The rights and obligations of public-sector workers are a lot clearer this year after a number of rulings that dealt with a host of touchy issues.
Now, thanks to four rulings at the Supreme Court of Canada and the Federal Court of Appeal, RCMP officers are free to form unions; non-essential employees can strike; governments can unilaterally freeze wages; and managers can dismiss employees without cause.
Issues around mandatory minimum sentencing as well as conflicts of law and interest also weaved their way into the courts with the Supreme Court empowering judges to recognize foreign awards with no real connection to Canada. At the Ontario Superior Court, meanwhile, a big law firm landed in hot water for allegedly advising one party while acting for its would-be opponent.
Perhaps the biggest decision of the year — or at least the most impactful — dealt with the hugely emotional subject of assisted suicide. In a unanimous decision, the top court enshrined the right of patients suffering from incurable and intolerable diseases to seek medical help to end their lives.
Here’s a more detailed look at this year’s big cases:
Wilson v. Atomic Energy of Canada Ltd.
In a decision that upends 40 years of arbitral law, the Federal Court of Appeal ruled that employers could terminate non-unionized, federally regulated employees without cause as long as they give them proper notice and severance.
The case, Wilson v. Atomic Energy of Canada, involved the termination of an employee, Joseph Wilson, who claims he lost his job for raising concerns about procurement practices. The employer offered Wilson six months of severance, but he refused to sign the release. He remained on the payroll until the severance period expired and then brought an arbitral motion under the Canada Labour Code alleging unjust dismissal.
For the past 40 years, adjudicators have found that terminations of federal employees required just cause. Justice David Stratas, however, put that notion to rest this year when he made it clear that common law principles applied to federally regulated employees.
In Stratas’ analysis of the code, he concluded that if Parliament had intended to implement a drastically different legal order in which common law principles played no role, “it would have said so in plain language.”
Wilson is appealing to the Supreme Court of Canada with a hearing scheduled for January 2016.
Mounted Police Association of Ontario v. Canada (Attorney General); Meredith v. Canada (Attorney General); Saskatchewan Federation of Labour v. Saskatchewan
Public-sector unions were big winners in January as the Supreme Court of Canada issued a trio of decisions that put limits on how governments use essential-services designations to prevent strikes and reaffirmed the freedom of all employees to form independent associations.
In Mounted Police Association of Ontario, the court struck down an Ontario ruling that would have forced RCMP officers to bargain under the management-controlled staff relations representative program. The top court called the program a “human relations scheme” that failed to give RCMP officers the choice and independence that were core principles deemed necessary for true freedom of association.
But the top court was quick to rebalance the scales, ruling in the companion case of Meredith that the insufficiency of the RCMP program didn’t mean Ottawa would have to roll back wage cuts imposed under the 2009 Expenditure Restraint Act. Unilaterally imposed wage-restraint legislation is permissible, then, as long as the government applies it consistently.
Just two weeks later, the Supreme Court turned to its own reasoning in Mounted Police Association of Ontario to strike down a lower-court ruling in Saskatchewan Federation of Labour v. Saskatchewan that had permitted broad use of the essential-services designation to prevent strikes in the public sector. The top court found that the province had imposed the designation on non-essential workers and, by prohibiting them from strike action, had violated their right to collective bargaining under freedom of association.
Carter v. Canada (Attorney General)
Assisted suicide will soon be legal across Canada thanks to a unanimous decision at the Supreme Court in Carter v. Canada (Attorney General) that grants dignity and autonomy to those with “grievous and irremediable” medical conditions under the right to security of the person.
In its February decision in Carter, the court ruled on a case first brought by the British Columbia Civil Liberties Association on behalf of Kay Carter and Gloria Taylor, who both suffered from intractable terminal diseases. Taylor died of amyotrophic lateral sclerosis in 2012, while the 89-year-old Carter travelled to Switzerland in 2010 to end her life at a medical clinic.
The association argued that the women were being denied their right to security under the Charter of Rights and Freedoms and were facing discrimination given that their conditions made it impossible to end their lives the way able-bodied people could. The highest court in the land agreed, reversing its 1993 decision in Rodriguez v. British Columbia (Attorney General).
While the fear of elderly patients facing pressure to commit suicide had led to arguments about the right to life, the court found legislation that prevented assisted suicide would impose suffering and deny security to those with unbearable conditions. “This would create a ‘duty to live,’ rather than a ‘right to life,’ and would call into question the legality of any consent to the withdrawal or refusal of life-saving or life-sustaining treatment,” the decision stated.
The Supreme Court’s decision will permit doctors to aid in the suicide of adult patients who are suffering from intolerable conditions and have clearly expressed the desire to end their lives. The decision doesn’t, however, compel doctors to assist in suicides, a matter the court left to medical colleges and regulators.
R. v. Nur and R. v. Charles
Mandatory minimum sentences suffered a big defeat this April with the Supreme Court’s finding in R. v. Nur and R. v. Charles that arbitrary sentences for possession of a firearm amounted to cruel and unusual punishment in contravention of the Charter.
The 6-3 decision, written by Chief Justice Beverley McLachlin, actually upheld the original sentences for the respondents that were longer than the mandatory minimums of three years and five years but nonetheless used a reasonable hypothetical analysis to strike down relevant provisions in the Criminal Code.
McLachlin, in her decision, likened the provisions to a “blunt instrument” that captures relatively minor offences, such as when someone illegally carries a gun owned by their spouse, that may amount to little more than a licensing infraction.
The decision leaves other mandatory minimum provisions vulnerable to challenge. Indeed, the Supreme Court will hear another such appeal in January, this time for drug possession, in R. v. Lloyd.
Trillium Motor World Ltd. v. General Motors of Canada Ltd.
Big law firms got a reminder about conflict of interest rules in July when the Ontario Superior Court granted class action plaintiffs a $45-million award against Cassels Brock & Blackwell LLP.
The case, Trillium Motor World, goes back to 2009 when the government bailout of General Motors resulted in the elimination of about 200 car dealerships. The dealerships formed a class action against GM while also suing Cassels Brock for breach of duty.
The plaintiffs claimed they had retained the law firm even as it was acting for the federal government. The firm, for its part, said it never represented the dealerships but only provided legal advice in advance of a possible proceeding.
Justice Thomas McEwen of the Ontario Superior Court felt otherwise. In his 160-page decision, McEwen found Cassels Brock had breached its professional, fiduciary, and contractual duties.
Cassels Brock continues to assert that it wasn’t representing the dealerships, which each had their own legal representation. The firm says the decision creates “indeterminate liability” for lawyers and is pursuing an appeal.
Chevron Corp. v. Yaiguaje
International media attention focused on Canada’s Supreme Court in September as it issued its ruling in a case that would have global ramifications.
Chevron involved a battle pitting a big oil company against thousands of Ecuadoran villagers who won a $9.5-billion award for environmental damage in 2011.
By then, Chevron had no assets in Ecuador, leading the plaintiffs to seek enforcement in countries where the company owned subsidiaries. In the United States, the attempt failed badly after Chevron successfully argued the plaintiffs’ counsel had resorted to bribery and corruption to obtain the massive award.
Back in Canada, the top court wouldn’t be dealing with corruption or environmental damage but the relatively academic matter of jurisdiction. The plaintiffs sought enforcement while Chevron argued that Canadian courts had no jurisdiction over the matter given that neither the parties nor the incident had any real and substantial connection to Canada (the jurisdictional test laid out in Club Resorts Ltd. v. Van Breda).
Justice Clément Gascon quickly dispatched with Chevron’s argument with a ruling that established a distinction between motions of first instance and those of recognition and enforcement. In the latter case, plaintiffs don’t have to meet the Van Breda test for jurisdiction since the courts aren’t weighing the merits of the award but only whether to recognize it.
Chevron’s next move will be to argue, as it successfully did in the United States last year, that the Ecuadoran decision involved corruption.
Read more from Law Times' Top News, Newsmakers, and Cases 2015 here.