Ratified treaty¹

Dismissal without just cause/ Order by an arbitrator charging the company to supply the worker’s potential employers with certain information/ Action brought for infringement of freedom of expression/ Use of international law as a guide for interpreting domestic law

A worker had been dismissed by his employer for professional inadequacy and an arbitrator had been appointed to settle the dispute. It transpired that the dismissal was the result of an intrigue by the employer to get rid of the worker. The arbitrator ordered the employer to pay a sum of money to the employee. He also required that in any correspondence between the former employer and any person wishing to engage the worker the employer mention the employee’s performance in the undertaking. And finally, the employer was ordered to inform any such person that an arbitration award had ruled that the worker’s dismissal had been devoid of valid grounds. The purpose of this measure was to prevent the former employer from damaging the worker’s career. The employer brought an action, considering that the arbitrator’s award violated his fundamental right to freedom of expression as recognized by the Canadian Charter of Rights and Freedoms.

In order to determine whether the worker’s right to find a new job could justify restriction of the former employer’s freedom of expression, the principal judge of the Supreme Court relied on international law, and the majority of the members of the bench followed suit.

“There are many diverse values that deserve protection in a free and democratic society such as that of Canada, only some of which are expressly provided for in the Charter. The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights. As was said in Oakes, supra, (…) among the underlying values essential to our free and democratic society are “the inherent dignity of the human person” and “commitment to social justice and equality”. Especially in light of Canada’s ratification of the International Covenant on Economic, Social and Cultural Rights, (1966), and commitment therein to protect, inter alia, the right to work in its various dimensions found in Article 6 of that treaty, it cannot be doubted that the objective in this case is a very important one. In Reference Re Public Service Employee Relations Act (Alta.), supra, I had occasion to say:

“The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of the “full benefit of the Charter’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”

(…) Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights. Furthermore, for purposes of this stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective. This is consistent with the importance that this Court has placed on the protection of employees as a vulnerable group in society.””

The same reasoning is to be found in the Supreme Court decision:

“In short, the adjudicator went no further than was necessary to achieve the objective. Finally, the effects of the measures were not so deleterious as to outweigh the objective of the measures. The objective in this case was a very important one, especially in light of Canada’s international treaty commitment to protect the right to work in its various dimensions. For purposes of this final stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective.”

The Supreme Court of Canada ruled that the fact that international instruments recognized the right to work demonstrated the fundamental nature of that right and that, consequently, the protection of that right could justify restricting the former employer’s freedom of expression. In this instance the Court refused to invalidate the arbitration award.

¹ International Covenant on Economic, Social and Cultural Rights, 1966.