Canada (Attorney General) v. Association of Justice Counsel, (2016) 488 N.R. 198 (FCA)

• Judge: Trudel, Boivin and de Montigny, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 11, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 488 N.R. 198 (FCA);[2016] 4 F.C.R. 349;2016 FCA 92;[2016] F.C.J. No. 304 (QL);2016 CarswellNat 824 (WL Can.);[2016] AZ‑51267589

Can. (A.G.) v. Justice Counsel Assoc. (2016), 488 N.R. 198 (FCA)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2016] N.R. TBEd. AP.002

Procureur général du Canada (demandeur) v. Association des Juristes de Justice (défenderesse)

(A-384-15; 2016 FCA 92; 2016 CAF 92)

Indexed As: Canada (Attorney General) v. Association of Justice Counsel

Federal Court of Appeal

Trudel, Boivin and de Montigny, JJ.A.

March 23, 2016.

Summary:

A grievance adjudicator with the Public Service Labour Relations and Employment Board allowed a policy grievance from the Association of Justice Counsel against a directive from the Immigration Law Directorate of the Department of Justice, Quebec Regional Office. This directive imposed a duty on counsel to be available weeknights and weekends, on a rotational basis, and without compensation. The adjudicator concluded that this directive infringed on counsels' right to liberty under s. 7 of the Charter and thus violated clause 6.01 of the collective agreement between the Treasury Board and the Association, in addition to constituting an unreasonable and unfair exercise of residual management rights under clause 5.02 of the collective agreement.

The Federal Court of Appeal allowed the application. The adjudicator erred in deciding that the directive did not comply with the collective agreement and violated the right to liberty guaranteed by s. 7 of the Charter.

Civil Rights - Topic 641

Liberty - Limitations on - General - [See Labour Law - Topic 9625 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Labour Law - Topic 9625 ].

Labour Law - Topic 9621

Public service labour relations - Collective agreement - Management rights - General - The Federal Court of Appeal stated that "The residual management rights of an employer ... are not absolute. In the public service, the powers of the Treasury Board are subject to a number of restrictions under the terms of the PSLRA [Public Service Labour Relations Act] and do not extend to issues addressed in the Public Service Employment Act, R.S.C. 2003, c. 22, ss. 12 and 13. In more general terms, it is recognized that the measures taken by an employer in exercising its management rights must not breach the collective agreement, and must be reasonable and associated with a legitimate objective." - See paragraph 25.

Labour Law - Topic 9625

Public service labour relations - Collective agreement - Management rights - Work assignments and job classifications - An adjudicator with the Public Service Labour Relations and Employment Board allowed a policy grievance from the Association of Justice Counsel against a directive from the Immigration Law Directorate of the Department of Justice, Quebec Regional Office - This directive imposed a duty on counsel to be available weeknights and weekends, on a rotational basis, and without compensation - The adjudicator concluded that this directive infringed on counsels' right to liberty under s. 7 of the Charter and thus violated clause 6.01 of the collective agreement between the Treasury Board and the Association, in addition to constituting an unreasonable and unfair exercise of residual management rights under clause 5.02 of the agreement - The Federal Court of Appeal allowed the application - The adjudicator erred in deciding that the directive did not comply with the collective agreement and violated the right to liberty guaranteed by s. 7 of the Charter - The court found it "difficult to seriously consider that the duty not to travel farther than one hour from one's residence and to be available to provide professional services weeknights and weekends two or three times per year could infringe on a fundamental right." - In any case, the requirement did not violate the principles of fundamental justice.

Counsel:

Sean Kelly, for the applicant;

Bernard Philion, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Philion Leblanc Beaudry, Montreal, Quebec, for the respondent.

This application was heard on January 11, 2016, by Trudel, Boivin and de Montigny, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by de Montigny, J.A., on March 23, 2016.