SCC rules management directive not reasonable; does not engage s.7 liberty interests.
Tuesday, November 07, 2017 - Filed in: Court Cases
"In the early 1990s, the employer established a standby shift system to respond to urgent immigration matters outside of normal business hours, whereby a lawyer in the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice Canada would be available evenings and weekends to attend on short notice to any urgent stay applications that might arise. Until 2010, the system worked on a volunteer basis. Lawyers who volunteered to cover standby shifts were compensated with paid leave and received the same amount of compensation irrespective of whether they were called into work. In March 2010, the lawyers were informed that they would no longer be paid for time spent on standby. Instead, they would be compensated — through either overtime pay or paid leave, depending on their seniority status — only for the time they spent working if they received an urgent request. With this change in policy, there were no longer enough volunteers to cover the standby periods. In response, the employer issued a directive making after‑hour standby shifts mandatory. The Association of Justice Counsel then filed a grievance on behalf of lawyers working in the Immigration Law Directorate.
The collective agreement at issue is silent on standby duty, but it specifies that the employer retains all management rights and powers that have not been modified or limited by the collective agreement. The labour adjudicator concluded that the directive was not a reasonable or fair exercise of management rights and infringed the lawyers’ right to liberty under s. 7 of the Charter. He ordered the employer to immediately cease applying the directive. The Federal Court of Appeal allowed the government’s application for judicial review and set aside the adjudicator’s decision."
The S.C.C. (with two judges dissenting in part) allowed the appeal in part; the adjudicator’s decision that the directive contravened the collective agreement is reasonable and his order that the employer stop applying the directive should be reinstated.
Justice Karakatsanis wrote as follows (at paras. 3, 49-52):
"...the adjudicator’s decision that the directive was not a proper exercise of management rights under the collective agreement was reasonable. However, I agree with the Federal Court of Appeal that the directive did not engage any liberty interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.
The extent to which s. 7 of the Charter applies outside the context of the administration of justice has yet to be settled in this Court, see e.g. Gosselin v. Quebec (Attorney General), 2002 SCC 84,  4 S.C.R. 429, at paras. 77-79; Chaoulli v. Quebec (Attorney General), 2005 SCC 35,  1 S.C.R. 791, at paras. 196-99. But even assuming s. 7 applies to the relationship at issue here, I would agree with the Federal Court of Appeal that the adjudicator clearly overstated the breadth of the right to liberty protected under s. 7 . Section 7 protects a sphere of personal autonomy involving “inherently private choices” (R. v. Malmo-Levine, 2003 SCC 74,  3 S.C.R. 571, at para. 85, quoting Godbout v. Longueuil (City),  3 S.C.R. 844, at para. 66). However, such choices are only protected if “they implicate basic choices going to the core of what it means to enjoy individual dignity and independence” (ibid.).
The directive’s incursion into the private, after-work lives of the lawyers does not implicate the type of fundamental personal choices that are protected within the scope of s. 7 . Malmo-Levine and Godbout are clear that not all activities that an individual happens to define as central to his or her lifestyle are protected by s. 7 . As examples, Malmo-Levine noted that a taste for fatty foods, an obsessive interest in golf and a gambling addiction are not afforded constitutional protection (para. 86). By analogy, the ability of the lawyers — for two to three weeks per year — to attend operas or piano lessons, or to train for a triathlon without having to keep a pager nearby are not protected by s. 7 .
The directive also affects the ability of the lawyers to spend time with their children and families. While on standby, some of the lawyers are unable to visit family or provide the level of attention to their children that they would like to because they must stay within an hour of the office. But again, these consequences do not affect the lawyers’ ability to make fundamental personal choices (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,  2 S.C.R. 307, at para. 49; Malmo-Levine, at para. 85). Instead, the directive requires them, as a condition of their employment, to be potentially less available to their families for, at most, two to three weeks a year. This does not fall within the scope of s. 7.
Thus, the directive clearly does not engage the lawyers’ liberty interests under s. 7 and so does not engage their constitutional rights."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.