Tuesday, April 17, 2007

Twenty Five Years

Today, April 17th. marks the 25th anniversary of the Charter of Rights and Freedoms. There is relatively little charter litigation based on employment. This is primarily because the Charter of Rights applies between the government and the people, rather than between private parties such as an employer and employee. The Supreme Court of Canada made this point back in 1986 in a case called Dolphin Delivery. That case dealt with the limitations placed on striking workers. Indeed, many of the Charter cases involving the workplace have been about strikes or picketing. In those cases the court has stated that picketing is a form of expression which is protected by the Charter.

The first case out of the court to deal with employment (and indeed one of the first Charter cases to be heard) was Skapinker v. The Law Society. In that case Mr. Skapinker was a permanent resident, but not a citizen of Canada and had therefore been precluded from being admitted to the Ontario Bar by viture of s.28 of the Law Society Act. The case raised an interesting employment question which was whether s.6(2) of the Charter created a "right to work" in Canada.

Section 6 provides:

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

After analysing the purpose of the section and canons of legislative interpretation the court held:

"I conclude, for these reasons, that para. (b) of subs. (2) of s. 6 does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence. Paragraph (b), therefore, does not avail Richardson of an independent constitutional right to work as a lawyer in the province of residence so as to override the provincial legislation."

So, in the end, Mr. Skapinker would have been denied the right to work (at least as a lawyer) in Ontario, but for the fact that by the time the case got to the Supreme Court, Skapinker had already become a citizen of Canada and had been called to the bar of Ontario. (Mr. Skapinker continues to practice family law in Toronto today.)

The first real positive case in non-union employment law was the Vriend case out of Alberta. Mr. Vriend was fired for the sole reason that he was homosexual. Alberta law, which did not protect sexual orientation, was held unconstitutional.

One interesting case involved the application by an individual to be excluded from membership in a union. The law allows for mandatory membership and mandatory union dues. The employee, Mr. Lavigne objected to his money (union dues) being used to fund such causes as anti nuclear campaigns, pro-choice campaigns and NDP party functions. The Supreme Court held, that the Freedom of Association did not include the freedom not to associate.

In Dickason v. U of A, The Supreme Court held that the mandatory retirement provisions of the provincial human rights legislation was constitutional. The same result was reached in the McKinney v. U Guelph case in Ontario.

In Weber v. Ontario Hydro, the Supreme court held that arbitrators had the power to award Charter remedies. Though a strong dissenting panel appears to have carried the court recently when leave to appeal was refused in the OPSEU (Olivo) case on the issue of arbitrators awarding tort damages.

In the world of what might be called non standard employment, the Ontario Court of Appeal held that Squeegee kids had the right to freedom of expression as well -- just not a right that could be exercised on public streets (see R v. Banks).

In R. v Big M Drug Mart, the SCC held that the Lord's Day Act was unconstitutinal thus opening the door for many more people to work on Sundays.

In Osborne v. Canada, the SCC held that lower level government employees should be allowed to participate in the political electon process, ie. work for a candidate and the prohibition against such participation in the Public Service Employees Act violates the Freedom of Expression in the Charter.

In Slaight Communications the SCC held that an order by a Canada Labour Board adjudicator requiring an employer to write a specific letter of reference did not violate the employer's freedom of expression under the Charter (saved by s.1)

In the PSAC case, a case dealing with the right of government employees to strike on the basis of freedom of assocation, the court made its oft cited comments:

"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect."

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