Slaight Communications Inc. v. Davidson

Slaight Communications Inc. v. Davidson
Collection
Supreme Court Judgments
Date
1989-05-04
Report
[1989] 1 SCR 1038
Case number
19412
Judges
Dickson, Robert George Brian; Beetz, Jean; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Labour law
Notes
SCC Case Information: 19412
Decision Content
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038
Slaight Communications Incorporated
(operating as Q107 FM Radio) Appellant
v.
Ron Davidson Respondent
indexed as: slaight communications inc. v. davidson
File No.: 19412.
1987: October 8; 1989: May 4.
Present: Dickson C.J. and Beetz, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Freedom of expression -- Adjudicator ordering employer to give unjustly dismissed employee letter of recommendation with specified content -- Adjudicator also ordering employer to answer request for information about employee only by sending letter -- Whether orders infringe employer's freedom of expression guaranteed by s. 2 (b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of expression justifiable under s. 1 of Charter -- Canada Labour Code, R.S.C. 1970, c. L‑1, s. 61.5(9)(c).
Labour relations -- Unjust dismissal -- Jurisdiction of adjudicator ‑‑ Adjudicator ordering employer to give unjustly dismissed employee letter of recommendation with specified content -- Adjudicator also ordering employer to answer request for information about employee only by sending letter ‑‑ Whether s. 61.5(9)(c) of Canada Labour Code authorizes adjudicator to make such orders -- Whether orders infringe employer's freedom of expression guaranteed by s. 2 (b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of expression justifiable under s. 1 of Charter ‑‑ Whether orders unreasonable in administrative law sense.
Respondent had been employed by appellant as a "radio time salesman" for three and a half years when he was dismissed on the ground that his performance was inadequate. Respondent filed a complaint and an adjudicator appointed by the Minister of Labour under s. 61.5(6) of the Canada Labour Code held that respondent had been unjustly dismissed. Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on appellant an obligation to give respondent a letter of recommendation certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount of sales he actually made during this period; and (3) that an adjudicator had held that he was unjustly dismissed. The order specifically indicated the amounts to be shown as sales quotas and as sales actually made. A second order prohibited appellant from answering a request for information about respondent except by sending the letter of recommendation. The Federal Court of Appeal dismissed an application by appellant to review and set aside the adjudicator's decision. The purpose of the appeal at bar is to determine whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders; and in particular, whether the orders infringed appellant's freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms .
Held (Beetz J. dissenting and Lamer J. dissenting in part): The appeal should be dismissed. The orders infringe s. 2 (b) of the Charter but are justifiable under s. 1 .
The Charter applies to orders made by the adjudicator. The adjudicator is a creature of statute. He is appointed pursuant to a legislative provision and derives all his powers from statute. The Constitution is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. It is thus impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter , unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require this Court to declare the legislation to be of no force or effect, unless it could be justified under s. 1 of the Charter . It follows that an adjudicator, who exercises delegated powers, does not have the power to make an order that would result in an infringement of the Charter .
The word "like" in the English version of s. 61.5(9) (c) of the Canada Labour Code does not have the effect of limiting the powers conferred on the adjudicator by allowing him to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection. Interpreting this provision in this way would mean applying the ejusdem generis rule. It is impossible to apply this rule in the case at bar since one of the conditions essential for its application -- the presence of a common characteristic or common genus -- has not been met. The interpretation according to which the word "like" in the English version of para. (c) does not have the effect of limiting the general power conferred on the adjudicator is also more consistent with the general scheme of the Code, and in particular with the purpose of Division V.7, which is to give non‑unionized employees a means of challenging a dismissal they feel to be unjust and at the same time to equip the adjudicator with the powers necessary to remedy the consequences of such a dismissal.
Per Dickson C.J. and Wilson, La Forest and L'Heureux‑Dubé JJ.: The adjudicator's orders were reasonable in the administrative law sense. 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 , such as review of determinations of fact, 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 .
The adjudicator's first order infringed s. 2 (b) of the Charter but is saved under s. 1 .
The adjudicator's second order also infringed s. 2 (b) of the Charter . It was an attempt to prevent the appellant from expressing its opinion as to the respondent's qualifications beyond the facts set out in the letter. But this order, too, was justifiable under s. 1 . First, the objective was of sufficient importance to warrant overriding appellant's freedom of expression. Like the first order, the objective of the second order was to counteract the effects of the unjust dismissal by enhancing the ability of the employee to seek new employment without being lied about by the previous employer. The adjudicator's remedy was a legislatively‑sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee. The governmental objective, in a general sense, was that of protection of a particularly vulnerable group, or members thereof. To constitutionally protect freedom of expression in this case would be tantamount to condoning the continuation of an abuse of an already unequal relationship. Second, the means chosen were reasonable. Like the first order, the second order was rationally linked to the objective. With the proven history of promoting a fabricated version of the quality of respondent's service and the concern that the employer would continue to treat him unfairly if he went back to work for the employer, it was rational for the adjudicator to attach a rider to the order for a reference letter so as to ensure that the employer's representatives did not subvert the effect of the letter by unjustifiably maligning its previous employee in the guise of giving a reference. Further, no less intrusive measure could have been taken and still achieved the objective with any likelihood. Monetary compensation would not have been an acceptable substitute because it would only have been compensation for the economic, not the personal, effects of unemployment. Labour should not be treated as a commodity and every day without work as exhaustively reducible to some pecuniary value. The letter was tightly and carefully designed to reflect only a very narrow range of facts which were not really contested. The appellant was not forced to state opinions which were not its own. The prohibition was also very circumscribed. It was triggered only in cases when the appellant was contacted for a reference and there was no requirement to send the letter to anyone other then prospective employers. 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.
Per Lamer J. (dissenting in part): The adjudicator did not exceed his jurisdiction by ordering appellant to give respondent a letter of recommendation with a specified content. Apart from the Charter , the only limitation imposed by s. 61.5(9) (c) is that the order must be designed to "remedy or counteract any consequence of the dismissal". That is the case here. The order prevents appellant's decision to dismiss respondent from having negative consequences for the latter's chances of finding new employment. Ordering an employer to give a former employee a letter of recommendation containing only objective facts that are not in dispute is not as such unreasonable and there is nothing to indicate that the adjudicator was pursuing an improper objective or acting in bad faith or in a discriminatory manner.
However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a request for information about respondent other than by sending the letter of recommendation. Though the order is also meant to remedy or counteract the consequences of the dismissal, its effect, by prohibiting appellant from adding any comments whatever, is to create circumstances in which the letter could be seen as the expression of appellant's opinions. This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada. Parliament therefore cannot have intended to authorize such an unreasonable use of the discretion conferred by it. The adjudicator lost this jurisdiction when he made a patently unreasonable order.
The first order limits appellant's freedom of expression but this limitation, which is prescribed by law -- the order made by the adjudicator is only an exercise of the discretion conferred on him by statute -- can be justified under s. 1 of the Charter . The purpose of the order is clearly, as required by the Code, to counteract the consequences of the unjust dismissal. Such an objective is sufficiently important to warrant a limitation on freedom of expression. It is essential for the legislator to provide mechanisms to restore equilibrium in employer/employee relations so the employee will not be subject to arbitrary action by the employer. Additionally, the means chosen to attain the objective are reasonable in the circumstances. The order is fair and was carefully designed. The purpose of the letter of recommendation is to correct the false impression given by the fact of the dismissal and it contains only facts that are not in dispute. It is rationally connected to the dismissal since in certain cases it is the only way of effectively remedying the consequences of the dismissal. Finally, the consequences of the order are proportional to the objective sought. The latter is important in our society. The limitation on freedom of expression is not what could be described as very serious. It does not abolish that freedom, but simply limits its exercise by requiring the employer to write something determined in advance.
Per Beetz J. (dissenting): Except for the attestation relating to the unjust dismissal, the first order violated the appellant's freedoms of opinion and of expression and could not be justified under s. 1 of the Charter . This order forced the employer to write, as if they were his own, statements of facts in which, rightly or wrongly, he may not believe, or which he may ultimately find or think to be inaccurate, misleading or false. In short, the order may force the appellant to lie. To order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them constitutes a prima facie violation of the freedoms of opinion and expression. Such a violation was totalitarian in nature and could never be justified under s. 1 of the Charter .
The second order, coupled with the first, also violated the former employer's freedoms of opinion and of expression in a manner which was not justified under s. 1 of the Charter . The sending of the letter as drafted by the adjudicator, coupled with the prohibition to say or write anything else could lead to the implication that the former employer had no further comment to make upon the performance of the respondent and that, accordingly, the letter reflected the opinion of the former employer. In any event, the second order was disproportionate and unreasonable. One should view with extreme suspicion an administrative order or even a judicial order which has the effect of preventing the litigants from commenting upon and even criticizing the rulings of the deciding board or court.
Further, in cases of unjust dismissal, the issuance by an adjudicator of a blanket and perpetual prohibition against a former employer to write or say anything to a prospective employer but what the adjudicator has dictated in the letter of recommendation can lead to absurd and even counter‑productive results. The adjudicator cannot foresee all the possible types of exchanges which are susceptible to occur between former and prospective employers. The absurdity which results from the adjudicator's second order is sufficient to warrant its reversal. If it is disproportionate and unreasonable from a practical point of view, then it has to be unreasonable from an administrative law point of view and it is difficult to conceive how it could be reasonable within the meaning of s. 1 of the Charter .
Cases Cited
By Dickson C.J.
Distinguished: National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; referred to: Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
By Lamer J. (dissenting in part)
National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; R. v. Oakes, [1986] 1 S.C.R. 103.
By Beetz J. (dissenting)
National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Reference re Alberta Statutes, [1938] S.C.R. 100.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1970, c. L‑1, s. 61.5(6) [ad. 1977‑78, c. 27, s. 21], 61.5(9)(a), (b), (c) [idem].
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 52(d).
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, Doc. A/6316 U.N. (1966), s. 6.
Authors Cited
Beatty, David M. "Labour is not a Commodity". In Barry J. Reiter and John Swan, eds. Studies in Contract Law. Toronto: Butterworths, 1980.
Côté, Pierre‑André. The Interpretation of Legislation in Canada. Cowansville: Yvon Blais Inc., 1984.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Kahn‑Freund, Sir Otto. Kahn‑Freund's Labour and the Law, 3rd ed. By Paul Davies and Mark Freedland. London: Stevens & Sons, 1983.
Maxwell, Sir Peter B. Maxwell on the Interpretation of Statutes, 12th ed. London: Sweet & Maxwell, 1969.
Wade, H. W. R. Administrative Law, 4th ed. Oxford: Clarendon Press, 1977.
APPEAL from a judgment of the Federal Court of Appeal, [1985] 1 F.C. 253, 58 N.R. 150, 85 C.L.L.C. {PP} 14,053, dismissing appellant's application pursuant to s. 28 of the Federal Court Act to set aside an order made by an adjudicator under s. 61.5(9) (c) of the Canada Labour Code . Appeal dismissed, Beetz J. dissenting and Lamer J. dissenting in part.
Brian A. Grosman, Q.C., and John Martin, for the appellant.
Morris Cooper and Fern Weinper, for the respondent.
//The Chief Justice//
The judgment of Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ. was delivered by
THE CHIEF JUSTICE --
I
The respondent, Mr. Ron Davidson, a radio time salesman, was dismissed by his employer, the appellant, Slaight Communications Incorporated, operating as Q107 FM Radio. A complaint was filed by Mr. Davidson under the Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C. 1977-78, c. 27, s. 21, and an inquiry undertaken. As the matter could not be resolved or settled, Mr. Edward B. Joliffe, Q.C., was appointed by the Minister of Labour to act as adjudicator and to render a decision in accordance with the provisions of subss. (6) to (9) of s. 61.5, Division V.7, Part III of the Canada Labour Code . Two days of hearings were held in Toronto. Twelve days later, Mr. Joliffe received a letter, written on behalf of the employer, requesting Mr. Joliffe to consider reopening the adjudication because, the letter read in part, ". . . our client has advised us that it is in possession of certain material which may indicate that Mr. Davidson perjured his testimony before you in one or more respects." Mr. Joliffe demanded particulars of this very serious allegation. The company's counsel failed to comply. The application for another hearing was dismissed.
Adjudicator Joliffe reviewed at length the evidence of Ms. Stitt. Ms. Stitt was the sole witness on behalf of the employer and at the relevant time she was general sales manager of the company, though later dismissed. The adjudicator noted:
In Ms. Stitt's letter to Labour Canada of February 27, 1984 . . . she specified that the "major complaint" was Mr. Davidson's failure to achieve "monthly sales budgets since October of 1983." To select four months (or less) from a total of 43 months of service as evidence of unsatisfactory service is obviously specious.
Later in his ruling the adjudicator stated:
From first to last Ms. Stitt's attitude faithfully reflected the advice she attributes to Mr. Gary Slaight: "If he failed to make budget, I'd hear about it. If he made it, the complaint would be that he could do more." By this perverse logic it appears that the more Mr. Davidson sold, the more unacceptable his performance. Such absurd statements led this adjudicator to suggest disclosure of "the real reason for dismissal," but there was no response.
He concluded:
An attempt has been made in this case to prove unsatisfactory performance as just cause for dismissal. The attempt has failed. I find that Mr. Davidson was dismissed without just cause.
Mr. Joliffe then turned his attention to the question of an appropriate remedy, quoting subs. (9) of s. 61.5 as follows:
61.5. . . .
(9) Where an adjudicator decides pursuant to subsection (8) that a person has been unjustly dismissed, he may, by order, require the employer who dismissed him to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) 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.
He ordered payment of $46,628.96 plus interest and legal costs of $2,500. He made a further order, which is central to this appeal, reading:
Under the power given me by paragraph (c) in subsection (9) of Section 61.5, I further order:
That the employer give the complainant a letter of recommendation, with a copy to this adjudicator, certifying that:
(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.
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.
An appeal by the employer to the Federal Court of Appeal was dismissed (Urie and Mahoney JJ., Marceau J. dissenting): [1985] 1 F.C. 253.
The question to be decided by this Court is whether para. (c) of s. 61.5(9) of the Canada Labour Code authorizes the adjudicator to order the employer to give the employee a letter of reference of specified content and to order the employer to say nothing further about the employee. Paragraph (c), it will be recalled, reads:
(c) 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.
(c) de faire toute autre chose qu'il juge équitable d'ordonner afin de contrebalancer les effets du congédiement ou d'y remédier.
Resolution of the problem involves (1) the construction and the true meaning and effect of para. (c), (2) whether the adjudicator's order in this case infringed freedom of expression under s. 2 (b) of the Canadian Charter of Rights and Freedoms , and (3) if so, whether the infringement is justified under s. 1 of the Charter .
Two constitutional questions were stated in this appeal as follows:
1.Do the provisions of the adjudicator's order, pursuant to s. 61.5(9) of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended, whereby the appellant was ordered to provide the respondent with a letter of recommendation of specified content combined with the further stipulation that any communication to the appellant relating to the respondent's employment with the appellant be answered exclusively by sending or delivering a copy of the letter of recommendation, infringe or deny the rights and freedoms guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms ?
2.If the provisions of the adjudicator's order infringe or deny the rights and freedoms guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms , are they justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
II
The Relationship Between Administrative Law Review and Review Under the Charter
I have had the benefit of reading the opinion of Justice Lamer and I am in complete agreement with his discussion of the applicability of the Charter to administrative decision-making. I also agree with his conclusion that the positive order made by adjudicator Joliffe (to draw up and to give the respondent a specified letter of reference) infringes s. 2 (b) of the Charter but is saved by s. 1 . However, with regard to the negative order (that any inquiry about the respondent's employment at Q107 be answered exclusively by the letter of reference which is the subject of the positive order), I must respectfully disagree with the conclusion of Lamer J. that it is patently unreasonable, thereby obviating the need to consider the Charter . Furthermore, not only am I of the view that the negative order is reasonable in the administrative law sense but I also believe that it is reasonable and demonstrably justified in the sense of s. 1 of the Charter .
I agree with Mahoney J. of the Federal Court of Appeal, at pp. 260-61, that:
The ordering of provision of a totally factual letter of recommendation and foreclosing the undermining of its effect which, in the circumstances disclosed by the evidence, was patently foreseeable, seems to me to be an equitable remedial requirement. It is not punitive. It is appropriate redress to the wronged employee without, in any way, injuring the employer. In my view, the order was authorized by paragraph 61.5(9)(c).
The 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. A few comments nonetheless may be in order. 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 , such as review of determinations of fact (see Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at pp. 494-95), 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. It seems to me that had Lamer J. gone on to conduct a s. 1 inquiry, his excellent analysis of the contending values in the context of the positive order would have been equally applicable to the negative order which he has instead found to be patently unreasonable.
I agree with Lamer J. that the order in this case is considerably different from that at issue in National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269, and, therefore, the determination by Beetz J. that the letter in question in National Bank was patently unreasonable is not applicable to the facts of this case. The focus of condemnation in National Bank was on the "compelling [of] anyone to utter opinions that [were] not his own" (per Beetz J., at p. 296) which was exacerbated by the wide publication of the letter -- to all employees and management staff of the bank. That is not this case. As the adjudicator noted here, there was no real conflict of evidence about the accounts and reports.
III
The Negative Order and Section 2 (b) of the Charter
Adjudicator Joliffe's order that Slaight Communications Inc. answer any reference inquiry exclusively by sending the specified letter is an infringement of s. 2 (b) freedom of expression. The government is attempting to prevent Q107 from expressing its opinion as to the qualifications of Mr. Davidson beyond the facts set out in the letter. The harm that it was aiming to prevent, decreased job prospects for Mr. Davidson, is only relevant to s. 1 analysis and not to s. 2 (b) analysis.
IV
Section 1 of the Charter
The basic test for s. 1 analysis formulated in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-39, has been reviewed in the reasons of Lamer J. and need not be reproduced here.
1. Importance of the Objective
I am in firm agreement with the conclusions of Lamer J. about the importance of the objective sought to be achieved by the positive order, namely, counteracting the effects of the unjust dismissal by enhancing the ability of the employee to seek new employment without being lied about by the previous employer. This is also the objective of the negative order which, in the words of Mahoney J. in the Federal Court of Appeal, at p. 260, was designed to "forclos[e] the undermining of [the] effect" of the positive order. Both orders seek to achieve the same goal, the negative order complementing and reinforcing the positive order.
It cannot be overemphasized that the adjudicator's remedy in this case was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee. Thus, in a general sense, this case falls within a class of cases in which the governmental objective is that of protection of a particularly vulnerable group, or members thereof. In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, I stated for the majority at p. 779:
In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons. When the interests of more than seven vulnerable employees in securing a Sunday holiday are weighed against the interests of their employer in transacting business on a Sunday, I cannot fault the Legislature for determining that the protection of the employees ought to prevail.
Consistent with the above view of the place of the Charter , I can think of no better way to describe the employment relationship than as expressed in Davies and Freedland, Kahn-Freund's Labour and the Law (3rd ed. 1983), at p. 18:
[T]he relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination . . . The main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship. Most of what we call protective legislation -- legislation on the employment of women, children and young persons, on safety in mines, factories, and offices, on payment of wages in cash, on guarantee payments, on race or sex discrimination, on unfair dismissal, and indeed most labour legislation altogether -- must be seen in this context. It is an attempt to infuse law into a relation of command and subordination.
The objective of both the positive and negative orders made by adjudicator Joliffe is sensitive to the reality identified by Kahn-Freund, Davies and Freedland. The courts must be just as concerned to avoid constitutionalizing inequalities of power in the workplace and between societal actors in general. It must be recalled that Oakes, supra, at p. 136, stated that "[t]he underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified." As long as the proportionality test is met, it would not, on the facts of this case, be in accordance with those underlying principles and values for the Charter to be successfully invoked by an employer. The inequality in one employment relationship would be continued even after its termination with the result that the worker looking for a new job would be placed in an even more unequal bargaining position vis-à-vis prospective employers than is normally the case. On the facts of this case, constitutionally protecting freedom of expression would be tantamount to condoning the continuation of an abuse of an already unequal relationship.
2. Proportionality
(a) Rational Connection
The negative order is very much rationally linked to the objective, no less than the positive order. The adjudicator was plainly of the view that the respondent had been the subject of some kind of personal vendetta or "set-up", as Mahoney J. termed it, supra, at p. 258, which had been initiated by the employer's general manager and executed by its sales manager, the latter of whom was Mr. Davidson's immediate superior.
As I have indicated, the representative of the employer was found to have engaged in bad faith and duplicitous conduct, giving misleading evidence about the Mr. Davidson's work performance both at the time of his dismissal and during the unjust dismissal hearing. Further, in deciding that reinstatement was not a viable remedy, the adjudicator gave as his reason that "[t]here is no sign that he would receive fair treatment by an employer which has made such vigorous efforts to justify the indefensible". With this proven history of promoting a fabricated version of the quality of Mr. Davidson's service and the concern that the employer would continue to treat him unfairly if he went back to work for the employer, it was rational for the adjudicator to attach a rider to the order for a reference letter so as to ensure that representatives of the employer did not subvert the effect of the letter by unjustifiably maligning its previous employee in the guise of giving a reference.
(b) Minimal Impairment
In my view, there was no less intrusive measure that the adjudicator could have taken and still have achieved the objective with any likelihood. To the extent there was a likelihood that representatives of Q107 would not be content to pass on the letter of reference absent the kind of untrue comments that had resulted in the finding of unjust dismissal, the letter of reference would have been rendered illusory to the same degree of likelihood.
While an order of additional monetary compensation would clearly be less intrusive upon the appellant's freedom of expression, it would not be an acceptable substitute. Even if the adjudicator had ordered that the Mr. Davidson could come back once he had secured a job and be granted compensation, above and beyond unemployment insurance, for the actual period out of work, this would only be compensation for the economic effects of lack of employment not the personal effects. This is directly contrary to the objective sought to be achieved by the order, which is securing new employment in the shortest order possible; the corollary of this objective is, of course, a concern to alleviate the personal problems associated with being out of work. As Professor Beatty puts it in "Labour is not a Commodity" in Reiter and Swan, eds., Studies in Contract Law (1980), at pp. 323-24:
The personal meaning of work is seen to go beyond rather than to be completely dependent upon the purposes of production . . . [R]eflecting the characterization of humans as, for the most part, doers and makers, the identity aspect of employment is increasingly seen to serve deep psychological needs . . . It recognizes the importance of providing the members of society with an opportunity to realize some sense of identity and meaning, some sense of worth in the community beyond that which can be taken from the material product of the institution . . . [E]mployment is seen as providing recognition of the individual's being engaged in something worthwhile . . . [E]mployment comes to represent the means by which most members of our community can lay claim to an equal right of respect and of concern from others. It is this institution through which most of us secure much of our self-respect and self-esteem. With such an emphasis on contributing to society one avoids the demoralization that inevitably attends idleness and exile, even when it is assuaged by social assistance.
Monetary compensation can only be an alternative measure if labour is treated as a commodity and every day without work seen as being exhaustively reducible to some pecuniary value. As I had occasion to say in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368, "[a] person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being." Viewing labour as a commodity is incompatible with such a perspective, which is reflected in the remedial objective chosen by the adjudicator. To posit monetary compensation as a less intrusive measure is, in effect, to challenge the legitimacy of the objective.
Consider the facts of this particular case. The letter was tightly and carefully designed to reflect only a very narrow range of facts which, we saw, were not really contested. As already discussed, unlike in National Bank, supra, the employer has not been forced to state opinions ("views and sentiments", per Beetz J., at p. 295) which are not its own. Rather, the negative order seeks to prevent the employer from passing on an opinion, such prohibition being closely tied to the history of abuse of power which had been found to exist. Furthermore, that prohibition is very circumscribed. Firstly, it is triggered only in cases when the appellant is contacted for a reference and, secondly, there is no requirement to send the letter to anyone other then prospective employers. In sum, this is a much less intrusive and carefully designed order than that in National Bank in which the bank was required to send to a very large audience (all the employees and management staff of the bank) what amounted to a letter of contrition which conveyed the impression that certain opinions expressed therein were those of the employer.
Finally, it cannot be ignored that a letter such as this may not have a great beneficial impact on an employee's job hunt. The letter is very neutral in tone, totally unembellished as it is by any opinion customary in letters of reference, and it refers to the fact of the finding of unjust dismissal. It seems to me that the adjudicator went no further than was necessary to achieve the objective and, even then, the measures adopted by the adjudicator cannot be said to have done more than to have enhanced, as opposed to having ensured, the chances of the respondent finding a job. The adjudicator did not in any sense pursue the objective without regard to the appellant's right to free expression.
(c) Deleterious Effects
It is clear to me that the effects of the measures are not so deleterious as to outweigh the objective of the measures. The importance of the above-discussed objective cannot be overemphasized. 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, at p. 136, 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, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (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 at p. 349:
The content of Canada's international human rights obligations is, in my view, an important in