2016 FCA 92, 2016 FCA 92

[2016] 4 F.C.R. 349 A-384-15 2016 FCA 92 The Attorney General of Canada ( Applicant ) v. Association of Justice Counsel ( Respondent ) Indexed as: Canada (Attorney General) v. Association of Justice Counsel Federal Court of Appeal, Trudel, Boivin and de Montigny JJ.A.—Québec, January 11; Ottawa, March 23, 2016.

Public Service — Labour Relations — Judicial review of decision by grievance adjudicator allowing policy grievance from respondent against Immigration Law Directorate, Department of Justice (Directorate) directive imposing standby duty on counsel without compensation — Directorate compensating employees only for hours actually worked while on standby, imposing requirement that all counsel be on call on rotational basis — Invoking management rights under Financial Administration Act , ss. 7 , 11.1 , as reproduced in collective agreement, Art. 5 — Adjudicator concluding directive not reasonable — Whether adjudicator reasonably interpreted collective agreement, Art. 5 — Adjudicator’s decision unreasonable in analysis of employer’s justifications — Adjudicator’s role in interpreting Art. 5 to question whether employer acted reasonably, fairly, in good faith — Here, adjudicator not only imposing excessive burden on employer to demonstrate reasonableness of directive, but also ignoring evidence —Application allowed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Grievance adjudicator allowing policy grievance from respondent against Immigration Law Directorate, Department of Justice (Directorate) directive imposing standby duty on counsel without compensation — Directorate compensating employees only for hours actually worked while on standby, imposing requirement that all counsel be on call on rotational basis — Adjudicator concluding directive infringing on right to privacy protected under Charter, s. 7 — Whether directive violating Charter, s. 7 — Adjudicator erring in concluding that directive on standby duty infringing on right to liberty, private life — Several of activities counsel deprived of because of standby duty going far beyond what case law considering to be choices inherently related to individual’s personal, fundamental autonomy — Duty not to travel far, to be available a few weeknights, weekends per year not infringing on rights of parents to raise, support their children — Accepting contrary argument trivializing rights constitutional instrument like Charter aiming to protect — Adjudicator also erring in using case law pertaining to Quebec Charter of Human Rights and Freedoms to interpret Charter , s. 7.

This was an application for judicial review of a decision by a grievance adjudicator allowing a policy grievance from the respondent against a directive from the Immigration Law Directorate of the Department of Justice, Quebec Regional Office (Directorate) that imposes a duty on counsel to be available weeknights and weekends, on a rotational basis, and without compensation. Until the impugned directive came into force, counsel on standby were compensated by days of leave.

The employer notified employees around March 22, 2010, that from then on they would be compensated only for hours actually worked while on standby and not for the entire period spent on standby. In the absence of volunteers, the employer imposed the requirement that all counsel of the Directorate be on call on a rotational basis. The employer invoked management rights granted to it under sections 7 and 11.1 of the Financial Administration Act , as reproduced in

Article 5 of the collective agreement, to justify the directive it issued.

Article 5 states that “the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Association as being retained by the Employer” (clause 5.01), and that “[t]he Employer will act reasonably, fairly and in good faith in administering” the collective agreement (clause 5.02). The adjudicator concluded that the directive was not reasonable and infringes on the right to privacy protected under

section 7 of the Canadian Charter of Rights and Freedoms . He noted, inter alia , that a collective agreement that is silent on standby duty hours does not mean that the employer has free reign to require standby duty and to impose conditions. At issue was whether the adjudicator reasonably interpreted

Article 5 of the collective agreement, and whether the directive violates

section 7 of the Charter . Held , the application should be allowed. The adjudicator’s decision appeared unreasonable in its analysis of the employer’s justifications. First, the adjudicator noted that processing a stay application does not constitute an emergency outside the employer’s control. This conclusion goes against the common evidence submitted by the parties, to the effect that a stay application can arise unexpectedly and should be processed as an emergency.

Secondly, the adjudicator did not seem to account for the fact, inter alia , that each counsel is responsible for standby duty only a few weeks per year. Finally, the adjudicator imposed an excessive burden on the employer when he noted that there was no evidence showing that standby duty is the employer’s only way of responding to emergencies. When an adjudicator is called upon to interpret clause 5.02 of the collective agreement, his role is not to determine whether the employer made the best decision possible, but to question whether the employer acted reasonably, fairly and in good faith.

Here, the adjudicator not only imposed an excessive burden on the employer to demonstrate the reasonableness of its directive, but also ignored the evidence showing that none of the counsel volunteered after the employer made the announcement that employees would be compensated only for hours worked while on standby duty. There is every reason to believe that only financial compensation would have led the adjudicator to consider that imposing standby duty was a reasonable exercise of management rights. Such reasoning clearly goes against the applicable law on this matter.

The adjudicator erred in concluding that the directive on standby duty infringes on the right to liberty (and a private life) protected under the Charter . Several of the activities that counsel cannot engage in during their standby duty period seem to go far beyond what the case law considers to be choices inherently related to an individual’s personal and fundamental autonomy. The duty not to travel farther than one hour from one’s residence and to be available to provide professional services a few weeknights and weekends per year does not

infringe on the rights of parents to raise their children, to support their development or to make fundamental decisions for them.Accepting an argument to the contrary would only trivialize the rights a constitutional instrument like the Charter aims to protect. Finally,the adjudicator erred in using the case law pertaining to the Quebec Charter of Human Rights and Freedoms to interpret

section 7 of theCharter and the right to liberty therein. The adjudicator’s decision was set aside, and the grievance returned to another adjudicator fordecision. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 7. Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 5. Financial Administration Act, R.S.C., 1985, c. F-11, ss. 7, 11.1. Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13. Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, ss. 220, 233. CASES CITED APPLIED: Godbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844, (1997), 152 D.L.R. (4th) 577. DISTINGUISHED: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395. CONSIDERED: Communications, Energy and Paperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013]2 S.C.R. 458; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301; Reference re ss. 93 and 195.1(1)(

c) ofthe Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123, [1990] 4 W.W.R. 481; B. (R.) v. Children’s Aid Society ofMetropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, (1995), 122 D.L.R. (4th) 1; Thomson Newspapers Ltd. v. Canada(Director of Investigations and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425,(1990), 67 D.L.R. (4th) 161. REFERRED TO: Association of Justice Counsel v. Treasury Board, (P.S.S.R.B.); Association of Justice Counsel v. Canada (AttorneyGeneral), 2013 FC 806; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 57; Dunsmuir v.

New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190; British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2014 SCC 70,[2014] 3 S.C.R. 492; United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corporation, 2014 SCC 45, [2014]2 S.C.R. 323; Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554, (1993), 100 D.L.R. (4th) 658;Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392; Erasmo v. Canada (Attorney General), 2015 FCA 129,336 C.R.R. (2d) 56; Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595; Brescia v.

Canada (Treasury Board),2005 FCA 236, [2006] 2 F.C.R. 343; Peck v. Parcs Canada, 2009 FC 686, 359 F.T.R. 136; P.S.A.C. v. Canada (Canadian GrainCommission) (1986), 5 F.T.R. 51, [1986] F.C.J. No. 498 (T.D.) (QL); Public Service Alliance of Canada v. Treasury Board (Departmentof Veterans Affairs), 2013 PSLRB 165, affd 2014 FC 1152; Professional Institute of the Public Service of Canada v. Treasury Board(Department of Human Resources and Skills Development), 2014 PSLRB 18; United Nurses of Alberta v. Alberta Health Services (On-Call Program Grievance), (Alta. G.A.A.); Shell Canada Ltd. v.

Communications Energy and Paperworkers Unionof Canada, Local 835 (Call-Out Grievance), [2001] A.G.A.A. No. 51 (QL); Pembroke General Hospital v. Canadian Union of PublicEmployees, Local 1502 (Collective Agreement Grievance) (1974), (ON LA), 6 L.A.C. (2d) 149, [1974] O.L.A.A. No.6 (QL); Re Corporation of the County of Hastings and International Union of Operating Engineers, Local 793 (1972), (ON LA), 2 L.A.C. (2d) 78, [1972] O.L.A.A. No. 71 (QL); Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,[2000] 2 S.C.R. 307; R. v.

Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25; R. v. Morgentaler, (SCC), [1988] 1S.C.R. 30, (1988), 44 D.L.R. (4th) 385; R. v. S.A., 2014 ABCA 191 , 575 A.R. 230, leave to appeal to S.C.C. refused, [2014] 3S.C.R. x; R. v. Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6;B.C. Teachers’ Federation v. School District No. 39, 2003 BCCA 100, 224 D.L.R. (4th) 63; Alberta (Aboriginal Affairs and NorthernDevelopment) v.

Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3S.C.R. 1101. APPLICATION for judicial review of a decision by a grievance adjudicator (2015 PSLREB 31) allowing a policy grievance from therespondent against a directive from the Immigration Law Directorate of the Department of Justice, Quebec Regional Office that imposesa duty on counsel to be available weeknights and weekends, on a rotational basis, and without compensation. Application allowed. APPEARANCES Sean F. Kelly for applicant. Bernard Philion for respondent.

SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Philion Leblanc Beaudry, avocats s.a., Montréal, for respondent. The following is the English version of the reasons for judgment rendered by [1] de Montigny J.A.: On April 2, 2015, grievance adjudicator Stephan J.

Bertrand (the adjudicator), of the Public Service LabourRelations and Employment Board (the Board) allowed a policy grievance from the Association of Justice Counsel (the Association)against a directive from the Immigration Law Directorate of the Department of Justice, Quebec Regional Office (the employer orDirectorate) [Association of Justice Counsel v. Treasury Board (Department of Justice), 2015 PSLREB 31]. This directive imposes aduty on counsel to be available weeknights and weekends, on a rotational basis, and without compensation.

The adjudicator concludedthat this directive infringes on counsels’ right to liberty under

section 7 of the Canadian Charter of Rights and Freedoms, being

Part I ofthe Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter) and thusviolated clause 6.01 of the collective agreement between the Treasury Board and the Association, in addition to constituting anunreasonable and unfair exercise of residual management rights under clause 5.02 of the collective agreement. [2] For the reasons that follow, my opinion is that this application for judicial review against that decision should be allowed. Theadjudicator erred in deciding that the directive does not comply with the collective agreement and violates the right to liberty guaranteedby

section 7 of the Charter. I. The facts [3] The facts are not disputed and were the subject of an agreed statement of facts before the adjudicator. I will summarize the mainfacts for the purposes of this application. [4] Since the early 1990s, the Directorate has provided client departments with standby staff weeknights and weekends in order toprocess urgent stay applications before the Federal Court concerning immigration.

When on standby duty, counsel must be available bypager or cell phone, ready at all times to arrive at the office within one hour, and, as needed, be prepared to provide the services required.The agreed statement of facts illustrates the impact this duty can have by providing the personal situations of four counsel working forthe Directorate. [5] The adjudicator summarized the constraints imposed by the directive on these four counsel as follows (applicant’s file, page 30,at paragraph 59): The conditions imposed on counsel directly affect their abilities and capacities to do certain things and to perform certain activities suchas picking up children from school and taking them home, in cases in which the school is located more than an hour from the office;attending opera performances; visiting family members who live more than an hour from their workplaces; committing themselves topiano lessons; going on outings with friends during which they could otherwise consume even moderate amounts of alcohol;accompanying children to arenas to play hockey; spending time with family at a cottage, when the cottage is located more than an hourfrom the counsel's workplace or in an area in which pagers or cell phones are not functional; skiing with children or accompanying themto water slides; having friends or family over for dinner; training for a triathlon or participating in one; and choosing personal or familyactivities held more than an hour from their workplace.... [6] Until the impugned directive came into force in March 2010, counsel on standby were compensated by days of leave at thediscretion of the employer, and nobody was regained to be on standby when there were enough volunteers.

The employer then notifiedemployees around March 22, 2010, that from then on they would be compensated only for hours actually worked while on standby andnot for the entire period spent on standby. In the absence of volunteers after that announcement, the employer imposed the requirementthat all counsel of the Directorate be on call on a rotational basis. A table was prepared according to the availability and personalsituation of each counsel, who was required to be on standby an average of one to three times per year.

The employer allowed thecounsel to arrange with each other in case they needed someone to fill in for them. [7] The working conditions for counsel who were part of the bargaining unit were initially established by an arbitral award handeddown on October 23, 2009 [Association of Justice Counsel v. Treasury Board, (P.S.S.R.B.)], which served as acollective agreement. It came into force on November 1, 2009, with the exception of certain provisions that did not come into force untilFebruary 20, 2010.

Neither this arbitral award nor the job descriptions of employees address time spent by counsel on standby orcompensation for such a period. Paragraphs 13.01(

c) and 13.02(

c) of the collective agreement signed July 27, 2010, provide for onenormal work week of 37.5 hours, which extends from Monday to Friday “except where a lawyer is required to work on what wouldnormally be a day of rest or a paid holiday in order to carry out his or her professional responsibilities” (applicant’s file, Vol. 1, page142). [8] The employer invoked management rights granted to it under sections 7 and 11.1 of the Financial Administration Act, R.S.C.,1985, c. F-11 (FAA), as reproduced in

Article 5 of the collective agreement, to justify the directive it issued.

Article 5 of the collectiveagreement states the following (applicant’s file, Vol. 1, page 137): 5.01 All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by thisAgreement are recognized by the Association as being retained by the Employer. 5.02 The Employer will act reasonably, fairly and in good faith in administering this Agreement. [9] These management rights are limited by

Article 6 of the collective agreement, which provides as follows (applicant’s file, page137):

6.01 Nothing in this Agreement shall be construed as an abridgement or restriction of any lawyer’s constitutional rights or of any rightexpressly conferred in

an Act of the Parliament of Canada. [10] On May 15, 2010, the Association filed a policy grievance pursuant to

section 220 of the Public Service Labour Relations Act,S.C. 2003, c. 22, s. 2 (PSLRA), alleging that this new directive was an unreasonable exercise of the employer’s management rights, andcalling for the following corrective measures: (1) that the employer cease to impose mandatory standby duty; (2) alternatively, that theemployer treat standby duty hours as hours worked; (3) alternatively, that the employer compensate counsel for standby duty hoursaccording to the former policy; and (4) any other relief that the court deems appropriate (applicant’s file, Vol. 1, page 126). [11] Following a first hearing, the grievance was rejected because the adjudicator did not have jurisdiction to address it since thestandby duty policy was not expressly or implicitly addressed in the collective agreement.

That decision was set aside by judicial review,with Justice Martineau ruling that the grievance did pertain to the alleged violation of clause 5.02 and

Article 6 of the collectiveagreement, which incorporates

section 7 of the Charter (Association of Justice Counsel v. Canada (Attorney General), 2013 FC 806). [12] On October 28 and 29, 2014, the grievance was heard by a new adjudicator. At the hearing, the Association withdrew the claimsthat appeared in points 2 and 3 of the list of corrective measures cited above, i.e., the claims of an economic nature aimed at receivingcompensation for standby duty hours. No direct evidence of that withdrawal was filed before this Court, even though the adjudicator tookit into consideration at paragraphs 25 and 32 of his decision. II.

The impugned decision [13] While recognizing that the employer retained residual management rights pursuant to clause 5.01 of the collective agreement, theadjudicator added that the employer was required to act reasonably, fairly and in good faith in exercising its rights and particularly tocomply with

section 7 of the Charter. With that in mind, he concluded that the directive was not reasonable ([in 2015 PSLREB 31],paragraph 45): Such a directive seems to me quite simply neither reasonable nor fair. On the contrary, instead, it is reasonable for counsel to expect to befree to act and to conduct themselves as they see fit outside their workplace and outside normal work hours, with no interference fromtheir employer.

Instead, it would be fair for them to be compensated for the time during which the employer continues to exercise acertain control over their lives. [14] The adjudicator also noted that clauses on compensation are often found in collective agreements for federal employees, whereby the parties agree on the terms addressing the availability of employees outside of normal work hours, with certain compensation toavoid an unreasonable exercise of power by management.

In his opinion, the fact that a collective agreement is silent on standby dutyhours does not mean that the employer has free reign to require standby duty and to impose conditions. [15] While recognizing that an emergency over which the employer has no control outside of normal work hours may constitute alegitimate organizational need, the adjudicator found that the organizational need in this instance is triggered instead by the employer’schoice to provide and sell its employees’ professional services outside their normal work hours.

Otherwise, the employer would havespecified availability to work standby duty as a condition of employment. The adjudicator also noted that no evidence was presentedestablishing that the standby duty period is the only way for the employer to respond to emergencies. [16] Finally, the adjudicator distinguished the case law of the provincial administrative tribunals cited by the applicant on the groundsthat they address the

interpretation of a clause in the collective agreement on standby duty availability. On the contrary, he noted that theapplicant did not refer to any case decided by the Board or Federal Courts suggesting that the employer’s decision on mandatory standbyduty and the conditions governing the conduct of public servants required to perform such standby duty outside the workplace andnormal work hours, without compensation, would be a reasonable exercise of the employer’s management duties. [17] Secondly, the adjudicator concluded that the directive infringes on the right to privacy protected under

section 7 of the Charterand clause 6.01 of the collective agreement. He begins by referring to the Supreme Court decision in Godbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844 (Godbout), where the Court found that the choice of location where to reside was a rightprotected under

section 7 of the Charter and

section 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (Quebec Charter). [18] The adjudicator recognized that the Charter does not protect all activities that individuals consider essential to their lifestyles.However, he distinguished between the examples provided in R. v. Malmo-Levine; R. v.

Caine, 2003 SCC 74, [2003] 3 S.C.R. 571(Malmo-Levine) (choice to smoke marijuana, play golf, gamble or eat fatty foods), which refer more to personal preferences, and theexamples of restriction provided by counsel, which are choices that resemble essentially private decisions bordering on the very nature ofpersonal autonomy.

Rather than characterize the liberties the counsel seek to protect “as recreational, social and family activities orpersonal preferences that do not merit any protection”, he relates them instead to “a willingness to develop family ties, to assume parentalresponsibilities, to structure personal and family lives, to engage in any of the ordinary occupations of life, and to develop and attain theirmaximum potential” (at paragraph 61 of the decision [2015 PSLREB 31]). [19] Given his conclusion that the right to liberty pursuant to

section 7 of the Charter includes the right to enjoy a private life outsideof the workplace and normal work hours, the adjudicator concluded that the directive violates this right to privacy. He concluded hisanalysis on this in the following terms (paragraph 63): In my opinion, if the Supreme Court is sympathetic to the idea that

section 7 of the Canadian Charter protects the right to private lifeand advocates the importance of personal autonomy and the fundamental nature of family unit integrity (Children’s Aid Society ofMetropolitan Toronto and Godbout), then it goes without saying that the employer’s standby duty directive, through its clearly intrusivenature in the counsel’s private lives, infringes the guarantees set out in that

section by directly interfering with several areas of itsemployees’ personal autonomy. [20] As to the question of determining whether the infringement on the counsel’s right to liberty is consistent with the principles offundamental justice, the adjudicator answered in the relative. While acknowledging that a rational link exists between the objective of

responding to stay applications and working overtime hours, he noted that the deleterious effects of the directive are completelydisproportionate to its objective. In his opinion, other less intrusive ways could achieve the same result. He mentions, for instance, thatthe manager could call employees, on a rotational basis, until a counsel is reached who is available, failing which a manager couldprovide the service; amend the standby duty directive to ensure that it is carried out voluntarily; or add an availability clause to thecollective agreement. III. Analysis [21] The case law is well settled.

The standard of review applicable to an adjudicator’s decision on labour relations is that ofreasonableness: Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 68; British Columbia Teachers’Federation v. British Columbia Public School Employers’ Association, 2014 SCC 70, [2014] 3 S.C.R. 492; United Food andCommercial Workers, Local 503 v. Wal-Mart Canada Corporation, 2014 SCC 45, [2014] 2 S.C.R. 323, at paragraph 85;Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458(Irving), at paragraph 7.

In this case, the parties do not dispute that the adjudicator’s decision concerning the fairness and reasonablenessof the impugned directive with regard to clause 5.02 of the collective agreement calls for deference. This applies notably because of theprivative clause protecting adjudicators of the Board (section 233 of the PSLRA), their expertise in the matter and the fact-based natureof the exercise. As my colleague, Justice Stratas, recently reiterated in Delios v. Canada (Attorney General), 2015 FCA 117, 100 AdminL.R. (5th) 301, at paragraph 20: .…

interpretations of collective agreement provisions involve elements of factual appreciation, specialization and expertise concerningcollective agreements, the disputes that arise under them, the negotiations that lead up to them and, more broadly, how the management-labour dynamic swirling around them plays out in various circumstances. These elements all point to the standard of reasonableness, notcorrectness…. [22] The parties do not agree, however, on the standard applicable to the adjudicator’s decision stating that the directive violatessection 7 of the Charter and, by extension,

Article 6 of the collective agreement. The applicant argues that the standard of correctnessshould apply because it is a non-discretionary decision related to the

interpretation of the Charter. The Association, for its part, citesprimarily Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 (Doré) and argue that the standard of reasonableness shouldapply when an administrative tribunal does not determine the constitutionality of a law, but seeks only to protect the rights granted by theCharter in exercising its powers. [23] In my opinion, the question of whether the constraints to which counsel are subjected during periods on standby duty infringe onthe right to liberty guaranteed under

section 7 of the Charter does not call for deference on the part of this Court. This issue goes muchfarther than the issue in Doré, which was whether an administrative decision maker had sufficiently taken into account the valuesgranted by the Charter in making a decision following the exercise of discretionary powers. In other words, the Court was called upon todetermine whether the decision maker had restricted the right protected by the Charter in a disproportionate, and thus, unreasonable,manner. In this case, it is the very delimitation of the right to liberty under

section 7 that is at issue. It is then essentially a question oflaw, indeed, of constitutional law, that cannot be subject to various

interpretations. While the

interpretation of the collective agreementfalls without a shadow of a doubt within the adjudicator’s jurisdiction, this is far from the case for the

interpretation of a constitutionaltext. In the same way as the scope and meaning of the concept of family status as prohibited grounds of discrimination (Canada(Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554, at pages 576–578) and the concept of discrimination(Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392), the determination of that which the notions of private lifeand personal autonomy involve shouldn’t lead to inconsistent decisions and must therefore be scrutinized rigorously.

See: Erasmo v.Canada (Attorney General), 2015 FCA 129, 136 C.R.R. (2d) 56, at paragraphs 29 and 30; Canada (Attorney General) v. Johnstone,2014 FCA 110, [2015] 2 F.C.R. 595, at paragraphs 36–52. Indeed, the application of the

interpretation that must be given to theseconcepts in this case must be reviewed on the standard of reasonableness. A. The reasonableness of the

interpretation by the adjudicator of

Article 5 of the collective agreement [24] There can be no doubt that the Treasury Board, as a public service employer, has been given broad powers by Parliament. Morespecifically, paragraph 7(1)(

e) of the FAA provides that the Treasury Board may act for the Queen’s Privy Council for Canada on allmatters relating to “human resources management in the federal public administration, including the determination of the terms andconditions of employment of persons employed in it”. In the exercise of these responsibilities, the Treasury Board may “determine andregulate the pay to which persons employed in the public service are entitled for services rendered, the hours of work and leave of thosepersons and any related matters” (at paragraph 11.1(1)(

c) of the FAA). The law is well settled: in exercising its duties, the employer maydo anything that is not expressly or implicitly prohibited by a collective agreement or a law: see Brescia v. Canada (Treasury Board),2005 FCA 236, [2006] 2 F.C.R. 343, at paragraphs 40–45 and 50; Peck v. Parks Canada, 2009 FC 686, 359 F.T.R. 136, at paragraph 33;P.S.A.C. v.

Canada (Canadian Grain Commission) (1986), 5 F.T.R. 51 (F.C.T.D.), at page 19; Public Service Alliance of Canada v.Treasury Board (Department of Veterans Affairs), 2013 PSLRB 165, at paragraph 83, affd 2014 FC 1152; Professional Institute of thePublic Service of Canada v. Treasury Board (Department of Human Resources and Skills Development), 2014 PSLRB 18, at paragraph48. The collective agreement also expressly acknowledges the employer’s residual management rights in clause 5.01. [25] The residual management rights of an employer, however, are not absolute.

In the public service, the powers of the TreasuryBoard are subject to a number of restrictions under the terms of the PSLRA and do not extend to issues addressed in the Public ServiceEmployment Act, S.C. 2003, c. 22, ss. 12, 13. In more general terms, it is recognized that the measures taken by an employer inexercising its management rights must not breach the collective agreement, and must be reasonable and associated with a legitimateobjective.

As the Supreme Court stated in Irving, at paragraph 24: The scope of management’s unilateral rule-making authority under a collective agreement is persuasively set out in Re Lumber &Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), (ON LA), 16 L.A.C. 73 (Robinson). The heart of the“KVP test”, which is generally applied by arbitrators, is that any rule or policy unilaterally imposed by an employer and not subsequentlyagreed to by the union, must be consistent with the collective agreement and be reasonable (Donald J. M. Brown and David M.

Beatty,Canadian Labour Arbitration (4th ed. (loose-leaf)), vol. 1, at topic 4:1520).

[26] This requirement is essentially reproduced in clause 5.02 of the collective agreement, which expressly stipulates the employer’sresponsibility to act reasonably, fairly and in good faith, while clause 6.01 states that the employer cannot abridge or restrict any lawyer’sconstitutional rights or any right expressly conferred in

an Act of the Parliament of Canada. I will revisit the latter clause later. [27] The applicant contends that the adjudicator erred in concluding that the directive pertaining to days of standby duty wasunreasonable; he did not abide by the well settled case law where this type of directive was considered a reasonable exercise ofmanagement rights as long as the employee is not required to remain at home.

The applicant also alleges that this decision is notintelligible or justified given that the adjudicator, first, cited economic reasons to conclude that the directive is unreasonable even thoughthe Association had abandoned all conclusions of the grievance that involved monetary or other compensation and, second, built hisrationale on the erroneous premise that a policy about standby duty hours and days must be authorized by an availability clause in thecollective agreement. [28] I do not find that the adjudicator erred in considering the absence of remuneration for standby duty time even though theAssociation was no longer claiming an alternative order relating to compensation.

It is true that the adjudicator highlighted that“[i]nstead, it would be fair for them [counsel] to be compensated” during the time they are available (at paragraph 45), that anavailability clause provides “certain compensation” for availability (at paragraph 46), that there is no federal precedent on imposingperiods of availability “without compensation” and that the parties “usually negotiate an availability clause setting out favourable termsand conditions for both parties” (at paragraph 51).

A close reading of these paragraphs, however, reveals that these references tomonetary compensation were part of a discussion on the reasonableness of the directive and the employer’s exercise of its managementrights. I fail to see how the adjudicator could have failed to mention this important consideration, especially since it is the employer’sdecision to no longer compensate counsel for standby duty, which is the root of the grievance. Even though the Association hadabandoned all claims in damages (for reasons that seem more related to the argument based on

section 7 of the Charter), the adjudicatorwas completely justified in considering the absence of compensation in his assessment of the reasonableness of the directive. Thoughthis is not necessarily a deciding factor, I find it difficult to deny that it is at the very least a relevant one. [29] Moreover, I do not find that the adjudicator erred by basing his assessment on a false premise, i.e., whether standby dutyavailability should be included in the collective agreement so that the employer can exercise its powers of management in that area.

It istrue that the adjudicator stressed the absence of a standby duty availability clause for employees, and noted that such clauses are found inother collective agreements governing federal employees. However, that is one factor among others that convinced the adjudicator thatthe directive in this case was unreasonable. As indicated at paragraph 46 of his reasons, it is precisely to avoid a potentially unreasonableand unfair exercise of management rights that the parties often include in collective agreements a clause on employee availability inexchange for certain compensation.

From this, I do not infer that the adjudicator required that the employer codify every exercise of itsmanagement powers, as the applicant suggests. Instead, he concluded that a unilateral directive restricting the activities of employeesoutside of the workplace and paid work hours, without compensation and when neither the collective agreement nor letters ofemployment or descriptions of duties indicated any obligation to be available, was unreasonable.

I consider that reading to becorroborated by the final paragraph of his analysis on this issue, which reads as follows (at paragraph 52): This case is not about a management right that the employer tries to exercise at the workplace during normal work hours. On thecontrary, it is about a management right that the employer exercises outside the workplace and outside its employees' normal workhours.

Hence the increased importance of ensuring that that management right is exercised "reasonably, fairly and in good faith," whichwas not so in this case. [30] The applicant also maintained that the adjudicator’s decision deviates from the well settled case law, according to whichimposing mandatory availability would constitute a reasonable exercise of management rights: United Nurses of Alberta v. AlbertaHealth Services (On-Call Program Grievance), (Alta. G.A.A.); Shell Canada Ltd. v. Communications Energy andPaperworkers Union of Canada, Local 835 (Call-Out Grievance), [2001] A.G.A.A.

No. 51 (QL); Pembroke General Hospital v.Canadian Union of Public Employees, Local 1502 (Collective Agreement Grievance) (1974), (ON LA), 6 L.A.C. (2d)149 (Ont. L.R.B.); Re Corporation of the County of Hastings and International Union of Operating Engineers, Local 793 (1972), (ON LA), 2 L.A.C. (2d) 78 (Ont. L.R.B.).

A close reading of this case law does not permit me to arrive at that conclusion.Instead, what I note is that an adjudicator has limited discretion when asked to rule on terms and conditions (and especiallycompensation) involved in imposing mandatory standby duty otherwise provided in a collective agreement. Although it was deemedunreasonable to impose mandatory standby duty on employees requiring that they remain at home throughout the availability period,compensation was denied when it was not provided for in the collective agreement.

That case law also stands for the proposition that itwill be easier to show the reasonableness of mandatory standby duty if it is set out in the collective agreement. [31] That being said the adjudicator’s decision appears unreasonable in his analysis of the employer’s justifications. Firstly, theadjudicator notes at paragraph 47 of his reasons that processing a stay application does not constitute an emergency outside theemployer’s control because the mandatory standby duty flows only from the employer’s choice to provide its clients with legal servicesoutside of normal work hours.

This conclusion goes against the common evidence submitted by the parties, to the effect that a stayapplication can arise unexpectedly and should be processed as an emergency.

The employer cannot refuse to provide these services,because it would then be denying client departments the possibility of being represented in these proceedings before the Federal Court.This appears to me to be a legitimate organizational need over which the employer has very little control. [32] Secondly, the adjudicator does not seem to account for the fact that each counsel is responsible for standby duty only two orthree weeks per year, that the employer considers their availability and personal situation when preparing the standby duty table, and thatcounsel are permitted to make arrangements with each other in case they need someone to fill in for them.

Clearly, that was an importantfactor in assessing the reasonableness of the directive, yet the adjudicator did not take it into account in his analysis. [33] Lastly, the adjudicator imposes an excessive burden on the employer when he notes at paragraph 49 of his reasons that there wasno evidence showing that standby duty is the employer’s only way of responding to emergencies. The employer is not required todemonstrate that its decision is the only way or the best way to resolve the problem; instead, its responsibilities consist of demonstratingthat its solution is reasonable under the circumstances.

When an adjudicator is called upon to interpret clause 5.02 of the collectiveagreement, his role is not to determine whether the employer made the best decision possible; instead, he is to question whether the

employer acted reasonably, fairly and in good faith.

Although the adjudicator may consider other ways that the employer could haveachieved its objectives, he must also leave the employer some flexibility and intervene only when, for instance, another much lessintrusive and more efficient way makes the employer’s decision unreasonable. [34] In this case, the adjudicator not only imposed an excessive burden on the employer to demonstrate the reasonableness of itsdirective, but also ignored the evidence showing that none of the counsel volunteered after the employer made the announcement thatemployees would be compensated only for hours worked while on standby duty.

In fact, there is every reason to believe that onlyfinancial compensation would have led the adjudicator to consider imposing standby duty to be a reasonable exercise of managementrights. In my opinion, such reasoning clearly goes against the applicable law on this matter. [35] For all of the above reasons, I find the adjudicator’s decision regarding the directive’s compliance with

Article 5 of the collectiveagreement to be unreasonable. B. Does the directive violate

section 7 of the Charter? [36] There is no doubt that the scope of the right to liberty in

section 7 of the Charter has evolved since 1982. The concept of libertywas initially interpreted quite narrowly, and focused particularly on the fact that it appears in a

section of the Charter on legal rights. Thisapproach is found in the reasons given by Justice Lamer in Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123, at pages 1173 and 1174, which was subsequently reiterated in B. (R.) v. Children’s Aid Societyof Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315 (B. (R.)), at paragraph 21: At pages 1173-74 of Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), supra, I also expressed the opinion that "[t]heinterests protected by s. 7 are those that are properly and have been traditionally within the domain of the judiciary" and, morespecifically, when the state "invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, whenit restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionallywithin the judicial realm" (emphasis added). I have not changed my opinion.

Since the principles of fundamental justice are elementsthat are essentially within the domain of the justice system, the type of liberty s. 7 refers to must be the liberty that may be taken away orlimited by a court or by another agency on which the state confers a coercive power to enforce its laws. [Emphasis in original.] [37] The Supreme Court has progressively moved away from that

interpretation, and now favours a broader approach to the idea ofliberty, likely to include some form of right to a private life and personal autonomy. However, the Court took care in specifying that theright to liberty as protected by

section 7 of the Charter does not mean the right to act as one chooses under all circumstances nor toparticipate in an activity a person may choose to consider as essential to their lifestyle. It seems to me that the following excerpt from thedecision in Godbout, at paragraph 66, is an apt statement of the law on this issue (see also: Blencoe v.

British Columbia (Human RightsCommission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraphs 49–54; Malmo-Levine, at paragraph 85; B. (R.), at paragraph 80; R. v.Clay, 2003 SCC 75, [2003] 3 S.C.R. 735 (Clay), at paragraph 31): The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protectswithin its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices freefrom state interference.

I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regardthis sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), thatindividuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please.

Moreover, I do not evenconsider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”.Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized asfundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means toenjoy individual dignity and independence. [38] According to that logic, some courts have held that the right to liberty protects the rights of parents to choose the medical careprovided to their children (B. (R.)) and give them access to their children (New Brunswick (Minister of Health and Community Services)v.

G. (J.), (SCC), [1999] 3 S.C.R. 46). Along the same lines, Justice Wilson said that the right to liberty and security ofthe person guarantees women the right to decide to terminate a pregnancy (R. v. Morgentaler, (SCC), [1988] 1 S.C.R.30, page 171).

However, it is important to note that all of these opinions were in the minority, the majority often preferring an analysisbased on the right to security of the person. [39] Conversely, courts have had no difficulty to decide that the choice of a lifestyle based on sporting or recreational activities, or theconsumption of a product like marijuana, and the rights that are essentially economic in nature (such as the right to exercise a professionor to choose not to undergo a medical examination for employment) cannot be compared to issues that involve “‘basic choices going tothe core of what it means to enjoy individual dignity and independence’”.

See, for example: Malmo-Levine, at paragraph 86; Clay, atparagraphs 32 and 33; R. v. S.A., 2014 ABCA 191 , 575 A.R. 230, at paragraph 154, leave to appeal to the Supreme Court ofCanada refused, [2014] 3 S.C.R. x, 36050 (December 11, 2014); R. v. Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145, at paragraph 40;Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at paragraphs 45 and 46; B.C. Teachers’ Federation v.Vancouver School District No. 39, 2003 BCCA 100, 224 D.L.R. (4th) 63, at paragraphs 205–210.

It is also noteworthy that the SupremeCourt has to this day refused to enshrine the right to choose the location of one’s residence as a right guaranteed under

section 7, despitethe minority judgment in Godbout: see Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2S.C.R. 670, at paragraph 93. [40] In concluding that the directive on standby duty infringes on the right to liberty (and a private life) protected under the Charter,the adjudicator seems to have erred in several respects.

First, the adjudicator’s decision seems to broaden the scope of the right to libertyconsiderably, in that he appears to take for granted that participating in certain sporting or recreational activities are not personal choices,but rather “choices that resemble essentially private decisions bordering on the very nature of personal autonomy” (at paragraph 60).Several of the activities that counsel cannot engage in during their standby duty period seem to go far beyond what the case lawconsiders to be choices inherently related to an individual’s personal and fundamental autonomy.

[41] With regard to the constraints and restrictions the employer’s directive imposes on parents’ ability to care for their children,support their development and maintain a rich and harmonious family life, I would find the Association’s argument based on the right toliberty more convincing if the mandatory standby duty periods were more frequent. I find it difficult to seriously consider that the dutynot to travel farther than one hour from one’s residence and to be available to provide professional services weeknights and weekendstwo or three times per year could infringe on a fundamental right.

This duty does not jeopardize the rights of parents to raise theirchildren, to support their development or to make fundamental decisions for them, as stated in B. (R.). In my opinion, accepting anargument to the contrary would only trivialize the rights a constitutional instrument like the Charter aims to protect. [42] Lastly, I find that the adjudicator erred in using the case law pertaining to the Quebec Charter to interpret

section 7 of the Charterand the right to liberty there in it. In contrast with the Charter, the Quebec Charter explicitly protects the right to a private life in section5. It was also on that basis that six of the nine justices in Godbout declared a municipal resolution invalid that required all newpermanent employees to reside within the limits of the municipality.

Although the two charters undeniably overlap in many ways, I findit hazardous to import a concept specifically mentioned in one Charter to interpret a distinct concept, although related in some respects,in another Charter the architecture of which is very different. It is therefore on the basis of the case law developed in the context ofsection 7 of the Charter that the rights asserted by the applicant must be examined; the right to a private life and personal autonomy thatthe counsel may claim cannot extend beyond the scope of these concepts in the

interpretation of the right to liberty granted by theCharter. It goes without saying, also, that the Quebec Charter cannot be directly applied to areas of federal jurisdiction. [43] I will conclude by highlighting that in any case, a violation of the right to life, liberty and security of the person does not infringeupon

section 7 of the Charter unless it violates the principles of fundamental justice. The Supreme Court has reiterated many times thatthis requirement assumes that the right at issue is weighed against the objectives of the State in infringing upon that right. As JusticeL’Heureux-Dubé wrote in Thomson Newspapers Ltd. v.

Canada (Director of Investigation and Research, Restrictive Trade PracticesCommission), (SCC), [1990] 1 S.C.R. 425, at page 583, “[f]undamental justice ... is primarily designed to ensure that afair balance be struck between the interests of society and those of its citizens.” Provisions shall be considered non-compliant withprinciples of fundamental justice when they are arbitrary or infringe upon a right in an overbroad or grossly disproportionate manner:Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paragraphs 93–123. [44] In this case, the adjudicator’s approach is unsound.

First, he seems to consider it disproportionate to infringe on counsels’ right toliberty “365 days a year and beyond 40 hours per week” while stay applications before the Federal Court occur on weekends “no morethan six times per year” (at paragraph 65).

This premise is not at all consistent with the evidence, which reveals that each counsel is,instead, responsible for standby duty two or three weeks per year, and that stay applications occur more frequently on weeknights, for atotal of about 120 applications per year. [45] Second, the adjudicator does not seem to give much weight to the fact that the employer attempted to limit the counsel’s standbyduty time, not only by imposing such periods for only a few weeks per year, but also by stipulating that the counsel were not required tostay at home so long as they could be reached and were able to arrive at the office in less than one hour, that they know their periods ofavailability well in advance in order to make arrangements, that the periods of availability are scheduled taking into account thepreferences and situations of each counsel, and that the counsel can make arrangements to fill in for one another. [46] Lastly, the adjudicator does not question the coherence between the approach taken by the employer and the desired objective, asrequired by the case law, but instead asks whether there were other ways to achieve the same objective.

Not only is that not theapplicable test, but moreover the alternative approaches proposed by the adjudicator appear to be quite speculative, to say the least. Theadjudicator suggests that the manager could call counsel until one is reached who is available and able to perform the task. Thisapproach does not account for the urgency of the services counsel are called upon to perform on evenings and weekends.

As for thepossibility of amending the directive so that standby duty is performed on a voluntary basis, this overlooks the evidence that thisapproach was attempted but proven unsuccessful. [47] The possibility remained of adding an availability clause to the collective agreement, as suggested by the adjudicator. Thesuccess of such an approach is evidently entirely unpredictable.

To the extent that it can be assumed that the insertion of such a clausewould be subject to financial compensation, as suggested by the adjudicator himself, it would be appropriate to question the economicaspect of the right the counsel are asserting. This would result, in a sense, in admitting that the right to liberty is violated by theimposition of mandatory standby periods only when it is not accompanied by financial compensation. As mentioned above, the law isclean

section 7 of the Charter does not protect economic interests. [48] For all of the above reasons, I rule that the adjudicator erred in concluding that the directive on mandatory standby periodsviolates clause 6.01 of the collective agreement signed July 27, 2010, because it infringes on the right to liberty guaranteed by

section 7of the Charter, and that this infringement does not comply with the principles of fundamental justice. IV. Conclusion [49] The application for judicial review should therefore be allowed, with costs. Consequently, the adjudicator’s decision should beset aside, and the grievance should be returned to another adjudicator for decision, on the basis that, first, the contested directive does notinfringe on counsel’s right to liberty as protected by

section 7 of the Charter and, therefore, does not violate clause 6.01 of the collectiveagreement dated July 27, 2010, and, second, that it constitutes a reasonable and fair exercise of residual management rights set out inclause 5.02 of that same agreement. Trudel J.A.: I agree. Boivin J.A.: I agree.