Association of Justice Counsel v. Treasury Board (Department of Justice)
Public Service Labour Relations Act
- Date: 20150402
- File: 569-02-94
- Citation: 2015 PSLREB 31
Before an adjudicator
ASSOCIATION OF JUSTICE COUNSEL
(Department of Justice)
Association of Justice Counsel v. Treasury Board (Department of Justice)
In the matter of a policy grievance referred to adjudication
REASONS FOR DECISION
- Stephan J. Bertrand, adjudicator
- For the Bargaining Agent:
- Bernard Philion, counsel
- For the Employer:
- Sean F. Kelly, counsel
October 28 and 29, 2014.
I. Policy grievance referred to adjudication
1 On May 18, 2010, the Association of Justice Counsel ("the Association" or "the bargaining agent") filed a policy grievance contesting a Department of Justice ("the employer") policy. According to that policy, counsel with the Immigration Law Directorate ("ILD") in the Quebec Regional Office must be available for standby duty, on a rotational basis and without compensation, on weeknights and weekends. Counsel referred to in the grievance provide their services to the Canada Border Services Agency and the Department of Citizenship and Immigration, two of the ILD's client departments.
2 On July 2, 2010, the employer dismissed the grievance at the final level of the grievance process. It was referred to adjudication on July 15, 2010.
3 The Public Service Labour Relations Board heard the grievance in March and September 2011. Michèle A. Pineau was the adjudicator. On November 28, 2011, in Association of Justice Counsel v. Treasury Board, 2011 PSLRB 135, she ruled that she did not have jurisdiction under subsection 220(1) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) to rule on the grievance, and she ordered the file closed.
4 The Association applied for a judicial review of that decision. On July 22, 2012, the Federal Court allowed the application for a judicial review in Association of Justice Counsel v. Canada (Attorney General), 2013 FC 806, and returned the grievance to the Board so that a new adjudicator could decide it on its merits.
5 The grievance was heard again on October 28 and 29, 2014.
6 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board ("the new Board") to replace the former Public Service Labour Relations Board ("the former Board") as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.
II. Summary of the evidence
7 At the start of the hearing, the parties filed an agreed statement of facts containing eight exhibits, in which they agree on the following facts:
- On April 28, 2006, the Association was accredited as the new bargaining agent for counsel.
- On October 23, 2009, an arbitral award was rendered establishing the working conditions for those counsel who were part of the bargaining unit. It came into force on November 1, 2009, subject to certain other provisions that did not come into force until February 20, 2010.
- On May 18, 2010, the Association filed a policy grievance contesting an employer policy requiring counsel with the Immigration Law Directorate in the Quebec Regional Office to be available for standby duty, on a rotational basis and without compensation, on weeknights and weekends.
- On July 2, 2010, the employer dismissed the grievance at the final level of the grievance process.
- On July 15, 2010, the grievance was referred to adjudication.
- On July 27, 2010, the Association and the employer signed a collective agreement with an expiry date of May 9, 2011.
Standby duty at the Immigration Law Directorate (ILD) in the Quebec Regional Office
- The employer has required standby duty since the early 1990s to respond to stay applications before the Federal Court or to file them. There are two types of applications: those filed with the Federal Court to temporarily suspend a deportation for which the date and time have been determined until the Court can rule on the underlying application for judicial review, and those by a department opposing a release order that has just been rendered. There may also be rarer cases in which counsel on standby must respond to an urgent application from the client department, for example, if a person detained for immigration purposes refuses to take medication.
- Applications may be filed outside working hours and must be handled promptly. It is normal for stay applications to be filed in the late afternoon and for the work to reach late into the evening. Applications filed during the weekend are less frequent (about six times per year at the time) but just as unpredictable.
- The employer requires that counsel responding to a stay application be available in accordance with the role that the Federal Court established and in accordance with the schedule of the judge appointed to hear the application. The Federal Court clerk calls the Immigration Directorate's emergency number in anticipation of the hearing of the case. Written arguments may be prepared and filed, depending on the level of urgency, followed by a hearing or teleconference with the Federal Court Judge, who hears the parties on the merits of the application. To access the file and work tools outside regular working hours, counsel may need to go into the office, although exceptionally, he or she may take part in the teleconference from home.
- Counsel perform standby duty on weekdays, between 17:00 and 21:00, and between 09:00 and 21:00 on weekends.
- In 2010, the ILD handled in total about 120 stay applications per year.
- Due to their nature, weekend emergencies occur erratically. Several may occur in a row, or several weeks might pass before another occurs.
- Since it is very rare for a stay application to occur after 21:00, the employer decided not to require the availability of counsel beyond that time on weeknights and weekends.
- Before April 1, 2010, counsel voluntarily performed standby duty. Those volunteers were compensated with management leave according to the number of days of standby duty performed, whether or not an emergency required them to go into the office, as follows: 2.5 days for a 2-day weekend, 3.5 days if the weekend included a statutory holiday, and 5 days for the Easter and Christmas holidays.
- Under that system, the employer always had a sufficient number of volunteers to ensure standby duty.
- On or about March 22, 2010, the employer notified counsel that it was changing its compensation policy for standby duty and that standby hours performed would no longer be compensated as of April 1, 2010.
- However, if they had to work on an evening or on the weekend, counsel would be paid in cash or in compensatory time (LA-1 and LA-2A) or compensated with management leave (LA-2B and LA-3).
- Mr. Synnott asked counsel if any volunteers would provide the standby service.
- In the absence of volunteers, in an email dated April 13, 2010, the employer imposed the requirement that all counsel (including those identified below) be available on a rotational basis, an average of 1 to 3 times per year, for standby duty.
- The employer prepared a standby duty table for the period from April 1, 2010, to March 31, 2011. To that end, the employer asked counsel for their availability for the entire period covered by the list. The employer then established the list according to counsel's availability and situations (e.g., a situation requiring accommodation under the Human Rights Act). In addition, the employer allowed counsel to arrange with each other in case they needed someone to fill in for them.
- The employer prepared a 2010–2011 standby table that was posted on or about April 14, 2010.
- Standby duty requires that counsel be available to respond to a Court call to prepare and argue possible stay applications.
- To that end, counsel are required to carry a pager and cell phone provided by the employer and to respond to calls until 21:00 on days they perform standby duty.
- They are also required, at all times, when there is a call, to be able to be at the office within about an hour.
- They must also ensure that, if necessary, they can provide the professional services that would be required of them.
Ms. Jocelyne Murphy
- Among the counsel referred to in the new policy, Ms. Jocelyne Murphy has been employed with the Department of Justice since 1997 (and with the ILD since its creation in 2001).
- In 2010, Ms. Murphy's situation was as follows:
- She held a position classified at the LA-2B group and level.
- She worked a compressed schedule in which she accumulated 1 day of leave for each 28-day period by working longer hours every day.
- Her immediate supervisor was Ms. Annie Van Der Meerschen, Regional Manager and Senior Counsel, who, in turn, reported to Mr. Michel Synnott, ILD Director.
- Before April 1, 2010, she sometimes volunteered for weekend standby duty because of the compensatory leave that she obtained in exchange, which she used for personal and family activities.
- As of April 1, 2010, she decided that she would no longer volunteer for evening and weekend standby duty.
- She is the head of a single-parent family. She had a 16-year-old son in 2010.
- Her son was in a sports-study program requiring him to take a bus to school every weekday morning at 05:40.
- At the end of the day, because the sports were played after school hours, he could not use the school bus service, so Ms. Murphy had to pick him up and take him home, sparing him a two-hour bus ride. Ms. Murphy did that to ensure that her son would be fit for school the next day.
- Ms. Murphy carried out those obligations three to four evenings a week, from September to June.
- Ms. Murphy held a subscription to the Opéra de Montréal between September and May. She did not attend shows when she was on standby duty as she could not hear the pager or call in during a show.
- Ms. Murphy did not visit her family when she was on standby duty as her family lives outside metropolitan Montréal and more than an hour from Ms. Murphy's office.
- Ms. Murphy did not take piano classes when she was on standby duty as she could not cancel those classes at the last minute without paying for them.
- When on standby duty, Ms. Murphy abstained from outings with friends in which she could otherwise consume even a moderate amount of alcohol.
- If she were heard, Ms. Murphy would state that it is important for her to be able to choose the personal activities that she devotes herself to outside her work hours.
- If she were heard, Ms. Murphy would state that she feels that her obligation to be on standby duty, even for two or three weeks per year, interferes with her private life.
Ms. Isabelle Brochu
- In 2010, Ms. Isabelle Brochu's situation was as follows:
- She held a position classified at the LA-2A group and level at the ILD.
- She worked part-time, three days per week, i.e., Monday at the office, Tuesday via telework and Thursday at the office, except when court hearings required her to change her schedule.
- Her schedule was her personal choice. If she were heard, she would say that she made that choice to prioritize her family life and to spend more time with her children.
- Her immediate superior was Ms. Van Der Meerschen.
- She is the mother of two sons, who were 8 and 11 years old.
- On weekends between September and March, she accompanied her sons to the arenas where they played hockey. When her sons did not play at the same location, she and her spouse shared the task of accompanying their sons.
- Cell phone signal reception is poor in some arenas. When reception was poor, she had to exit the arena to check whether any calls came in.
- In addition, sometimes the hockey games were played in arenas located more than an hour from the office. Therefore, she was unable to attend her sons' hockey games.
- In the winter, Ms. Brochu did not ski with her children if she was on standby duty. In the summer, she did not go on water slides with her children when she was on standby duty.
- Ms. Brochu did not have friends or family over for dinner if she was on standby duty because she might have had to leave her guests in the lurch if she had to go to the office because of a call.
- She did not visit her sister, who camps in Estrie in the summer, if she was on standby duty.
- If she were heard, Ms. Brochu would state that, without the contested directive, she would not provide availability to her employer without compensation.
Ms. Caroline Doyon
- In 2010, Ms. Caroline Doyon's situation was as follows:
- She held a position classified at the LA-2A group and level at the ILD.
- She worked four days a week, Monday to Thursday.
- Her immediate supervisor was Ms. Éloïse Arbour, Regional Manager and Senior Counsel, who in turn reported to Mr. Michel Synnott.
- She is also the mother of two boys who played hockey, among other things.
- The situations described in paragraphs h), j) and l) of paragraph 28 applied to her.
- If she were heard, Ms. Doyon would state that, without the contested directive, she would not provide availability to her employer without compensation.
Ms. Émilie Tremblay
- In 2010, Ms. Émilie Tremblay's situation was as follows:
- She held a position classified at the LA-01 group and level at the ILD.
- Her immediate supervisor was Ms. Van Der Meerschen.
- In her free time, she trains for triathlon and participates in those types of races.
- Therefore, her training takes place in the evenings and on weekends.
- If she was on standby duty, she had to keep a pager and a cell phone with her, close to the pool, while she trained.
- If she was on standby duty, she trained for the running competition while retaining those two devices.
- If Ms. Tremblay were heard, she would state that she considers that interference with her private life.
- If Ms. Tremblay were heard, she would state that when she is on standby duty, she cannot choose activities that are held more than an hour from her office, that she does not consume any alcohol and that she must choose her personal activities while keeping in mind the possibility of being called in to work.
- The parties acknowledge that the personal views expressed by counsel involved do not bind the tribunal with respect to the content or interpretation of the concept of private life.
- The parties reserve the right to present other evidence, if necessary.
8 At the hearing, the employer chose to present additional evidence through the testimony of Michel Synnott, Director, ILD. The Association cross-examined him but did not call any additional witnesses, preferring to rest on the agreed statement of facts.
9 In his testimony, Mr. Synnott reiterated a large part of the facts listed above and confirmed that the grievance was about both evening and weekend standby duty, contrary to what paragraph 5 of 2011 PSLRB 135 suggests. Mr. Synnott also indicated that the ILD provides and sells its legal services to two client departments.
10 According to Mr. Synnott, as of April 2010, counsel could no longer be compensated for standby duty because no compensation was expressly provided for by the collective agreement in force or by the arbitral award of October 23, 2009. However, he clarified that any work performed as part of an emergency that occurred during standby duty hours was considered overtime that could be compensated under clause 13.01(e) or (g) of the collective agreement.
11 During cross-examination, Mr. Synnott agreed that the purpose of the employer's standby duty directive was to govern counsel's conduct during the standby duty period, i.e., to prevent counsel from visiting family members living more than an hour from the workplace; from participating in family, social, sports or other events more than an hour's radius from the workplace; and from consuming alcohol during that standby period.
12 Mr. Synnott also agreed that while counsels' job descriptions, adduced in evidence, required dealing with tight schedules and time constraints imposed by tight deadlines, as prescribed by the applicable laws and regulations, and by urgent procedures and urgent service requests from client departments and organizations, they did not set out counsel's obligation to be available and on standby duty on weeknights and weekends. In cross-examination, he admitted that the concepts set out in the job descriptions and those of the directive were separate and distinct.
13 Finally, Mr. Synnott confirmed that he had spoken to senior management at Justice Canada about the issue of applying clause 19.19(b) of the collective agreement to compensate counsel during standby duty. However, senior management concluded that that clause could not be used for that purpose. The clause in question provides that at its discretion, the employer may grant paid or unpaid leave for purposes other than those specified in the collective agreement.
III. Summary of the arguments
A. For the Association
14 The Association maintained that the employer has the duty to act reasonably, fairly and with good faith when administering the collective agreement. That implies that the directives that it adopts in accordance with its management rights must be reasonable, which is not the case with the standby duty directive.
15 According to the Association, at stake is the reasonableness of the standby duty directive, nothing more. It stated that the fact that for more than 40 hours in addition to their normal work hours, counsel are required to carry a pager and a cell phone, to stay within a specific radius of the office, and to be able to respond to emergencies within a short time frame is unreasonable. The Association maintained that they are unjustified constraints that limit the personal, social and family activities of counsel and require them to reorganize their personal lives to make themselves available during what should be their free time.
16 The Association pointed out that counsels' job descriptions, adduced at the hearing, make no mention of the requirement to be on standby duty during hours that do not fall within the normal workweek.
17 The Association argued that the residual management rights mentioned in clause 5.01 of the collective agreement are not absolute, that they must be exercised in a reasonable manner, and that they cannot be interpreted in a way that limits a constitutional right or another right stemming from a federal law. In support of its position, the Association cited paragraphs 28 and 29 of Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,  2 S.C.R. 157, as follows:
28 As a practical matter, this means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee's statutory rights. The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract.
29 As a result, the substantive rights and obligations of the parties to a collective agreement cannot be determined solely by reference to the mutual intentions of the contracting parties as expressed in that agreement. Under McLeod, there are certain terms and conditions that are implicit in the agreement, irrespective of the mutual intentions of the contracting parties. More specifically, a collective agreement cannot be used to reserve the right of an employer to manage operations and direct the work force otherwise than in accordance with its employees' statutory rights, either expressly or by failing to stipulate constraints on what some arbitrators regard as management's inherent right to manage the enterprise as it sees fit. The statutory rights of employees constitute a bundle of rights to which the parties can add but from which they cannot derogate.
18 The Association maintained that the employer's standby duty directive is unreasonable because it governs counsel's conduct not only outside their workplace but also outside normal work hours, specifically at times when they are not required to ensure the legal services that are provided to client departments.
19 In addition, the Association maintained that the constraints that the employer imposed call into question section 7 of the Canadian Charter of Rights and Freedoms ("the Canadian Charter"). According to the Association, counsel's personal, social, cultural, and family activities and responsibilities outside work are private life choices covered by section 7 of the Canadian Charter. Counsel should be free to make their choices and to carry out activities that they consider fundamental to them. In support of that position, the Association cited paragraphs 73 and 74 of B. (R.) v. Children's Aid Society of Metropolitan Toronto,  1 S.C.R. 315, which state the following:
73 The term "liberty" has yet to be authoritatively defined in this Court, although comments have been made on both ends of the spectrum. In Singh v. Minister of Employment and Immigration,  1 S.C.R. 177, Wilson J., speaking for Dickson C.J., Lamer J. (as he then was) as well, noted that it was incumbent upon the Court to define "liberty", and conceded that the concept was susceptible of a broad range of meanings. Although she did not venture to define the scope of the liberty interest protected under s. 7 of the Charter, she cited the following dictum of Stewart J. in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), at p. 572, as an example of the liberal interpretation the United States Supreme Court has given to the Fourteenth Amendment, at p. 205:
"While this Court has not attempted to define with exactness the liberty … guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized … as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500; Stanley v. Illinois, 405 U.S. 645.
74 In R. v. Jones, supra, speaking alone in dissent, Wilson J. gave a broad formulation of the concept of liberty. She stated, at p. 318:
I believe that the framers of the Constitution in guaranteeing "liberty" as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric -- to be, in today's parlance, "his own person" and accountable as such. John Stuart Mill described it as "pursuing our own good in our own way". This, he believed, we should be free to do "so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it".
20 According to the Association, at paragraph 81 of Children's Aid Society of Metropolitan Toronto, the Supreme Court adopted the United States Supreme Court's liberal interpretation of the concept of liberty as it relates to family matters, thus elevating the notions of both family unit integrity and parental rights to the status of constitutional values.
21 As for the concept of the right to liberty, the Association invited me to draw inspiration from decisions that have interpreted article 5 of the Charter of Human Rights and Freedoms (R.S.Q., chapter C-12; "the Quebec Charter") and referred me to Godbout v. Longueil (City),  3 S.C.R. 844, specifically to an excerpt from La Forest, J., in which the judge refers to a Quebec Court of Appeal judgment in The Gazette (Division Southam Inc.) v. Valiquette,  R.J.Q. 30, as follows:
97 The Quebec courts have clearly recognized that, in appropriate cases, such things as confidential or personal information will be found to enjoy the protection of s. 5 of the Quebec Charter, see, e.g., Reid v. Belzile,  C.S. 717, and Centre local de services communautaires de l'Érable v. Lambert,  C.S. 1077 (both dealing with medical records); Cohen v. Queenswear International Ltd.,  R.R.A. 570 (C.S.) (dealing with photographic image); and The Gazette (Division Southam Inc.) v. Valiquette,  R.J.Q. 30 (C.A.) (protecting personal information concerning state of health from becoming public); See also P. A. Molinari and P. Trudel, "Le droit au respect de l'honneur, de la réputation et de la vie privée: aspects généraux et applications", in Formation permanente du Barreau du Québec, Application des Chartes des droits et libertés en matière civile (1988), 197. I have no doubt that the decisions mentioned, so far as they go, accurately express part of what is captured within the scope of a right to "respect for [one's] private life". In my view, however, the respondent is correct in claiming that the ambit of the right to privacy has not yet been fully delineated and that other aspects of "private life" may, as cases arise, be found to enjoy the protection of s. 5. In my view, one of those other aspects is that narrow sphere of personal autonomy within which inherently private choices are made.
98 This view finds confirmation, inter alia, in Valiquette, supra, at p. 36, where Michaud C.J.Q. (speaking for a unanimous panel of the Quebec Court of Appeal) stated:
[TRANSLATION] The right to one's private life, which is considered one of the most fundamental of the personality rights … has still not been formally defined.
It is possible, however, to identify the components of the right to respect for one's private life, which are fairly specific. What is involved is a right to anonymity and privacy, a right to autonomy in structuring one's personal and family life and a right to secrecy and confidentiality.
I endorse the views expressed by Michaud C.J.Q. and find, accordingly, that s. 5 of the Quebec Charter protects, among other things, the right to take fundamentally personal decisions free from unjustified external interference. But as in the case of the Canadian Charter, where I found that the sphere of autonomy protected by the liberty interest in s. 7 is narrowly circumscribed, I am of the view that the scope of decisions falling within the sphere of autonomy protected by s. 5 is similarly limited; viz., only those choices that are of a fundamentally private or inherently personal nature will be protected.…
22 According to the Association, the same liberties are protected in both the Canadian Charter and in the Quebec Charter, and it is quite normal for a federal tribunal to draw inspiration from Quebec decisions based on article 5 of the Quebec Charter to interpret the meaning to be given to the concept of the right to liberty guaranteed by section 7 of the Canadian Charter. The employer cannot divest such a right without demonstrating that its mandatory standby duty directive for its counsel, for 365 days per year, is reasonable and that it has been adopted and exercised in respect of the values of a free and democratic society. The employer did not demonstrate those criteria in this case. Its objective was not sufficiently important to justify breaching the Canadian Charter.
23 The Association maintained that the right to liberty includes the right toautonomy in structuring one's personal and family life as well as the right to engage in any of life's ordinary occupations. Therefore, the employer could not exercise its management rights by imposing conditions that require its employees to limit their autonomy and their personal lives to be available outside normal work hours in the event of an emergency. That type of intrusion infringes on the individual liberty guaranteed by section 7 of the Canadian Charter.
24 According to the Association, the employer has other, less-intrusive ways to respond to its client departments' potential emergencies.
25 As mentioned earlier, the Association is not claiming an economic right because it no longer seeks an order compelling the employer to treat standby duty hours as hours worked, i.e., as compensable. Likewise, it is not seeking an order compelling the employer to use its standby duty directive that was in effect before April 1, 2010, as it withdrew the claims mentioned in points 2 and 3 of the grievance, under the heading "Corrective measure." The Association seeks a declaration that the employer's standby duty directive is unreasonable and that it violates articles 5 and 6 of the collective agreement as well as an order compelling it to cease applying that directive.
B. For the employer
26 The employer argued that the Association failed to discharge its onus to clearly demonstrate, on a balance of probabilities, a breach of the collective agreement or of the Canadian Charter.
27 The employer maintained that when exercising its duties under sections 7 and 11.1 of the Financial Administration Act (R.S.C., 1985, c. F-11; "the FAA"), it has the power and the authority to organize the federal public service, to determine and control how to manage its staff, and to do anything not expressly or implicitly prohibited by law or a collective agreement.
28 Based on four arbitral decisions from provincial administrative tribunals, the employer maintained that a policy in which the employer requires its employees to perform standby duty or to carry a pager is a reasonable exercise of its management duties as long as it does not require its employees to stay at home during the hours of standby duty. The employer referred me to Shell Canada Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 835,  A.G.A.A. No. 51 (QL); United Nurses of Alberta v. Alberta Heath Services,  A.G.A.A. No. 24 (QL); Pembroke General Hospital v. Canadian Union of Public Employees, Local 1502 (1974), 6 L.A.C. (2nd) 149; and Corporation of the County of Hastings v. International Union of Operating Engineers, Local 793 (1972), 2 L.A.C. (2nd) 78.
29 The employer pointed out that the standby duty directive is reasonable under the circumstances and that there is no basis for concluding that it is arbitrary, of bad faith or unfair as the following evidence demonstrates:
- There is a rational link between the obligation to be available and the reason for imposing the availability as standby duty is essential to the employer's legitimate organizational needs.
- The standby duty period is not excessive.
- The number of times that any one counsel is called on to perform standby duty is minimal.
- Counsel know their standby duty schedules well in advance so that they can plan accordingly.
- Counsel are not required to stay home.
- Counsel can travel up to a radius of one hour from the office.
- The standby duty list is established according to counsel's availability and situations as well as to their preferences, when possible.
- Counsel can arrange to fill in for each other.
- Standby duty is distributed in an equitable manner among all counsel.
- The number of times a counsel must respond to an emergency is minimal (about six times per year in 2010).
- Counsel were remunerated, at the relevant times, when they were called on to respond to emergencies while performing standby duty.
30 Based on two other arbitral awards, the employer maintained that it is reasonable not to remunerate an employee for an availability period if the collective agreement has no specific provision on that subject. It referred me to Maple Leaf Mills Inc. v. U.F.C.W., Loc. 401 (1995), 50 L.A.C. (4th) 246, and Leco Industries Ltd. v. Oil, Chemical and Atomic Workers International Union, Local 9-819 (1980), 26 L.A.C. (2nd) 80.
31 As for the right to liberty protected by section 7 of the Canadian Charter, the employer maintained that that section does not apply to this case for two reasons. First, the grievance claimed an economic right; and second, that right does not include the recreational, social and family activities that the Association claimed.
32 Since the Association abandoned any claim of an economic nature at the start of the hearing, I determined that it was not necessary or practical to repeat the employer's arguments on that subject, i.e., the claim to an economic right. That element is simply no longer at issue.
33 As for the second element that the employer raised, it relied on La Forest, J.'s comments at paragraph 66 of Godbout and argued that the scope of the liberty contemplated by section 7 of the Canadian Charter is limited to subjects that can be described as fundamentally or essentially personal and that involve, by their very nature, fundamental choices that are part of the very essence of what it means to enjoy individual dignity and independence. R. v. Clay,  3 S.C.R. 735, was also cited in support of the employer's position. According to the employer, the activities that counsel described in the agreed statement of facts did not meet that criterion.
34 Based on another Supreme Court case, i.e., R. v. Malmo-Levine; R. v. Caine,  3 S.C.R. 571, the employer maintained that the scope of section 7 of the Canadian Charter cannot be expanded to protect personal preferences such as the choice to smoke marijuana, play golf, gamble or eat fatty foods. According to the employer, counsel's desire to participate in different recreational, social and family activities is similar to such preferences.
35 The employer maintained that the Quebec Charter and the resulting jurisprudence apply only to matters that are within the legislative jurisdiction of the province of Quebec and that they have no impact on this case.
36 Finally, the employer argued that in the event that I agree that its standby duty directive infringes counsel's right to liberty, then that infringement is consistent with the principles of fundamental justice as it is not arbitrary, is not excessive in scope and does not have an entirely disproportionate effect. That is demonstrated by the fact that there is a concrete link between infringing the right to liberty and the purpose of the standby duty, i.e., to respond to stay applications before the Federal Court. In support of that position, the employer cited Canada (Attorney General) v. Bedford,  3 S.C.R. 1101.
37 While the arbitral award and the collective agreement that were adduced in evidence did not address the issue of counsel's availability when on call, article 13 of the collective agreement clearly specifies what constitutes their hours of work. According to that article, normal hours of work are, on average, thirty-seven decimal five (37.5) hours per week, the normal workweek is Monday through Friday, and a workday is calculated at the rate of seven decimal five (7.5) hours per day.
38 The employer's standby duty directive imposes conditions that govern counsel's conduct outside their workplace and outside their normal hours of work. Those conditions consist of the obligation to carry a pager and a cell phone provided by the employer, to be prepared at all times to be in the office within an hour, and to be able if necessary to prepare and argue possible stay applications, which prohibits consuming alcohol during the standby duty period.
39 The employer adopted that directive under the presumed authority of the residual management rights provided for in clause 5.01 of the collective agreement, which states the following:
5.01 All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Association as being retained by the Employer.
40 However, the employer's management rights are not absolute. Certain provisions of the collective agreement require it to act reasonably, fairly and in good faith when adopting such directives and to not limit the constitutional rights of its employees as appears from the wording of clauses 5.02 and 6.01, which specifically state the following:
5.02 The Employer will act reasonably, fairly and in good faith in administering this Agreement.
6.01 Nothing in this Agreement shall be construed as an abridgement or restriction of any lawyer's constitutional rights or of any right expressly conferred in an Act of the Parliament of Canada.
41 However, under article 6 of the collective agreement, residual management rights must be interpreted and applied in light of section 7 of the Canadian Charter, which protects the following rights:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
42 The grievance alleges precisely that the employer's exercise of the management rights mentioned in clause 5.01 of the collective agreement, under the circumstances in question, constitutes a violation of clauses 5.02 and 6.01, including section 7 of the Canadian Charter.
43 It is useful to recall the following words of the Federal Court from paragraphs 50 and 51 of its judgment in Association of Justice Counsel v. Attorney General of Canada:
50 In determining whether the grievance was arbitrable, the adjudicator had to simply ask herself, as required by subsection 220(1) of the PSLRA , whether the subject matter in respect of the interpretation or application of a provision of the collective agreement or an arbitral award. On its face, the grievance is specifically in respect of an alleged violation of articles 5.02 and 6 of the collective agreement, including section 7 of the Charter, in the exercise of the employer's residual managerial rights as outlined in article 5.01 of the collective agreement, derived from any other Act of Parliament relating to employment matters applicable in this case, namely, the FAA (paragraph 226(1)(g) of the PSLRA).
51 Contrary to what the adjudicator surmises in the impugned decision, the arbitrability of the Association's policy grievance does not depend on the existence of a specific provision in the collective agreement allowing the employer to compensate legal officers who agree or are forced to be on standby duty on Friday nights and weekends. As the Association has argued from the outset, the grievance is based on a specific provision in the collective agreement which requires the employer to act reasonably, fairly and in good faith, in the administration of the collective agreement, which of course includes any of the employer's policies or decisions taken or adopted by the employer under the purported authority of the managerial rights (5.01 of the collective agreement).
44 Therefore, the first question consists of knowing whether the employer's standby duty directive, which imposes conditions on counsel that govern their conduct outside their workplaces and outside normal work hours, is, on its face, reasonable, fair and in good faith, in accordance with clause 5.02 of the collective agreement. In my opinion, that question must be assessed with respect to counsel's usual course of work, as defined in the collective agreement, and of the impact of such a directive on their personal lives on one hand and of the objective that the employer is trying to achieve by implementing a mandatory system of standby duty, and the reasonable nature of the means that the employer chose to achieve that objective, in this context.
45 Such a directive seems to me quite simply neither reasonable nor fair. On the contrary, instead, it is reasonable for counsel to expect to be free to act and to conduct themselves as they see fit outside their workplace and outside normal work hours, with no interference from their employer. Instead, it would be fair for them to be compensated for the time during which the employer continues to exercise a certain control over their lives.
46 Availability clauses are common in collective agreements involving federal public servants. In those clauses, the parties agree to the terms and conditions with respect to the employees' availability outside normal work hours in exchange for certain compensation. The parties have recourse to that type of clause precisely to avoid a potentially unreasonable and unfair exercise. The fact that a collective agreement is silent on the availability issue does not mean that the employer has free reign to require standby duty and to impose conditions that govern the conduct of employees performing that standby duty. That type of exercise is incompatible with the collective agreement that applied at the relevant time and is not provided for in counsel's employment contract (letter of employment) or their job descriptions.
47 I agree that an emergency that occurs outside normal work hours may be a legitimate organizational need that will result in the employer exercising its management right and, consequently, overtime for employees. In this case, the organizational need is triggered by an emergency over which the employer has no control. Can the same analogy be made concerning the unilateral imposition of standby duty? In this case, the organizational need is triggered instead by the employer's choice to provide and sell its employees' professional services outside their normal work hours, over which the employer has a certain control.
48 If it is true that standby duty is essential to the employer's legitimate organizational needs, why is there no mention of that essential nature in counsel's employment contract (or letter of employment) or in counsel's job description? No employment contract or letter of employment reflecting that essential nature was brought to my attention, and the job descriptions that were adduced in evidence did not address that issue.
49 I was not presented any evidence establishing that standby duty is the employer's only way of responding to its client departments' emergencies on weeknights and weekends.
50 In no way do I feel bound or inspired by the provincial administrative tribunals' decisions that the employer cited. In general, those decisions concern factual elements different from those that are in dispute in this case. For example, in Maple Leaf Mills Inc. and Shell Canada Ltd., the bargaining agent claimed an economic right, and the collective agreement contained an appeal provision, two elements that are not present in this case. In Hastings, the parties had agreed to a specific number of work hours for employees as long as they were available to work when they were called. The collective agreement clearly stated the employees' commitment to being "available." Once again, this case does not deal with such a situation.
51 In fact, it is interesting to note that the employer did not refer me to any decision, by the Board or by the federal courts, involving federal public servants and suggesting that mandatory standby duty and the conditions governing the conduct of public servants required to perform such standby duty outside the workplace and outside normal work hours, without compensation, is a reasonable exercise of the employer's management duties. The fact that federal public service parties usually negotiate an availability clause setting out favourable terms and conditions for both parties or that standby duty can be performed voluntarily most likely explains the absence of such a precedent at the federal level. All the Board decisions that I consulted dealing with standby duty or availability refer to availability clauses negotiated by the parties and instead are about one party's interpretation of those clauses.
52 This case is not about a management right that the employer tries to exercise at the workplace during normal work hours. On the contrary, it is about a management right that the employer exercises outside the workplace and outside its employees' normal work hours. Hence the increased importance of ensuring that that management right is exercised "reasonably, fairly and in good faith," which was not so in this case.
53 Thus, my response to the first question is in the negative. The employer's standby duty directive is neither reasonable nor fair, contrary to what is set out in clause 5.02 of the collective agreement.
54 The second question is whether the employer's standby duty directive infringes on a right protected by section 7 of the Canadian Charter, contrary to what is set out in clause 6.01 of the collective agreement.
55 My opinion is that it is entirely reasonable for a federal administrative tribunal to draw inspiration from the Quebec Charter and from the resulting jurisprudence to interpret the meaning to be given to the concept of protecting the right to liberty. Quebec tribunals have rendered several decisions about the concept of private life under its Quebec Charter, and, in my opinion, the same liberties are protected in the Canadian and Quebec charters, as they gravitate to similar concepts.
56 Martineau, J. made the following comments at paragraphs 55 and 56 of the judgment in Association of Justice Counsel v. Attorney General of Canada:
55 It is precisely because legal officers on call are not at work that the Association's policy grievance raises the issue of reasonableness and legality of a policy that applies to the members of the bargaining unit on a mandatory basis. The question is whether the abolition of the former compensation policy regarding legal officers who volunteer for standby duty in immigration outside regular working hours is allowed under the collective agreement, and if so, whether all of the provisions relied upon by the employer are rendered inoperative because they violate a fundamental Charter right. Is this an infringement on the legal officers' private life, and if so, is the new policy justifiable and reasonable in the absence of consent or compensation?
56Without ruling on the merits of the Association's grievance, I note that the case law recognizes that an individual's right to private life is protected under section 7 of the Charter. In such cases, the adjudicator will have to ask whether the employer's policy "strikes a reasonable balance."
57 In Godbout, the Supreme Court studied the question of whether the residence requirement that the City of Longueuil imposed on its employees violated section 7 of the Canadian Charter and section 5 of the Quebec Charter. The Court first concluded that that requirement infringed section 7 of the Canadian Charter, as its opinion was that the personal autonomy protected by that section included the choice of residence location, an essentially private decision that borders on the very nature of personal autonomy. The Court also concluded that that requirement infringed section 5 of the Quebec Charter (the right to respect for private life). At paragraph 95 of its judgment, the Court stated the following:
95 … It seems to me, however, that in enacting s. 5 in addition to s. 1, the Quebec legislator expressly contemplated the importance of protecting matters of a fundamentally private or personal nature, and deemed it appropriate to provide specific protection for them. In light of this, I am of the view that matters involving personal autonomy and privacy – such as choosing where to establish one's home – will normally be more appropriately addressed under s. 5. This is not necessarily to say that s. 1 does not protect personal autonomy at all; rather, it is simply to say that since s. 5 is, by its very terms, aimed directly at protecting individuals' private lives, matters that implicate privacy and personal autonomy will generally be better dealt with there. Since I am of the view that the right asserted by the respondent in this case is protected by s. 5, I find it unnecessary to address the arguments made in respect of s. 1.
58 In Syndicat des professionnelles du Centre jeunesse de Québec (CSN) v. Desnoyers, 2005 QCCA 110, the Quebec Court of Appeal stated the following at paragraph 17 about the rights protected by the two Charters:
17 Thus, both Charters can be applied in this case. Nevertheless, the union's argument, which is now based on those two fundamental texts, will be examined in light of the Quebec Charter, invoked from the outset, while keeping in mind that the guarantees offered by both Charters intersect and complement each other. However, the substantive rights are further specified in the Quebec Charter. The right to liberty, within the meaning of section 7 of the Canadian Charter, actually includes the right to enjoy a private life: Henri Brun, Guy Tremblay, Droit constitutionnel, 4th ed., Cowansville, Éditions Yvon Blais, 2002, p. 1055.
59 The conditions imposed on counsel directly affect their abilities and capacities to do certain things and to perform certain activities such as picking up children from school and taking them home, in cases in which the school is located more than an hour from the office; attending opera shows; visiting family members who live more than an hour from their workplaces; committing themselves to piano lessons; going on outings with friends during which they could otherwise consume even moderate amounts of alcohol; accompanying children to arenas to play hockey; spending time with family at a cottage, when the cottage is located more than an hour from counsel's workplace or in an area in which pagers or cell phones are not functional; skiing with children or accompanying them to water slides; having friends or family over for dinner; training for a triathlon or participating in one; and choosing personal or family activities held more than an hour from their workplace. Some of those choices represent essentially private decisions that border on the very nature of an individual's personal autonomy, which the Supreme Court is trying to protect (see Godbout, at para 66).
60 I agree that the Constitution's scope need not be expanded to the point of protecting any activity that an individual chooses to define as essential to his or her lifestyle. However, it is necessary to distinguish the comments found at paragraph 86 of Malmo-Levine. The examples of constraints provided by counsel are far from representing personal preferences that resemble the choices of smoking marijuana, playing golf, gambling and eating fatty foods. Instead, they are choices that resemble essentially private decisions bordering on the very nature of personal autonomy, i.e., decisions that an individual can expect to be free to make outside normal work hours and outside the workplace.
61 The employer characterized the liberties that counsel are trying to protect as recreational, social and family activities or personal preferences that do not merit any protection. I disagree with that description. While noting that the employer did not provide any examples of what could constitute that right to liberty in the circumstances of concern in this case, my opinion is that some of the liberties that counsel are trying to protect are rather similar to a willingness to develop family ties, to assume parental responsibilities, to structure personal and family lives, to engage in any of the ordinary occupations of life, and to develop and attain their maximum potential. Those are all essentially private choices and decisions that border on the very nature of personal autonomy. It is easy to trivialize those choices until the day on which one is personally forced to abandon them.
62 The right to liberty set out in section 7 of the Canadian Charter includes the right to enjoy a private life outside the workplace and outside normal work hours. In my opinion, the employer's standby duty directive has intrusive effects on family unit integrity and on counsel's parental responsibilities, and thus, it violates their right to private life. At paragraph 80 of Children's Aid Society of Metropolitan Toronto, the Supreme Court stated the following: "In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance."
63 In my opinion, if the Supreme Court is sympathetic to the idea that section 7 of the Canadian Charter protects the right to private life and advocates the importance of personal autonomy and the fundamental nature of family unit integrity (Children's Aid Society of Metropolitan Toronto and Godbout), then it goes without saying that the employer's standby duty directive, through its clearly intrusive nature in counsel's private lives, infringes the guarantees set out in that section by directly interfering with several areas of its employees' personal autonomy.
64 Thus, my response to the second question is in the affirmative. The employer's standby duty directive infringes on a right protected by section 7 of the Canadian Charter. The third and final question consists of knowing whether the infringement on counsel's right to liberty is consistent with the principles of fundamental justice, in accordance with section 7 of the Canadian Charter.
65 According to the employer, the objective is to provide legal services to client departments in the event of stay applications before the Federal Court, generally concerning any type of deportation, a situation that, on weekends, occurs no more than six times per year. Thus, is it not disproportionate to infringe on counsel's right to liberty, 365 days a year and beyond 40 hours per week, to achieve that objective, especially if there are other, less-intrusive ways to achieve the same result? Considering the evidence before me, my opinion is that the deleterious effects of the directive are completely disproportionate to its objective. In this case, the objective in question does not require the employer to encroach so much on the private lives of its employees. It could also call them, on a rotational basis, until it reaches one who is able to do the work and the overtime, failing which a manager could ensure an appropriate response. The fact that it is easier or convenient to require employees to be available and to be on standby duty does not justify the resulting infringement on the right to liberty, even if the right of only one of those employees is infringed. The employer could also amend its standby duty directive to ensure that it is carried out voluntarily. Adding an availability clause to the collective agreement could also ensure that the objective is achieved without infringing counsel's right to liberty.
66 While a rational link exists between the objective of responding to stay applications and a directive that requires an employee to work overtime outside his or her normal work hours, I am not satisfied that there is a sufficiently rational link between that objective and the obligation to be on standby duty, particularly between the effects of the directive and its purpose. The presence of a simple link of any type should not suffice. The directive's scope is quite simply too broad. There are other ways to achieve the same objective by infringing less, or not at all, on counsel's rights. The restrictions that the employer imposed should not infringe on counsel's rights, or if so, in the least amount possible, which is not so in this case.
67 Contrary to the question studied in Bedford, this case does not deal with a legislative objective under which, via a law, a government chooses to limit certain individuals' rights for the good of the general population. Instead, this case deals with an administrative directive, adopted in a labour law context, which allows a federal employer to continue to provide and sell professional services to its clients without incurring the costs normally associated with the availability periods resulting from its directive.
68 Thus, my response to the third question is in the negative. In my opinion, infringing counsel's right to liberty is inconsistent with the principles of fundamental justice as required by section 7 of the Canadian Charter. Therefore, it contravenes that section and, thus, clause 6.01 of the collective agreement.
69 I am not stating that the employer cannot impose overtime on its employees when a legitimate organizational need justifies it. That is not the question before me. The issue in this case is to determine whether it is reasonable for an employer to require that its employees, through a unilateral, mandatory directive, be available outside normal work hours and outside the workplace and to impose conditions on them governing their conduct during that availability. For the reasons stated earlier, I conclude that the employer's standby duty directive is not reasonable and that it violates clause 5.02 of the collective agreement. I also conclude that the directive interferes with counsel's liberty as set out in section 7 of the Canadian Charter and that, as such, it violates clause 6.01 of the collective agreement. Under the circumstances, it is difficult to conclude otherwise in the absence of consent from counsel, either in the form of a clear and precise availability clause or voluntarily in exchange for some form of return from the employer.
70 For all of the above reasons, I make the following order:
71 I declare that the employer's standby duty directive is unreasonable and that it contravenes clauses 5.02 and 6.01 of the applicable collective agreement.
72 I order the employer to cease applying the standby duty directive in question as of the date of this decision.
73 I will remain seized of this file for 60 days after this decision is issued in the event that the parties experience difficulties implementing it.
March 27, 2015.
Stephan J. Bertrand,