Godbout v. Longueuil (City)

Godbout v. Longueuil (City)
Collection
Supreme Court Judgments
Date
1997-10-31
Report
[1997] 3 SCR 844
Case number
24990
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Action
Civil procedure
Constitutional law
Municipal law
Notes
SCC Case Information: 24990
Decision Content
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844
City of Longueuil Appellant/Respondent on cross‑appeal
v.
Michèle Godbout Respondent/Appellant on cross‑appeal
and
Attorney General of Quebec Mis en cause
Indexed as: Godbout v. Longueuil (City)
File No.: 24990.
1997: May 28; 1997: October 31.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Civil rights ‑‑ Right to privacy ‑‑ Residence requirement ‑‑ Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits ‑‑ Whether right to choose where to establish one’s home falls within scope of right to privacy ‑‑ Whether residence requirement infringes employee’s right to privacy ‑‑ If so, whether infringement justifiable ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9.1.
Municipal law -- Resolution -- Residence requirement ‑‑ Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits ‑‑ Whether municipal resolution valid -- Whether residence requirement infringing “right to privacy” in Quebec Charter and “right to liberty” in Canadian Charter -- Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9.1 -- Canadian Charter of Rights and Freedoms, s. 7 .
Judgments and orders -- Rectificatory judgment -- Damages -- Court of Appeal ordering employee reinstated and awarding her damages from time of her dismissal until time of trial ‑‑ Court of Appeal’s reasons indicating that no damages were awarded for period between trial and appeal because they had not been properly quantified ‑‑ No holding to that effect in formal judgment ‑‑ Whether Court of Appeal erred in issuing rectificatory judgment.
Civil procedure ‑‑ Appeal ‑‑ Court of Appeal ordering employee reinstated and awarding her damages from time of her dismissal until time of trial ‑‑ No damages awarded for period between trial and appeal because they had not been properly quantified ‑‑ Whether Court of Appeal erred in not permitting employee to introduce evidence at appeal hearing in respect of damages between trial and appeal ‑‑ Whether Court of Appeal erred in not requesting parties to submit additional argument on that issue ‑‑ Whether Court of Appeal erred in not remanding issue of damages to Superior Court ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 523.
The appellant city adopted a resolution requiring all new permanent employees to reside within its boundaries. As a condition of obtaining permanent employment as a radio operator for the city police force, the respondent signed a declaration promising that she would establish her principal residence in the city and that she would continue to live there for as long as she remained in the city’s employ. The declaration also provided that if she moved out of the city for any reason, she could be terminated without notice. The respondent’s position became permanent and, approximately one year later, she moved into a new house she had purchased in a neighbouring municipality. When she refused to move back within the city’s limits, her employment was terminated. The Superior Court dismissed the respondent’s action for damages and reinstatement, holding that the city’s residence requirement did not contravene the Quebec Charter of Human Rights and Freedoms and that the Canadian Charter of Rights and Freedoms did not apply in this case. The Court of Appeal allowed the respondent’s appeal, concluding that the residence requirement was invalid mainly because it was contrary to public order. It granted the respondent’s request for reinstatement and awarded damages for the financial losses she suffered from the time of her dismissal until the time of trial. The court noted that the damages in respect of the income lost by the respondent during the period between the trial and the appeal (“interim damages”) had not been properly quantified and should not be awarded, but no specific holding to this effect was included in the formal judgment. The respondent brought a motion for rectification, asking that the court amend its formal judgment and award the “interim damages”. The Court of Appeal granted the motion and amended the formal judgment, but did not accede to the respondent’s request to recover the “interim damages”. The city appealed on the substantive issues, and the respondent cross‑appealed on the damages issue.
Held: The appeal and cross‑appeal should be dismissed. The city’s residence requirement unjustifiably infringes s. 5 of the Quebec Charter.
(1) Appeal
Per La Forest, L’Heureux‑Dubé and McLachlin JJ.: The ambit of s. 32 of the Canadian Charter is wide enough to include all entities that are essentially governmental in nature and is not restricted merely to those that are formally part of the structure of the federal or provincial governments. As well, under s. 32 , particular entities will be subject to Charter scrutiny in respect of certain governmental activities they perform, even if the entities themselves cannot accurately be described as “governmental” per se. Since municipalities cannot but be described as “governmental entities”, they are subject to the Canadian Charter . First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent. Second, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as “government”, is indistinguishable from the taxing powers of the Parliament or the provinces. Third, and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction. Finally, and most significantly, municipalities derive their existence and law‑making authority from the provinces. As the Canadian Charter clearly applies to the provincial legislatures and governments, it must also apply to entities upon which they confer governmental powers within their authority. Otherwise, provinces could simply avoid the application of the Charter by devolving powers on municipal bodies. Further, since a municipality is governmental in nature, all its activities are subject to Charter review. The Canadian Charter is therefore applicable to the residence requirement at issue in this case. The particular modality a municipality chooses to adopt in advancing its policies cannot shield its activities from Charter scrutiny. All the municipality’s powers are derived from statute and all are of a governmental character. An act performed by an entity that is governmental in nature is thus necessarily “governmental” and cannot properly be viewed as “private”.
The right to choose where to establish one’s home falls within the scope of the liberty interest guaranteed by s. 7 of the Canadian Charter . The right to liberty in s. 7 goes beyond the notion of mere freedom from physical constraint and protects within its scope a narrow sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. The autonomy protected by the s. 7 right to liberty, however, encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. Choosing where to establish one’s home is a quintessentially private decision going to the very heart of personal or individual autonomy and the state ought not to be permitted to interfere in this private decision‑making process, absent compelling reasons for doing so. Support for this view is found in the fact that the right to choose where to establish one’s home is afforded explicit protection in the International Covenant* on Civil and Political Rights to which Canada is a party. The respondent’s Charter claim did not implicate any notion of a constitutional “right to employment” or any other “economic right”.
The respondent did not waive her right to choose where to establish her home by signing the residence declaration or by failing to move back within the city’s limits. The respondent had no opportunity to negotiate the mandatory residence stipulation and, consequently, cannot be taken to have freely given up her right to choose where to live. Similarly, the respondent’s attempt to assert her right to choose where to live by refusing to conform with the terms of the residence requirement cannot amount to a renunciation of that right.
Under s. 7, a deprivation by the state of an individual’s right to life, liberty or security of the person will not violate the Canadian Charter unless it contravenes the “principles of fundamental justice”. Deciding whether the infringement of a s. 7 right is fundamentally just may, in certain cases, require that the right at issue be weighed against the interests pursued by the state in causing that infringement. This balancing is both eminently sensible and perfectly consistent with the aim and import of s. 7 , since the notion that individual rights may, in some circumstances, be subordinated to substantial and compelling collective interests is itself a basic tenet of our legal system lying at or very near the core of our most deeply rooted juridical convictions. As well, this balancing process will necessarily be contextual, insofar as the particular right asserted, the extent of its infringement, and the state interests implicated in each particular case will depend largely on the facts. Here, the residence requirement infringes the respondent’s right to liberty in a manner that does not conform to the principles of fundamental justice. As justifications for the requirement, the city relied upon three “public interests”: (1) the maintenance of a high standard of municipal services, (2) the stimulation of local business and municipal taxation revenue, and (3) the need to ensure that workers performing essential public services are physically proximate to their place of work. The first two cannot provide a sufficiently compelling basis upon which to override the respondent’s right to decide where she wishes to live. As for the third one, while in certain circumstances a municipality might well be justified in imposing a residence requirement on employees occupying certain essential positions, the residence requirement at issue is too broad to be upheld on that ground since it applies not only to employees whose functions require that they be proximate to their place of work, but also to all permanent employees of the city hired after the municipal resolution was adopted. Moreover, even if the residence requirement were restricted to emergency workers, the respondent would not fall within that class of employees.
There is no need to examine the violation of s. 7 under s. 1 of the Canadian Charter , given that all the considerations pertinent to such an inquiry have already been canvassed in the discussion dealing with fundamental justice. Furthermore, a violation of s. 7 will normally only be justified under s. 1 in the most exceptional of circumstances, if at all. Such circumstances do not exist here.
The residence requirement also infringed s. 5 of the Quebec Charter by depriving the respondent of the ability to choose where to establish her home. Section 5 protects, among other things, the right to take fundamentally personal decisions free from unjustified external interference. The scope of decisions falling within the sphere of autonomy protected by s. 5 is limited to those choices that are of a fundamentally private or inherently personal nature. The right to be free from unjustified interference in making the decision as to where to establish and maintain one’s home falls squarely within the scope of the Quebec Charter’s guarantee of “respect for [one’s] private life”. Since the residence requirement imposed by the city essentially precluded the respondent from making that choice freely, it violates s. 5. Further, for the reasons given in relation to waiver under the Canadian Charter , the respondent did not waive her right to privacy under s. 5 of the Quebec Charter.
Section 9.1 of the Quebec Charter, assuming that it properly applies here, is to be interpreted and applied in the same manner as s. 1 of the Canadian Charter . Thus, the party seeking to justify a limitation on a plaintiff’s Quebec Charter rights under s. 9.1 must bear the burden of proving both that such a limitation is imposed in furtherance of a legitimate and substantial objective and that the limitation is proportional to the end sought, inasmuch as (a) it is rationally connected to that end, and (b) the right is impaired as little as possible. Essentially for the reasons given in the discussion of fundamental justice in the context of s. 7 of the Canadian Charter , the first two objectives suggested by the city as the basis for imposing the residence requirement at issue are not so significant or pressing as to justify overriding the respondent’s s. 5 right. As regards the third objective, it cannot be concluded that the very broad residence requirement at issue is either rationally connected to the end sought to be achieved, or that it is proportional to it. Moreover, the specific evidence advanced by the city in respect of the justifications it offered was scant and is incapable of permitting the city to discharge its burden of proof. The infringement of the respondent’s s. 5 right is thus not justified under s. 9.1.
Per Gonthier, Cory and Iacobucci JJ.: For the reasons given by La Forest J., the city’s resolution requiring its employees to reside within its boundaries was invalid because it unjustifiably violated s. 5 of the Quebec Charter. The infringement of s. 5 provides a good and sufficient basis for dismissing this appeal and there is thus no need to consider the application of s. 7 of the Canadian Charter . The application of s. 7 may have a significant effect upon municipalities and, before reaching a conclusion on an issue that need not be considered in determining the appeal, it would be preferable to hear further argument with regard to it, including the submissions of interested parties and intervening Attorneys General.
Per Lamer C.J. and Sopinka and Major JJ.: The city’s residence requirement infringes the respondent’s right to privacy under s. 5 of the Quebec Charter and is not justified under s. 9.1. This is sufficient to dispose of the appeal. It is unnecessary and perhaps imprudent to consider whether the residence requirement infringes s. 7 of the Canadian Charter in the absence of submissions from interested parties.
Section 5 of the Quebec Charter protects an employee’s decision where to live as an aspect of his or her right to privacy. A municipality that seeks to uphold a residence requirement that infringes that section under s. 9.1 of the Quebec Charter must demonstrate that the requirement is imposed to advance a legitimate and substantial objective, and that the requirement is proportional to this objective, in that it is both rationally connected to the objective and constitutes a minimal impairment of the right protected by s. 5. These criteria must be applied flexibly and in a manner that is sensitive to the particular context and factual circumstances of each case. The objectives of improving the quality of services by fostering loyalty, of supporting the local economy, and of ensuring that certain essential employees be readily available are often invoked by municipalities to support a residence requirement. Under s. 9.1, these objectives may, depending on the circumstances of a case, be sufficiently compelling to justify an infringement of the employee’s right to privacy. In the particular circumstances of this case, however, none of these objectives were sufficiently compelling to justify such an infringement.
(2) Cross‑appeal
The issuance of the rectificatory judgment did not amount to re‑examining a matter that was already res judicata. The reasons of the rectificatory judgment constituted nothing more than an attempt by the Court of Appeal to formalize with precision the conclusion it had reached in its previous judgment. Moreover, the issuance of the rectificatory judgment did not have any detrimental effect on the city’s legal position. The phrase “without prejudice to any of the [respondent’s] rights or remedies arising from this judgment” did not confer upon her a right to pursue further recourses to recover the “interim damages”, but confirmed that in formalizing its refusal to award the “interim damages”, the Court of Appeal did not want to be taken as having altered any findings it had made in its previous judgment.
The Court of Appeal’s refusal to permit the respondent to introduce evidence with respect to the quantum of the “interim damages” during the oral hearing itself did not constitute reversible error. To allow this evidence to be introduced at that stage would not have given the city ample opportunity to verify the figures the respondent claimed represented her losses. Moreover, under art. 199 C.C.P., the respondent could have presented evidence in respect of the “interim damages” claim not only as part of the appeal itself but also at any time before judgment. No attempt to quantify the “interim damages” in accordance with the appropriate procedure was made. The Court of Appeal’s refusal to grant the “interim damages” was thus not based on some procedural error on its part. Rather, it was based on the fact that no evidence as to quantum had ever been properly placed before it.
Finally, the Court of Appeal did not err in failing to request that the parties submit additional argument in respect of the “interim damages” claim, or to remand the matter to the Superior Court. Article 523 C.C.P. confers a discretion on the Court of Appeal to act in the interests of justice and to make whatever orders it deems necessary in order to safeguard the rights of the parties. Here, the Court of Appeal simply chose not to exercise that discretion. Given the clear opportunities the respondent had to present evidence in respect of her “interim damages”, this Court should not interfere with that decision.
Cases Cited
By La Forest J.
Applied: Brasserie Labatt ltée v. Villa, [1995] R.J.Q. 73; not followed: Ector v. City of Torrance, 514 P.2d 433 (1973); Kennedy v. City of Newark, 148 A.2d 473 (1959); McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976); referred to: McDermott v. Nackawic (Town) (1988), 53 D.L.R. (4th) 150; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Re Klein and Law Society of Upper Canada (1985), 50 O.R. (2d) 118; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Re McCutcheon and City of Toronto (1983), 41 O.R. (2d) 652; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; R. v. Sharma, [1993] 1 S.C.R. 650; R. v. Greenbaum, [1993] 1 S.C.R. 674; Kruse v. Johnson, [1898] 2 Q.B. 91; Halifax (City of) v. Read, [1928] S.C.R. 605; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Beare, [1988] 2 S.C.R. 387; Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Richard, [1996] 3 S.C.R. 525; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Jones, [1986] 2 S.C.R. 284; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Cunningham v. Canada, [1993] 2 S.C.R. 143; Fraternal Order of Police, Youngstown Lodge No. 28 v. Hunter, 360 N.E.2d 708 (1975), certiorari denied, 424 U.S. 977 (1976); Detroit Police Officers Ass’n v. City of Detroit, 190 N.W.2d 97 (1971), appeal dismissed for want of substantial federal question, 405 U.S. 950 (1972); Hanson v. Unified School Dist. No. 500, Wyandotte County, Kan., 364 F. Supp. 330 (1973); Andre v. Board of Trustees of the Village of Maywood, 561 F.2d 48 (1977); Salem Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265 (1994); Donnelly v. City of Manchester, 274 A.2d 789 (1971); Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Reid v. Belzile, [1980] C.S. 717; Centre local de services communautaires de l’Érable v. Lambert, [1981] C.S. 1077; Cohen v. Queenswear International Ltd., [1989] R.R.A. 570; The Gazette (Division Southam Inc.) v. Valiquette, [1997] R.J.Q. 30; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1997] 2 S.C.R. 299.
By Cory J.
Applied: Brasserie Labatt ltée v. Villa, [1995] R.J.Q. 73; referred to: Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084.
By Major J.
Referred to: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712.
Statutes and Regulations Cited
Act to amend the charter of the city of Longueuil, S.Q. 1982, c. 81, art. 3 [amending the Cities and Towns Act for the city of Longueuil by replacing s. 52 and adding ss. 52.1 to 52.14].
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15 , 32(1) .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1 [am. 1982, c. 61, s. 1], 3, 5, 6, 9.1 [ad. idem, s. 2], 10 [am. idem, s. 3].
Cities and Towns Act, R.S.Q., c. C‑19.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 1379, 1437.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 199, 523 [am. 1985, c. 29, s. 11].
International Covenant** on Civil and Political Rights, Can. T.S. 1976 No. 47, Art. 12(1).
Police Act, R.S.Q., c. P‑13, s. 65(d).
Authors Cited
Chevrette, François. “La disposition limitative de la Charte des droits et libertés de la personne: le dit et le non‑dit”. Dans De la Charte québécoise des droits et libertés: origine, nature et défis. Montréal: Thémis, 1989, 71.
Hampton, Thomas A. “An Intermediate Standard for Equal Protection Review of Municipal Residence Requirements” (1982), 43 Ohio St. L.J. 195.
Lefebvre, Brigitte. “Quelques considérations sur la notion d’ordre public à la lumière du Code civil du Québec”. Dans Développements récents en droit civil (1994). Cowansville, Qué.: Yvon Blais, 1994, 149.
Molinari, Patrick A., et Pierre Trudel. “Le droit au respect de l’honneur, de la réputation et de la vie privée: aspects généraux et applications”. Dans Formation permanente du Barreau du Québec, Application des Chartes des droits et libertés en matière civile. Cowansville, Qué.: Yvon Blais, 1988, 197.
Myers, Ross S. “The Constitutionality of Continuing Residency Requirements for Local Government Employees: A Second Look” (1986), 23 Cal. W. L. Rev. 24.
Note. “Municipal Employee Residency Requirements and Equal Protection” (1974‑1975), 84 Yale L.J. 1684.
Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter ” (1995), 74 Can. Bar Rev. 446.
APPEAL and CROSS‑APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 2561, 31 M.P.L.R. (2d) 130, [1995] Q.J. Nos. 686 and 874 (QL), setting aside a judgment of the Superior Court, [1989] R.J.Q. 1511, 48 M.P.L.R. 307, 12 C.H.R.R. D/141. Appeal and cross‑appeal dismissed.
Jean‑Jacques Rainville and Réjean Rioux, for the appellant/respondent on cross‑appeal.
France Saint‑Laurent and Richard Bertrand, for the respondent/appellant on cross‑appeal.
Isabelle Harnois, for the mis en cause.
The reasons of Lamer C.J. and Sopinka and Major JJ. were delivered by
1 Major J. -- I have read the reasons of my colleagues Justice La Forest and Justice Cory and I agree with Cory J. that the appeal should be dismissed on the basis that the residence requirement imposed by the appellant infringes the respondent’s right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. , c. C-12, and is not justified under s. 9.1. This is sufficient to dispose of the appeal. With respect to those of my colleagues who hold the contrary view, I agree with Cory J. that it is unnecessary and perhaps imprudent to consider whether the residence requirement infringes s. 7 of the Canadian Charter of Rights and Freedoms in the absence of submissions from interested parties and I too express no opinion on this issue.
2 Like Cory J., I agree with La Forest J. that s. 5 of the Quebec Charter protects the respondent’s decision where to live as an aspect of her right to privacy, and that the residence requirement in this appeal is not justified under s. 9.1. I do not agree that the scope for justification of conditions of employment by municipalities should be as limited as that outlined by my colleagues.
3 This Court held in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 770, that s. 9.1 of the Quebec Charter is a justificatory provision corresponding to s. 1 of the Canadian Charter and that it is to be interpreted and applied in the same manner. Therefore, a municipality that seeks to uphold a residence requirement that infringes s. 5 under s. 9.1 must demonstrate that the requirement is imposed to advance a legitimate and substantial objective, and that the requirement is proportional to this objective, in that it is both rationally connected to the objective and constitutes a minimal impairment of the right protected by s. 5.
4 These criteria must be applied flexibly and in a manner that is sensitive to the particular context and factual circumstances of each case. An objective which is sufficiently compelling in one case may not meet the standard in a different context. A particular residence requirement may be proportional to a stated objective in one context but not in another. In particular, whether an objective is sufficiently compelling and whether a residence requirement is proportional to this objective will depend on a number of factors, including the nature of the objective, the duties of the affected employee, the scope and duration of the residence requirement, and the size, population and characteristics of the municipality.
5 Broadly speaking, there appear to be three objectives which municipalities seek to advance by requiring municipal employees to reside within their boundaries. It may be useful to provide a brief outline of the circumstances in which an objective may be sufficiently compelling and a residence requirement may be sufficiently proportional to this objective to meet the standard imposed by s. 9.1.
6 The first objective invoked is improving the job performance of municipal employees and therefore the quality of the services they provide to residents. It is stated that the performance of municipal employees will be enhanced by requiring them to reside within the municipality for several reasons. One, as residents they will be better acquainted with the community’s problems and needs. Also, as residents they will have a greater personal stake in the welfare of the community, and thereby a greater incentive to perform. Similarly, requiring municipal employees to reside within the community will instil in them a greater sense of pride, commitment and loyalty. Finally, requiring municipal employees to be residents promotes their identity within the community, which in turn bolsters the confidence of residents in their local government.
7 La Forest J. concludes that the objective of improving the quality of services by fostering greater loyalty will never be sufficiently compelling to justify a residence requirement under s. 9.1. With respect, I disagree.
8 In my opinion there can be cases in which this objective will be sufficient. It will depend on the circumstances. In this regard, several factors are relevant. An important consideration is the nature of the affected employee’s duties. Fostering a sense of loyalty is more important for high level officials charged with making policy decisions, such as the mayor or municipal councillors, than for support staff or routine labour. It seems reasonable to require those who make policy decisions affecting a community to reside within that community. Other factors to consider include the size, population and characteristics of the community. This objective is more compelling in a small town or a rural area where municipal employees are more easily identifiable by other residents than in the anonymity of a large city.
9 La Forest J. concludes that, even if the objective of improving the quality of services were sufficiently compelling, it is unclear whether requiring employees to reside within the municipality would achieve this goal. In short, he doubts whether there is a rational connection between improving the quality of services and a residence requirement. He also concludes that a residence requirement will never be the least intrusive means of achieving this objective. With respect, I do not think that necessarily follows and doubt that such a proposition can be conclusively stated. The facts surrounding the residency requirement will determine the result. The vagaries of life and particularly those of municipalities preclude such a generalization.
10 The objective of improving services and fostering loyalty by residential requirements suffers in this case from a lack of compelling evidence. The respondent was employed as a radio operator for the Longueuil police force. Given her duties, it is unlikely that requiring her to live within the City of Longueuil would improve the quality of her work or instil a greater pride among its residents. Furthermore, the City of Longueuil is an urban municipality with a sizeable population within the metropolitan region of Montreal. The boundaries of urban municipalities such as the City of Longueuil are not clearly identifiable, as one municipality overlaps the other. It is highly unlikely that a municipal employee in the respondent’s position would be identifiable to members of the local community.
11 The second objective often invoked to justify a requirement that municipal employees live within the municipality is that of supporting the local economy. Municipal employees who reside within the municipality will contribute to the local economy as consumers and to the local municipal tax base either directly as taxpayers, or indirectly as tenants. In some measure, the taxpayers of the municipality will witness some of their taxes being returned to the benefit of the community. La Forest J. concludes that this will never be a sufficiently compelling objective to justify an infringement of s. 5 under s. 9.1. I disagree. The sensitivity of the community to this conclusion will also be a question of fact. There may be cases where this objective, on the facts, will be sufficiently important to justify an infringement of s. 5. Economic concerns and employee recognition may be of greater importance in a small town or rural community than in a large city. This objective was not supported by any evidence to give it a compelling quality in this case.
12 The third and final objective which is invoked to justify the imposition of a residence requirement is that of ensuring that certain employees who provide essential services are readily available. Again, whether this objective is sufficiently compelling will depend on the particular circumstances of the case. An important factor to consider is the nature of the duties of the affected employee. This objective will be sufficiently compelling for emergency personnel, such as police officers, firefighters and ambulance personnel, given the obvious importance of ensuring that they are able to respond promptly in times of urgent need. It also seems clear that requiring these employees to live within the municipality is rationally connected to the objective of ensuring they are readily available. It is impossible to speculate with accuracy, as even this requirement may not be the least intrusive means of achieving this objective as it may be obtained by simply requiring employees to live within a certain distance. This illustrates the need to support the objective with persuasive evidence.
13 I agree with La Forest J. that the evidence was insufficient to justify the residence requirement that was imposed on the respondent in this case on the basis of this third objective. As he points out, the residence requirement was imposed on all of the appellant’s permanent employees. In view of the respondent’s employment as a radio operator for the police force, and the absence of a justification for the residency requirement, the requirement in these circumstances is unreasonable.
14 In the particular circumstances of this case, none of the objectives referred to are sufficiently compelling to justify the infringement of the respondent’s right to privacy under s. 5 of the Quebec Charter, and I would dismiss the appeal.
The reasons of La Forest, L’Heureux-Dubé and McLachlin JJ. were delivered by
15 La Forest J. -- In modern times, the ability of individuals to make decisions free from unwelcome external interference is increasingly under pressure. Whether that pressure finds its roots in changing patterns of social organization, in technological advancements, in governmental action, or in some other source, its net effect has largely been to whittle down the scope of personal freedom. While the exigencies of community life clearly preclude the possibility that individuals could ever be guaranteed an untrammelled right to do as they please, the basic ability to make fundamentally private choices unfettered by undesired restrictions demands protection under law, such that it can only be overridden where other pressing concerns so dictate. The central issue raised in this appeal is whether the choice of where to establish one’s home falls within that narrow sphere of personal decision-making deserving of the law’s protection and whether, even if it does, other important considerations might nevertheless take precedence over it. More specifically, the appeal raises the question whether, on pain of termination, the appellant municipality can legitimately require all its permanent employees -- including the respondent -- to live within the territorial limits of the city and to maintain their homes there for the duration of their employment. The main appeal also raises a threshold issue concerning the applicability of the Canadian Charter of Rights and Freedoms to municipalities. The cross-appeal concerns whether, for procedural reasons, the respondent is precluded from recovering a portion of the damages she suffered after being dismissed by the appellant for failing to abide by the terms of the residence requirement.
I. Facts
16 The respondent, Michèle Godbout, was hired by the appellant municipality, the City of Longueuil, as a short-term employee on June 7, 1985. She initially held a position as an archivist, but later assumed a post as a radio operator for the Longueuil police force. As a condition of obtaining permanent employment, Ms. Godbout was required on February 17, 1986 to sign a declaration promising that she would establish her principal residence in Longueuil and that she would continue to live there for as long as she remained in the appellant’s employ. The declaration also provided that if she moved out of Longueuil for any reason, she could be dismissed without notice. The document signed by Ms. Godbout read as follows:
[translation]
declaration of place of ordinary residence
I hereby undertake to establish my ordinary residence on the territory and within the limits of the City of Longueuil within a maximum of sixteen (16) months from the date on which I am hired.
I further undertake to maintain my ordinary residence on the territory and within the limits of the City of Longueuil for as long as I am employed by the City of Longueuil.
I understand and agree that failure to fulfill the above conditions will justify my dismissal, without further notice.
The residence requirement imposed by the declaration was based on Resolution CE 84-1491, which was passed by the Executive Committee of the appellant municipality on October 23, 1984. The relevant portions of that resolution provided as follows:
[translation]
whereas the Executive Committee has read the personnel adviser’s report dated October 15, 1984;
in view of the recommendations made by the director of personnel and the director general on October 15 and 18, 1984;
it is unanimously resolved:
to approve the “Declaration of place of ordinary residence” form, which the Personnel Branch must have signed by every new employee hired to fill a regular position with a view to becoming permanent.
Resolution CE 84-1491 was later adopted by the Municipal Council through Resolution CM 84-1286, dated November 7, 1984.
17 On May 21, 1986, the respondent’s position became permanent. Approximately one year later, and after she had informed her superiors of her intention to do so, the respondent purchased a house in the neighbouring municipality of Chambly and moved there with her boyfriend. On January 19, 1988, the head of the appellant’s personnel department approached the respondent with the aim of persuading her to move back to Longueuil. The respondent refused, and her employment was terminated by the appellant on February 17, 1988. The appellant admits that the only reason it dismissed the respondent was the fact that she moved out of Longueuil.
18 The respondent brought an action in the Superior Court of Quebec seeking damages and reinstatement in her position. The action was dismissed with costs on March 31, 1989: [1989] R.J.Q. 1511, 48 M.P.L.R. 307, 12 C.H.R.R. D/141. An appeal to the Court of Appeal was allowed on September 14, 1995 and damages in the amount of $10,763.47 were awarded: [1995] R.J.Q. 2561, 31 M.P.L.R. (2d) 130, [1995] Q.J. No. 686 (QL). The respondent then brought a motion for rectification in respect of the Court of Appeal’s formal judgment order, alleging that the court did not make a conclusive finding with respect to certain aspects of the damages claim. The Court of Appeal granted the respondent’s motion and amended its reasons on November 15, 1995: [1995] Q.J. No. 874 (QL). It did not, however, accede to the respondent’s request to recover the damages that had not been awarded in the September 14 decision. On October 3, 1996, this Court granted the appellant’s motion for leave to appeal on the substantive issues as well as the respondent’s motion for leave to cross-appeal on the damages issue: [1996] 3 S.C.R. xiv.
II. Judici