Influence of Oakes outside the Charter, specifically labour arbitration jurisprudence.

• Author: Khullar, Ritu
• Position: Canada - The Oakes Test: A Historical Perspective

This article explores the influence of R v Oakes in non-Charter jurisprudence, specifically in labour arbitration law. It reviews how labour arbitrators have adopted an analytical framework inspired by Oakes, when assessing the reasonableness of employer conduct vis-a-vis the employee. Specifically, the article focuses on assessing the reasonableness of employer policies, rules or practices that interfere with employee privacy rights. The article begins with an overview of the Oakes test and then reviews some of the sources of employee privacy rights. It illustrates how arbitrators are using an Oakes-like analysis in the balancing of rights in two specific contexts that arise in labour arbitration jurisprudence: 1) the use of video surveillance of employees conducted by employers and its admissibility at arbitration hearings; and 2) employers' rights to access employee medical information. The article concludes that the Oakes framework is an important guide for labour arbitrators in striking the right balance between employee privacy rights and employer's interests. Specifically, the Oakes framework requires employers to justify any compromise of employee privacy rights by demonstrating that: the compromise of privacy rights is for a pressing and substantial objective; the means used are rationally connected to the objective; the means used minimally impair employee privacy rights; and there is overall proportionality between the objective of the employer and the means used.

Cet article se penche sur l'influence de l'arret R c Oakes dans la jurisprudence non liee a la Charte, et en particulier en matiere d'arbitrage en droit du travail. Il examine en outre la maniere dont les arbitres en droit du travail ont adopte un cadre analytique inspire par l'arret Oakes, lorsqu'il s'agit d'evaluer le caractere raisonnable de la conduite d'un employeur vis-a-vis de son employe. Cet article traite plus particulierement du caractere raisonnable des politiques, des regles ou des pratiques de l'employeur qui empietent sur les droits de l'employe a sa vie privee. L'article debute par une vue d'ensemble du critere formule dans l'arret Oakes pour passer ensuite en revue les sources des droits de l'employe a la vie privee. Il illustre la maniere dont les arbitres recourent a une analyse de type de celle dans Oakes en vue d'equilibrer les droits en presence dans deux contextes propres a la jurisprudence relative a l'arbitrage en matiere de conflits de travail : 1) le recours par des employeurs a des cameras afin de surveiller leurs employes et son admissibilite dans le cadre d'audiences d'arbitrage; et 2) les droits de l'employeur a l'acces aux renseignements medicaux de ses employes. L'article conclut que le cadre inspire de l'arret Oakes constitue un guide important pour les arbitres en droit du travail Iorsqu'ils cherchent a atteindre le juste equilibre entre les droits de l'employe a la vie privee et les interets de l'employeur. Le cadre de l'arret Oakes exige de l'employeur qu'il Justifie toute atteinte portee aux droits de l'employe a sa vie privee en faisant la preuve que : la violation des droits a la vie privee vise un objectif pressant et important; les moyens utilises pour ce faire ont un lien rationnel avec l'objectif poursuivi; les moyens utilises ne portent qu une atteinte minimale aux droits de l'employe a sa vie privee ; et li existe une proportionnalite globale entre l'objectif vise par l'employeur et les moyens dont il se sert pour l'atteindre.

Table of Contents I. INTRODUCTION II. OAKESTEST III. PRIVACY RIGHTS OF EMPLOYEES IV. ADMISSIBILITY OF VIDEO SURVEILLANCE V. EMPLOYEE MEDICAL INFORMATION VI. CONCLUSION I. INTRODUCTION

On February 9, 2012, at the Ottawa Law Review's Annual Symposium commemorating the twenty-fifth anniversary of R v Oakes, (1) I was assigned to the panel, "Section 1 : A Feminist in the Egalitarian Critique." In preparing for the Symposium, I realized something quite remarkable: I am a big fan of the Oakes test and feel like I use it in the practice of law, though not regularly in Charter (2) litigation. Particularly, I have not used the Oakes test in any section 15 litigation. I realized that the primary comment I can make about section 1 from an egalitarian and feminist perspective is that it is not used. That is to say, in terms of promoting equality rights through section 15 of the Charter, the likelihood of a claimant establishing a breach of section 15, and actually putting the onus on the government to justify that breach under section 1, has become increasingly remote. This is because of the gradual evisceration of section 15 by the Supreme Court of Canada, first in R v Law, (3) then in R v Kapp, (4) and most recently in Withler v Canada (Attorney General). (5)

So the question became: why am I a fan of the Oakes test when I rarely use it in Charter litigation? I came to realize that the Oakes test is applied consciously and unconsciously in labour law and, in particular, in balancing employees' privacy rights with management's interest in their business. Therefore, on the occasion of the twenty-fifth anniversary of Oakes, I discussed the influence Oakes has had on the development of privacy law in the employment context, with a particular focus on two areas: video surveillance of employees and requests for medical information. This influence of Oakes on the development of the law outside of Charter litigation is not something new. For instance, in its recent decision of Dore v Barreau du Quebec (6) the Supreme Court of Canada specifically melded the Oakes test into a notion of reasonableness in the application of the Charter to judicial review of administrative tribunals. However, the scenarios discussed below take the Oakes test one step further away from the Charter and take its values into another area of law completely.

Prior to the Charter, labour arbitrators recognized that employees did not give up their privacy when they went to work. However, they also recognized that employers could encroach on privacy for various business reasons. The Charter's robust jurisprudence on the constitutionally protected right to privacy has influenced and strengthened the common law value and right of privacy for employees. The balancing that must occur in the workplace between this employee right and employers' business interests lends itself to the Oakes approach to balancing. These two themes will be the focus of the discussion below.

2. OAKES TEST

   Much has been written about Oakes and I have nothing to contribute to the academic commentary about the development and application of the Oakes test in Charter litigation, especially as applied by the Supreme Court of Canada. (7) The strength of Oakes lies in its enduring framework for assessing the reasonableness of actions by a powerful actor in relation to a powerless actor--the government to its citizens, or employers to employees. The enduring legacy of Oakes lies in its continued existence as a useful test for balancing rights in the face of all of the criticism it has endured.

   Section 1 of the Charter guarantees "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (8) In Oakes, Chief Justice Dickson provided a framework for applying section 1. He noted two significant contextual factors. First, section 1 contains both the constitutional guarantee of rights and the criteria against which the limits on rights must be measured. Second, section I also recognizes the fundamental importance of the free and democratic society that is Canada, the essence of which includes "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society." (9) Next, Chief Justice Dickson noted the evidentiary burden on the party seeking to uphold the violation of rights.

   There are two key elements to the Oakes test: the objective and the proportionality test. With respect to the objective, it must be of "sufficient importance to warrant overriding a constitutionally protected right or freedom," (10) which at minimum means "that an objective [must] relate to concerns which are pressing and substantial.... [T]he proportionality test will vary depending on the circumstances, (11) but is comprised of three components. The first aspect requires that "the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective." (12) The second aspect of the test requires that the means "should impair 'as little as possible' the right or freedom." (13) The third aspect is an overall balancing; "there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective...." (14)

   So how does a test that is designed to permit the courts to review whether governments have justification to violate constitutionally-guaranteed rights and freedoms apply to labour and employment law? Labour arbitrators are tasked with deciding disputes under collective agreements. They have much experience in reviewing employers' decisions in the context of a written document setting out the rights of employees (collective agreements) and in assessing whether an employer's actions (or inactions) are a violation of the collective agreement. Labour arbitrators are in the business of balancing the employer's or business' interests against the specific rights guaranteed in a collective agreement. Further, labour arbitrators will assess employer policies on a number of bases, including whether an employer policy is reasonable. Like...