Assn. of Justice Counsel v. Canada (Attorney General) is a labour arbitration case. An employer issued a directive requiring employees to be available for overtime work. The union argued that the directive was not a proper exercise of a management rights clause in a collective agreement. But the employer was the government, and the collective agreement also contained a clause forbidding the employer to violate employees’ Charter rights. And so the union also argued that the directive violated the employees’ rights under section 7 of the Charter. An adjudicator agreed with the union on both grounds. The Supreme Court of Canada held that the adjudicator’s decision as to management rights was reasonable, but rejected the union’s constitutional argument on the ground that the directive did not affect the employees’ section 7 right to liberty. It was therefore unnecessary to consider whether it was consistent with the principles of fundamental justice. In my view, this constitutional holding was probably wrong. Requiring someone to be somewhere at a particular time does affect the liberty interest, both in itself and, if sufficiently demanding of a person’s time, through its impact on fundamental personal choices. The Court’s reluctance to recognize these points may unnecessarily impede the continued development of the section 7 liberty interest. Moreover, the constitutional holding is inconsistent with the Court’s determination that the adjudicator’s decision was reasonable. On the facts of Assn. of Justice Counsel, if section 7 of the Charter applied at all, the constitutional issue and the issue of interpreting the collective agreement were essentially the same and should have been resolved the same way.
"Assn. of Justice Counsel: The Section 7 Liberty Interest in the Context of Employment."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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