Chagnon v. Syndicat de la fonction publique et parapublique du Québec

Chagnon v. Syndicat de la fonction publique et parapublique du Québec
Collection
Supreme Court Judgments
Date
2018-10-05
Neutral citation
2018 SCC 39
Report
[2018] 2 SCR 687
Case number
37543
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Quebec
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687
Appeal Heard: March 15, 2018 Judgment Rendered: October 5, 2018 Docket: 37543
Between:
Jacques Chagnon, in his capacity as President of the National Assembly of Québec
Appellant
and
Syndicat de la fonction publique et parapublique du Québec
Respondent
- and -
Honourable Serge Joyal, P.C., and Speaker of the Legislative Assembly of Ontario
Interveners
Official English Translation: Reasons of Côté and Brown JJ.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 58)
Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Gascon and Martin JJ. concurring)
Concurring Reasons: (paras. 59 to 75)
Rowe J.
Joint Dissenting Reasons: (paras. 76 to 165)
Côté and Brown JJ.
Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687
Jacques Chagnon, in his capacity as President
of the National Assembly of Québec Appellant
v.
Syndicat de la fonction publique et parapublique du Québec Respondent
and
Honourable Serge Joyal, P.C., and
Speaker of the Legislative Assembly of Ontario Interveners
Indexed as: Chagnon v. Syndicat de la fonction publique et parapublique du Québec
2018 SCC 39
File No.: 37543.
2018: March 15; 2018: October 5.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for quebec
Constitutional law — Parliamentary privilege — Scope of privilege — Security guards dismissed by President of National Assembly of Québec — Union grieving dismissals before labour arbitrator — President objecting to grievances on basis that decision to dismiss guards immune from review because of parliamentary privilege over management of employees and parliamentary privilege to exclude strangers — Whether President has established that either parliamentary privilege is necessary for National Assembly to discharge legislative mandate and therefore dismissals should be immune from arbitrator’s review — Act respecting the National Assembly, CQLR, c. A‑23.1, ss. 110, 120.
Three security guards employed by the National Assembly of Québec were dismissed by the President of the National Assembly for using their employer’s cameras to observe activities inside nearby hotel rooms. Their union grieved their dismissals before a labour arbitrator. The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the legislative assembly. The arbitrator concluded that the dismissals were not protected by either parliamentary privilege, and therefore that the grievances could proceed. The reviewing judge agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, but found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. A majority of the Court of Appeal held that the arbitrator had correctly concluded that the dismissals were not protected by parliamentary privilege.
Held (Côté and Brown JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.: The dismissals are not protected by parliamentary privilege and therefore are not immune from external review under the applicable labour relations regime. Although the President is entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, parliamentary privilege does not insulate the President’s decision from review under the labour regime to which the guards are subject.
Legislative bodies in Canada, including provincial legislative assemblies, have inherent parliamentary privileges that flow from their nature and function in a Westminster model of parliamentary democracy. Inherent parliamentary privileges help preserve the separation of powers and promote the proper functioning of representative democracy, by protecting some areas of legislative activity from external review. However, the inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored to its rationale. It is the role of the courts to determine whether a category of parliamentary privilege exists and to delimit its scope, whereas it is for the legislative assemblies to determine whether in a particular case the exercise of the privilege is necessary or appropriate. The scope of parliamentary privilege is delimited by the purposes it serves, and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business. Because courts cannot review the exercise of parliamentary privileges, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by a privilege does not exceed its purpose. Therefore, a purposive approach must be taken when assessing parliamentary privilege claims. Such an approach helps to reconcile the privilege with the Charter , by ensuring that it is only as broad as is necessary for the proper functioning of a constitutional democracy.
The party seeking to rely on the immunity from external review conferred by parliamentary privilege bears the burden of establishing its necessity, that is, to demonstrate that the scope of the protection it claims is necessary in light of the purposes of parliamentary privilege. The necessity test demands that the sphere of activity over which the privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role.
In this case, the standard of review applicable to the decision of the arbitrator is correctness. The arbitrator correctly concluded that the President’s decision to dismiss the security guards is not subject to parliamentary privilege. First, the President has failed to establish the necessity of a parliamentary privilege over the management of the guards. Admittedly, the guards perform some important tasks that are connected to the constitutional functions of the National Assembly, including protecting it from security threats and helping to maintain decorum in the chamber. However, the National Assembly does not require immunity from outside scrutiny of the general management of the security guards in order to discharge its constitutional functions. The management of the guards could be dealt with under ordinary law without impeding the National Assembly’s security or its ability to legislate and deliberate. Permitting the enforcement of basic employment and labour protections for the guards would not undermine the independence required for the National Assembly to fulfil its constitutional mandate with dignity and efficiency.
The question of necessity can be addressed without looking to the Act respecting the National Assembly (“ARNA”). However, while nothing in the legislation abrogates parliamentary privilege, the ARNA establishes that all employees of the National Assembly are managed in accordance with general law. Sections 110 and 120 of the ARNA provide that the employees of the National Assembly are members of the civil service and, as such, are generally subject to a labour relations regime unless they are exempted by regulation. As there is currently no regulatory exemption for the security guards, this demonstrates that the National Assembly does not appear to view exclusive control over their management to be necessary to its autonomy.
As for the parliamentary privilege to exclude strangers, while the existence of this privilege has long been recognized, it is not necessary to a legislative assembly’s ability to perform its constitutional functions that the scope of the privilege be drawn so broadly as to include the decision to dismiss employees who implement it on the president or speaker’s behalf. Such an immunity would impact persons who are not members of the legislative assembly, and undermine their access to the labour regime negotiated in accordance with their s. 2 (d) Charter rights. The President has not shown that the application of general labour law to those persons would jeopardize the autonomy, dignity and efficiency required for the fulfilment of the National Assembly’s legislative mandate. Accordingly, the privilege to exclude strangers does not protect the decision to dismiss employees who exercise the privilege from review.
Per Rowe J.: There is agreement that the standard of review is correctness and agreement with the majority that the appeal should be dismissed but for different reasons. Whatever the scope of privilege for management of employees, the Act respecting the National Assembly (“ARNA”) resolves this case. When a legislative body subjects an aspect of privilege to the operation of a statute, it is the provisions of the statute that govern. While those provisions remain operative, a legislative body cannot reassert privilege so as to do an end-run around the statute whose very purpose is to govern the legislature’s operations. Parliamentary privilege should not be invoked to bypass the application of a statute enacted by the legislature to govern its own operation. It is not an impediment to the functioning of the legislature for it to comply with its own enactments, and it cannot be regarded as an intrusion on the legislature’s privilege.
The relationship between statute and privilege is determined through ordinary principles of statutory interpretation. In this case, in the ARNA, the National Assembly has defined how the management of its employees is to be carried out under the public service employment scheme. If the National Assembly wants a group of employees to be removed from this scheme, it can do so through the derogation procedure referred to in s. 120 of the ARNA. Privilege would then again operate, provided that the employees fell within the scope of privilege.
As the derogation procedure under s. 120 has not been exercised in this case with respect to the security guards, the President cannot now reassert privilege as to the management of the guards, and thereby insulate the decision to dismiss them from the scrutiny of the grievance arbitrator. It would be contrary to the decision of the National Assembly set out in the ARNA for the President to exercise authority over the management of employees on a case by case basis, nominally in the exercise of privilege. Accordingly, the arbitrator did not err in determining that he could hear the grievances.
Per Côté and Brown JJ. (dissenting): There is agreement with the majority that the applicable standard of review is correctness because the existence and scope of parliamentary privileges raise a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. The correctness standard also applies because the existence and scope of parliamentary privileges raise a constitutional issue.
However, there is disagreement with the majority’s disposition of this appeal. The parliamentary privileges at issue defeat the grievance arbitrator’s jurisdiction. The appeal should therefore be allowed and the grievances dismissed.
The jurisdiction of the courts with respect to parliamentary privileges is narrow — they can only ascertain the existence and scope of such privileges. They must give considerable deference to the view taken by legislative assemblies and their speakers or presidents of the scope of autonomy they consider necessary to fulfill their functions. The courts must rely on the necessity test to ascertain the existence and scope of privileges. This test is concerned with a sphere of the legislative body’s activity that will be excluded from the ordinary law. The onus is on the legislative assembly to show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. In the analysis of the necessity test, the sphere of activity must not be carved up — the analysis must not focus on each employee’s specific tasks, but rather on the sphere of activity and the category of employees. Once the courts have found that the sphere of activity and the category of employees are necessary to the proper functioning of the legislative assembly, the inquiry ends, since the privilege has been established. There is thus no need to consider whether grievance arbitration may interfere with the proper functioning of the assembly or jeopardize the dignity of the institution.
Security is one of the spheres of activity necessary to proceedings in an assembly. In a parliamentary democracy, there can be no free debate without security. In order for any legislative assembly to perform its constitutional functions with dignity and efficiency, it is essential that it operate in a secure environment. Security is therefore a sphere of activity that is protected by absolute parliamentary privileges. All decisions relating to security fall within this sphere of activity, including all tasks performed by an assembly’s security guards.
This case lies at the intersection of the two privileges claimed. All of the tasks performed by the security guards employed by the Assembly fall within a sphere of activity that is necessary to the proper functioning of the Assembly, namely security. This is enough in itself to establish the management privilege. In addition, the guards exercise, in particular, the privilege to exclude strangers on the President’s behalf. Employees to whom the exercise of a recognized parliamentary privilege is delegated necessarily perform a function that is closely and directly connected with the Assembly’s activities. The connection required to ground a management privilege will therefore be established where it is shown that a category of employees exercises or participates in exercising a parliamentary privilege that is recognized and necessary. Accordingly, the labour relations of such employees fall within the scope of the privilege over the management of employees, and a decision concerning their dismissal is made in the exercise of this privilege. The dismissal of an employee to whom a privilege has been delegated is the ultimate exercise of the management privilege. To preserve the integrity of the privileges of the Assembly and its members, the President must be able to manage the employees who exercise these privileges without having his or her decisions called into question. The courts cannot dictate to the Assembly how it must go about ensuring the security of its members within its walls by forcing it to employ people the President no longer trusts. If a grievance arbitrator could review the President’s decision to terminate the guards’ employment, this would mean that part of the exercise of the President’s own duties becomes de facto reviewable by a court or tribunal and therefore that the Assembly would lose control over decisions concerning its security.
The privileges claimed in this case were not abolished with the coming into force of the ARNA, and the Assembly did not waive its privilege in relation to the employees concerned by enacting this statute. The courts must respect the view taken by a speaker or president of a statute dealing with the internal affairs of a legislative assembly. The interpretation proposed by the President of the Assembly must therefore be given predominant weight in determining whether the Assembly intended to limit its privileges.
The ARNA governs the internal affairs of the Assembly, which are outside the scope of the courts’ jurisdiction. The preamble to the ARNA recognizes that the Assembly must protect its proceedings from all interference. Section 110 of the ARNA states that the Assembly shall continue to be managed within the scope of the Acts, regulations and rules applicable. Except in cases where the Assembly has expressly provided otherwise, the Acts, regulations and rules of the ordinary law have never applied to a sphere of activity that is subject to parliamentary privileges. The ordinary law that continues to apply to the Assembly is thus necessarily defined by privilege, which has been a constant in Canada’s constitutional history.
Section 120 of the ARNA deals with the power of the Office of the Assembly to exclude categories of employees from the personnel of the civil service and with the management powers granted to the Secretary General, but it does not mention the President’s privileges. It is not clear that this provision implicitly abolishes the privilege over the management of the Assembly’s employees by incorporating them into the public service or that it partially withdraws the privilege to exclude strangers from the President. Given that the Court has recognized that parliamentary privileges have constitutional status, the statute must be interpreted in such a way that it does not implicitly abrogate these privileges. It is undesirable to adopt an interpretation to the effect that the Assembly implicitly considers a privilege unnecessary, thereby denying its existence. More is needed to abrogate a constitutional privilege. Without requiring express language in the ARNA, the modern approach to statutory interpretation does require clear, unequivocal legislative intent to abolish or modify parliamentary privileges that are still necessary. In the end, the ARNA does not have the effect of limiting the privileges held by the President, who may assert them when deemed necessary, and courts and tribunals cannot assume jurisdiction without a clear indication that the Assembly has conferred it on them. Interference by courts or tribunals would be inconsistent with the Assembly’s sovereignty.
Cases Cited
By Karakatsanis J.
Applied: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; referred to: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Jerusalem v. Austria, No. 26958/95, ECHR 2001‑II; Gravel v. United States, 408 U.S. 606 (1972); A. v. the United Kingdom, No. 35373/97, ECHR 2002‑X; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Payson v. Hubert (1904), 34 S.C.R. 400.
By Rowe J.
Referred to: Fielding v. Thomas, [1896] A.C. 600; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; Reference re the Final Report of the Electoral Boundaries Commission, Re, 2017 NSCA 10, 411 D.L.R. (4th) 271; Association des juristes de l’État v. Québec (Procureur général), 2013 QCCA 1900; Québec (Procureur général) v. Confédération des syndicats nationaux, 2011 QCCA 1247; Michaud v. Bissonnette, 2006 QCCA 775; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016.
By Côté and Brown JJ. (dissenting)
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Case of the Sheriff of Middlesex (1840), 11 Ad. & E. 273, 113 E.R. 419; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Kielley v. Carson (1842), 4 Moo. 63, 13 E.R. 225; Landers v. Woodworth (1878), 2 S.C.R. 158; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; President of the Legislative Council v. Kosmas, [2008] SAIRC 41, 175 I.R. 269; Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170; Payson v. Hubert (1904), 34 S.C.R. 400; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161; Association des juristes de l’État v. Québec (Procureur général), 2013 QCCA 1900; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661.
Statutes and Regulations Cited
Act respecting the National Assembly, CQLR, c. A‑23.1, preamble, ss. 87, 88, 110, 110.2, 116, 120.
Bill of Rights (Eng.), 1 Will. & Mar. Sess. 2, c. 2, art. 9.
Canadian Charter of Rights and Freedoms, s. 2 (b), (d).
Constitution Act, 1867 , preamble, s. 92(1) .
Constitution Act, 1982, s. 45 .
Constitution of France, art. 26.
Constitution of India, arts. 105, 194.
Constitution of Italy, art. 68.
Employment Protection Act 1975 (U.K.), 1975, c. 71, s. 122(3).
Legislature Act, R.S.Q. 1964, c. 6, s. 55.
Public Administration Act, CQLR, c. A‑6.01, s. 36.
Public Service Act, CQLR, c. F‑3.1.1, ss. 16, 17, 37, 64.
Regulation respecting ethics and discipline in the public service, CQLR, c. F‑3.1.1, r. 3.
United States Constitution, art. I, § 6(1).
Authors Cited
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Chaplin, Steven R. “House of Commons v. Vaid: Parliamentary Privilege and the Constitutional Imperative of the Independence of Parliament” (2009), 2 J.P.P.L. 153.
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APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Morin and Bélanger JJ.A.), 2017 QCCA 271, 20 Admin L.R. (6th) 93, [2017] AZ‑51367748, [2017] J.Q. no 1274 (QL), 2017 CarswellQue 1071 (WL Can.), setting aside a decision of Bolduc J., 2015 QCCS 883, [2015] AZ‑51156941, [2015] J.Q. no 1752 (QL), 2015 CarswellQue 1786 (WL Can.), allowing an application for judicial review of an arbitrator’s decision, 2014 QCTA 696, [2014] AZ-51104370. Appeal dismissed, Côté and Brown JJ. dissenting.
François LeBel, Siegfried Peters and Ariane Beauregard, for the appellant.
Geneviève Baillargeon‑Bouchard and Pascale Racicot, for the respondent.
Serge Joyal and David Taylor, for the intervener the Honourable Serge Joyal, P.C.
Catherine Beagan Flood, Emily Hazlett and Christopher DiMatteo, for the intervener the Speaker of the Legislative Assembly of Ontario.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, and Martin JJ. was delivered by
Karakatsanis J. —
I. Overview
[1] Legislative bodies in Canada have inherent parliamentary privileges which flow from their nature and function in a Westminster model of parliamentary democracy. By shielding some areas of legislative activity from external review, parliamentary privilege helps preserve the separation of powers. It grants the legislative branch of government the autonomy it requires to perform its constitutional functions. Parliamentary privilege also plays an important role in our democratic tradition because it ensures that elected representatives have the freedom to vigorously debate laws and to hold the executive to account.
[2] However, inherent privileges are limited to those which are necessary for legislative bodies to fulfil their constitutional functions. The inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored to its rationale. Because courts cannot review the exercise of parliamentary privilege, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by privilege does not exceed the purpose of this doctrine. This case illustrates the importance of taking a purposive approach when assessing parliamentary privilege claims.
[3] The appellant, the President of the National Assembly of Québec, submits that his decision to dismiss three security guards employed by the National Assembly is protected by parliamentary privilege; an arbitrator therefore has no jurisdiction to hear the grievances brought by the respondent union to contest the dismissals. The President says that these employees’ dismissals are immune from external review because they fall within the scope of the parliamentary privilege over the management of employees and the privilege to exclude strangers from the National Assembly.
[4] I conclude that the dismissals are not protected by parliamentary privilege. The President has failed to demonstrate that the management of the security guards is so closely and directly connected to the Assembly’s constitutional functions that the Assembly requires immunity from the applicable labour relations regime in order to fulfil these functions. Moreover, the Act respecting the National Assembly, CQLR, c. A-23.1 (ARNA), provides that the employees of the National Assembly are members of the civil service and, as such, they are generally subject to a labour relations regime unless they are exempted by regulation under the Public Service Act, CQLR, c. F-3.1.1, s. 64. There is currently no regulatory exemption for the guards or any of the Assembly’s other employees. The ARNA thus demonstrates that the Assembly does not need exclusive, unreviewable authority over the management of its security guards in order to perform its constitutional role with dignity and efficiency. Further, while the exclusion of strangers is protected by parliamentary privilege, the Assembly’s ability to carry out its constitutional mandate does not require the scope of this privilege to extend so far as to protect the decision to terminate employees who assist in excluding strangers. The President has not established that the immunity he claims is necessary.
[5] For the reasons that follow, I would dismiss the appeal.
II. Background
[6] Three security guards employed by the National Assembly of Québec were dismissed by the appellant, the President of the National Assembly, for using their employer’s cameras to observe activities inside nearby hotel rooms. Their union, the respondent, grieved their termination before a labour arbitrator.
[7] The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the National Assembly.
A. Arbitral Tribunal, 2014 QCTA 696, [2014] AZ-51104370
[8] The arbitrator, Pierre A. Fortin, found that the security guards’ dismissals were not protected by parliamentary privilege, and thus that the grievances could proceed.
[9] He held that the scope of the privilege to exclude strangers from the National Assembly did not protect the decision to terminate the security guards. He rejected the President’s argument that the privilege to exclude strangers includes the ability to dismiss employees who implement this privilege. In any case, he found that the security guards do not have the authority to exclude strangers. If a security issue arises, they can signal the issue but cannot otherwise intervene.
[10] Further, the arbitrator found that the guards’ dismissals fell outside the scope of the parliamentary privilege over the management of employees. He noted that the verification and surveillance tasks performed by the guards are linked to maintaining the security of the National Assembly. However, unlike other members of the security team, such as police officers and special constables, the guards cannot intervene when issues arise, do not perform acts that could affect proceedings, and are not in contact with members of the Assembly. He concluded that the guards’ functions are not closely and directly connected to the Assembly’s constitutional functions. As such, their management was not protected by parliamentary privilege.
B. Quebec Superior Court, 2015 QCCS 883 (Bolduc J.)
[11] Bolduc J. allowed the President’s application for judicial review and held that the arbitrator did not have jurisdiction to decide the grievances.
[12] Although he agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, he found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees.
[13] The reviewing judge concluded that the arbitrator erred in his assessment of the evidence and gave too little weight to the tasks performed by the guards. He found that the guards are essential to ensuring the security of the parliamentary precinct because they supervise and verify the identity of visitors, and are present in the public gallery during question period. Therefore, he held that the guards’ duties are closely and directly connected to the National Assembly’s legislative and deliberative functions. Decisions about their management are protected by parliamentary privilege and, as such, are not subject to external review.
C. Quebec Court of Appeal, 2017 QCCA 271, 20 Admin. L.R. (6th) 93 (Chamberland and Bélanger JJ.A., Morin J.A. dissenting)
[14] The majority of the Court of Appeal allowed the union’s appeal. Bélanger J.A., writing for the majority, held that the arbitrator had correctly concluded that the dismissals of the security guards were not protected by parliamentary privilege. The majority agreed with the arbitrator that the guards do not have the power to exclude strangers. Furthermore, the majority held that the privilege over the management of employees did not apply to the guards because their tasks are not closely and directly connected to the National Assembly’s deliberative and legislative functions. The majority recognized that preserving the security of the Assembly was of great importance, and that the security guards play a significant role in this endeavour. However, it concluded that it was not necessary for the President to have unreviewable authority over the management of the guards in order to ensure the Assembly’s work proceeds with efficiency and dignity. It added that the Assembly has set out the parameters of the independence it requires to discharge its constitutional mandate in the ARNA, and that this statute does not limit the ability of the guards to grieve their dismissals.
[15] Morin J.A., dissenting, would have dismissed the appeal. In his view, the termination of the security guards fell within the scope of the privilege over the management of employees. He reasoned that the guards provide front-line security services, without which the Assembly could not carry out its constitutional mandate with dignity and efficiency. He also found that parliamentary privilege supersedes and cannot be limited by the ARNA.
III. Issues
[16] The issue in this appeal is whether the arbitrator can decide the grievances, or whether the dismissals of the security guards are protected by parliamentary privilege. The parties have asked this Court to determine: (1) whether the decision to dismiss the guards is protected by a parliamentary privilege over the management of employees; and (2) whether it is protected by the parliamentary privilege to exclude strangers. As I shall explain, I would answer that it is not. I agree with the arbitrator and the majority of the Quebec Court of Appeal that this decision is not subject to parliamentary privilege.
IV. Analysis
[17] As a preliminary point, the applicable standard of review in this case is correctness. The majority reasons of the Court of Appeal below were written without the benefit of our Court’s reasons in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 (CHRC). It suffices to state that the existence and scope of parliamentary privilege is a question of central importance to the legal system and outside the expertise of the arbitrator (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60; CHRC, at paras. 28 and 42). Labour arbitrators do not have specialized expertise in relation to parliamentary privilege. Moreover, while this appeal involves only the National Assembly of Québec, the conclusions regarding parliamentary privilege will affect all other legislative bodies.
A. Parliamentary Privilege: A Purposive Approach
[18] Legislative assemblies in Canada, including provincial legislative assemblies, received “certain very moderate [parliamentary] privileges” through the common law as an inherent and necessary component of their legislative function, and by virtue of the preamble of the Constitution Act, 1867 (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, at p. 377, citing R. M. Dawson, The Government of Canada (5th ed. 1970), at p. 338; see also New Brunswick Broadcasting, at pp. 345 and 374-81; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 29(3) ; J. P. J. Maingot, Parliamentary Immunity in Canada (2016), at pp. 13 and 19).
[19] Parliamentary privilege is defined as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions” (Vaid, at para. 29(2)). These privileges, immunities, and powers exceed those afforded to the general population (Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (24th ed. 2011), by M. Jack, at p. 203). Therefore, parliamentary privilege “is an exemption from some duty, burden, attendance or liability to which others are subject” (Maingot, at p. 13). Decisions falling within the scope of parliamentary privilege cannot be reviewed by an external body, including a court (Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), at p. 1168; New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para. 29(9)).
[20] Many countries afford special protections to the legislative branch of government. For instance, numerous civil law and common law jurisdictions guarantee the immunity of elected representatives from liability for speech that relates to their legislative work.[1] Legislative immunities ensure the proper functioning of a representative democracy. They cultivate a space in which the voices of the people, including those who hold potentially unpopular opinions, can be heard and considered.[2]
[21] Legislative privileges also allow le