Labour and Human Rights
| Author | Carolyn Carter & Steven Rita-Procter |
| Pages | 499-541 |
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15
Labour and Human Rights
Carolyn Carter & Steven Rita-Procter*
two subjects in one chapter because they
overlap, with human rights issues frequently arising in labour cases and
human rights cases often arising in an employment context.1 Human rights
are based on the belief that every human being, by virtue of being human,
deserves and owes to others respe ct and fair treatment.2 e Universal Dec-
laration of Human Rights, adopted by the United Nations in , refers
to the importance of “recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family.”3 A right can
* We would like to acknowledge the assistance of Naomi Stuleanu, a law student in
Osgoode Hall Law School, for her invaluable research assistance.
1 There are a large number of labour cases where human rights issues arise, including in
cases heard by labour arbitrators (who are not reviewable before the Federal Courts
due to section 58(3) of the Canada Labour Code, RSC 1985, c L-2) or in cases heard by
adjudicators under the Federal Public Sector Labour Relations Act, SC 2003, c22, s 2
[FPSLRA]. Conversely, many human rights cases, heard by human rights tribunals or
dealt with by the Canadian Human Rights Commission, involve employment situations.
2 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978) at 180–82 and
James Nickel, Making Sense of Human Rights, 2d ed (Oxford: Blackwell, 2007) at 9–10.
3 Universal Declaration of Human Rights, 10 December 1948, Preamble, online:
www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. Article 1 of the
Universal Declaration states that “All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood.”
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be thought of as a “claim upon the state”4 based on a state’s laws, or a claim
upon another person or organization made possible by law.5 In Canada, the
most important constitutional instrument for protecting human rights is the
Canadian Char ter of Ri ghts and Freed oms,6 but rights in terms of fair treatment
are also protected by various statutes such as labour laws and federal and
provincial human rights acts and bills of rights, such as the Quebec Charter
of Hu man Rights and Freedom s,7 and the constitutional principle of the rule of
law which implies that the law is to be applied equally.8 Some human rights
and labour rights claims in Canada end up in the Federal Courts because a
litigant has asked the court to take appropriate action within its jurisdiction
to enforce a claim based on the Charter, the Canadian Human Ri ghts Act,9 or the
Canada Labour Code.
e Federal Courts have been instrumental in shaping the purview and
scope of labour and human rights jurisprudence in Canada. As statutory
courts, the Federal Court and Federal Court of Appeal have jurisdiction over
those matters described in sections to of the Federal Courts Act, as well as
over those matters assigned by other federal statutes.
e majority of labour law matters heard by the Federal Courts arrive
in the form of judicial reviews of cases originating at federal tribunals, such
as the Canada Industrial Relations Board (CIRB), formerly known as the
Canada Labour Relations Board (CLRB). Likewise, most of the human
rights matters arrive in the form of judicial reviews of cases originating with
the Canadian Human Rights Commission or Tribunal, or arise in appeals
brought under federal statutes or judicial review applications arising in other
contexts. As a result, many of the notable cases that have shaped Canadian
human rights and labour law are catalogued in the Federal Courts’ statistics
under the heading of administrative law and/or judicial review.10 rough
their review of the decisions of lower courts and federal tribunals, the Federal
4 Donald V Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987).
5 Ian Greene, “Rights in Liberal Democracies” in Ian Greene, The Charter of Rights and
Freedoms: 30+ Years of Decisions that Shape Canadian Life (Toronto, Lorimer, 2014),
18–26.
6 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
7 Charter of Human Rights and Freedoms, CQLR c C-12.
8 For more detail, see Greene, above note 5, 18–26.
9 Canadian Human Rights Act, RSC 1985, c H-6 [CHR Act].
10 Canada, Federal Court, “Statistics,” online: www.fct-cf.gc.ca/en/pages/about-the-
court/reports-and-statistics/statistics#cont.
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Labour and Human Rights
Courts play a significant role in contributing to both human rights and
labour law jurisprudence in Canada.
Because cases involving human rights or labour issues often overlap with
other areas of law, the classification of cases involving human rights or labour
law is not a straight-forward process. In this chapter, we review nineteen deci-
sions regarding human rights and labour law that we argue are representative
of the jurisprudence of the Federal Courts in these areas in the second quarter
century of these courts. We drew up this list using several sources.
First, we relied on the insights of the seventy-eight current and retired
judges who were interviewed for this project. ey were asked to list the areas
in which the two courts had distinguished themselves (Chapter , Table .).
Four mentioned the Charter and constitutional principles, three mentioned
human rights, and one mentioned labour law. However, when the inter-
viewees were asked to list decisions of the two courts that they considered
“highlights,” or decisions of the two courts that attracted public attention
(Chapter ), they listed five decisions — Khadr, Charkao ui, Harkat , Ishaq, and
Mugesera — that involve human rights issues.11 We selected all these cases for
review, and we added two earlier cases — Liberty Net and Winnicki — based on
quantity of citations and media attention.12
Our second source was Peter McCormick’s analysis in Chapter of this
book, which examined nearly , decisions of the Federal Court of Appeal
from to that had been res erved for consideration and later pub-
lished. McCormick found that percent of these dealt with a labour rela-
tions issue, and percent primarily with a human rights issue.13 Professor
McCormick provided us with a list of the top scoring “major” cases regarding
human rights and labour relations issues since ,14 and from these lists we
selected Sketchley, First Nations Child and Family, and Kavanagh regarding human
These two classifications are not used in the ocial statistics of the Federal Courts
available on their websites. The human rights classification sometimes overlaps with
the security and intelligence classification.
12 The Supreme Court decision on Liberty Net has 283 citations, according to CanLII,
and 175 references on the Canadian Index, which summarizes Canadian media arti-
cles. The Federal Court of Appeal decision in Winnicki, which relies on Liberty Net, has
twenty-three citations on CanLII and twenty-six references on the Canadian Index.
13 See Chapter 3, Table 3.3. Thirty percent of labour relations decisions were reserved —
an indicator of importance.
14 See Chapter 3, Tables 3.9 and 3.10 for aggregate lists of “major cases.” Peter McCor-
mick provided us with a further breakdown of that list to identify human rights and
labour law cases.
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