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MANAGEMENT RIGHTS - Scheduling of work - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Life, liberty and security of person

Sunday, November 05, 2017 @ 2:10 PM  


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Appeal by the Association of Justice Counsel (AJC) from a Federal Court of Appeal judgment allowing the government’s application for judicial review and setting aside a grievance adjudicator’s decision. The AJC filed a grievance on behalf of lawyers working in the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice Canada. The grievance was filed after the employer, Department of Justice, issued a directive making after-hour standby shifts mandatory for lawyers working in the Directorate. Prior to the issuance of the directive, government immigration lawyers covered standby shifts on a voluntary basis. They were compensated with paid leave and received the same amount of compensation irrespective of whether they were called into work. In March 2010, the employer informed the lawyers that they would no longer be paid for time spent on standby. Instead, they would be compensated only for the time they spent working if they received an urgent request. The directive envisioned that the lawyers would be compensated for time worked through either overtime pay or paid leave, depending on their seniority status. With this change in policy, there were no longer enough volunteers to cover the standby periods. In response, management made the standby duty shifts mandatory. All qualified lawyers in the office were required to cover the evening and weekend shifts one to three weeks per year. The AJC grieved the mandatory standby directive. The labour adjudicator agreed with the AJC that the directive was not a reasonable or fair exercise of management rights and violated the constitutional rights of the lawyers. He concluded that the standby requirement implicated the liberty rights guaranteed to the lawyers under s. 7 of the Canadian Charter of Rights and Freedoms (Charter), and that the infringement did not conform to the principles of fundamental justice. Consequentially, he concluded that the directive also breached clause 6.01 of the collective agreement, which prohibited the government from imposing a workplace policy that would restrict the lawyers’ constitutional rights, or other rights granted to them through federal legislation. The employer was ordered to immediately cease applying the directive. The Federal Court of Appeal set aside the adjudicator’s decision and directed another adjudicator to find that the directive represented a fair and reasonable exercise of management rights. The Court reasoned the adjudicator had placed an unreasonable burden on the employer to justify the need for the standby directive and had ignored evidence that showed there were not enough volunteers after the lawyers were informed that they would no longer be compensated for being on standby. The Court also determined that the adjudicator erred in his analysis of s. 7 of the Charter and clause 6.01 of the collective agreement. The Court reasoned the adjudicator had unreasonably extended the right to liberty beyond that established through prior jurisprudence.

HELD: Appeal allowed in part. The Federal Court of Appeal’s determination that the directive did not engage any liberty interests protected by s. 7 of the Charter was upheld. However, the adjudicator’s decision that the directive was not a proper exercise of management rights under the collective agreement was reasonable. Accordingly, the adjudicator’s disposition that the directive contravened the collective agreement was restored and his order requiring the employer to stop applying the directive was reinstated. The collective agreement at issue was silent on standby duty. The well-established approach to determining whether a policy that affected employees was a reasonable exercise of management rights was the “balancing of interests” assessment, as set out in the leading arbitral decision, KVP, and endorsed by the Supreme Court of Canada in the Irving decision. In following the balancing of interests approach, the adjudicator applied the appropriate analytical framework to assess the exercise of management rights under the collective agreement. The adjudicator’s task was to draw on his specialized labour expertise and consider whether, in this particular context, the balance struck by the directive was reasonable. The collective agreement also required him to decide whether the exercise of the management rights was fair. The adjudicator concluded it was neither. The adjudicator’s conclusion on this issue fell within the range of acceptable, possible outcomes. Less intrusive means to meet organizational needs could be a relevant consideration in the balancing of interests assessment, alongside the nature of the employer’s interests and the policy’s impact on employees. Evidence that no such alternatives were available would have supported the respondent’s position that the directive was a necessary response. The adjudicator was therefore entitled to note the lack of such evidence. While the adjudicator erred in his legal characterization of the impact of the directive on the lawyers in his s. 7 Charter analysis, it was clear he would have concluded that the directive was neither reasonable nor fair even if he had not erred in his analysis on the directive’s compliance with s. 7 of the Charter. The Federal Court of Appeal erred by substituting its own balancing of the interests involved for that of the adjudicator. However, the Court correctly concluded that the directive’s incursion into the private, after-work lives of the lawyers did not implicate the type of fundamental personal choices that were protected within the scope of s. 7. Thus, the directive clearly did not engage the lawyers’ liberty interests under s. 7 and so did not engage their constitutional rights.

Association of Justice Counsel v. Canada (Attorney General), [2017] S.C.J. No. 55, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., November 3, 2017. Digest No. TLD-October302017012SCC