Baier et al. v. Alberta, (2007) 412 A.R. 300 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 09, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 412 A.R. 300 (SCC);2007 SCC 31

Baier v. Alta. (2007), 412 A.R. 300 (SCC);

      404 W.A.C. 300

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] A.R. TBEd. JN.089

Ronald David Baier, George Ollenberger, Liam McNiff, Evelyn Alexandra Keith and Alberta Teachers' Association (appellants) v. Her Majesty the Queen in Right of Alberta (respondent) and Attorney General of Ontario, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Prince Edward Island, Canadian Teachers' Federation, Alberta Federation of Labour and Public School Boards' Association of Alberta (intervenors)

(31526; 2007 SCC 31; 2007 CSC 31)

Indexed As: Baier et al. v. Alberta

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 29, 2007.

Summary:

The applicants challenged the constitutionality of amendments to the Local Authorities Election Act (LAEA amendments) which precluded all employees employed by school districts and divisions, charter schools and private schools from seeking nomination as school trustees anywhere in Alberta unless they took an unpaid leave of absence from their employment, and then resigned if elected. The applicants argued that the LAEA amendments breached their ss. 2(b), 2(d) and 15(1) Charter rights.

The Alberta Court of Queen's Bench, in a decision reported at 369 A.R. 159, allowed the application. The LAEA amendments infringed the applicants' s. 2(b) Charter rights and were not saved by s. 1. The court made no finding with respect to s. 15(1). Alberta appealed the s. 2(b) finding but not the s. 1 finding. The applicants cross-appealed, alleging an infringement of s. 15(1).

The Alberta Court of Appeal, in a decision reported at 384 A.R. 237; 367 W.A.C. 237, allowed the appeal and dismissed the cross- appeal. The applicants applied for leave to appeal to the Supreme Court of Canada. They applied for a stay of the judgment pending the appeal.

The Alberta Court of Appeal, per Côté and Costigan, JJ.A., in a decision reported at [2006] A.R. Uned. 91, dismissed the application. The applicants applied to the Supreme Court of Canada for a stay of the judgment of the Court of Appeal.

The Supreme Court of Canada, per Rothstein, J., in a decision reported at 351 N.R. 302; 391 A.R. 287; 377 W.A.C. 287 allowed the application. The court exempted school board employees who were presently sitting as school board trustees as a result of a valid election from the operation of the legislation. The stay would continue until leave to appeal was denied or if leave was granted only to the earlier of the court's decision on appeal or the expiry of the current terms of the affected school board employees.

The Supreme Court of Canada, Fish, J., dissenting, dismissed the appeal.

Civil Rights - Topic 1800

Freedom of speech or expression - General principles - General - The Supreme Court of Canada stated that "in cases where a government defending a Charter challenge alleges, or the Charter claimant concedes, that a positive rights claim is being made under s. 2(b), a court must proceed in the following way. First it must consider whether the activity for which the claimant seeks s. 2(b) protection is a form of expression. If so, then second, the court must determine if the claimant claims a positive entitlement to government action, or simply the right to be free from government interference. If it is a positive rights claim, then third, the three Dunmore [Dunmore v. Ontario (Attorney General) (S.C.C. 2001)] factors must be considered. As indicated above, these three factors are (1) that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; (2) that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2(b); and (3) that the government is responsible for the inability to exercise the fundamental freedom. If the claimant cannot satisfy these criteria then the s. 2(b) claim will fail. If the three factors are satisfied then s. 2(b) has been infringed and the analysis will shift to s. 1" - See paragraph 30.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The applicants challenged the constitutionality of amendments to the Local Authorities Election Act (LAEA amendments) which precluded all employees employed by school districts and divisions, charter schools and private schools from seeking nomination as school trustees anywhere in Alberta unless they took an unpaid leave of absence from their employment, and then resigned if elected - The applicants argued that the LAEA amendments breached their s. 2(b) Charter rights - The Supreme Court of Canada held that although seeking election to a school board was a form of expressive activity, it was a statutory platform for expression and not a fundamental freedom protected by s. 2(b) - The applicants' claim did not meet the criteria set out in Dunmore v. Ontario (Attorney General) (S.C.C. 2001) to warrant an exception to the general rule that freedom of expression under s. 2(b) did not grant the right to a statutorily created platform for expression - The applicants had not established that their practical exclusion from school trusteeship substantially interfered with their ability to express themselves on matters relating to the education system - The LAEA amendments might deprive them of one particular means of expression, but it had not been demonstrated that absent inclusion in this statutory scheme, they were unable to express themselves on education issues - Nor had the applicants proved that the purpose of the LAEA amendments was to infringe their freedom of expression - See paragraphs 31 to 55.

Civil Rights - Topic 1841

Freedom of speech or expression - Limitations on - General - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 1850.2

Freedom of speech or expression - Limitations on - Restrictions on election candidates - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 5679.3

Equality and protection of the law - Restrictions on election candidates - The applicants challenged the constitutionality of amendments to the Local Authorities Election Act (LAEA amendments) which precluded all employees employed by school districts and divisions, charter schools and private schools from seeking nomination as school trustees anywhere in Alberta unless they took an unpaid leave of absence from their employment, and then resigned if elected - The applicants argued that the LAEA amendments breached their s. 15(1) Charter rights - The Supreme Court of Canada affirmed that the LAEA amendments did not infringe s. 15(1) because, on the facts, occupational status was not an analogous ground and because the differential treatment of the applicants was not substantively discriminatory - See paragraphs 63 to 67.

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - The Supreme Court of Canada discussed the interrelationship of Charter rights - The court affirmed that the scope of one Charter right did not circumscribe the scope of another - See paragraphs 56 to 60.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5679.3 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights - Analogous categories - [See Civil Rights - Topic 5679.3 ].

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 18].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [paras. 19, 73, 90].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 19].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [paras. 19, 90].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. et al., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 19].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 20].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [paras. 20, 92].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 20].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [paras. 23, 92].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 24].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 25].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [paras. 27, 92].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580 et al., [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 32].

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1; 2001 SCC 15, refd to. [para. 38].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 40].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 58].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 58].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [paras. 59, 85].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 64].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, dist. [paras. 74, 90].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 74].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 90].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 108].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 113].

Statutes Noticed:

School Trustee Statutes Amendment Act, S.A. 2002, c. 23, sect. 1(2) [para. 9].

Authors and Works Noticed:

Cameron, Jamie B., The "Second Labour Trilogy": A Comment on R. v. Advance Cutting, Dunmore v. Ontario, and R.W.D.S.U. v. Pepsi-Cola (2002), 16 S.C.L.R.(2d) 67, p. 69 [para. 99].

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf Ed.) (2006 Update, Release 1), vol. 2, p. 40-8 [para. 73].

Counsel:

James T. Casey, Q.C., Sandra M. Anderson and Ayla Akgungor, for the appellants;

Kurt J.W. Sandstrom and Alice K. Barnsley, for the respondent;

Robert E. Charney, for the intervenor, the Attorney General of Ontario;

Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Neena Sharma and E.W. (Heidi) Hughes, for the intervenor, the Attorney General of British Columbia;

Written submissions only by Ruth M. DeMone and Sherry E. Gillis, for the intervenor, the Attorney General of Prince Edward Island;

Allan O'Brien and Christopher Rootham, for the intervenor, the Canadian Teachers' Federation;

Leanne M. Chahley and Daniel N. Scott, for the intervenor, the Alberta Federation of Labour;

Dale Gibson, for the intervenor, the Public School Boards' Association of Alberta.

Solicitors of Record:

Field, Edmonton, Alberta, for the appellants;

Attorney General of Alberta, Edmonton, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, the Attorney General of New Brunswick;

Ministry of the Attorney General, Vancouver, British Columbia, for the intervenor, the Attorney General of British Columbia;

Attorney General of Prince Edward Island, Charlottetown, Prince Edward Island, for the intervenor, the Attorney General of Prince Edward Island;

Nelligan O'Brien Payne, Ottawa, Ontario, for the intervenor, the Canadian Teachers' Federation;

Blair Chahley Seveny, Edmonton, Alberta, for the intervenor, the Alberta Federation of Labour;

Dale Gibson, Edmonton, Alberta, for the intervenor, the Public School Boards' Association of Alberta.

This appeal was heard on November 9, 2006, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on June 29, 2007, and included the following opinions:

Rothstein, J. (McLachlin, C.J.C., Binnie, Deschamps and Charron, JJ., concurring) - see paragraphs 1 to 69;

LeBel, J. (Bastarache and Abella, JJ., concurring) - see paragraphs 70 to 78;

Fish, J., dissenting - see paragraphs 79 to 123.