All Bets Are Off: Free Expression Trumps Privacy in Supreme Court Picketing Case

When we think of picket lines, we don’t usually think of photographs and video surveillance, but these can be essential weapons on both sides of a labour dispute. In a decision released last month, the Supreme Court of Canada recognized the importance of photo and video surveillance on picket lines – and for unions, at least, made it a constitutional right.

All Bets Are Off

The dispute in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 began when several individuals discovered that they had been photographed and videotaped when they crossed a picket line to get to a casino. One of the individuals was the Vice-President of the casino, whose photo was taken by his striking employees and then printed on various union posters, newsletters and leaflets with “captions intended to be humorous.”

(The Supreme Court doesn’t tell us what those captions were, but I like to imagine that they were casino- and strike-related puns – “cash out or all bets are off,” “if you want a full house you’d better up the ante,” “give management the royal flush,” that sort of thing. They were probably much more banal than that, but a boy can dream.)

Anyway, the individuals complained to the Alberta Privacy Commissioner, who administers a law called the Personal Information Protection Act (“PIPA”). PIPA, like similar legislation in B.C., Quebec and the federal jurisdiction, is meant to protect privacy in an age of computers and smartphones, but the Alberta version is particularly broad. Subject to some exceptions and exemptions, PIPA prevents the collection, use and disclosure of any information about an identifiable person, by any organization, for almost any purpose. Videotaping and photographing people who try to cross a picket line is, according to the Privacy Commissioner, right out.

The union challenged the Privacy Commissioner’s decision before the Alberta Court of Queen’s Bench on the basis that PIPA was unconstitutional, because it interfered with the union’s freedom of expression. That was the dispute that worked its way up to the Supreme Court of Canada.

Express Picketing

The first question the Supreme Court had to answer was whether the union’s activities were protected by the constitutional guarantee of freedom of expression. I found it interesting that all of the parties conceded this. It’s not quite as clear to me.

Obviously, picketing is a form of expression. One of the most important purposes of picketing is to raise public awareness of the issues underlying a strike. Another is to convince the public to support the strike and by getting their goods and services elsewhere. These are fundamental parts of free expression. What about taking somebody else’s picture, though? Certainly the uses that the union made of the Vice-President’s photo were expressive, since it became part of the union’s newsletters and leaflets. But why should taking the photo, in and of itself, be protected under freedom of expression? Why should the union have a constitutional right to take photos of the other two complainants, which it apparently never used?

The Supreme Court’s answer was that one of primary purposes in taking the photos and videos was to persuade people not to cross the picket line. Since it was meant to persuade, it was expressive activity. The Supreme Court seems to be saying that since picketing itself is expressive, tactics that make the picket line more effective – by deterring people from crossing it – will also be expressive.

I have to admit I have an issue with that reasoning. I would have thought that the activity itself, taking the photograph or video, would need to be expressive in order to be protected. At least it would need to be essential to expressive activity like picketing, not just something that makes picketing more effective. But since none of the parties disputed it, and the Supreme Court accepted it, let’s move on.

A Fine Balance

The fundamental question that the Court grappled with was how to balance the picketers’ right to free expression against the privacy rights of individuals who crossed the picket line. The Court recognized the important benefits of PIPA, but ultimately found that they were trumped by free expression.

The Court seems to have focused on just how extremely broad PIPA is in general, rather than on the narrow issue of photographing and videotaping. “What is of the utmost significance in our view,” the Court found, “is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.” No doubt that is true. PIPA would have prohibited not just the collection of people’s images (i.e. the taking of photographs and videos), but also their use in ways that are both expressive and important to picketing: among other things, the newsletters and leaflets already discussed; raising awareness of the picketing online; and persuading police, the public, and if necessary the courts that no improper behaviour took place.

The Court, however, keeps going back to the importance to a picket line of persuading people not to cross it. That is where I still find the decision a bit problematic. Not that I am against picketing – it’s essential to our labour law system – and not that I am against unions trying to persuade people not to cross a picket line, which is important to their ability to mount an effective strike. But here we are weighing other rights in the balance. If privacy violations were necessary in order for unions to picket at all, that would be one thing, but it’s quite different to say that privacy rights should be outweighed merely because the union wishes to use a particular tactic that helps to make picketing somewhat more effective.

What About Employers?

The fact is, employers use picket line surveillance far more often than unions do. The primary purposes on the employer side are to deter violence and property damage and to collect evidence that can be used in legal proceedings, such as injunction proceedings to stop or limit picketing. Despite the pro-surveillance outcome of the case, though, employers will not have much to get excited about. Since the Supreme Court’s main concern was the importance of photographs and videotapes to picketing, the decision is unlikely to assist employers who wish to photograph and videotape picket lines in order to limit picketing.

The Bottom Line

As much as I’ve criticized the Court’s decision here, I actually believe that unions and employers should be permitted to photograph and videotape picket lines. Picket lines are tense, emotions run high, and it is important for both parties to be able to collect the best evidence of what has happened there in the event of a legal challenge. People who march on a picket line, let alone people who cross one, should know that they are in a public place where their privacy can’t be guaranteed. Furthermore, a lot of the union’s reasons for taking photos and videos, which the Supreme Court summarized, are legitimate and probably do make good labour relations sense.

What I’m not certain about is whether this should be a constitutional right, as the Supreme Court found. I’m not certain that a government that chooses for policy reasons to put privacy rights first in this situation should be unable to do so, even if it’s not the policy choice I would personally make.

Ultimately, the Supreme Court struck down PIPA but allowed it to remain in force for 12 months to give the Alberta government an opportunity to amend it. Hopefully, the government will be able to strike an appropriate balance between privacy, labour rights and freedom of expression going forward.

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“Your Honour, the Cow Precedent Has Been Reversed by the Cow Precedent Reversal Act!”: The Common Law, Part 3

In the first two installments of this series, we talked about the common law, the way judges create law by requiring future judges to decide similar cases the same way. Judges are far from the only people who make law, though. We also have legislatures, which are full of folks whom we have, for better or for worse, actually elected. Surely they have some role to play in our legal system.

Actually, they have quite an important role, but it’s not the exclusive role that many think. Legislatures can overrule judges, but judges can interpret legislation, leading to a back-and-forth – a conversation – that explains how our laws really evolve and develop.

Open Season on Bovine Thievery

“Parliamentary supremacy” has been a fundamental feature of British-inspired legal systems for centuries. Now that those Parliaments are actually elected (well, the House of Commons is – Parliament also includes the unelected Senate and the Queen, but it’s the elected House where most of the power lies), the rationale is even more compelling. In a democracy, elected officials should generally be able to overrule unelected judges.

Remember the Cow Precedent, the fictional case which says that stealing someone else’s cow is a criminal offence? Let’s say that our elected representatives were not happy with that. Perhaps they are appalled at the concept of private cattle ownership. Perhaps they believe that the criminal system is too harsh to enforce laws about livestock. Or perhaps the Cattle Rustlers’ Association have a strong lobby and it’s an election year.

Whatever the reason, there is nothing stopping Parliament from passing a law which declares that cow-taking is no longer a criminal offence. They are absolutely free to reverse the Cow Precedent and declare open season on bovine thievery. They may even call the new law the Cow Precedent Reversal Act! (If that sounds far-fetched, consider that the Ontario legislature once passed a law called the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act. Any guesses which Premier oversaw that wording? That’s right, it was Mike Harris, the same one whose government passed the Fairness is a Two-Way Street Act).

But that’s not the end of the story, because guess what will happen the first time someone is charged with theft, and claims innocence because the stolen property was a cow? The case is going to end up in a court, and the Cow Precedent Reversal Act is going to need to be interpreted . . . by a judge.

Taking the Bull by the Horns

Let’s say you stole a bull.

At your trial, your lawyer holds up the Cow Precedent Reversal Act. Is that enough to get you off? It’s not necessarily an easy question.

On the one hand, everybody knows that a bull is different from a cow. The starting point, whenever you’re interpreting a statute, is the plain meaning of the words.

On the other hand, the starting point is not always the ending point. You could certainly argue that when Parliament allowed cows to be stolen, it must have intended to include the male of the same species. After all, the Interpretation Act – yes, there actually is a law which is all about how to interpret other laws – says that words which refer to female persons include male persons, and vice versa. Why couldn’t the same be true of female and male bovines?

For this example, it doesn’t really matter which way the judge decides. Let’s say the judge declares that stealing bulls is still illegal. Guess what that decision is? A precedent! That interpretation of the Cow Precedent Reversal Act must be followed by future judges. And as more and more judges weigh in about what the word “cow” includes (A calf? A side of beef?), an entire series of precedents might start to develop – a common law of how to interpret the legislation.

To make this point in a less silly way, let’s look at one of the statutes that I deal with all the time, the Labour Relations Act, 1995. It’s 168 sections long, and in some places very detailed, but there’s still a lot of room to develop a robust set of precedents, an entire body of labour law.

For example, section 69 of the Act says that if there’s a sale of a business, any union bargaining rights and collective agreements binding on the seller become binding on the purchaser. The purpose is to ensure that unions don’t lose all their rights just because of a technical change in ownership. But what is a sale? The Act helpfully tells us that it “includes leases, transfers and any other manner of disposition,” but that still leaves a lot of room for manoeuvring. And what is a business? The only definition in the Act says that a business includes part of a business, which really doesn’t get us anywhere. What does get us somewhere is the extensive series of Ontario Labour Relations Board decisions that do define these terms, and that show us how they apply (or don’t apply) in different situations.

The fact is, most legislation is extremely general. It has to be, because it has to apply widely. Governments do their best to anticipate different circumstances and address them, but it’s impossible to anticipate every situation where a law might apply. In the common law system, it’s judges who interpret laws in individual cases, and by doing so, build up a system of rules that can be applied to other cases. It’s the judges who – pun intended – put the meat on the bones.

And if Parliament doesn’t like what the judges are doing? They are still elected; they still have Parliamentary supremacy. It’s open to them to say to the judges, “That’s bull!”, and amend the Cow Precedent Reversal Act to say that bulls can be stolen after all. It’s a back-and-forth. As naive as it may sound, it is a conversation.

But Wait, There’s More

Parliamentary supremacy does, of course, have a limit. That limit is the Constitution. As the basic law of the country, the Constitution can never be violated, even by someone who we’ve voted for. How do the common law and legislation fit in here? I’m not committed to writing a Part 4, but if there is interest, that is a place I can explore next.

Asleep at the Switch: Can you fire a worker for sleeping on the job?

Can a unionized employer – a municipal government, say – fire a worker for sleeping on the job?

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

 

Public Displays of Exhaustion

As you probably already know if you live in Toronto, a few weeks ago a city employee was found head down on desk, office door wide open, fast asleep.

The reason you already know this is that a city councillor, Georgio Mammoliti, decided that it would be a good idea to send a photograph of the sleeping worker directly to the press. This is not, I hasten to add, what my field refers to as a human resources solution.

Mayor Rob Ford has also weighed inpun intended – with the opinion that not only should the worker be fired for sleeping on the job, but that his or her supervisor should be, too.

I can’t give advice the City of Toronto on any particular case, of course, and in this particular case, there are far too many unknowns to even try. But surely I can say that a worker in any industry who is photographed sleeping on the job deserves to be fired, right?

Well . . . maybe not.

Premeditated Sleeping

Judging by the volume of case law on the subject, sleeping on the job happens surprisingly often in Canadian workplaces. Indeed, there are so many cases that an exhaustive survey would be impossible, even though I am limiting my review to labour arbitration cases from unionized workplaces rather than drifting off into the non-union world. For the purposes of this post, however, I’ll just run through a few decisions, to make sure your eyes aren’t closed to the legal principles involved.

First, the case law draws an important distinction between deliberate and accidental sleeping. No, I am not making that up. Take it from the respected labour arbitrator William Marcotte in the 2006 decision of Lecours Lumber Co.:

As can be seen from the above cases, an important consideration for purposes of determining the appropriateness of disciplinary discharge is whether or not the employee deliberately intended to sleep on the job. Where there is found to be such intention, “arbitrators tend to regard situations where employees are found to be deliberately sleeping as justifying discharge.” . . . Certain circumstances surrounding an incident of sleeping on the job have led arbitrators to find that the act was premeditated.

That’s right. Sleeping on the job won’t necessarily get you fired, but my new favourite phrase –  “premeditated sleeping” – probably will.

What are the circumstances that will give rise to a finding of “premeditated sleeping”? Arbitrator Grey’s 1999 decision in Stelco gives a particularly vivid description:

When Mr. MacDonald arrived at CO13 at about 4:30 a.m., much of the area was in darkness. Messrs. Gilkinson and Kennedy were in a workshop next to the lunchroom. The lights in the workshop were turned off. Mr. Gilkinson was lying prone on an inflated air mattress positioned on top of a picnic table, asleep. His boots were off. His head was on the pillow portion of the mattress. Mr. Kennedy was also asleep, lying prone on a chaise lounge liner laid out on top of a workbench. His boots were off. His head was on a pillow of rags. Mr. Earle was in the lunch room adjoining the workshop where Messrs. Gilkinson and Kennedy were sleeping. He was asleep, lying prone directly on a picnic bench. He was wearing his boots. The lights in the lunchroom room were off.

There was an alarm clock in that room set for 5:50 a.m. (Those who relieve night shift electricians would arrive between 6:15 a.m. and 6:30 a.m.) Mr. Van Mol was in an office down the hall from the area where the others were sleeping, the office where the drive files and computer terminal were located. He was asleep, lying or reclining on top of a desk, covered with a winter coat. His boots were off. The office lights were turned off. The office door was locked. Mr. MacDonald found him there when he used his key to enter the office to consult the drive files and use the computer terminal.

Ironically, the fact that our City of Toronto worker was photographed, head down on desk, makes it less likely that he or she can be fired for it. If this had been a case of premeditated sleeping, the worker probably would have found a more comfortable position, or at least closed the door.

Accidentally in Slumber

 

Of course, employers are still entitled to sound an alarm when an employee is sleeping on the job accidentally. That is especially true when the employee’s job requires alertness for safety reasons, such as a crisis counsellor at a women’s shelter in one 1996 case, or another 1996 case in which the job title of the sleeping employee was – again, I am not making this up – Awake Night Staff. Arbitrators agree that workers who are found sleeping on the job deserve discipline. The question is whether they deserve to be fired.

The answer to that question will depend on a number of different factors. These include the employee’s seniority, past disciplinary record, explanation for sleeping (an employee who is taking medication that causes drowsiness might be treated very differently than an employee who simply stayed out too late at the bar the night before), whether the employee acknowledged wrongdoing and showed remorse, and whether the employee’s behaviour actually resulted in harm to the employer’s operations or reputation.

Thus, termination was upheld for the crisis counsellor at the women’s shelter, in light of the risks if he could not be trusted to remain alert. Termination was also upheld where an employee with two previous suspensions displayed a “lack of candour” and a “failure to acknowledge fault.” On the other hand, an arbitrator overturned a termination of employment for an employee with a clear disciplinary record who had taken active steps after the incident to make it less likely to be repeated. Another employee got to save his job since the sleeping incident was related to his diabetes and he clearly showed remorse.

Perchance to Dream

The fact is, we just don’t know any of these things about the city worker who has Councillor Mammoliti and Mayor Ford so wired up. That’s why it’s not appropriate for us to lie back and guess at whether this particular worker deserves to be fired – and why it’s not appropriate for city councillors to leak photographs of their own employees to the media before going through the internal investigation that would actually be required to put this issue to bed.

When it comes to the worker’s supervisor, chances are that he or she is not unionized, so the city could fire that person whenever it wanted. But the city would have to provide reasonable notice or pay in lieu, which, depending on the supervisor’s years of service, could add up to quite a large sum.

And if the Mayor believes that he can fire a supervisor for cause, and avoid paying him anything, just because one subordinate, on one occasion, was (literally) caught napping?

All I can say is, dream on.

“Is it legal to steal information from your employer?”

Most questions that start with “Is it legal to steal” lead to answers that start with “No.” But let’s delve into this one in a bit more detail.

You see, WordPress shows me the search terms that people use to find this blog, and earlier today somebody actually found Legal Gateways by searching, “is it legal to steal information from your employer?” Unfortunately, that person would not have actually found the answer to their question here, which I thought was a shame. So — understanding that this is not legal advice, and that I can’t say anything about any individual’s situation — here is a general answer, at least under Canadian law.

To answer the question, we have to figure out what we mean by “information,” and what we mean by “steal.”

Employees do have obligations to protect their employers’ confidential information, which continue even after the employee resigns or is terminated. The first question to ask, then, is whether the information is confidential. Many employers will have their employees sign confidentiality agreements, which will define exactly what information is considered confidential. In the absence of an agreement, however, employees still have a duty of confidentiality, and they are expected to use a degree of common sense to figure out what sorts of information an employer would expect them to keep secret.

Things that would be covered likely include sensitive commercial information, like costs, pricing structures and customer lists; corporate strategies; trade secrets, such as processes, recipes or methods for creating the product or delivering the service; information that the company is required by law to keep confidential, such as personal information about individual customers or employees; and any other information that the company would reasonably be upset about falling into a competitor’s hands.

Information is not “confidential” if it is already in the public sphere — as long as it didn’t get there by somebody else breaking their own confidentiality obligations!

So, no, it is not legal to disclose your employer’s (or former employer’s) confidential information, if that is what we mean by “stealing” it. Since it may be very difficult to use the information without disclosing it, that will end up closing the door to a lot of the purposes of “stealing.” That said, certain uses of information might be acceptable, if the information can be used without being disclosed. Misappropriating trade secrets is probably not okay, and neither is using information in a manner that would violate a copyright or trademark. But soliciting the employer’s customers — using information about who those customers are — may well be okay as long as there isn’t a contract which specifically prohibits it.

(Even when there is a contract prohibiting it, courts are very sensitive about when those contracts will be enforced. If you are an employer, and want to have your employees sign non-solicitation or non-competition agreements that will actually be legally binding on them, that is an area where you really should get advice from a qualified employment lawyer).

That said, what an employer cannot control is what is in its employees’ heads. Employees can’t be expected to simply forget knowledge acquired and information learned. Even if information came from the employer originally, once it is part of an employee’s knowledge and memory, it becomes very difficult for an employer to claim an exclusive right to it. To the extent that information is confidential, the employee may not be able to disclose it, but they can certainly use their own knowledge and memories.

You may have noticed that I have been stressing the ideas of disclosing and using an employer’s information, which seem to me to be more meaningful than the concept of stealing it. Taking your employer’s information and putting it in a box in your basement is unlikely to be too objectionable, unless your employer has specific policies about that or you’re in an industry which is especially sensitive to confidentiality, like banking or health care or national security. But why would you take your employer’s information if you didn’t intend to use it? Is the type of use you’re considering inherently wrong, for example because it would violate a copyright or trade secret protection? And in any event, practically speaking, would you be able to use it without disclosing it? Or is the information not actually confidential in the first place because it’s already public knowledge? These are the types of questions that we need to ask.

One final point: a lot of what I’ve talked about so far assumes that the employee is no longer with the employer. But if the employee is still employed, there is a whole new set of concerns. The employee will have a much higher duty of faithfulness to the employer while still employed, and will want to be much more careful to not use the employer’s information in a way that might be contrary to its interests.

This really only scratches the surface of the question, and it’s a bit difficult to answer without knowing what “steal information from your employer” means. But the bottom line is, whenever your question starts with the words “is it legal to steal,” you should, at the very least, proceed with caution.

Supreme Court of Canada will hear Right to Strike Case

I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?

strike

Stock photo from http://www.sxc.hu/photo/1197558 . I wanted a better photo for this, but apparently searching “strike” gets you bowling pictures, and searching “picket” gets you fences.

Background: The Labour Trilogy, B.C. Health Services and Fraser

The Supreme Court decided three  cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.

Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?

What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.

Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.

Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat.  Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.

Saskatchewan Federation of Labour and the Right to Strike

In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.

The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.

That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:

In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.

After that, how could the Supreme Court say no?

A New Labour Trilogy?

The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.

In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.

But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 2

Image

(Stock photo from http://www.sxc.hu/photo/1427863)

Happy Thanksgiving, everybody!

In Part 1 we talked about the basic principles of the common law legal system. We talked about the rule of precedent, that similar cases must be decided the same way. We also talked about how, if we don’t want a certain precedent to apply, we can try to “distinguish” it to show that it’s not actually similar to the current case. Then we ran through a couple of examples where it was pretty intuitive whether the current case was similar to, or distinguishable from, a case that we called the Cow Precedent.

But what if it’s not obvious? No two cases are ever going to be identical, so how do we know whether our case is different enough that the precedent will not apply to it? And if all cases are different from one another, how can we rely on precedents to build legal arguments?

Reasons

The first place to look is the reasons for the precedent decision. Judges normally provide reasons which set out the facts of the case, the law, and how the law applies to the facts to reach a conclusion. That usually gives lawyers most of the fodder they need.

For example, I recently argued a case where my opponent cited a well-known Supreme Court of Canada decision, which says that employers have a duty to treat employees fairly and in good faith in how they go about terminating (firing) them. Our case didn’t involve a termination, though. It involved a retirement. My opponent argued that shouldn’t matter. The Supreme Court was concerned with treating people fairly when their employment ends, and that’s the same regardless of whether it’s a termination or a retirement – in the lingo of Part 1, regardless of whether you’ve stolen a cow or a horse.

In order to distinguish it, I went to the Supreme Court’s reasons, and tried to show that the Court’s real concern was that having your employment terminated is a traumatic experience and leaves you vulnerable. Employees need extra protection in those circumstances. These concerns don’t arise, I argued, when you’re voluntarily choosing to retire. So the reasons for imposing a duty of good faith on the employer didn’t exist in our case. The Cow Precedent was distinguishable.

(Of course, I still spent most of my time arguing that my client, the employer, had acted fairly and in good faith. Arguing that you didn’t need to be fair is never going to play well, even if it’s legally accurate.)

That’s just a single example, but it shows how legal arguments work in practice. Both sides are trying to draw out a principle from the precedent case. For my opponent, the principle was, employers must treat employees fairly when their employment ends. For me, the principle was, employers must treat employees fairly when terminating them. Both of us pointed to quotes from the Supreme Court’s reasons to support our views of what the Court was really trying to say. And depending on what the Court was trying to say, the precedent either applies to our case, or it does not.

Compare and Contrast

Most of the time, though, you’re not just going to have the Cow Precedent. There are going to be multiple precedents, some which support one side, and others which support the other. What do you do then?

Believe it or not, this is actually the easier scenario, for the simple reason that you have more data points. If there is only one precedent, you have to really analyse its reasons to figure out what legal rule it is trying to create. Having multiple precedents makes this easier by allowing you to compare and contrast. I literally do that high-school-type analysis on a weekly basis. Applied to my field, it looks like: What do all the cases where the union wins have in common? What do all the cases where the employer wins have in common? What does that tell us about what the law is? And based on that analysis, what’s likely to happen in the current case?

Let’s go back the Cow Precedent, and remember how it was distinguished in the Jacket Case: in the Cow Precedent, the theft was deliberate, while in the Jacket Case, there was an honest mistake. It might be difficult to come up with any general principles based on either of these cases individually, but when you read both of them together, it’s obvious that there’s an important distinction between taking something that doesn’t belong to you deliberately and doing so accidentally. That principle, based on comparing and contrasting the precedents, is what you can apply in a future case.

Other Techniques

There are, of course, a number of other techniques in legal reasoning. Sometimes, when there is no precedent which applies (or when the only precedent is distinguishable, which, legally speaking, is the same thing), lawyers go back to first principles, the basic foundations of the legal system and our society. That’s what we all did in Part 1 when we instinctively knew that there should be no legal difference between stealing a cow and stealing a horse. Theft is inherently a violation of private property rights, and it really doesn’t matter what private property is being stolen.

But there have been cultures throughout history with little conception of private property, and there are also cultures who revere cows as sacred. It would be easy enough to imagine a society that combined these traits, where taking a cow without permission would be a serious crime, but taking a horse would not raise eyebrows.

Another technique, if you don’t have a precedent that’s directly applicable, is to reason by analogy to other circumstances. The rule of precedent may not strictly apply, because the cases you’re relying on aren’t “similar” to yours, but the reasoning might still be persuasive.

Wait, wait, wait. For all this talk about cases, don’t we have actual laws?

A lot more could be said about the common law legal system, but that is it in a nutshell –using precedents and the process of legal reasoning to create and identify legal rules. But when I try to explain this, people usually say, “That can’t be our whole legal system! Don’t we have a government and a legislature that actually pass laws?” Of course we do, but in our system, those laws weave together with the common law (the body of judge-made law), and more importantly, with the type of common law reasoning that we’ve been talking about. In Part 3, we’ll see how that works.

What would happen if an employer tried to ban religious symbols at work?

Imagine that an employer wanted to forbid its employees to wear religious symbols at work. Not all religious symbols, of course. Only “large” or “ostentatious” ones. What would happen?

The issue would fall under human rights legislation, which, in Ontario, is the Human Rights Code (the “Code”). The Code prohibits discrimination based on a number of protected characteristics, including religion (“creed”), in a number of social areas, including employment. Would the Code protect employees from this type of policy?

The Code would certainly come into play if the employer’s rule deliberately targeted employees based on their religion. But let’s assume that isn’t the case. Let’s assume the employer’s motivation is not anti-religion, but just to impose a reasonable dress code, to ensure that its staff have a professional appearance and portray the desired image to their customers. Under this dress code, all sorts of head coverings and jewelry are prohibited, not just religious ones. What would happen then?

Interference with a Sincere Religious Belief

The employer’s rule might still be discriminatory if it negatively affects somebody in a way that is linked to his or her religious beliefs. So the first question to ask is whether the individual employee has a sincere religious belief that he or she must wear the religious symbol. Many Christians, for example, wear a crucifix not because they believe their religion requires them to do so, but just because it is meaningful to them to express that part of their identity. The Code would probably not protect those people.

That said, it’s important to bear in mind that the question of a sincere religious belief is subjective. It doesn’t depend on what a  priest, rabbi or imam says the religion requires, but on what the individual believes.

The next question we would ask is whether the rule actually interferes with the person’s religious beliefs. The Ontario Divisional Court found in a 2011 case that an employer had not discriminated against a Muslim woman when it ordered her not to wear a particular hijab, which in the employer’s view looked unprofessional. The reason was that the employer had allowed her to wear other styles of hijab, and – the key point – those other hijabs were religiously acceptable to the employee. As a result, the employer’s rules still allowed the employee to practice her religion in a way that conformed with her sincere beliefs.

Similarly, an employer could probably require Jewish employees to wear small black yarmulkes (skullcaps) instead of more “ostentatious” ones – but only if the small black ones were acceptable according to the sincere religious beliefs of the individual employees.

The Duty to Accommodate

In our hypothetical, however, the employer’s dress code prohibits all sorts of head coverings and jewelry. Chances are that this type of rule would interfere with some employees’ religious beliefs.

Even so, that isn’t the end of the story. Even if the dress code is discriminatory, the employer can try to justify it as a “bona fide occupational requirement” – a rule that is truly required as an essential part of the employee’s job. The question to be asked is whether the employee’s religious beliefs can be accommodated without causing “undue hardship.” If so, the employer must modify the rule to accommodate the employee’s needs. If not, then the rule is allowed to stand.

What would constitute undue hardship when it comes to religious symbols? A couple of cases are illustrative. In one, an employer forbade a Sikh man from working because he was unable to wear a hard hat over his turban. A labour arbitrator upheld the employer’s decision, noting that the employer’s safety rule requiring hard hats was legitimate and necessary. In another case, a Sikh man was unable to wear a protective face mask, because it did not seal properly over the beard which his religion prevented him from shaving. Again, the employer was not required to excuse the employee from the safety rule, but it did have to try to find him a position that did not require the mask.

These cases show that interfering with worker safety is likely to be undue hardship. The Code will generally not excuse an employee from a workplace rule, even a discriminatory rule, where safety is at stake. But safety requirements are the only circumstances I have found in which an employer has successfully justified a rule that interferes with religious dress. While it is possible that other concerns could rise to the level of undue hardship, they would have to be just as compelling as physical safety. It is unlikely, for example, that a mere desire to make some customers feel more comfortable would make the cut.

Which is as it should be. The entire point of Canadian diversity and respect for human rights is that a person’s cherished beliefs, the things that make up his or her identity, should not be sacrificed merely because they may cause some discomfort.

Our hypothetical employer should keep that in mind.

And One More Thing

On the other hand, if wearing religious symbols in the workplace were contrary to law, an employer could almost certainly forbid its employees from doing so.

Suppose, for instance, that a provincial government were to pass a law forbidding certain employees from wearing religious symbols. Any employer covered by the law would probably be justified in enforcing that rule on its own employees. Even though the rule is discriminatory, it would cause undue hardship for the employer if it altered the rule and allowed religious symbols to be worn, because that would require the employer to break the law.

As a result, affected employees would not have much recourse under human rights legislation. They would have to challenge the underlying law itself, under the Canadian Charter of Rights and Freedoms.

But there’s no point even getting into that, because no provincial government would ever consider passing that kind of a law.

. . . I mean, they wouldn’t, right?

Right?

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.