CIVE 463 Lecture Notes - Lecture 19: Canada Labour Code, Gag Order, Comity
25 May 2018
School
Department
Course
Professor
Class 19: Review of administrative decision involving Charter rights
The role of the Charter in administrative decision-making.
Cases that came before Doré and Loyola
Framework of Slaight:
- case about individual who was fired. Arbitrator came to the conclusion that dismissal was
unjust. Davidson was a sales person and he had meat the sale quotas. To remedy this
wrong: Slaight would have to write an unadorned reference letter stating the sales quotas
David had to meet each year and what he had done. + Negative order: Slaight
communication could not say anything else if query of his work performance.
- Slaight communication protested and took it to JR because argues for gross violation of
freedom of expression: forced to say something we do not think is true and gaged as to
what we think.
- Justice Dickson (majority): is a case a Charter right is clearly at stake, the proper
approach to tak= roughly mirror approach to evaluate legislation: 1) is there
infringement, 2) is this infringement justified per Oakes test
o Where contending values at stake - the best approach to use is proportionality
approach from Oakes test: infringed Charter right, pressing substantial concern
that gvt is trying to affect with statutory scheme and decision in question
(decision of positive and negative order)
o Lamer J reasoning: preliminary determination:
▪ whether the legislation necessarily affects/infringes the Charter, ex.
Extradition Act: whenever Minister makes decision to respond positively
to other country request of extradition infringes s 6. Right is unqualified
but not absolute. SCC adopts an extremely deferential approach in this
case - intl comity, law and order, and respect of other justice processes of
other countries are enough to justify the infringement of s 6 rights.
▪ or whether it makes it possible that a Charter right is infringed but not
necessarily in fact, ex. Slaight: broad discretion remedial power of
arbitrator under the Canada Labour Code, i.e. do anything the arbitrator
needs necessary to unwind/undo the injustice of unjust labour practice
o Dickson: just focus on Charter framework
o Lamer J: 2 stages:
▪ 1) look admin law issues (this step of the test is only Lamer J strong minority -
but no consensus across the court to use this step)
• did parliament give jurisdiction to apply this kind of remedy to Slaight
Communication (ex. that impede freedom of expression) → remedial
power of arbitrator is not as wide as to allow negative gag order
▪ 2) and then apply Charter framework - similar to Oakes test - does the positive
order survive Charter scrutiny? (majority & minority use this part of the
analysis)
• what is the right infringe, here freedom of expression,
• what is the statutory purpose and objective on the other side, i.e.
diminishing the inequality of bargaining power between employee
and employers.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 19: review of administrative decision involving charter rights. The role of the charter in administrative decision-making. Framework of slaight: case about individual who was fired. Arbitrator came to the conclusion that dismissal was unjust. Davidson was a sales person and he had meat the sale quotas. To remedy this wrong: slaight would have to write an unadorned reference letter stating the sales quotas. David had to meet each year and what he had done. + negative order: slaight communication could not say anything else if query of his work performance. Slaight communication protested and took it to jr because argues for gross violation of freedom of expression: forced to say something we do not think is true and gaged as to what we think. Extradition act: whenever minister makes decision to respond positively to other country request of extradition infringes s 6.
