Modes of Rights Protection II: Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038

In a previous post, I examined how judicial review of administrative action could protect rights in a pre-Charter world. Let us fast forward now to Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038, the first major treatment by the Supreme Court of Canada of judicial review of administrative action under the Charter. As is well known, the Charter protects a variety of rights. But they are not absolute rights, as s. 1 of the Charter of Rights and Freedoms makes clear:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Davidson had been fired from his job as a radio time salesman. A labour arbitrator found that Davidson had been dismissed without just cause (as required by the Canada Labour Code). Part of the remedy the arbitrator ordered was to pay salary foregone and legal costs. But only part. Invoking his statutory power to “do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal” (Canada Labour Code, s. 61.5(9)(c)), the arbitrator also ordered the employer to provide a letter of recommendation to Davidson certifying as follows:

(1) Mr. Ron Davidson was employed by Station Q107 from June, 1980, to January 20, 1984, as a radio time salesman;

(2) That his sales “budget” or quota for 1981 was $248,000 of which he achieved 97.3 per cent;

(3) That his sales “budget” or quota for 1982 was $343,500 of which he achieved 100.3 per cent;

(4) That his sales “budget” or quota for 1983 was $402,200 of which he achieved 114.2 per cent;

(5) That following termination in January, 1984, an adjudicator (appointed by the Minister of Labour) after hearing the evidence and representations of both parties, held that the termination had been an unjust dismissal.

In addition, the arbitrator ordered that the company could only issue a letter of recommendation in the prescribed terms:

I further order that any communication to Q107, its management or staff, whether received by letter, telephone or otherwise, from any person or company inquiring about Mr. Ron Davidson’s employment at Q107, shall be answered exclusively by sending or delivering a copy of the said letter of recommendation.

The company on the receiving end argued that the arbitrator’s order breached its right to freedom of expression under s. 2(b) of the Charter.

It is worth first considering how the case might have been resolved under the Smith & Rhuland approach. A reviewing court might well have concluded that freedom of expression was a relevant consideration under the broad remedial provision in s. 61.5(9)(c). On this approach, having failed to take the relevant consideration into account, the arbitrator had acted ultra vires. The difference between Slaight Communications and Smith & Rhuland is that in this case the illegality would have been found in the failure to take into account a relevant consideration rather than the taking into account of an irrelevant consideration. But these are two sides of the same coin as far as administrative law is concerned. A similar argument had convinced a majority of the Court in a previous pre-Charter case:

Remedies Nos. 5 and 6…force the Bank and its president to do something, and to write a letter, which may be misleading or untrue. This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes. I cannot be persuaded that the Parliament of Canada intended to confer on the Canada Labour Relations Board the power to impose such extreme measures, even assuming that it could confer such a power bearing in mind the Canadian Charter of Rights and Freedoms, which guarantees freedom of thought, belief, opinion and expression. These freedoms guarantee to every person the right to express the opinions he may have: a fortiori they must prohibit compelling anyone to utter opinions that are not his own.

National Bank of Canada v. Retail Clerks’ International Union et al., [1984] 1 SCR 269, at p. 296, per Beetz J.

Consider Beetz J.’s dissent in Slaight Communications:

The superficial innocuousness of the first order should not blind us to the nature of this order and to the positive manner in which it violates the freedom of expression.  It is one thing to prohibit the disclosure of certain facts.  It is quite another to order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them.  The prohibition constitutes a prima facie violation of the freedoms of opinion and expression but such a prohibition may, in some circumstances, be justified under s. 1 of the Charter.  On the other hand, to order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them, constitutes a much more serious violation of the freedoms of opinion and expression…In my view, such a violation is totalitarian in nature and can never be justified under s. 1 of the Charter.  It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus.

It is probably best to read Beetz J. as holding that where the dominant purpose of a decision is to infringe a protected right, the decision inevitably fails the proportionality test. Nonetheless there are affinities between Beetz J.’s approach here — about the inherent limitations on the arbitrator’s authority — and Rand J.’s approach in Smith & Rhuland — which also focused on the limits of the decision-maker’s authority. Put differently, the arbitrator could not threaten the employee with the rack pre-Charter or post-Charter. Intriguingly, Beetz J. suggested that the infirmities in the arbitrator’s order could have been cured by the use of a less restrictive means of achieving the end of ensuring the employer would not undermine Davidson by providing a negative letter of recommendation.

However, Beetz J. was in dissent. It was Lamer J. who set out the analytical framework for judicial review of administrative action in the post-Charter era:

  First, there are two important principles that must be borne in mind:

–an administrative tribunal may not exceed the jurisdiction it has by statute; and

   –it must be presumed that legislation conferring an imprecise discretion does not confer the power to infringe the Charter unless that power is conferred expressly or by necessary implication.

The application of these two principles to the exercise of a discretion leads to one of the following two situations:

1.The disputed order was made pursuant to legislation which confers, either expressly or by necessary implication, the power to infringe a protected right.

–It is then necessary to subject the legislation to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.

2.The legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise discretion and does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter.

–It is then necessary to subject the order made to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society;

–if it is not thus justified, the administrative tribunal has necessarily exceeded its jurisdiction;

–if it is thus justified, on the other hand, then the administrative tribunal has acted within its jurisdiction.

Constitutional review can be required in two situations: first, where the legislation empowering the decision-maker itself violates the Charter (in which case the reviewing court must assess the Charter-compatibility of the statutory provisions in question); second, where the decision violates the Charter, the reviewing court must determine whether the decision nonetheless imposes a limit that can survive the proportionality test laid out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

Lamer J. also erected a divide between administrative review and constitutional review. Constitutional review would only be necessary if the decision in question had already survived any appropriate administrative review. The analytical reason given by Lamer J. was that limits on Charter rights can only ever be upheld as proportionate if they are also “prescribed by law”. An ultra vires order is not “prescribed by law”, such that the question of Charter compliance can never properly arise.

Here, for Lamer J., the second part of the arbitrator’s order (compelling speech by the former employer) was patently unreasonable:

In the case at bar I consider that the adjudicator was not authorized by s. 61.5(9)(c) to order the employer not to answer a request for information about respondent except by sending the letter of recommendation containing the aforementioned wording, since such an order is patently unreasonable.  Though the adjudicator clearly had jurisdiction to make an order he felt to be equitable and proper, he lost this jurisdiction when he made a patently unreasonable decision.

Several observations can be made about Slaight Communications and the protection of rights.

First, Slaight Communications creates a neat analytical framework. Administrative review comes first, which is perfectly logical, because if a decision-maker acted outside her statutory authority (which is the consequence of finding her decision unlawful in an administrative law sense) then there is no “decision” that could have violated the Charter — or, put in Charter terms, no limit on a fundamental right has been “prescribed by law”. In addition, administrative law and constitutional law serve distinct functions within the framework: the former ensures that decision-makers remain within the bounds of their statutory authority; the latter brings fundamental values to bear on the exercise of that authority.

But the life of the law has not been logic; it has been experience. In practice, lawyers might wish to make administrative law and constitutional law arguments. Although theoretically possible, it would be practically difficult for lawyers to change hats (from their dull administrative law bowler to their sleek constitutional law tophat) in mid-argument. Indeed, it may prove difficult at the outset of a case to make conceptual distinctions beteen administrative law and constitutional law. One might ask how the challenge in Smith & Rhuland should have been conceived when the originating process was filed.

Second, Dickson C.J. cautioned that Lamer J.’s analytical framework might not stand the test of time. He suggested that “[T]he precise relationship between the traditional standard of administrative law review of patent unreasonableness and the new constitutional standard of review will be worked out in future cases” and went on to offer several comments:

A minimal proposition would seem to be that administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter review.  While patent unreasonableness is important to maintain for questions untouched by the Charter… in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under s. 1 of the Charter.  In contrast to s. 1, patent unreasonableness rests to a large extent on unarticulated and undeveloped values and lacks the same degree of structure and sophistication of analysis.

Although Dickson C.J. endorsed Lamer J.’s analytical framework, he appreciated that both reasonableness review and Charter review were in their infancy. Patent unreasonableness had got its start only a decade earlier, in CUPE v. New Brunswick Liquor Corporation [1979] 2 SCR 227. By the end of the 1980s there was precious little judicial or academic commentary on the meaning of patent unreasonableness. Dickson C.J. appreciated, though, that the tools of reasonableness review would gradually be refined and gain a “degree of structure and sophistication of analysis” similar to the Oakes test. Once that happened, the neat distinction between administrative review and constitutional review would inevitably be more difficult to maintain.

Third, for all that Lamer J.’s analytical framework might be analytically neat from a lawyer’s perspective, the framework might have unpredictable systemic effects. Judicial adoption of the framework could incentivize legislatures to grant statutory authority in broad terms, even where the statutory authority might be used to infringe rights. The incentive arises in the following way. Lamer J. treated the question of whether a limit on a right was “prescribed by law” as purely formal: if the administrative decision limiting a right was intra vires, then it was “prescribed by law”. But the broader the grant of statutory authority given by the legislature, the more likely it is that an administrative decision-maker will be acting within the authority granted, a proposition that takes account of the venerable common law principle that no statutory power is unfettered.

Moreover, from a legislator’s perspective a broad grant of statutory authority is made even more attractive by the operation of Lamer J.’s analytical framework in the field of constitutional review. Recall that, per Lamer J., where a law infringes a Charter right, the law itself will be subject to the Oakes test, but where an administrative decision (made under the law) infringes a Charter right, then a reviewing court must assess the proportionality of the decision. A rational legislator wishing to avoid seeing her laws tested for compliance with the Charter could draft statutory grants of authority to decision-makers in broad terms, such that only the resultant decisions and not the statutory provisions themselves will be subject to review for compliance with the Charter. Of course, a legislator might have other incentives pulling in the opposite direction — she might generally wish to legislate in conformity with the Charter; or she might have reasons to distrust the decision-makers who would implement her legislative commands — such that she might prefer to draft relatively narrow statutory grants of authority. My the point is simply that problematic systemic effects are possible because Lamer J.’s analytical framework — so neat from a lawyer’s point of view — might create perverse incentives for other actors.

Fourth, it is worth noting that the arbitrator’s orders were upheld. As Dickson C.J. summarized:

In normal course, the suppression of one’s right to express an opinion about a subject or person will be a serious infringement of s. 2(b) and only outweighed by very important objectives.  In the foregoing analysis, I have sought to show that the negative order was minimally intrusive in a relative sense and also that the careful tailoring of both parts of the order has made this a much less serious infringement of s. 2(b) than, for instance, occurred in the National Bank case.

Opinions can differ, of course, as to whether Slaight Communications really was all that different from National Bank, but it is interesting to note that the employer won in the pre-Charter era but was foiled in the Charter era by the operation of the proportionality test.

Finally, it has also been suggested from time to time that a proportionality test cannot coherently be applied to administrative decisions. I have addressed that misapprehension at length elsewhere, however, and see no need to repeat my observations here.

This content has been updated on December 14, 2016 at 10:28.