Facts:
The Association represents first-level managers at casinos run by the Société. The Association applied to the Administrative Labour Tribunal to be recognized as the union for its members under the Labour Code. However, the Labour Code excludes “managers” from the statutory regime. The Association sought a ruling that this exclusion of managers violates its members’ freedom of association under s. 2(d) of the Charter.
The Tribunal ruled that the exclusion unjustifiably infringed the managers’ freedom of association. It characterized the claim as one of negative rights and applied the well-established test for infringements of s. 2(d).
The Société sought judicial review before the Quebec Superior Court, which quashed the decision. It found that the Association’s claim was, in reality, a positive rights claim and that the Association did not establish a breach of the Charter under that framework. On appeal, the Quebec Court of Appeal restored the Tribunal’s decision.
The Société appealed to the Supreme Court.
Decision
(per Karakatsanis, Kasirer, Jamal, and O’Bonsawin JJ.; Wagner C.J., Côté, and Rowe JJ. concurring): appeal allowed. The exclusion of first-level managers from the statutory labour relations regime does not infringe s. 2(d) of the Charter. The Tribunal decision was incorrect.
Regardless of whether a claim under s. 2(d) is characterized as a “negative” or “positive” claim, the two-part test for infringement is the same. At the first step of the s. 2(d) framework, the Court must determine whether the activities in which the members of the Association seek to engage fall within the scope of s. 2(d) of the Charter, and therefore consider whether the Association can plausibly ground its action in a fundamental Charter freedom. The second stage asks whether the impugned legislation substantively interferes with the protected activities.
Writing for a majority of the Court, Jamal J. adopted Côté J.’s concurring reasons on the standard of review and that correctness applies to “the questions of law and mixed fact and law at issue in these appeals” (para. 45).
In her reasons, Côté J. agreed with the parties that the correctness standard applies to the constitutional questions of law in the case. However, she also held that correctness should apply to findings of mixed fact and law “made in connection with a constitutional question” (paras. 93-94). In this case, the mixed question of whether the legislative exclusion substantially interferes with the members’ s. 2(d) rights involves “weighing ‘the constitutional significance’ of the findings of fact made on the basis of the members’ situation by reference to freedom of association” (para. 94). This defining of the constitutional standard of substantial interference requires a single determinate answer. Côté J. explained that deference is only warranted for “findings of pure fact that can be isolated from the constitutional analysis” (para. 97).
Applying the two-part test, the Association succeeded under the first step. Its claim does involve activities protected by s. 2(d), such as the right to make collective representations to an employer. However, the claim fails at the second stage. The purpose of the legislative exclusion was not to interfere with managers’ rights but to distinguish between managers and employees in the operational hierarchy. The Association also did not show that the legislation substantially interfered with its members’ right to collective bargain, in its effects.
Commentary:
For the purposes of this newsletter, the most significant aspect of this case concerns the Court’s unanimous expansion of the applicability of the correctness standard in constitutional cases. While the discussion of this issue constitutes less than 10 paragraphs of the decision, the implications could be extensive.
In Vavilov, the Court stated that “constitutional questions”, including “whether a provision of the decision maker’s enabling statute violates the Charter” are to be reviewed on the correctness standard.1 As a result, there was little doubt that courts will review questions of law concerning the Charter for correctness (as distinct from the proportional balancing of Charter rights against statutory objectives under the Doré framework).
Here, the Court goes a step further. It holds that mixed questions of fact and law also attract the correctness standard when they are connected to a constitutional question. This will be one of the only instances where courts will review a mixed question on the correctness standard. Notably, this represents an even less deferential standard to administrative bodies considering mixed constitutional questions than lower courts answering the same questions. On the appellate standards of review, mixed questions of fact and law are always reviewed on the standard of palpable and overriding error, absent extricable questions of law.
The Court’s statements on standard of review raise important questions that will have to be worked out by the courts in future cases. Jamal J., for the majority, clearly and explicitly adopted Côté J.’s holding that the mixed questions in the case attracted the correctness standard. However, it is not entirely clear if he goes as far as her that deference is reserved only for findings of “pure fact”. If so, courts on judicial review will now have to delineate between mixed questions of fact and law “made in connection with a constitutional question”—to be reviewed for correctness—and “findings of pure fact that can be isolated from the constitutional analysis”, which are still entitled to deference. Where precisely this line lies remains an open question.
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 57. ↩︎