Beauchamp et al. v. Canada (Attorney General), (2009) 342 F.T.R. 131 (FC)

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: Monday April 06, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 342 F.T.R. 131 (FC);2009 FC 350

Beauchamp v. Can. (A.G.) (2009), 342 F.T.R. 131 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AP.008

Robert Beauchamp, Gilles Lavigne, Public Service Alliance of Canada and Rachel Dupéré (applicants) v. Attorney General of Canada (respondent)

(T-1832-06; 2009 FC 350)

Indexed As: Beauchamp et al. v. Canada (Attorney General)

Federal Court

Barnes, J.

April 6, 2009.

Summary:

Part I of the Parliamentary Employment and Staff Relations Act was proclaimed into law on December 24, 1986. Parts II and III of the Act were not proclaimed. The Public Service Alliance Canada (representing about 400 employees of the House of Commons) and three of its members challenged the ongoing failure by the Governor in Council to proclaim Part III, dealing with workplace health and safety measures. The applicants' concerns included the presence of asbestos, air quality and blocked exit doors. The relief claimed included a declaration of a s. 7 Charter breach and an order compelling the Governor in Council to "forthwith" proclaim Part III, thereby making Part II of the Canada Labour Code applicable to their employment.

The Federal Court dismissed the judicial review application. Notwithstanding the absence of direct Canada Labour Code protection, the applicants were the beneficiaries of health and safety protections under the Act and their collective agreement. The House of Commons had also created a Health and Safety Policy which provided a mechanism for resolving health and safety complaints as an alternative to the grievance process. The failure by the applicants to exhaust their internal rights of recourse under the collective agreement and the Policy was fatal to the application.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Administrative Law - Topic 3205.1].

Administrative Law - Topic 3205.1

Judicial review - General - Policy statements - The applicants on a judicial review application claimed a declaration of a s. 7 Charter breach and an order compelling the Governor in Council (GIC) to "forthwith" proclaim Part III of the Parliamentary Employment and Staff Relations Act, thereby making Part II of the Canada Labour Code (CLC) applicable to their employment - The Federal Court dismissed the application - The outstanding proclamation had been under active consideration by the GIC and by Parliament since at least December 24, 1986, when the GIC decided to proclaim into force Part I, up to and including a June 3, 2003 House of Commons vote - It was clear from the record that the unwillingness of the GIC and Parliament to confer CLC protection on Parliamentary employees was based on a concern that some of those provisions could conflict with the privileges of Parliament including the privileges of its Members - "It is certainly not the proper role of a court to second-guess the wisdom of such choices or to pass judgment on these types of legitimate competing values and interests. Such policy-based choices are simply not an appropriate subject matter for judicial review" - See paragraph 20.

Administrative Law - Topic 4562

Judicial review - Declaratory action - Bars - Existence of alternate remedy - Employees of the House of Commons claimed a declaration of a s. 7 Charter breach and an order compelling the Governor in Council (GIC) to "forthwith" proclaim Part III of the Parliamentary Employment and Staff Relations Act, thereby making Part II of the Canada Labour Code (CLC) applicable to their employment - Notwithstanding the absence of direct CLC protection, the applicants were the beneficiaries of health and safety protections under the Act and their collective agreement - The House of Commons had also created a Health and Safety Policy which provided a mechanism for resolving health and safety complaints as an alternative to the grievance process - The Federal Court dismissed the application - To the extent that the applicants had meritorious health and safety concerns, they must be addressed within the collective agreement grievance process or through the alternative dispute resolution mechanisms established by the Policy - The applicants failed to fully test those avenues of recourse and to assess their adequacy - It was only in such a context that the evidence necessary to support such claims could be presented and assessed - Those alternative processes need only be adequate to the task and not perfect - See paragraphs 25 to 28.

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - [See Courts - Topic 2006].

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - In the context of a judicial review application, the applicants claimed a declaration of a s. 7 Charter breach and an order compelling the Governor in Council (GIC) to "forthwith" proclaim Part III of the Parliamentary Employment and Staff Relations Act, thereby making Part II of the Canada Labour Code (CLC) applicable to their employment - The Federal Court stated that the case could not support a positive duty under s. 7 of the Charter because the record said to give rise to a deprivation of the applicants' rights was "woefully inadequate" (conflicting and untested) - The applicants had not attempted to build a complete evidentiary record by first challenging the employer's (House of Commons') impugned conduct through the collective agreement grievance process - A proper evidentiary record which demonstrated that exclusion from a statutory regime had caused a substantial interference with the exercise and fulfilment of a protected right would, of necessity, include a consideration of the adequacy of any alternative measures that had been made available by the state to address the problem - On this record, the asserted deprivation was more theoretical than proven because the applicants failed to test the adequacy of the alternative methods of recourse - See paragraphs 23 and 24.

Civil Rights - Topic 8311.1

Canadian Charter of Rights and Freedoms - Application - Government inaction - On a judicial review application, the applicants' position was that their s. 7 Charter interests had been infringed by the failure of the Governor in Council (GIC) to proclaim Part III of the Parliamentary Employment and Staff Relations Act, which would extend to them the Canada Labour Code health and safety protections - They claimed a declaration of a s. 7 Charter breach and an order compelling the GIC to "forthwith" proclaim Part III - The Federal Court did not accept the "certainly novel" argument that they were entitled to greater legislative protection to effectively deal with the ongoing workplace risks they claimed to face - A person did not automatically suffer an interference with a s. 7 security interest because of the absence of legislative protection - Usually there must be some form of coercive or harmful government conduct - Even if the working conditions were sufficiently egregious to support an arguable claim, the court could not think of any situation where it would find it appropriate to order Parliament or the GIC to proclaim legislation as a solution - At most, the appropriate relief would be limited to the correction of the problem at hand up to, and perhaps including, the vacation of the premises - The claim to mandatory relief was "extraordinarily excessive and unwarranted" even if a Charter breach was evident on the record - See paragraphs 21 and 22.

Constitutional Law - Topic 23

General - Raising constitutional issues - Requirement of justiciability - [See Courts - Topic 2006].

Courts - Topic 2006

Jurisdiction - General principles - Issues not suitable for judicial determination - General - The applicants asserted that the Governor in Council (GIC) was ignoring the will of Parliament by failing to proclaim Part III of the Parliamentary Employment and Staff Relations Act - Part I of the Act was proclaimed in 1986 - The applicants sought a declaration of a s. 7 Charter breach and an order compelling the GIC to "forthwith" proclaim Part III - The Federal Court dismissed the application - The claim to relief was not justiciable - The applicants were asking the court to order the GIC "to carry out the purely legislative function of proclaiming legislation - a task which Parliament itself was not willing to execute" when it delegated the proclamation discretion in 1986 - By delegating that power, Parliament was obviously furthering an intent not to apply the Canada Labour Code to Parliamentary employees until the GIC determined that it was appropriate to do so - The decision to proclaim was dependent on the pleasure of the GIC unless and until Parliament reclaimed that authority - The applicants were therefore seeking an order which would defeat the intent of Parliament, not advance it - "[T]he courts must not usurp the legislative function. Even where Charter principles might justify an intrusion into the legislative area it is generally only the expression of the law, and not the processes of its creation, that can be the subject of judicial attention and then only with considerable caution" - See paragraphs 16 to 19.

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - [See Courts - Topic 2006].

Practice - Topic 213

Persons who can sue and be sued - Individuals and corporations - Status or standing - Requirement of justiciable issue - [See Courts - Topic 2006].

Statutes - Topic 6667

Operation and effect - Commencement, duration and repeal - Commencement by proclamation - Proclamation of a part of a statute - [See Administrative Law - Topic 3205.1 and Courts - Topic 2006].

Cases Noticed:

Reference Re Criminal Law Amendment Act 1968-69, [1970] S.C.R. 777; 10 D.L.R.(3d) 699, refd to. [para. 18].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81, refd to. [para. 18].

Carrion v. Minister of Employment and Immigration, [1989] 2 F.C. 584; 25 F.T.R. 16 (T.D.), refd to. [para. 18].

R. v. Langille (E.C.) (1992), 119 N.S.R.(2d) 79; 330 A.P.R. 79 (C.A.), refd to. [para. 19].

Lucas v. Toronto Police Service Board et al. (2001), 148 O.A.C. 215; 54 O.R.(3d) 715 (Div. Ct.), refd to. [para. 19].

Flora v. Ontario Health Insurance Plan (2008), 238 O.A.C. 319; 2008 ONCA 538, refd to. [para. 19].

Canadian Council for Refugees et al. v. Canada (2008), 385 N.R. 1; 2008 FCA 229, refd to. [para. 19].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 19].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 23].

Froom v. Canada (Minister of Justice), [2005] 2 F.C.R. 195; 327 N.R. 304 (F.C.A.), refd to. [para. 27].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, refd to. [para. 28].

Anderson v. Canada (Minister of National Defence) et al., [1997] 1 F.C. 273; 205 N.R. 350 (F.C.A.), refd to. [para. 28].

Jones v. Canada (Attorney General) (2007), 333 F.T.R. 1; 2007 FC 386, refd to. [para. 28].

Counsel:

Mr. Raven and Mr. Astritis, for the applicants;

Mr. Graham, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on March 2 and 3, 2009, before Barnes, J., of the Federal Court, who rendered the following judgment and reasons for judgment, dated April 6, 2009.