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Summary

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Canadian Charter of Rights and Freedoms - Labour relations - Policy grievance - Collective agreement - Management rights - Challenge to employer’s directive requiring counsel to be on standby to respond to or present stay applications in Federal Court outside work hours - Whether directive requiring counsel to be available outside their contractual time and outside of places under employer’s control infringes right to liberty protected by s. 7 of Charter and incorporated into art. 6 of collective agreement - Whether directive requiring counsel to be available outside their contractual time and outside of places under employer’s control is unreasonable or unfair and infringes art. 5 of collective agreement.

Since the early 1990s, the employer, the Immigration Law Directorate of the Quebec Regional Office of the Department of Justice Canada (ILD), has required its counsel to perform standby duty, generally from 5:00 to 9:00 p.m. on weekdays and from 9:00 a.m. to 9:00 p.m. on weekends, to respond to or present stay applications in the Federal Court. Before April 1, 2010, standby duty was voluntary for counsel, who were compensated through management leave based on the number of days spent on standby, regardless of whether there was an emergency. Starting on April 1, 2010, the employer informed its employees that they would no longer be compensated for their standby hours. They would be paid in cash or compensatory time off only for the hours they worked in the evenings and on weekends. In response to that announcement, counsel stopped volunteering. The employer’s reaction was to require that all counsel be available for standby duty an average of one to three times a year, on a rotational basis, with authorization to arrange for replacements with one another. On May 18, 2010, the appellant, the Association of Justice Counsel, filed a policy grievance challenging the employer’s new directive requiring standby duty outside normal work hours.

Lower Court Rulings