contact Chelsea Paradis. If your organization works in the areas of social justice and human rights and you are interested in having an intern in the future, please contact David Yazbeck at 613-567-2901.

The Federal Court of Appeal has overturned a decision of the Canadian Human Rights Commission, in which the Commission rejected a human rights complaint against the Bank of Nova Scotia at the pre-investigation stage. The Appellant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage. 

The Commission rejected the complaint under section 41 of the Canadian Human Rights Act, which authorizes the Commission to refuse to deal with a  complaint without an investigation in certain circumstances. In its unanimous decision granting the appeal, the Court held that it was unreasonable for the Commission to have dismissed the complaint without an investigation, because there was a live contest between Mr. McIlvenna and the Bank as to whether the Bank made its decision on discriminatory grounds. Justice Stratas wrote on behalf of the Court: 

“At this point in its process, the Commission cannot acceptably or defensibly resolve the live contest between Mr. McIlvenna and the report of the Bank’s in-house counsel in favour of the latter, at least until it investigates further under section 43. But here, nonetheless, it purported to do so. In so doing, it must have engaged in some sort of weighing process that led it to favour the report of the Bank’s in-house counsel. This it cannot do. During the section 41 stage, a weighing process of the sort conducted here is no part of its task.”

This decision provides important clarification of the proper scope of the Commission’s decisions at the section 41 stage of its process, and confirms its duty to investigate when there is a live dispute regarding the material facts of the human rights complaint.  

Mr. McIlvenna was represented by Andrew Astritis and Amanda Montague-Reinholdt from our firm. A copy of the Court’s reasons for judgment can be found here.

On November 27, 2014, Arbitrator Frederick von Veh issued a decision reinstating a Canada Post motorized letter carrier after he was terminated for working with an expired driver’s license. The Arbitrator found that the employee had not acted deliberately and that he had simply forgotten to renew his license – “he made a mistake”.  Arbitrator von Veh concluded that inadvertent errors do not constitute “major misconduct”, a term often used by employers to justify discipline. As a result, the employee was reinstated.

At the hearing, the employee was represented by his union representative, Don Foreman of the Canadian Union of Postal Workers (“CUPW”), and Wassim Garzouzi and Dayna Steinfeld from our firm.

The right to work in a safe and healthy environment is a cornerstone of modern employment rights. One of the ways that governments ensure and promote the health and safety of workers is through legislation. For employees who work in federally regulated workplaces, the applicable legislation is the Canada Labour Code. The purpose of the occupational health and safety provisions of the Code is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

On October 31, 2014, changes to the occupational health and safety provisions of the Code took effect. These changes have the potential to erode some of the key rights that workers had under the old version of the Code and may work against the Code’s stated purpose of preventing accidents and injury to health.

Application of the Canada Labour Code

The provisions of the Code apply to workers who are employed in federally regulated industries, including banks, railways, highway and air transport, radio and television broadcasting,  and (for some purposes) employees of the federal government as well as Crown corporations and agencies.

Occupational Health and Safety under the Canada Labour Code

The occupational health and safety provisions are contained in Part II of the Code. These provisions impose duties on employers and employees to ensure the health and safety of everyone in the workplace. The Code establishes three basic health and safety rights for employees:

1. The right to know about hazards in the workplace and information that will help protect employees’ health and safety;
2. The right to participate in health and safety processes in the workplace; and
3. The right to refuse unsafe work.

Amendments to the Canada Labour Code

The recent Code amendments contain a number of significant changes to the health and safety provisions. Perhaps the most significant changes are those which limit an employee’s ability to refuse unsafe work.

Definition of a workplace “danger” amended

The definition of danger is significant for accessing many of the rights contained in the Code, including the right to refuse unsafe work. Previously, “danger” extended to situations involving exposures that could result in chronic illness, disease or damage to the reproductive system. Under the new definition, for a situation to be a “danger”, there must be serious or imminent risk to life or health.

Increased powers to Minister to investigate, dismiss work refusals

Previously, if an employer investigated a work refusal and determined that there was a danger, it was mandatory for a health and safety officer to investigate the matter in the presence of the employee. The amendments create two significant changes to this process: first, it is now the Minister of Labour or the Minister’s delegate that performs the investigation. Second, and perhaps more significantly, the investigation is not mandatory—rather, the Minister can dismiss complaints without investigating if he or she is of the view that the matter can be dealt with under another procedure of the Code. The Minister can also dismiss a complaint without investigation if he or she is of the view that the matter is trivial, frivolous or vexatious or if the refusal to work is made in bad faith. If the Minister does not proceed with an investigation, the employee can no longer refuse to work.

The amendments may erode the right of workers to refuse unsafe work

The new provisions of the Code only recently came into effect and it is difficult to say exactly how workers will be affected. It remains to be determined whether the changes to the definition of danger will limit the circumstances in which workers can refuse work on the basis of a dangerous situation in the workplace, or whether courts will interpret “danger” in essentially the same way as under the old definition. While the implications of the change to the definition of danger are uncertain at this point in time, it does seem clear that the new powers of the Minister to dismiss complaints without investigation bestow wide-ranging discretion on the Minister. As an employee cannot continue to refuse to work if the Minister does not proceed with an investigation, the Minister’s ability to dismiss complaints without investigation could result in workers returning to unsafe conditions.  Worker advocates will be closely following how these amendments are interpreted and applied by employers and the courts.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 26, 2014, the Federal Court rendered its judgment overturning a decision of a grievance adjudicator under the Public Service Labour Relations Act. The Applicants were a group of employees who alleged they had been denied overtime opportunities contrary to their Collective Agreement. The adjudicator of their grievances rejected the arguments presented by the employer, but nonetheless dismissed the grievances on grounds that had never been argued or discussed during the hearing.

In its judgment (2014 FC 1136), the Federal Court held that the adjudicator had violated the Applicants’ rights to procedural fairness by denying them an opportunity to present evidence and arguments on the issue that formed the ultimate basis for the adjudicator’s decision. This decision confirms that, where an administrative decision-maker wishes to depart from the case as argued by the parties and render a decision on the basis of a new issue or argument, the decision-maker is obligated to give the parties an opportunity to make submissions on that new issue.

The Applicants were represented on the judicial review by Amanda Montague-Reinholdt of our firm.

Morgan Rowe spoke on November 21, 2014 to the University of Ottawa law school’s human rights law course on emerging areas in human rights law.

On November 12, 2014, Andrew Astritis spoke to a labour law class at the University of Ottawa law school about three cases in which Raven, Cameron, Ballantyne & Yazbeck appeared as an intervener before the Supreme Court: Mounted Police Association of Ontario v Attorney General of Canada, Robert Meredith v Attorney General of Canada, and Saskatchewan Federation of Labour v Her Majesty the Queen, in Right of the Province of Saskatchewan. Decisions in these cases, which involve labour rights and freedom of association, are currently pending from the Supreme Court.

On December 10, 2014, Andrew Astritis will be presenting at the 3rd Annual Human Rights Summit hosted by the Law Society of Upper Canada.  Andrew will be speaking on his recent, May 2, 2014, Federal Court of Appeal decision in Johnstone v. Canada Border Services Agency decision on family status accommodation. In this decision Justice Mainville  recognized that there “[t]here should be no hierarchy of human rights” and provided that “protection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual.  In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected.”  For additional information or registration, please go to the Law Society of Upper Canada’s website.