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FAMOUS CASES | Provinces Leaving Canada Part II: The Clarity Act

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The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes “a clear majority on a clear question” in the circumstances under which a future referendum vote may be taken.

– Reference Re Secession of Quebec, [1998] 2 SCR 217 at para 153

Introduction

In the last issue of this column, we looked at the 1998 Secession Reference decision of the Supreme Court of Canada as a result of Quebec’s razor thin “no” vote in late 1995. This decision laid down a few broad principles. Afterwards, the federal government stepped up and legislated a framework for provincial secession.

This article describes the Clarity Act, which must be considered in any legal understanding of provincial secession from Canada.

The Morning After: the Clarity Act

Both the Quebec and federal governments were pleased with the Secession Reference decision, and both claimed victory. Quebec’s referendum strategy was validated, and the issue was judged political, not legal.

… after the Clarity Act was passed, the separatist Parti Québécois enacted its own form of clarity statute …Quebec was comforted to know the rest of Canada would have to negotiate after a winning ‘leave’ referendum. The federal government was happy that Quebec could never declare independence unilaterally and that succession referenda needed to pose a clear question.

Within a year of the Quebec Succession Reference decision, Parliament enacted the sprawling-titled An Act to Give Effect to the Requirement for Clarity as Set out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference. It is known by the over-simplistic name, “Clarity Act”. In it, the federal government seeks to take control of the referendum and secession process. The Clarity Act is regular federal legislation and can be amended or repealed anytime in the future.

The Clarity Act sets pre-conditions for the federal government before it will recognize the referendum and before negotiating. The House of Commons will decide the clarity of the question by whether it “would result in a clear expression of the will of the population of the province” (section 1(3)). A question will not be acceptable that:

  • “merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population” or
  • “envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population” (see section 1(4)).

Photo from Pexels

The views of other political parties and Aboriginal peoples, and statements or resolutions by any other Canadian government, will be considered in the clarity determination. This determination expands the notion of clarity and overlaps with expression of will.

Apart from the referendum question itself, the House of Commons will scrutinize the vote outcome to see if a “clear majority” have expressed the will to secede. The Court did not define what a clear majority mean. It left that to the politicians. The Clarity Act does not add much, well, clarity to this either. Presumably, a 50%+1 vote will not always carry the day. To the House of Commons, the “clear expression of a will by a clear majority of the population of a province” will include reviewing:

  • the size of the majority of valid votes cast in favour of the secessionist option;
  • the percentage of eligible voters voting in the referendum; and
  • any other relevant matters or circumstances (see section 2(2)).

Again (as with the clear question itself), the size of the ‘leave’ vote will be qualified by views of other political parties and Aboriginal peoples, and statements or resolutions by any other Canadian government. Some have referred to this as a “supermajority” vote requirement.

The votes by the House of Commons on whether to accept the referendum question as clear or the majority in support of succession as clear – while governed by legally-prescribed guidelines – are ultimately political votes. Members of Parliament will be free to vote their own preferences and instincts which can deny recognition to an otherwise-compliant secession process or grant recognition to a non-compliant one. In that sense, the Clarity Act confers on the House of Commons a de facto veto over legal secession if it wants to use it.

If the House of Commons fails to find both the referendum question and the majority in support to be clear according to these statutory definitions, it will not negotiate the terms of secession. Technically, from a legal perspective, the succession project ends at that point. Presumably and practically, however, a province could still declare independence on its own anyway. If it does so without Canada’s blessing, it may not receive sovereignty recognition it will need from the international community.

The Clarity Act sets pre-conditions for the federal government before it will recognize the referendum and before negotiating.If the referendum question and its leave results are accepted by the House of Commons, the federal government would negotiate the divorce on behalf of the rest of Canada. This complex and difficult process would deal with economics, division of assets and liabilities, minority rights, national institutions and installations, Aboriginal peoples, and borders. Any desired forms of association with the remaining Canada, such as defence, currency and trade, could also be worked out at this point.

Finally, the Constitution of Canada (1867) would have to be formally amended to reflect the secession. The federal government and all the provincial governments would be involved in that.

To complete this story, after the Clarity Act was passed, the separatist Parti Québécois enacted its own form of clarity statute: An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State. This was Quebec’s interpretation of the Secession Reference case and its own roadmap to secession. Not surprisingly, this Quebec legislation focuses on its right to self-determination under international law, the integrity of its territory, as well as English language and Aboriginal rights. It is essentially a separatist proclamation. Article 13 explicitly rejects the federal Clarity Act:

No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future.

Conclusion

Once an actual secession referendum is put to the vote in any province, the constitutional validity of the federal Clarity Act will be challenged and tested. (In the case of Quebec, that province’s own opposing ‘clarity legislation’ will also be tested). Until then, the status of both clarity statutes remains uncertain.

Currently, provincial secession from Canada would be – as arguably it should be – an emotionally wrenching and politically daunting, drawn out, acrimonious project. There are many ways in which the most meticulous provincial plan could legally and politically fail. The extra-legal, unconstitutional unilateral option may be even worse. Provincial secession is not for the faint-hearted.

VIEWPOINT | The Supreme Court of Canada Changes Its Mind

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[on the Supreme Court of Canada being ‘the most progressive in the world’] I would say so, yeah, and I must say I’m very proud of that.

– Richard Wagner, Chief Justice of the Supreme Court of Canada (June 2018)

Introduction

In an article for LawNow a few years ago, I was staggered to see how quickly the Supreme Court of Canada had changed its own test for sniffer dog evidence in interpreting the Charter of Rights “search and seizure” provision (section 8). Four new judges had joined the Court, and quietly the Court significantly changed the law in the next case only five years after its first pronouncement. There was no acknowledgement by three of the judges from the earlier case that they had even changed their position, much less any reasons for doing so.

Photo from Pixabay

In 1901 the Supreme Court of Canada decided it was not bound by its previous decisions. Obviously, the Court occasionally will need a do-over but the Court’s modern near indifference to its own precedent is a concern. We need stability, certainty and predictability, especially in Charter cases where human rights are enduring and not subject to frequent change. The Court cannot give and take rights away according to whim and changing ideologies of new judges. Respect for both the Charter and the Court will decline and litigation will rise steeply if rights depend more on the politics of judges than Charter text. Precedent is a foundational pillar of our legal system, indispensable to the Rule of Law. It must be venerated.

Our top Court is theoretically accountable to no one. The judges decide the scope of their work, their workload and their pace. They interpret the very legislation under which they are appointed. They can overrule an appointment by the prime minister to their Court. They have a hand in all aspects of our lives.

The legislatures may have wiggle room to override some decisions under s. 33 of the Charter but, in practice, this has become an illusion. The judges of the Supreme Court of Canada effectively possess complete discretion and final say about the Charter without the burden of real checks and balances. For example, they can set out the principles of mootness (when a case should not be heard) and yet freely hear and decide their choice of moot cases.

They enjoy personal immunity for their work and tenure to age 75. They let their decisions speak for themselves, which decisions are not always easy to penetrate even for lawyers. For example, in Thomson Newspapers v Canada, the five judges on the case gave five different opinions on the applicable “basic tenet” of the legal system, which was “fundamental justice”.

Virtually everyone in the legal system – lawyers, litigants, lower court judges, journalists, parties, law clerks, academics, staff, politicians – desire to please this Court. They hesitate to challenge or cross it. Indeed, the legal profession may punish lawyers for being too critical of the Court.

Canada has a Supreme Court where as few as four or five individuals unilaterally fashion and preside over enormous social change.Although our Constitution Act, 1867 preamble calls for us to have “a Constitution similar in Principle to that of the United Kingdom”, our top court invalidates far, far more democratically-enacted legislation than its British counterpart, or any other court in the world. The Supreme Court of Canada is not invested in finality like the UK Supreme Court, where judgments are the law of the land until and unless varied by Parliament.

Our Supreme Court shows rather meagre deference to lower court judges and to each other on the same Court. It is not surprising, then, that it fails to show deference to elected legislators. To other judges in the western world, the degree to which our Supreme Court invalidates or re-writes legislation is astounding.

When the Court so frequently re-interprets and re-declares Charter rights, did the Court get it wrong the first time(s) or is it essentially and arbitrarily legislating over time? In both cases, we should be uneasy with judicial activism – when such a small number of unaccountable judges on the Court wield so much governance power over our society.

Judging is about respect for the democratic process, sound objective principles and the Rule of Law, which includes valuing judicial precedent. The judges’ personal political ideologies should not overrule precedent. In other words, who the judge is should not ultimately determine what the law is.

This article provides some examples of the Supreme Court of Canada disregarding its own precedent. We see how this contributes to the impression that decision-making is driven by judicial ideology.

The Court Reverses Itself

Shortly after the Charter came into effect, the Court declared in Re British Columbia Motor Vehicle Act that it can disagree with and overturn the very substance of a law or regulation. Judges could enter contested public debates and replace legislation with their own judgment. This led to as few as four or five judges imposing on the whole country the most compelling social policy without vote or debate.

In a LawNow article two years ago, we cited five examples of the Supreme Court doing a complete about-turn on its own rulings. Across all legal subjects, the Court has overruled itself more than five hundred times, and in several thousand instances when one includes the Court’s shifts from previous doctrine. Ten percent of the reversals have come in the last decade.

In 1901 the Supreme Court of Canada decided it was not bound by its previous decisions.In the Charter realm alone, in addition to sniffer dog evidence, the Court has reversed itself in collective bargaining and freedom of association, in physician-assisted suicide (which was first not a Charter right but was later found to be so), and in workplace strikes (which were first not a Charter right but then they were). The framework for criminal trials within a reasonable time was also massively overhauled.

Prostitution-related crimes used to be Charter-compliant but later the same crimes were tossed out for violating the Charter. Christian teachers from Trinity Western University were accredited but later Christian lawyers from the same institution were not.

Do equality rights (s. 15) in the Charter apply to government discretion delegated by law? First, a unanimous Supreme Court of Canada declared ‘no’ in two companion decisions. Only six months later, the same Court shredded these precedents. Comprised of the same judges, the Court reversed itself and held that any action taken under the authority of law is subject to equality protection. The Court did not even refer to its two recent cases that came to the opposite conclusion much less explain the about-face. Years later, it went even further and ruled that the mere grant of discretion to government violated the Charter.

Brooks overturned Bliss (a Bill of Rights case that pre-dated the Charter by three years) on equal compensation for those who missed work due to pregnancy. The Court was unsympathetic to same sex rights in Egan in 1995 where it upheld the traditional definition of “spouse” in the existing Old Age Security Act. The Court wrote:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d’être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.” (emphasis added).

Four years later, the Court was virtually unanimous in concluding that the same definition of ‘spouse’ in other legislation was unconstitutional.

Much of this social revolution occurs by stealth. In the 2018 Vice Media decision, five judges purported to tweak two 1991 precedents, again without robust explanation. Arguably, the tweaks were substantial. There was the pretence of following precedent while quietly amending it. The remaining four judges, while concurring in the result, would have abruptly (and without it having being argued in the courts below) carved out a new distinctive “right for the press” even though the Charter does not do that explicitly. It is a matter of time before a majority of the Court unearths and proclaims that new right.

Since the Charter was enacted in 1982, we have seen the rise and the further rise of the judicial role in policy-making.The Court has denounced the “frozen concepts” approach to constitutional interpretation of social policy but readily upholds to frozen concepts in trade, institutions and commerce. Precedent is “not a straitjacket that condemns the law to stasis,” Chief Justice McLachlin wrote in Carter. Only social policies must be freed from their historical straitjackets.

While the Supreme Court of Canada decrees consistency and predictability as “principles of fundamental justice”, the Court has been inconsistent and unpredictable with respect to its own Charter interpretations. In every case, the Court consistently and predictably moved to the ideological left – to become more socially progressive – a development about which the current Chief Justice is “very proud”.

Charter Rights versus Charter Values

The Charter contains written rights that the Court must interpret and apply. This is critical work but the Court also has birthed and nurtured the philosophy of “Charter values” to add to constitutional interpretation. These values include “respect for the inherent dignity of the human person, commitment to social justice and equality …” – starting points which reflect the changing moral and social fabric of the country.

Such unfettered authority and dubious sourcing of these apocryphal “Charter values” reminds one of the Australian film classic, The Castle. There the lawyer pleading his case channeled: “It’s the vibe of it. It’s the Constitution, it’s justice, it’s law, it’s the vibe.  And … no, that’s it! It’s the vibe. I rest my case.”

Recommendations and Conclusion

An aphorism reckons that one really does not want to know “how laws and sausages are made”. The Court reverses itself for a variety of reasons, including changing social norms, turnover of judges, slim majorities in the original precedents, undesired impacts, an emerging sense that the precedent was wrong, activism to effect change, and new arguments, evidence and issues that arise after the precedent was made.

Nevertheless, stare decisis is the quasi-constitutional principle that the law “stands decided” when declared by the highest court(s) in the country. The authority of the Supreme Court of Canada, indeed the orderly functioning of our legal system, depends on courts following their decisions.

The Supreme Court of Canada, by the instrument of the Charter, has become the dominant lawmaker over complex social issues in the last four decades in Canada. We are governed in these matters by a tiny clutch of progressive judges who are practically unaccountable to any broad electorate.

To other judges in the western world, the degree to which our Supreme Court invalidates or re-writes legislation is astounding.Other countries engage national debates, referenda and elections on big social issues. Canada has a Supreme Court where as few as four or five individuals unilaterally fashion and preside over enormous social change. This work is not technical “black letter law” but policy – putting into effect their own worldviews to a degree seen nowhere else on the planet. Do judges have the capacity or the moral legitimacy to make the kinds of policy decisions they are making?

Since the Charter was enacted in 1982, we have seen the rise and the further rise of the judicial role in policy-making. Judges can choose restraint or activism. Rather than following the law or deferring to the legislature in policy-making, activist judges ordain the law to conform to their own progressive ideology. Our judges will occasionally profess “deference to the legislature”, but they have not embedded this as constitutional principle and there is rather little in practice. The reality of the Court “changing its mind” is often due to judges rotating and bringing with them new independence and ideology and less fondness for – and commitment to – the views of their predecessors.

The Supreme Court of Canada could take steps to ensure it does not become a runaway court. When the Court changes its mind about what a Charter right entails, it should expressly state this. Under Charter section 52(1), it should declare that its previous pronouncement was “inconsistent with the provisions of the Constitution … and of no force or effect”. The Court declares this to legislatures when it finds they acted unconstitutionally. It should equally and honourably declare its own unconstitutional miscalculations.

When the Court seeks to amend its precedent in any way, it should only be able to do so with an enriched two-thirds majority (six of the nine judges on the Court). If it seeks to reverse one of its previous rulings, it should only do so unanimously. This is consistent with all other constitutional change, which obliges an enriched majority in support of the change.

Minimal deference to the democratic legislative process must be elevated to constitutional status. The Supreme Court should not re-write or strike legislation without this two-thirds majority or unanimity on the Court, respectively.

None of these changes require formal constitutional amendment. They all represent easy retrenchment from powers the Court has voluntarily chosen to arrogate to itself to date.

EMPLOYMENT | Opening the Legal Profession: The Andrews case

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While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.

– Andrews v Law Society of British Columbia, [1989] 1 SCR 143

Introduction

In the recent federal election, a party leader campaigning to be prime minister was criticized for holding dual citizenship. He was criticized, though not disqualified. The minimum requirements to run in a federal election under the Canada Elections Act are 18 years of age and Canadian citizenship (sections 3 and 65).

Andrews was the leading case during the first decade of Charter section 15 jurisprudence.Millions of people living and working in Canada are permanent residents, not citizens. Permanent residents enjoy virtually the same rights and responsibilities as Canadian citizens, including the right to live, work and study anywhere in the country. They are entitled to the same social benefits that citizens receive, including public pensions and universal health care, and they can sponsor relatives to Canada.

Permanent residents may apply for Canadian citizenship – which gives them the right to vote and run in elections – after living in Canada for three years out of the five years preceding their application. Many permanent residents choose to never become citizens.

Until 1989, provincial law societies required lawyers to be citizens. This article is about a permanent resident who challenged that requirement under the Canadian Charter of Rights and Freedoms.

Role of Lawyer

Lawyers are trained and qualified to do many things. They are experts in substantive and procedural law and skilled in legal procedures. They advise and represent others across the total spectrum of legal matters where financial, reputational and liberty stakes for the client are the highest. They occupy one of the most prominent esteemed socio-economic professional perches in society.

Lawyers are bound to exacting character, educational, professional and conduct standards. They must submit to continuing education and be insured for their errors. Being a lawyer is not a right, but a privilege.

Must they also be Canadian citizens?

Photo from Pixabay

Mark David Andrews

Andrews was a British citizen and a permanent resident in Canada. With a British law degree, he tried to become a lawyer in British Columbia. He met all requirements for admission to the British Columbia bar except one. Section 42 of B.C.’s Barristers and Solicitors Act limited membership to Canadian citizens.

Andrews sued the Law Society of British Columbia, arguing the citizenship requirement violated his equality right under the Charter:

15 (1)   Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Court’s Decision

This was the first major Charter equality case and six judges of the Supreme Court of Canada took 16 months to decide it. A majority agreed with Andrews and struck out the citizenship requirement for lawyers.

1. Two-Step Approach

The Charter requires a court to determine whether a law created an inequality on one of the enumerated grounds – such as race, religion or disability – or on an analogous ground which is similar and related to an enumerated ground. The person alleging the inequality must prove actual differential treatment based on an enumerated or analogous prohibited ground which creates a disadvantage.

The second step of the analysis determines whether the infringement can be “demonstrably justified in a free and democratic society” under section 1 of the Charter. The state must justify the infringement.

2. Judicial Analysis

The judges disagreed about whether this discrimination was sufficiently justified. The B.C. government and the Law Society argued that the role of lawyers begets a special commitment to the community which citizenship embraces. They said practical familiarity with the country and its customs is needed. Citizenship evinces a real attachment and connection to Canada.

Andrews sued the Law Society of British Columbia, arguing the citizenship requirement violated his equality right under the Charter …Moreover, they said lawyers should be citizens as they play a role in Canadian governance since they are officers of the court and are entrusted with significant private and public powers. They are uniquely involved in the processes or structure of government. The government argued that certain state activities should be confined – for both symbolic and practical reasons – to those who are full members of our political society: citizens.

The majority four judges disagreed. They said citizenship itself does not make for better lawyers, and lawyers are not really part of public governance anyway. They found that there was no sufficiently reasonable connection between the citizenship requirement and working as a lawyer. Accordingly, the provincial government and Law Society failed to justify the discriminatory nature of the citizenship requirement and it was struck out.

Where is Andrews Now?

Andrews became a citizen before his case was even argued in the Supreme Court of Canada. He is a litigation partner now in a large national law firm in British Columbia. After judgment in his favour in the B.C. Court of Appeal, Andrews became a lawyer on June 13, 1986.

Conclusion

Foreign-trained professionals encounter tremendous obstacles to having their education and skills transferred to, and being accredited, in Canada. This case does not help them much because mere permanent residency is not their hurdle.

Until 1989, provincial law societies required lawyers to be citizens.Likewise, if citizenship is not required to become a lawyer or a judge in Canada on the basis that it does not ensure greater commitment or practical understanding of the society, should it be an issue for those running in elections, or even for voting? Why should it matter today if a politician holds dual citizenship?

Andrews was the leading case during the first decade of Charter section 15 jurisprudence. The Supreme Court of Canada has stated that section 15 equality rights are the most expansive and challenging rights in the Charter. The next Employment column will offer a critique of this Andrews decision.

FAMOUS CASES | Provinces Leaving Canada Part I: The Quebec Secession case

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. . . a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.

– Reference Re Secession of Quebec, [1998] 2 SCR 217 at para 150

Introduction

The possible withdrawal of one or more provinces from the Canadian federation (“Wexit”) have led people to ask, “What does it take for a province to leave Canada and go its own way?” So we dedicate this Famous Cases column to the unanimous 1998 Supreme Court of Canada case Reference Re Secession of Quebec (referred to as Secession Reference).

The Supreme Court of Canada added that a province cannot, even with a clear referendum result, assert self-determination rights to dictate the secession terms.In the next column, we follow up with discussion of the so-called Clarity Act that purports to set the federal ground rules for provincial secession. Both of these columns together provide a primer on what it would take, from a constitutional perspective, for any province to separate (“secede”) from Canada.

First, a disclaimer. This is a brief legal analysis only for general public awareness. It is not a political or economic assessment of the issue, nor a statement of personal preference. This case should also be seen in its context. Constitutional pronouncements should survive more than two decades but the Supreme Court of Canada is well known to revise its previous proclamations.

Moreover, Secession Reference arose from an extremely close Quebec referendum outcome in 1995, followed by considerable political plotting at both levels of government in the free-space of a new constitutional enigma. This is to say – and this is readily apparent from the decision itself – that not all issues around provincial secession have been answered in the Secession Reference. Future cases will elicit more details.

Background

When the Constitution was repatriated from the United Kingdom in 1982, the new amending formula that was incorporated did not contain any provision specifically for the withdrawal of provinces from Confederation.

In the aftermath of the 1995 referendum, lawsuits were launched questioning the legality of secession. The Parti Québécois premier promised another referendum when “winning conditions” presented. In September 1996, the federal government sent the issue to the Supreme Court of Canada for constitutional answers.

Secession Reference Decision

The Court considered the legality of a unilateral secession of Quebec under both Canadian and international law. The following three specific questions were addressed (we have broadened the focus to any province).

1. Under the Constitution of Canada, can any province secede from Canada unilaterally?

The federal government argued that provinces could withdraw only after proper constitutional amendment which would require a sturdy measure of national consensus. Quebec did not participate in the reference but an agent (amicus curiae) was appointed to make sovereigntist arguments. The amicus said the reference was invalid as it was a purely political one that was none of the Court’s business to answer. Alternatively, Quebec’s right to self-determination came exclusively from the Charter of the United Nations and required only majority consent of Quebecois.

The Court concluded that a province’s unilateral secession was not legal under the Constitution of Canada. However, if an independence referendum were to succeed, the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession” and negotiation of terms would have to follow. Though it was not tasked to answer the “how” question, the Court stated a requirement of a ‘clear majority voting in favour of a clear secession question.’

The Court famously asserted the Constitution, composed of written and unwritten principles, stands on four fundamental interactive tenets: federalism, democracy, the Rule of Law and the protection of minorities.

2. Does international law give any province the right of self‑determination to secede from Canada unilaterally?

The Court suggested that provinces cannot benefit from international law which “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state.” It envisioned self-determining provinces generally to seek a solution – for example, by negotiation – within the framework of Canada:

The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states . . . a state whose government represents the whole of the people . . . is entitled to the protection under international law of its territorial integrity.

Under international law, the right to secede was intended for people under colonial rule or foreign occupation. As long as a province can meaningfully strive for self-determination within Canada, there is no right to secede unilaterally.

The Court considered the legality of a unilateral secession of Quebec under both Canadian and international law.The Supreme Court of Canada added that a province cannot, even with a clear referendum result, assert self-determination rights to dictate the secession terms. A strong favourable referendum outcome carries no legal effect on its own. It cannot override the principles of federalism, democracy in the other provinces or in Canada generally, the Rule of Law and protection of minorities.

3. If Canadian and international law disagree on the right of a province to secede from Canada unilaterally, which takes precedence?

The Court found no conflict between Canadian law and international law on the question of a province’s unilateral right to withdraw from Canada so no answer was needed here.

Conclusion

The creators of our Constitution never envisaged one or more provinces leaving Confederation. They included no procedure for provincial secession. Nor is it specifically ruled out. This article describes how the Supreme Court of Canada’s 1998 Secession Reference decision lays out the broad rules for a province withdrawing from Canada in the absence of a written formula.

In the regard, the Court assigned significant burdens to both the province desiring to secede and the federal government. In our next column, we look at how the federal government has specifically operationalized the Succession Reference rules in its Clarity Act.

Charter of the French Language: Quebec v Blaikie

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Photo from Pixabay

A recent LawNow article outlined the constitutional history and framework of bilingualism in Canada. In this article, we focus on Quebec’s 1977 Charter of the French Language, popularly known as Bill 101.

This legislation raised the question of whether a provincial government could broadly regulate language across its jurisdiction, namely to mandate one official language. Here we describe the decision in Quebec (AG) v Blaikie (No 1), the first of several court decisions that addressed whether Bill 101 aligned with Canada’s Constitution Act, 1867.

Background

In the decades leading up to the 1970s, the relationship between Quebec’s French and English-speaking communities became more and more strained. When the Parti Québécois won in 1976, the long-standing language conflict reached a tense and pivotal point. Under the leadership of Premier René Lévesque, the new provincial government was determined to make Quebec a sovereign state. Bill 101 was a crucial first step towards this goal. In 1977, Bill 101 declared French to be the official language of Quebec and restricted the use of English in the public sector (courts, civil service and schools) as well as the private sector (shops and workplaces).

Legal Concerns and Arguments

In 1979, three Quebec lawyers – Peter Blaikie, Roland Durand and Yoine Goldstein – challenged the part of Bill 101 which made French the sole official language of Quebec’s legislatures, courts and quasi-judicial bodies (sections 7 to 13). Bill 101 said that the government must draft legislation only in French and that only the French version was official. Lawyers, courts and other quasi-judicial bodies were to write all pleadings and decisions in French.

Blaikie et al argued that this French requirement directly violated section 133 of the Constitution Act, 1867. Section 133 reads:

Either the English or the French Language may be used by any person in … the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals … and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any … of the Courts of Quebec.

Section 133 further directs that Quebec legislation be printed in both languages.

In defense of Bill 101, Quebec relied on the division of sovereign powers in the same Constitution Act, 1867. Specifically, under section 92(1), provincial governments have the right to amend the “Constitution of the Province”. Quebec argued that its legislatures and courts fell within the “Constitution of the Province” so any province had the legislative power to unilaterally amend section 133 as it pertained to them. It also argued that section 133 did not explicitly require Quebec legislation to be enacted in both English and French. Sections 7 to 13 of Bill 101 simply filled in the gaps left by the Constitution Act, 1867.

Court Decisions

The courts made their decisions in Quebec (AG) v Blaikie (No 1) entirely under the Constitution Act, 1867. (The Charter of Rights was not enacted until 1982.) At all three levels of trial and appeal, the courts ruled against the Quebec government and declared these provisions of Bill 101 unconstitutional.

In 1977, Bill 101 declared French to be the official language of Quebec …Though the Constitution Act, 1867 did not expressly require governments to enact laws in both languages, the Supreme Court of Canada concluded that this requirement was clearly implied. It reasoned that texts do not become “Acts” without enactment. The Supreme Court of Canada dismissed Quebec’s claim that this part of Bill 101 was compatible with section 133 in the Constitution Act, 1867.

The Supreme Court of Canada went on further to find that a province’s ability to modify the use of English and French in its legislatures and courts is “outside of the amending power conferred by s. 92(1)”. Administrative agencies with quasi-judicial functions operate parallel to our court system and play a “significant role in the control of a wide range of individual and corporate activities”. The Supreme Court of Canada concluded that section 133 protecting English and French in the “Courts of Quebec” extends to provincial adjudicative tribunals.

In the end, the Supreme Court of Canada struck down sections 7 to 13 of Bill 101. The result is that anyone navigating the courts and adjudicative bodies in Quebec has the constitutional right to use English or French.

In retrospect, this case is a head scratcher. Even given the sometimes convoluted and unpredictable reasoning of the modern Supreme Court of Canada, it is hard to imagine – given the precision of section 133 of the Constitution Act, 1867 – how the Government of Quebec could have constitutionally succeeded in this case.

What Happened Next?

Quebec (AG) v Blaikie (No 1) was a defeat for the newly elected Parti Québécois government. After this decision, the separatist provincial government was forced to amend Bill 101 to allow for both English and French across the legal system.

Blaikie et al argued that this French requirement directly violated section 133 of the Constitution Act, 1867.Blaikie (No. 1) is an important language rights case because it was the first shoe to drop on Bill 101. Over the next decade, people challenged other provisions in Bill 101, and the Supreme Court of Canada struck down or amended these provisions. In 1984, the Court ruled that the compulsory use of French on business signs violated Canadians’ right to freedom of speech. That same year, it also ruled that the Charter of Rights limited Bill 101’s ability to require French education in the province.

Bill 101 arguably accelerated the exit of English-speaking residents and corporations out of Quebec. Others support it as a valuable, perhaps essential, policy to ensure the survival of the French language in the Province of Quebec. This language law continues in force today, but with a more limited scope than originally intended.

Reading Between the Lines: Implied terms in individual employment contracts

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Photo from Pixabay

In Canada, every non-unionized employee has a contractual relationship with their employer. What does that contract look like?

Employment contracts may be written or oral, or both. When you sign and return a letter offering you a job, the terms of the letter are the written elements of the contract. That letter usually “incorporates by reference” employer manuals and policies into the contract.

Other people are hired – and agree to terms – on the telephone or orally in an in-person interview. You can agree to your job title and responsibilities, rate of pay, benefits, supervision and starting date in a conversation with your employer.

Characteristic of written and oral employment terms is that these matters are expressed. These terms are identified, highlighted and communicated. The attention of both parties is specifically drawn to them.

As it turns out, there are many things the parties do not express, or even think about. Still, the law will imply these unspoken and unwritten terms into an employment contract. These matters may be so obvious that both the employer and employee just assume they are part of the job (“implied in fact”). Alternatively, they are imposed by legislation and are not negotiable in any event (“implied in law”).

Since an employer and employee do not discuss or agree upon implied terms, it is important to be aware of them. Implied terms can form the basis of wrongful dismissal lawsuits. This article describes the two different sources and some examples of implied terms in employment contracts.

Terms Implied-in-Fact

Terms will only be implied if they are necessary to make sense of the employment contract (business efficacy test). The origin of this test can be traced back to the 1889 English contract case called The Moorcock which established that judges can read in terms that give business efficacy to the contract. For example, an employer and employee usually agree on a salary but they usually do not say it is in Canadian dollars. The local currency would be implied.

No one can contract out of minimum employment standards.These terms are the details that were not expressed between employer and employee but something they both likely intended to agree to. To imply an employment term by fact, a judge must be satisfied the employee and employer would have agreed to the same terms if they had discussed these using context (officious bystander test). The test asks: if an uninvolved third party had suggested including the particular term in the employment contract while it was still being negotiated, how would the employer and employee have responded? If their answer was “why, of course … that goes without saying!”, then the court will imply the term into the contract. It is clear that both the employer and employee assumed the term already existed.

Examples of employers’ implied obligations:

  • Permit employees to report to work
  • Treat employees with decency, respect and dignity
  • Provide a reasonably safe work environment
  • Compensate employees for work performed
  • Reimburse employees for reasonable and authorized expenses incurred on behalf of the employer
  • Provide reasonable notice of termination of work
  • Make sure employees are properly trained and equipped

Examples of employees’ implied obligations:

  • Obey lawful orders of the employer
  • Cooperate in advancing the employer’s commercial interests
  • Protect the employer’s confidential information
  • Do not be late or absent from work without an excuse
  • Do not compete against the employer
  • Perform duties completely, competently and safely
  • Do not harass others
  • No drinking or using drugs at work
  • Give reasonable notice of resignation

Well-established historical practices in the workplace may also be implied in new employment contracts. For example, if it is well known that a job requires frequent travelling, location transfers or work outside of regular business hours, these obligations may be implied in the employment contract.

Implied terms, as “default terms”, can be changed or excluded by inserting clear express terms. Implied terms only fill in gaps where necessary to give effect to the employment contract.

Terms Implied-in-Law

Terms implied-in-law are legal rights and obligations that are set out in legislation. The primary source of these terms is minimum employment standards legislation which says that these minimum terms form part of every individual employment contract.

The context does not matter nor does what the parties intended. The employer and employee may actually express other terms, but these statutory terms will override them. No one can contract out of minimum employment standards. That is because the government imposes these implied terms as a matter of public policy.

Employment contracts may be written or oral, or both.These terms implied by law assume employees occupy a weaker position in the employment relationship. The law sets minimum thresholds that employers must meet, such as minimum wage, notice of termination, overtime pay, employment of children, work breaks, leaves, maximum hours of work, etc. Everyone working in a human resources role must know the minimum standards that are implied into each employment contract.

Conclusion

Unionized employees are governed by comprehensive written collective agreements that set out the rights and obligations of the employer and employee. On the other hand, non-unionized workers, which make up about 70% of Canada’s workforce, are subject to individual employment contracts. These individual employment contacts can have many different forms and attract more legal protection.

Most people incorrectly assume the oral or written agreement is the complete employment contract. However, rights and obligations are usually both expressed and implied. The individual employment contract has more implied terms than any other type of contract. Employees and employers should know the unexpressed and un-negotiated rights and obligations that apply to them.

In Loco Parentis

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… only minor corrective force of a transitory and trifling nature. [No] corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. … [T]he conduct [must] be corrective, which rules out conduct stemming from the [teacher’s] frustration, loss of temper or abusive personality …

 – Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) (2004 SCC 4 at para 40)

Introduction

Photo from Pexels

In loco parentis is a Latin legal term which translates into “in place of a parent.” Traceable to 1926, it grants individuals caring for children the same rights and responsibilities as a parent. It was originally associated with “one who has acted … in the situation which is ordinarily occupied by the father for the provision of the child’s pecuniary wants”. Case law throughout the century now allows a more broad interpretation beyond simply financial support.

In modern Canadian law, the term in loco parentis can apply to various scenarios where a parent places a child in the care of another individual, ranging from a professional such as a doctor to an amateur such as a babysitter. However, the rights and responsibilities in each case vary depending on several factors.

This article is about in loco parentis status of teachers. Teachers often educate and care for many children at once. Given their obvious responsibilities, teachers’ roles and rights are set out in both provincial education legislation and in the federal Criminal Code.

Who is a Teacher?

Provincial governments issue certificates of qualification to teachers under the applicable provincial laws. In Alberta, this law is the Education Act. Alberta has clear educational and professional experience requirements:

  • 16 years of formal education (including a 4-year, full-time university degree); and
  • 10 weeks of supervised student teaching (a practicum).

The Supreme Court of Canada has defined a schoolteacher more generally as “a person who gives formal instruction in a children’s school”. Therefore, the benchmark is instruction rather than caregiving, along with prescribed education qualifications and licences to teach.

Teachers enjoy specific protections under Canada’s Criminal Code, but they also must follow their provincial laws (such as Alberta’s Teaching Profession Act) and professional codes of conduct (such as The Alberta Teachers’ Association’s Code of Professional Conduct) to remain employed.

Responsibilities of a Teacher

In loco parentis is a Latin legal term which translates into “in place of a parent.”Traditionally, the in loco parentis doctrine clothed teachers with the same responsibility as a parent and exposed them to the same liability for a child’s wellbeing. This meant a teacher must act in the manner of a reasonable and prudent parent.

However, several Supreme Court of Canada decisions, such as Thornton (1978) and Myers (1981), invested teachers with “supra-parental expertise”. This means that teachers will be held to the standard of a reasonable, competent professional.

Corporal Punishment

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936. In Rex v Corkum, the Nova Scotia judge said that “the authority of a school teacher to chastise a pupil is to be regarded as a delegation of parental authority” (p. 80).

In R v Haberstock (1970), the Saskatchewan Court of Appeal acquitted a school vice principal who slapped three 12-year-old students on the side of their faces, chipping a tooth of one of them. The trial judge found that the students had done nothing wrong. The vice principal said the students had called him names (such as “short ribs”) the previous week.

Every time a teacher intentionally restrains or strikes a non-consenting student, that teacher may be liable for the crime of assault under section 265 of the Criminal Code . But section 43 also states:

Every schoolteacher… standing in the place of a parent is justified in using force by way of correction toward a pupil or child … if the force does not exceed what is reasonable under the circumstances.

Corporal punishment – spanking – has essentially disappeared from Canadian schools. While it remains legal, it is widely frowned upon as a disciplinary practice and most school boards outright prohibit it. Nevertheless, section 43 of the Criminal Code offers legal protection for both parents and teachers, allowing them to “correct children with force that is reasonable under the circumstances.”

Children equally enjoy the right to “life, liberty and security of person” under the Charter of Rights and Freedoms (1982) as well as freedom from discrimination based on age. In 2004, the Supreme Court of Canada confirmed the constitutionality of section 43 of the Criminal Code in the Canadian Foundation for Children decision. However, the Court considerably limited spanking by teachers as corrective action:

  • Teachers are protected by section 43 only when removing a child from a classroom or trying to get the child to follow the teacher’s instructions.
  • No one can legally spank a child above the age of 12 years. And no one can use a device to spank a child. (The headmaster’s strap will remain a relic of history.)

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936.Moreover, section 43 only provides protection against criminal prosecution. Again, most provincial education legislation and school boards across the country specifically forbid corporal punishment. Spanker teachers could be disciplined by their profession (possibly lose their teaching license) and employer (possibly lose their teaching job). And the spanker teacher may even be civilly liable for battery of the student and may have to pay damages.

It appears that section 43 may be used to defend the detention of a student who is suspected of criminal activity. In R v Sweet (1986), a teacher restrained a student, accused of marijuana possession, as the student attempted to escape investigation against repeated orders to remain.

Conclusion

Teachers are responsible not only for educating children but also for enforcing policies and maintaining order. The law confers upon Canadian teachers some immunities to achieve these goals but corporal punishment in schools has become an historical footnote. Despite a teacher having a possible legal defence against a charge of assault, spanking or otherwise physically punishing a student would violate the teacher’s professional code of conduct, provincial school legislation and school board policy.

By way of the in loco parentis doctrine, teachers stand in essentially the same legal position as parents. The practical use of in loco parentis relates to discipline and physical punishment of children. As we have seen here, physical contact used by teachers fifty years ago would not be acceptable today.

The Constitutional Basis for Bilingualism in Canada

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Photo Credit: Jessica Nobert

Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is … a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.

– Ford v Quebec ([1988] 2 SCR 712 (SCC) at para 40)

Introduction

Language underlies the human experience, and language rights are fundamental to the peace and order of Canada. Given its European history of British and French settlement, Canada has experienced a lively debate over centuries about language rights, which have largely taken constitutional form. This article describes the constitutionalization of language in Canada. The powers and responsibilities for language rights are divided between federal and provincial governments.

Constitution Act, 1867

This 1867 constitutional document, sometimes referred to as the British North America Act, sets out the powers of the federal and provincial governments. Municipalities derive all their power from the provinces in which they are located.

Language Rules in the Fledgling New Canada

Section 133 of the Constitution Act, 1867 addressed language rights and obligations in a very limited way. It only prescribed the language of federal and Quebec parliamentary and court proceedings:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

Regulating Language According to Federal and Provincial Jurisdictions

For over 100 years, Canada had no other constitutional guidance on language. In 1969, the federal government enacted the Official Languages Act, which conferred equal status on French and English in Government of Canada institutions. The Supreme Court of Canada, in Jones v AG of New Brunswick, confirmed six years later that this was constitutional – that language is important enough to the sphere of federal operations that it could be regulated under the overarching mandate of the “peace, order, and good government” of Canada.

In the 1985 case of Re Manitoba Language Rights, the Supreme Court of Canada concluded that all of the unilingual English statutes from the Manitoba legislature were and always had been invalid and of no force or effect. But what about the power of each province to likewise regulate language within the spheres of activity over which they exercise constitutional authority? In other words, it is one thing for the federal government to legislate official language status in the post office and immigration hearings. However, did each province have equivalent power to legislate language over its own provincial institutions, such as in its schools, hospitals and municipalities?

In 1977, Quebec passed the Charter of the French Language. This Act established French as Quebec’s official language and mandated that all commercial forms, invoices, receipts, signs, posters, advertising and publications be solely in French. It declared that every Quebecois had the right to communicate in French in matters of civil administration, health and social services, and business. Substantial fines and the forced removal of any non-conforming posters, signs or advertisements backed up this law.

The Supreme Court of Canada, in its 1988 decision in Devine v Quebec, found this language legislation to be within provincial competence under the “property and civil rights” head of 1867 constitutional power. The Court characterized this “not as a law in relation to language [which is not enumerated in the 1867 Constitution], but as a law in relation to the institutions or activities that the provision covers”. The Court determined that language is not an independent matter of legislation but is rather “ancillary” to the province’s exercise of its power over the subject matter assigned to it (in this case, public administration and commerce).

Provincial language legislation must relate to an institution or activity that is within provincial jurisdiction. This prevents governments from over-reaching and creating laws for institutions and activities that they do not govern. The Supreme Court of Canada reaffirmed this principle a decade later in the Reference re Succession of Quebec case. In that case, the Court echoed the “autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”.

Special Case of Manitoba

The Manitoba Act, 1870 was a constitutional statute that created the Province of Manitoba. It also gave rights to the Métis, including bilingual institutions. Section 23 accorded French and English equal status for “Acts, records and journals” in the legislature. Nevertheless, Manitoba enacted its own Official Languages Act in 1890, which appointed English as the only language for legislative processes.

Provincial language legislation must relate to an institution or activity that is within provincial jurisdiction. In the 1985 case of Re Manitoba Language Rights, the Supreme Court of Canada concluded that all of the unilingual English statutes from the Manitoba legislature were and always had been invalid and of no force or effect. The Court reasoned that the constitutional duty in Manitoba – about the manner and form of enacting legislation – protected the substantive rights of all Manitobans to equal access to the law in either French or English.

The sudden declaration of invalidity of all of Manitoba’s legislation “would create a legal vacuum with consequent legal chaos” and destroy the rule of law. The province would be left with “an invalid and therefore ineffectual legal system until the Legislature is able to translate, re‑enact, print and publish its current laws in both official languages”. Therefore, the Court granted the laws temporary validity until the government could translate and re-enact the laws in both languages. Seven years later the Court was still negotiating extensions of time with Manitoba.

Charter of Rights and Freedoms

As has been shown, until the Constitution Act, 1982 (also known as the Charter of Rights and Freedoms or the Charter), the Canadian Constitution did not comprehensively engage the language issue. The Charter explicitly addressed language rights in detail in sections 16 through 23 as well as implicitly in section 2 as “freedom of expression”. Most of these provisions copy and clarify the existing 1867 obligations (and add New Brunswick to the list of bilingual provinces) and entrench the principles of the federal Official Languages Act. (A thorough review of these rights is beyond the scope of this article.) There have been challenges and elaborations on many fronts, including language in education and law courts across Canada.

Much of the post-1982 Charter focus has been on Quebec’s Charter of the French Language (known also as Bill 101). This Act endeavours “to make French the language of government and the law [in Quebec], as well as the normal and everyday language of work, instruction, communication, commerce and business” (preamble).  It has, on several occasions, attracted the attention and analysis of the Supreme Court of Canada, including in two companion cases in 1988: Ford and Devine.

Quebec (like all other provinces) can legislate for language within the province under the Constitution Act, 1867 (section 92) but all language laws must also comply with the Charter. The Court struck down some provisions that required all public signs, advertisements and commerce be printed solely in French. The Court reasoned that these provisions unduly infringed on non-francophones’ freedom of expression and engendered discrimination based on language. This led to the first – and only (to date) – invocation of the Charter’s “notwithstanding clause” (section 33). In the intervening three decades, Quebec’s Charter of the French Language has been amended often to comply with Canada’s Charter. In summary, Quebec (like all other provinces) can legislate for language within the province under the Constitution Act, 1867 (section 92) but all language laws must also comply with the Charter.

Language and Education

The Charter sets out the language rights of Canadians in their public education. They enjoy constitutional rights to receive primary and secondary schooling in French or English, depending on which language they have first learned and understood. French-Canadians must be offered French schooling for the entirety of their basic education while English-Canadians are offered the same in English.

Quebec’s Charter of the French Language requires all children in Quebec to attend a French language school unless they have parent who received a basic education in English, or they have already completed most of their education in English. This is the lone path to an English-only education in Quebec.

Conclusion

Today Canada is one of 55 bilingual countries around the world. Our Constitution establishes and protects bilingualism and gives the various levels of government power and responsibility over language and language rights to all Canadians.

The interlocking tension between the Constitution Act, 1867 grant of power to governments to regulate the activities and institutions within their jurisdiction and the freedom of expression created by the Constitution Act, 1982 will continue to define the living cultural waters of language in the years to come. This same constitutional process will also continue to ensure our official national bilingualism.

How Earnings Must Be Paid

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Employment Law ColumnIntroduction

In 1981, when I was a student working for the summer in London, England, every two weeks I would walk over to another building and join a queue to collect my pay packet. In the little cardboard pouch, I found a very narrow strip of paper of numbers that explained how my earnings and deductions were calculated. My employer paid the net salary in bills and coins, all in the packet. There were no direct deposits in those days or cheques to take to the bank, much less payday cheque-cashing shops.

I figured that employers paid wages in cash because that was the most liquid form of money. I also figured there must have been a legal obligation on employers to do so because workers, at that time, could not easily access earnings that were not in cash.

This sort of rule is one example of workers’ rights in a universe of “employment standards” under provincial laws (such as the Employment Standards Code in Alberta). I cannot remember the basic cash pouch being a legal requirement in Alberta, although they are permitted. Nevertheless, we have several other rules in effect today around the payment of wages.

The topic of this column is the requirements on Alberta employers when paying earnings to workers. Other provinces and territories in Canada have very similar rules. Workers should review the employment standards legislation in effect where they work to learn the details of how their earnings must be paid.

General Provisions

It is important to remember that the workers’ accrued earnings belong to the workers and not to the employer.Employers must set out pay periods for calculating wages, which cannot be longer than one month. Wages, overtime and holiday pay earned must be paid within 10 days after the end of each pay period.

An employer must pay at least the minimum wage – currently $15 per hour ($13 for workers under 18 who are in school). Workers paid by commission or other incentive must also be paid the minimum wage in each pay period.

Employers must pay workers for a minimum of 3 hours of work. Meal periods are not counted in this. There are a few exceptions to the minimum 3 hour work period, including:

  • school bus drivers;
  • young workers teaching swimming lessons or lifeguarding part-time at municipal recreation facilities;
  • workers on a movie set or other “artistic endeavour”;
  • jobs up to 2 hours on school days.

These employees must be paid minimum wage for at least 2 hours each work period.

When either party terminates the employment with notice, employers must pay the employees’ earnings no later than 3 days after the last day of work. If the termination by either party is for cause, or if the worker quit without giving the required notice, Alberta employers have 10 days to pay the earnings.

Employers must pay earnings in Canadian currency. Payment can be made in cash or by cheque, bill of exchange or order to pay (payable on demand from an authorized financial institution). Alternatively, employers and employees may agree to direct deposits in an authorized financial institution at the employees’ direction.

When reducing an employee’s wages, employers must give the employee notice of the reduction before the start of the pay period in which the reduction is to take effect. If this notice is not given, the reduction is not valid.

Employer May Not Make Some Deductions From Pay

Employers cannot deduct, set off against or claim from the earnings of an employee any sum of money unless the law permits. Deductions allowed by law include:

  • anything deductible under legislation, such as garnishees, judgments or court orders (e.g., child support payments);
  • withholdings for income taxes, Canada Pension Plan and Employment Insurance;
  • union dues set out in a collective agreement binding on the employee; or
  • anything the employee has personally approved, such as the repayment of a loan or wage advance from the employer.

However, a collective agreement or a written approval by an employee can never permit deductions from earnings for:

  • faulty work, including any act or omission by the employee that results in a loss to the employer;
  • damage or breakage caused by the employee;
  • innocent mistakes;
  • cash shortages or other loss of property if, as is very common, someone other than the employee also had access to the cash or property. For example, if more than one person has access to the cash register, an employer cannot hold only one employee responsible for shortages;
  • cash shortages due to a failure to collect all or any part of the price paid by a purchaser. Simply, workers cannot be used as guarantors of the business’ receivables; or
  • any costs associated with providing, using, repairing or cleaning uniforms or other apparel that the employer requires the employee to wear at work.

Employers cannot deduct, set off against or claim from the earnings of an employee any sum of money unless the law permits.If an employer provides board or lodging, or both, to a minimum wage employee, the deductions cannot exceed $3.35 for a single meal and $4.41 per day for lodging. Employers cannot deduct a meal not consumed by an employee from the minimum wage.

Advances on wages and inadvertent over-payments of wages can be recovered by employers from employees’ earnings.

Conclusion

It is important to remember that the workers’ accrued earnings belong to the workers and not to the employer. Employers might be tempted to take advantage of their superior positional and economic power over the workers and help themselves to some of the workers’ earnings. Employment standards legislation prohibits that. Employers who try to do this may be slapped with administrative penalties or subject to prosecution and fines.

The cash pay period pouch may be gone but other detailed rules remain in place to prevent employers from ‘playing with’ or taking workers’ earnings.

Confidentiality Clauses: the Jan Wong Case

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Famous Case Revisited

. . .  I can’t disclose the amount of money I received

I’d just been paid a pile of money to go away . . .

Two weeks later a big fat check landed in my account.

Even with a vastly swollen bank account . . .

Introduction

Almost all lawsuits are settled or abandoned. Only about 5% go through to a full trial. Nearly all settlements where lawyers are involved have a confidentiality clause in the settlement agreement. If there is a payout of money, generally no one can talk about it. Most of the time, the parties all agree to these clauses in order to get the cash and end the legal hostilities.

This column describes a recent case that demonstrates the seriousness of these confidentiality clauses.

Provocation of Journalist Jan Wong

The arbitrator ordered Wong to pay back the entire $209,912 she had received in the settlement.In September 2006, Jan Wong’s employer, the Globe and Mail, instructed her to write an article on the assassination of a student at Dawson College in Montreal. In her article, “Get Under the Desk”, Wong expressed a view that the shooting, along with two previous school shootings in Quebec, could be linked to the alienation of non-native Quebecois in the province. After publication, public outcry challenged the suggestion that Quebec society was obsessed with “racial purity”.

Wong became the target of hate mail, racial comments and even death threats. Many politicians and Quebec journalists denounced the article and demanded an apology. Wong refused to retract her view, and the Globe and Mail defended her on the basis of free speech. The Globe and Mail took the position that a journalist’s job is to ask hard questions and explore different ideas, even those which are controversial. Neither Wong nor the Globe and Mail apologized for the article.

Depression and Settlement

The personal attacks against Wong were relentless. Her mental health deteriorated, and she developed severe depression. She took sick leave from work between October 2006 and the spring of 2007. In April 2007, Wong went back to work but relapsed, and she took more time off work.

After refusing to pay sick leave between June and November of 2007, the Globe and Mail ordered Wong back to work in May 2008. They did not believe she was still sick or unable to work. Wong said she was still medically unfit to return to work. When she did not return, the Globe and Mail terminated her employment.

The court found the settlement agreement’s confidentiality clause was clear and unambiguous.Wong’s union grieved the unpaid sick leave and wrongful dismissal. After a few months of arbitration, the union and the Globe and Mail reached a settlement. The Globe and Mail agreed to pay Wong for the unpaid sick leave between June and November 2007 along with two years of salary for a total settlement of $209,912.

During the arbitration, Wong expressed her desire to write a book about her experience. The Globe and Mail demanded Wong keep the agreement confidential and not speak negatively about the Globe and Mail, in exchange for the payment.

In the settlement agreement, both parties agreed not to disclose the terms of the settlement and not to speak negatively of the other party for a period of approximately one year. If Wong breached the agreement, the agreement said the arbitrator could make a decision and could require Wong to return the $209,912.

“Out of the Blue” Trouble

Beginning in October 2010, publisher Doubleday advertised Wong’s new book, titled “Out of the Blue”. Wong commented on the Globe and Mail’s reasons for firing her in an article in Chatelaine magazine. The Globe and Mail contacted Doubleday to voice its concern about these comments. Doubleday chose to not publish the book after pressure from the Globe and Mail, but Wong went ahead and self-published the book in May 2012.

After the book’s publication, the Globe and Mail argued to the arbitrator that 23 phrases in Wong’s book violated the confidentiality provision in the settlement agreement. The arbitrator agreed that at least four phrases in the book (set out at the top of this article) were in breach of the agreement because they disclosed that the Globe and Mail had paid Wong to settle the case. The arbitrator ordered Wong to pay back the entire $209,912 she had received in the settlement.

In 2014, Wong appealed the arbitrator’s decision. Wong had thought she could still speak about the terms of the settlement as long as she did not reveal the exact amount paid. She further argued that, if she did breach the terms of settlement, the arbitrator should not have forced her to repay the full settlement amount as that constituted an oppressively punitive forfeiture provision. She argued that the arbitrator should not enforce the penalty because it was disproportionate to the harm caused and was penal in nature.

Decision on Appeal

All three judges dismissed Wong’s appeal and ordered her to pay costs of $15,000 to each of her former employer and the union. The court found the settlement agreement’s confidentiality clause was clear and unambiguous. It stated that the parties could not disclose the “terms of the settlement”, and Wong had disclosed a large lump sum payment had been made to her.

… both parties agreed not to disclose the terms of the settlement and not to speak negatively of the other party for a period of approximately one year.While the harm suffered by the Globe and Mail was intangible and hard to quantify, the court concluded the return of the settlement money was not excessive or punitive. Wong was not required to pay back what she received for unpaid sick leave. The repayment provision was not unconscionable. The union represented Wong during settlement negotiations with the Globe and Mail so there was equal bargaining power.

Moreover, Wong did not have standing to appeal the arbitrator’s decision because the settlement was between the union (on behalf of Wong) and the Globe and Mail, not Wong and the Globe and Mail.

Where Is Jan Wong Now?

Wong’s latest book, Apron Strings: Navigating Food and Family in France, Italy, and China, came out in 2017. It appears she currently lives in Fredericton, New Brunswick and is a professor in journalism at St. Thomas University. She writes for the Halifax Chronicle Herald and Toronto Life magazine, speaks on a variety of topics and issues, and promotes her latest book at readings and book signings across Canada.

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