McGill Law Journal Revue de droit de McGill
APPLYING THE PRINCIPLE OF PROPORTIONALITY IN
EMPLOYMENT AND LABOUR LAW CONTEXTS
Pnina Alon-Shenker and Guy Davidov*
The principle of proportionality, which is
designed to limit abuse of power and infringe-
ment of human rights by governments and leg-
islatures, has become a fundamental and bind-
ing legal principle in the jurisprudence of many
countries. Ever since the seminal R. v. Oakes
decision, when the Supreme Court of Canada
interpreted section 1 of the Canadian Charter of
Rights and Freedoms as entailing a three-step
proportionality test, proportionality has become
an important pillar of Canadian law. This arti-
cle argues that the principle of proportionality
actually extends, and should extend, to the pri-
vate sphereimposing limitations on employers
and trade unions when using their powers. It
first argues, at a descriptive level, that propor-
tionality already plays a significant role (alt-
hough often not explicitly) in various Canadian
labour and employment law contexts, a role not
sufficiently acknowledged thus far. It then
turns to the normative level and explores the
justifications for extending the application of
proportionality to the private sphere and more
specifically to the employment relationship. The
article advocates a more explicit use and a
structured application of the three-stage pro-
portionality test in various employment and la-
bour law contexts.
Le principe de proportionnalit, conu
pour limiter les abus de pouvoir et les violations
des droits de l’homme par les gouvernements et
les lgislatures, est devenu un principe juri-
dique fondamental et contraignant adopt par
la jurisprudence de plusieurs pays. Depuis l’ar-
rt de principe R. v. Oakes, au sein duquel la
Cour suprme du Canada a estim que l’article
1 de la Charte canadienne des droits et liberts
entranait un test de la proportionnalit en trois
tapes, la proportionnalit est devenue un pilier
important du droit canadien. Cet article sou-
tient que le principe de proportionnalit s’tend,
et devrait s’tendre, la sphre prive
imposant certaines limitations aux employeurs
et aux syndicats lorsqu’ils font lusage de leurs
pouvoirs. Adoptant dans un premier temps un
point de vue descriptif, il avance que la propor-
tionnalit joue dj un rle significatif (bien que
pas toujours explicite) dans divers contextes re-
lis au droit du travail et de l’emploi au Canada,
un rle pas suffisamment reconnu jusqu’ pr-
sent. Il se place ensuite sur un plan normatif et
explore les raisons justifiant dtendre l’applica-
tion de la proportionnalit la sphre prive, et
plus spcifiquement aux relations d’emploi.
Larticle prconise un usage plus explicite et
une application plus structure du test de pro-
portionnalit en trois tapes dans divers con-
textes relis aux droits du travail et de l’emploi.
* Pnina Alon-Shenker is Assistant Professor, Department of Law & Business, Ted Rogers
School of Business Management, Ryerson University, Toronto. Guy Davidov is Elias
Lieberman Chair in Labour Law, Faculty of Law, Hebrew University of Jerusalem, Is-
rael. This research project was supported by the Centre for Labour Management Rela-
tions, Ryerson University. The authors would like to thank Brian Langille, two external
referees, and the participants in the Labour Law Research Network conference held at
Universitat Pompeu Fabra, Barcelona, 2013, for their insightful comments on earlier
drafts, as well as Annice Blair, Suzie Kotzer, and Stephen Spong for their excellent re-
search assistance.
Pnina Alon-Shenker and Guy Davidov 2013
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Introduction
I.
II.
1. Disciplinary Procedure and Just Cause
2. Privacy in the Workplace
Proportionality in Canadian Employment and Labour
Contexts
A. Introduction
B. Explicit Use
C. Implicit Use
2. Restrictive Covenants
5. Unfair Labour Practice
1. Introduction
3. Discrimination
4. Picketing
Justifications for Applying Proportionality in Labour
and Employment Law
A. Introduction
B. A Higher Standard of Behaviour is Normatively
Justified
C. Proportionality is an Appropriate Choice of a Higher
Standard of Behaviour
D. Applying the Proportionality Test is Doctrinally
Possible and Will Improve Coherence
III.
Additional Applications
Conclusion
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 377
Introduction
The principle of proportionality is designed to limit abuse of power and
infringement of human rights and freedoms by governments and other
public officials to the minimum necessary in the circumstances. As a phil-
osophical notion, proportionality may be traced back to the ancient Gold-
en Rule of that which is hateful to you, do not do to your fellow.1 As a le-
gal principle, it originated in the nineteenth century in Prussian adminis-
trative law, in which it imposed constraints on police powers that in-
fringed an individuals liberty or property.2 Throughout the years, the
principle of proportionality expanded and migrated to other European
countries,3 where it is now a central and binding public law principle,4 and
to other jurisdictions, including Canada, New Zealand, Australia, South
1 See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cam-
bridge: Cambridge University Press, 2012) at 175.
2 Ibid at 17879. Courts examined whether police action was undertaken for a legitimate
purpose, whether the action was suitable to reach this purpose, and whether there was a
less intrusive means to achieve this purpose. In some cases, the courts also assessed
whether a proper balance was struck between the adverse effects of the action and the
benefits of achieving the purpose. See Dieter Grimm, Proportionality in Canadian and
German Constitutional Jurisprudence (2007) 57:2 UTLJ 383 at 38485.
3 In 1949, the Basic Law for the Federal Republic of Germany (translation in Military
Government GazetteGermany (British Zone), 1949/35) was adopted, and, although it
did not contain any explicit reference to proportionality, the German Federal Constitu-
tional Court gradually applied, without explanation, the test of proportionality whenev-
er a law infringed fundamental rights (except for the right to dignity, which is absolute).
An explanation of how the principle of proportionality operates came in subsequent cas-
es in the 1960s: see Grimm, supra note 2 at 38586. See also the seminal work of Rob-
ert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers (Oxford: Ox-
ford University Press, 2002). Alexy argues that constitutional rights are not rules but
rather principlesoptimization requirements that are subject to a balancing and pro-
portionality analysis.
4 See e.g. Nicholas Emiliou, The Principle of Proportionality in European Law: A Com-
parative Study (London: Kluwer Law International, 1996); Evelyn Ellis, ed, The Princi-
ple of Proportionality in the Laws of Europe (Oxford: Hart, 1999). The European Court
of Justice views proportionality as a general principle of European Union (EU) law,
which regulates the exercise of powers and measures chosen by the EU institutions and
member states affecting fundamental freedoms. See R v Minister for Agriculture, Fish-
eries and Food; ex parte Fedesa, C-331/88, [1990] ECR I-4057 at I-4062 to I-4064. The
principle of proportionality is set out in EC, Consolidated Version of the Treaty Estab-
lishing the European Community, [2002] OJ C 325/33, art 5. The principle of propor-
tionality is also used to assess limitations on fundamental rights and freedoms (see EC,
Charter of Fundamental Rights of the European Union, [2007] OJ C 303/01 [EU Char-
ter]). While the European Convention for the Protection of Human Rights and Funda-
mental Freedoms does not include a specific reference to proportionality, the European
Court of Human Rights applies the test of proportionality when rights are infringed
(see Barak, supra note 1 at 18384).
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Africa, Hong Kong, India, and countries in South America.5 Furthermore,
it has become part of many constitutional and international documents.6
It is also relevant in other contexts, such as international law (e.g., the
doctrine of just war, the laws of self-defence, and international human
rights law)7 and criminal law (e.g., punishment should be proportional to
the offence).8
The principle of proportionality was first recognized in Canadian con-
stitutional law in R. v. Oakes,9 in which the Supreme Court of Canada in-
terpreted section 1 of the Canadian Charter of Rights and Freedoms,10
which allows the government to limit constitutional rights and freedoms
to a reasonable extent,11 as entailing a proportionality test. Similar to oth-
er jurisdictions,12 the Court established a three-stage proportionality test
5 See Barak, supra note 1 at 180202, 20810. See also David M Beatty, The Ultimate
Rule of Law (New York: Oxford University Press, 2004). Furthermore, the principle of
proportionality has been recently advocated in the United States: see E Thomas Sulli-
van & Richard S Frase, Proportionality Principles in American Law: Controlling Exces-
sive Government Actions (New York: Oxford University Press, 2009) (providing an over-
view of the long-standing acceptance of proportionality in Western countries and argu-
ing that every intrusive government measure that limits or threatens individual rights
and autonomy should undergo some degree of proportionality review at 6).
6 See e.g. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1 [Charter]; Constitution of
the Republic of South Africa, 1996, No 108 of 1996, s 36; Basic Law: Human Dignity
and Liberty (ISR), 12 Adar 5752 (17 March 1992), 1391 Sefer Ha-Chukkim 150, online:
Adar 5754 (9 March 1994), 1454 Sefer Ha-Chukkim 90, online:
Constitution of the Republic of Turkey, 1982, translated by Amos J Peaslee, art 13; Con-
vention for the Protection of Human Rights and Fundamental Freedoms, 4 November
1950, 213 UNTS 222, arts 811, Eur TS 5; New Zealand Bill of Rights Act 1990,
1990/109, s 5; EU Charter, supra note 4, art 52.
7 See Barak, supra note 1 at 20206; Sullivan & Frase, supra note 5 at 1526.
8 See Barak, supra note 1 at 17576.
9 [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes cited to SCR]. See also Sujit Choudhry, So
What Is the Real Legacy of Oakes?: Two Decades of Proportionality Analysis Under the
Canadian Charters Section 1 (2006) 34 Sup Ct L Rev (2d) 501.
10 Charter, supra note 6.
11 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstra-
bly justified in a free and democratic society (ibid, s 1).
12 There is, of course, some disparity between the tests used by each jurisdiction. For ex-
ample, the UK test did not originally include the third stage (see de Freitas v Perma-
nent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1998), [1999] 1
AC 69 at 80, [1998] 3 WLR 675 (PC)). However, the third stage was later added (see
Huang v Home Secretary, [2007] UKHL 11, [2007] 2 AC 167). In France, the test did not
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 379
that examines the relationship between the measure adopted by the gov-
ernment to achieve a legitimate objective and the legitimate objective it-
self. First, the measure adopted by the government must be rationally
connected to the justifiable objective it aims to achieve. Second, the gov-
ernment must select the measure that is the least harmful to, or minimal-
ly impairing of, the right or freedom in question, but similarly achieves
the objective. Third, there must be proportionality stricto senso between
the harms caused by the measure and the benefits of achieving the im-
portant objective[t]he more severe the deleterious effects of a measure,
the more important the objective must be.13
In a neo-liberal capitalist era, employers often exert as much control
over an individuals life as governments do. Should the application of the
principle of proportionality extend to the private sphere and impose limi-
tations on employers actions? The question is not about constitutional
cases; the constitutional analysis undoubtedly involves a proportionality
analysis in labour and employment contexts, as in any other context. The
question here is rather about non-constitutional cases, involving private
sector employers: Can (and should) we demand that such employers con-
form to the requirements of proportionality when making decisions affect-
ing employees? Can (and should) we place similar constraints on labour
unions making decisions that affect employers and the public at large? A
number of scholars have recently explored this possibility in other juris-
dictions and advocated the use of proportionality in some labour and em-
ployment contexts.14 The three-stage test appears to offer a useful struc-
ture for discretionary decision making, ensuring that decisions are both
rational and considerate, and preventing abuse of power by both employ-
ers and unions.15
Geoffrey England has examined the impact of the Charter on employ-
ment contract law, including the application of proportionality in just
cause cases.16 But a complete account of the role that proportionality
originally include the minimal impairment stage, but this has been changed recently by
the French Constitutional Court (see Barak, supra note 1 at 132, n 3).
13 Oakes, supra note 9 at 140. See ibid at 139 (the discussion of the proportionality test in
particular).
14 In Israel, see Guy Davidov, The Principle of Proportionality in Labor Law and Its Im-
pact on Precarious Workers (2012) 34:1 Comp Lab L & Poly J 63 at 64 [Davidov, Pro-
portionality]. In the UK, see Aaron Baker, Proportionality and Employment Discrim-
ination in the UK (2008) 37:4 Indus LJ 305; ACL Davies, Judicial Self-Restraint in
Labour Law (2009) 38:3 Indus LJ 278.
15 See Davidov, Proportionality, supra note 14 at 79.
16 Geoffrey England, The Impact of the Charter on Individual Employment Law in Can-
ada: Rewriting an Old Story (20062007) 13 Can Lab & Emp LJ 1. In this article, Eng-
land argues that the Charter has had significant direct and indirect impacts on em-
(2013) 59:2 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
380
plays or should play in Canadian employment and labour law has not yet
been offered. In this article, we wish to advance two main arguments:
First, a survey of employment and labour decisions by courts and other
adjudicators in Canada reveals that the principle of proportionality is al-
ready being used in certain contexts. Sometimes the application is explic-
it, even if incomplete (i.e., does not closely follow all three stages of the
Oakes proportionality test). But more often, the application is implicit.
That is, courts and other adjudicators analyze different situations using
tests akin to the Oakes proportionality test without an explicit reference
to proportionality. Second, we argue that this trend is normatively justi-
fied and that a more explicit and structured use of the proportionality test
should be advanced in various employment and labour spheres.
The article proceeds as follows: Part I exposes the contexts in which
proportionality is currently used in Canadian employment and labour law
decisions. We argue at a descriptive level that proportionality already
plays a major rolealthough often not explicitlyin Canadian labour and
employment law. Part II turns to the normative level and explores the
justifications for extending the application of proportionality to the pri-
vate sphere, and more specifically to the employment relationship. First,
we explain why a higher standard of behaviour is required in employment
relationships as opposed to other contracts. Second, we defend the use of
proportionality in these contexts, stressing its legal and analytical merits.
Third, we demonstrate that the application of proportionality fits within
contemporary legal doctrine and advances legal coherence. We therefore
advocate a more explicit use and structured application of the three-stage
proportionality test in the contexts mentioned above. Part III proposes
additional applications of proportionality in the labour context, showing
how this principle may provide a more balanced approach to the resolu-
tion of contemporary labour relations conflicts in Canada, limiting the use
of excessive power by both employers and trade unions.
ployment law in Canada. The direct impact revolves around various constitutional chal-
lenges to different statutory provisions on employment standards, pay equity, and
workers compensation. The indirect impact is demonstrated by the expansion of gen-
eral Charter values, such as fairness, equality, and proportionality, in the law of the
employment contract. England advocates protecting these new developments through
explicit legislation. However, he warns against an overextension of employee rights,
which may compromise the productive efficiency of employers. He therefore urges
courts to carefully consider the economic effect of their decisions on employers.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 381
I. Proportionality in Canadian Employment and Labour Contexts
A. Introduction
The principle of proportionality is used both explicitly and implicitly in
various employment and labour law decisions. In some cases, the Charter,
including section 1 and the principle of proportionality, is directly relevant
in an employment setting. At times, a governmental action or piece of leg-
islation infringes the rights and freedoms of employees, trade unions, or
employers guaranteed under the Charter.17 Setting aside these constitu-
tional cases, there are also scenarios in which a private dispute arising
between an employer and an employee, or an employer and a trade union,
is analyzed within a proportionality framework. Sometimes the court or
the relevant adjudicator will make concrete reference to proportionality,
but may not follow all three stages within the Oakes proportionality test.
Occasionally, the legal analysis will not make explicit reference to propor-
tionality, but will significantly resemble the three-stage test. In most cas-
es the burden of proof is dictated by the legislation or common law, but in
other cases it is an open question how to devise the legal rule in this re-
spect. This Part will canvass several representative employment and la-
bour law decisions to demonstrate this argument.
B. Explicit Use
1. Disciplinary Procedure and Just Cause
The most obvious example of an explicit use of proportionality in the
employment sphere is found in just cause cases. In response to its
recognition of both the imbalance of bargaining power between employees
and employers and the importance of work to the lives of individuals,18 the
Supreme Court of Canada developed in McKinley v. B.C. Tel the notion of
17 See e.g. McKinney v University of Guelph, [1990] 3 SCR 229, 76 DLR (4th) 545 (consid-
ering whether provisions in human rights legislation limiting protection against age
discrimination in employment to the age of sixty-five infringes section 15 of the Char-
ter); Ontario Nurses Association v Mount Sinai Hospital, [2005] 75 OR (3d) 245, 255
DLR (4th) 195 (considering whether a denial of severance pay to disabled employees,
provided for in the Ontario Employment Standards Act, violates section 15 of the Char-
ter); Health Services and Support (Facilities Subsector Bargaining Assn) v British Co-
lumbia, 2007 SCC 27, [2007] 2 SCR 391 (considering whether the British Columbia
Health and Social Services Delivery Improvement legislation infringes section 2(d) of
the Charter).
18 See McKinley v BC Tel, 2001 SCC 38 at paras 5354, [2001] 2 SCR 161 [McKinley].
(2013) 59:2 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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proportionality in disciplinary procedures.19 The Court held that employee
misconduct, in and of itself, does not necessarily warrant just cause for
summary dismissal. The principle of proportionality helps to assess
whether, in the context and circumstances, an employees misconduct was
so serious20 that it should give rise to just cause for dismissal. That is,
employers claiming just cause for dismissal are required to show that the
sanction imposed upon an employee was proportional to his or her mis-
conduct. Only if the misconduct was very serious (for example, theft,
misappropriation or serious fraud) would an employer have a just cause
to summarily dismiss the employee without an advance notice or pay in
lieu of that notice.21 In other cases involving less serious misconduct, an
employer should use progressive discipline (i.e., lesser sanctions for less
serious types of misconduct).22 Only when the misconduct or poor per-
formance repeats itself or continues despite discipline and clear warnings
would it amount to just cause for summary dismissal.23
The test for establishing just cause, developed by the Supreme Court,
was named a proportionality test, 24 perhaps building on the well-
established test for disciplinary action in labour arbitration jurispru-
dence.25 The test for just cause includes two stages: (1) whether the evi-
dence establishe[s] the employees [misconduct] on a balance of probabili-
ties; and (2) if so, whether the nature and degree of the [misconduct] war-
ranted dismissal.26 While no reference was made to section 1 of the Char-
ter or to the Oakes test, a closer inspection of this test reveals some simi-
larity to the Oakes proportionality test. One might argue that when em-
ployers make a decision to either discipline or dismiss an employee, the
decision infringes the employees right or interest to have job security or
at least to receive advance notice. Assuming that the objective of either
disciplining or dismissing an employee is to ensure that the workplace is
composed of the most competent and cooperative workers, employers are
19 An effective balance must be struck between the severity of an employees misconduct
and the sanction imposed (ibid at para 53).
20 A serious misconduct violates an essential condition of the employment contract,
breaches the faith inherent to the work relationship, or is fundamentally or directly in-
consistent with the employees obligations to his or her employer (ibid at para 48).
21 Ibid at para 51.
22 Ibid at para 52.
23 In this case, the employer may still dismiss the employee but would have to provide ad-
vance notice or pay in lieu of that notice.
24 Underlying the approach I propose is the principle of proportionality (McKinley, supra
note 18 at para 53).
25 See infra note 34.
26 McKinley, supra note 18 at para 49.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 383
required to show that the measure chosen to achieve this objective was
proportional.
The test developed in McKinley resembles the first two stages of the
Oakes proportionality test, although a more structured analysis could
have been beneficial. First, the McKinley test requires a proof of incompe-
tence or misconduct. This is necessary, as disciplining or dismissing with-
out notice employees who were engaged in misconduct or incompetence
appears to be rationally related to the aforementioned objective because it
detersor, in the case of dismissals, conclusively preventsfuture mis-
conduct or incompetence from the same employee. By contrast, where an
employees action was just an error in judgment, trivial or unintentional,
discipline or dismissal without notice does not seem to advance the objec-
tive. Certainly, if the employee is wrongly accused or if the accusations
are not substantiatedif there is no proof of the alleged misconductthe
disciplinary measure will not advance the stated objective, and therefore
no rational relationship between measure and objective exists.
Second, the McKinley test examines whether a less severe response is
possible while still achieving the aforementioned objective. Summary
dismissal is a severe punishment. A less severe response, such as a warn-
ing, is usually sufficient to achieve the objective when the misconduct is
not very serious.27 However, when the employees actions are serious, in-
tentional, or numerous, the employer may argue that there is no less in-
trusive way to achieve its legitimate business objective other than to dis-
miss the employee without notice.28
27 Ibid at para 52. See also ibid at para 56: [a]bsent an analysis of the surrounding cir-
cumstances of the alleged misconduct, its level of seriousness, and the extent to which it
impacted upon the employment relationship, dismissal on a ground as morally disrepu-
table as dishonesty might well have an overly harsh and far-reaching impact for em-
ployees.
28 Gillian Demeyere argues that the just cause test and the bona fide occupational re-
quirements test are similar, as they both limit the power that the employer has over its
employees to control the work environment:
Both root out attempts by the employer, under the guise of its managerial
authority, to control more than the work by setting terms and conditions of
employment that are neither rationally connected to nor reasonably neces-
sary for the discharge of the employees contractual duty to do the work. …
The common law doctrine of just cause is thus just a broader version of the
bona fide occupational requirement defence under human rights legislation.
That is, the just cause doctrine is best understood as imposing a duty on em-
ployers to set only occupational requirements that are reasonably necessary
for the performance of the work (Human Rights as Contract Rights: Re-
thinking the Employers Duty to Accommodate (2010) 36:1 Queens LJ 299
at 31819).
Indeed, both tests appear to resemble the proportionality test.
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384
The McKinley test was further developed in subsequent cases and now
contains elements of all three stages of the Oakes proportionality test, in-
cluding a requirement to balance the benefits gained against harms
caused by the chosen sanction. In Dowling v. Ontario,29 for example, the
Ontario Court of Appeal held that the test requires a consideration of the
particular circumstances of both the employee and the employer:
In relation to the employee, one would consider factors such as age,
employment history, seniority, role and responsibilities. In relation
to the employer, one would consider such things as the type of busi-
ness or activity in which the employer is engaged, any relevant em-
ployer policies or practices, the employees position within the organ-
ization, and the degree of trust reposed in the employee.30
In the context of balancing harms against benefits, this contextual evi-
dence is needed to assess the severity of the harm to the employee versus
the importance of the objective to the employer in the specific circum-
stancesas in the third stage of the Oakes proportionality test.
The same analysis applies not only in dismissal cases, but also in dis-
ciplinary cases. In Haddock v. Thrifty Foods,31 for example, an employee
had been working for sixteen years for the same chain of grocery stores.
His last position was as a seafood department manager. He had been a
good employee for most of the period but, in the later years, had some
personal problems that led to alcohol abuse. In response to changes in his
workplace behaviour, he was warned twice in 2002 and 2003 and then,
about a year later, he was demoted to a non-managerial position with a
1620 per cent decrease in income. The Supreme Court of British Colum-
bia held that demotion was not the proper response to his poor perfor-
mance but rather amounted to constructive dismissal. The court also held
that a further warning was needed before the employer could terminate
without notice, due to the time that had passed since the previous warn-
ings and also the employees efforts to rehabilitate himself and improve
his performance during that period. The additional warning requirement
echoes the second stage of the Oakes proportionality test, in that the em-
ployer should have chosen a less severe measure (i.e., a warning) to
achieve its legitimate objective of having the most competent body of em-
ployees in the organization.
In unionized settings, use of the principle of proportionality in disci-
pline and dismissal cases is even more established. Collective agreements
29 Dowling v Ontario (Workplace Safety and Insurance Board) (2004), 246 DLR (4th) 65,
37 CCEL (3d) 182 [cited to DLR].
30 Ibid at para 52.
31 2011 BCSC 922 (available on CanLII).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 385
generally require employers to establish just cause prior to the imposition
of any form of discipline (i.e., oral and written warning, suspension, dis-
charge, etc.). 32 Furthermore, legislation provides arbitrators with the
power to substitute their authority for that of the employer and to reduce
the penalty imposed by an employer to one that is just and reasonable in
the circumstances. 33 Interestingly, when attempting to give concrete
meaning to these vague concepts, arbitrators appear to use the propor-
tionality test.
Arbitrators consider two main questions in just cause cases. First,
they consider whether the conduct in question amounts to just cause for
the imposition of some form of discipline. As noted, this part resembles
the rational connection stage of the Oakes test: dismissing or disciplining
only those employees who misbehaved or performed poorly is rationally
connected to the employers objective of having the most competent body
of employees. Second, arbitrators consider whether the method of disci-
pline selected by the employer is appropriate in the circumstances. Vari-
ous mitigating factors have been identified as potentially justifying the
substitution of a lesser penalty in the place of discharge, including:
whether the employee was confused or mistaken as to whether an act was
permitted, whether the act was impulsive (i.e., non-premeditated), wheth-
er the harm to the employer was trivial, whether the employee sincerely
acknowledged the misconduct, the past record of the employee, the length
of service, and whether the penalty imposes severe hardship upon the
32 See e.g., Collective Agreement Between E-Z-RECT Manufacturing Ltd and Marine
Workers and Boilermakers Industrial Union, Local No 1, Effective 1 September 2007
31 August 2012, art 3.04, online: British Columbia Labour Relations Board
tion of Ontario (Representing the Occasional Teachers of the Elementary Teachers Fed-
eration of Ontario) and the Lambton Kent District School Board, Effective 1 September
200831 August 2012, art 502, online: Lambton Kent District School Board
33 See for example, in Ontario, section 48(17) of the Labour Relations Act:
Where an arbitrator or arbitration board determines that an employee has
been discharged or otherwise disciplined by an employer for cause and the
collective agreement does not contain a specific penalty for the infraction that
is the subject-matter of the arbitration, the arbitrator or arbitration board
may substitute such other penalty for the discharge or discipline as to the ar-
bitrator or arbitration board seems just and reasonable in all the circum-
stances (SO 1995, c 1, s 48(17), being Schedule A to the Act to Restore Bal-
ance and Stability to Labour Relations and to Promote Economic Prosperity
and to Make Consequential Changes to Statutes Concerning Labour Rela-
tions, SO 1995, c 1 [Labour Relations Act]).
Other provinces and the federal jurisdiction use similar clauses: see e.g. Canada La-
bour Code, RSC 1985, c L-2, s 60(2).
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386
employee given his or her age and personal circumstances.34 This part
combines both the second and third stages of the Oakes proportionality
test. It requires the employer to choose the least intrusive punishment
while still achieving its objective. It also balances between the benefits of
achieving the employers objective and the harms imposed upon the em-
ployee.
2. Privacy in the Workplace
Another explicit use of the proportionality principle can be demon-
strated in invasion of privacy casesfor example, when an employer re-
quires his or her employees to pass a drug or alcohol test, or uses surveil-
lance cameras, or monitors emails and computer use. The clearest exam-
ples are those that fall within the jurisdiction of the federal Personal In-
formation and Protection of Electronic Documents Act (PIPEDA).35 Section
5(3) of the PIPEDA stipulates that [a]n organization may collect, use or
disclose personal information only for purposes that a reasonable person
would consider are appropriate in the circumstances.36 Section 5(3) of the
PIPEDA was interpreted by the Privacy Commissioner, as well as arbitra-
tors and federal courts, as including a proportionality test.
The Privacy Commissioner of Canada has set out a fourfold test for
determining when personal information may be collected for purposes a
reasonable person would find appropriate in the circumstances.37 The
Commissioner held that, when examining section 5(3), one has to consider
the appropriateness of the organizations purpose for collecting personal
information, as well as the circumstances surrounding that purpose. Once
the purpose is identified, in order to determine whether the collection,
use, or disclosure was reasonable in the circumstances, one has to consid-
er the following questions: Is the measure demonstrably necessary to
meet a specific need? Is it likely to be effective in meeting that need? Is
34 See Re Canadian Broadcasting Corporation and Canadian Union of Public Employees
(1979), 23 LAC (2d) 227 at 230 (Arbitrator: HW Arthurs). See also Re Sifto Canada
Corp and Communications, Energy and Paperworkers Union, Local 16-0 (2010), 200
LAC (4th) 305 (Arbitrator: GF Luborsky). For the applicability of McKinley in a union-
ized workplace, see e.g., Yellow Pages Group v COPE, 2012 ONCA 448, 351 DLR (4th)
534.
35 SC 2000, c 5 [PIPEDA].
36 See also Model Code for the Protection of Personal Information, being Schedule 1 to the
PIPEDA, supra note 35. The Model Code contains a number of principles, such as the
requirement to explicitly identify purposes before collecting information (art 4.2).
37 See findings under the PIPEDA (supra note 35), for example Employee Objects to Compa-
nys Use of Digital Video Surveillance Cameras (23 January 2003), 2003-114, online: Office
of the Privacy Commissioner of Canada
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 387
the loss of privacy proportional to the benefit gained? Is there a less priva-
cy-invasive way of achieving the same end?38
This test, which has been upheld by the Federal Court39 and is fol-
lowed in many arbitration awards,40 is very similar to the Oakes propor-
tionality test. The first inquiry corresponds to the minimal impairment
stage of the Oakes test because it examines whether the measure is neces-
sary to meet the objectivethat is, whether there are less intrusive ways
of achieving the same objective. The second inquiry is akin to the first
stage of the Oakes proportionality test because it examines whether the
measure chosen for the collection of information is effective in achieving
the objectivethat is, whether it is rationally connected to it. The third
inquiry resembles the third stage of the Oakes proportionality test be-
cause it weighs the proportional benefits of collecting information against
the harm to the employees privacy. Finally, the fourth inquiry, which
asks whether the employer explored other less privacy-invasive ways of
achieving the objective, is also similar to the minimal impairment stage of
the Oakes test.
In Eastmond v. Canadian Pacific Railway,41 for example, the video re-
cording surveillance cameras installed in the work yard were held to be
justified because the employer successfully demonstrated that it had used
the least intrusive means available to accomplish a reasonable purpose.
The Federal Court used the term proportional, although it did not refer
specifically to the Oakes proportionality test. In reaching its decision, the
court considered the above-mentioned questions.42 The court found that
the purpose of collecting information through video cameras was appro-
38 Ibid.
39 See Eastmond v Canadian Pacific Railway, 2004 FC 852 at paras 12627, 33 CPR (4th)
1.
40 See e.g. Teamsters Canada Rail Conference v Canadian Pacific Railway (2010),
CROA&DR 3900 (Arbitrator: Michel G Picher), online: CROA
ing serious collisions in the railway industry, the Canadian Pacific Railway Company
adopted a policy of asking employees to provide copies of their personal wireless tele-
phone records when a significant unexplained accident occurred. The arbitrator held
that the disclosure of telephone records was demonstrably necessary for promoting pub-
lic safety, given the recent history of collisions in the railway industry. The arbitrator
found that the policy would be effective in meeting the companys need to know whether
personal cell phone use was a distraction that may have contributed to an accident or
incident. The arbitrator also held that the loss of privacy was limited to disclosure of the
act of sending and receiving communications. Furthermore, the benefit of avoiding ac-
cidents outweighed the relatively minor loss of privacy. The arbitrator concluded that
there was no equally reliable and less privacy-invasive way of achieving the purpose of
promoting safety (ibid at 3542).
41 Supra note 39.
42 Ibid at para 127.
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388
priate in the circumstances. The employer had successfully established a
legitimate aimtaking preventative action motivated by numerous past
incidents. The court mentioned the importance of these cameras for deter-
rence of theft and vandalism as well as for the increased security of indi-
viduals and goods. Furthermore, the court found the loss of privacy to be
minimal. Collection of information was neither surreptitious (there were
warning signs) nor continuous. It was not limited to employees only, but
captured every person who walked in the yard. It did not measure work
performance. The recorded images were kept under lock and key and
were accessed only when an incident was reported. Otherwise, they were
destroyed. Moreover, the employer explored other alternatives (such as
fencing and security guards), but they were too expensive or unfeasible.
Finally, the court found the loss of privacy proportional to the benefit
gained from the collection of information.43
It is worth noting that these tests had been used prior to PIPEDA by
arbitrators adjudicating privacy cases and balancing the interests of the
parties involved. Indeed, in the CAW Canada case,44 which deals with
drug and alcohol testing in a unionized and federally regulated workplace
prior to PIPEDA, proportionality is not mentioned explicitly, yet the arbi-
trator applied tests akin to the Oakes proportionality test and engaged in
an analysis that required balancing the interests of the employees in the
privacy and integrity of their person with the legitimate business and
safety concerns of the employer.45 In examining whether drug and alcohol
testing violated the collective agreement, the arbitrator asked a series of
questions. First, is there evidence of a drug or alcohol problem, or both, in
the workplace and, therefore, a need for managements policy (i.e., the
test of justification or adequate cause)?46 This parallels the first stage of
the Oakes proportionality test. Second, has the employer considered the
available alternatives and might the problem in the workplace be combat-
ted in a less invasive way (i.e., the test of reasonableness)?47 This is simi-
lar to the second stage of the Oakes proportionality test. The arbitrator
held that the employer demonstrated the need for its policy because of the
safety-sensitive nature of the national railway operations48 and provided
sufficient evidence to reasonably justify its substance abuse policy, includ-
43 Ibid at paras 17682.
44 Re Canadian National Railway Co and CAW Canada (2000), 95 LAC (4th) 341 (Arbi-
trator: MG Picher) [CAW Canada].
45 Ibid at 368.
46 Ibid at 360.
47 Ibid.
48 Ibid at 378.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 389
ing drug and alcohol testing.49 Furthermore, the employer had explored
other less intrusive alternatives to deal with the substance abuse prob-
lem.50 However, the arbitrator took issue with some policy rules that did
not meet these tests. For example, one rule stipulated that a positive
drug test is, of itself, grounds for discipline or discharge.51 As such, the
rule did not distinguish between a positive drug test, standing alone, and
impairment while on duty.52 This rule was unreasonable because it made
no reference to any clearly demonstrated legitimate employer interest,53
and because there were less intrusive ways of achieving the goal of com-
bating drug and alcohol use among employees in non-safety-sensitive
jobs.54 By contrast, it may be reasonable when employees in risk-sensitive
positions are concerned.55 The arbitrator held that for risk-sensitive em-
ployees, who work in locations spread across Canada, often without su-
pervision or with only partial supervision,56 the benefits of the rules for
fitness assessment, discipline matters, and monitoring substance abuse in
the workplace outweigh the cost of infringing the privacy rights of indi-
viduals, whose expectations must conform to the risk-sensitive concerns
of the industry in which they seek to hold employment.57 This last part
clearly reflects the third stage of the Oakes proportionality test.
Note that the PIPEDA also applies to provincially regulated organiza-
tions and businesses that collect information in the course of commercial
activities. However, it does not extend to all employee personal infor-
mation that is collected and used by provincially regulated organizations
and businesses, because this generally does not amount to commercial
activity. Some provinces have passed specific legislation on privacy which
covers employment, while others have not yet done so. Consequently, dif-
ferent jurisdictions and adjudicators use a variety of tests when it comes
to employers potential invasion of the privacy of employees. However,
there is an increasing recognition of the employees right to privacy in the
workplace, and the principle of proportionality, which is well established
in PIPEDA cases, has gradually penetrated into non-PIPEDA cases. As
49 Ibid at 379.
50 Ibid.
51 Ibid at 381.
52 Ibid.
53 Ibid. See also ibid at 390.
54 Those employees can be adequately dealt with by the employer through traditional
means of detection, treatment and, where necessary, the enforcement of discipline
(ibid).
55 Ibid at 389.
56 Ibid.
57 Ibid at 385.
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390
we will argue later, this evolving area of law would benefit from a more
explicit, structured use of the proportionality test.
Alberta, for example, has adopted comparable legislationthe Per-
sonal Information Protection Actin 2003.58 Section 11 stipulates: (1) An
organization may collect personal information only for purposes that are
reasonable; (2) Where an organization collects personal information, it
may do so only to the extent that is reasonable for meeting the purposes
for which the information is collected.59 In Parkland Regional Library,60
an employer installed keystroke logging software to monitor the computer
usage of one of its employees without his knowledge, following concerns
about low productivity and suspicions of his inappropriate use for person-
al purposes. When the employee found out about the software, he filed a
complaint with the Privacy Commissioner of Alberta. The commissioner
held that the collection of personal information did not comply with the
legislation. There was no legitimate reason for monitoring the employee,
as there was no sufficient evidence to support the employers suspicions.61
This can be seen as a lack of rational connection, although the commis-
sioner did not refer to the first stage of the Oakes proportionality test.
Moreover, the chosen method of collection was not necessary for manag-
ing the employee. While it provided a broad range of information about
the employee, other computer-based methods might have assessed
productivity more specifically.62 That is, the chosen software was not the
least intrusive way of collecting this information. The employer could
have, for example, simply asked the employee to explain his apparently
low productivity or used performance measures and reviews, which are
widely accepted management tools.63 Again, the commissioner was using
58 Personal Information Protection Act, SA 2003, c P-6.5 [PIPA]. Note that the Supreme
Court of Canada has recently declared the Act invalid, though the declaration was sus-
pended for a period of twelve months. The Court held that the Act significantly restrict-
ed the ability of a union to collect, use, and disclose personal information for legitimate
labour relations purposes (such as videotaping and photographing people crossing a
picket line). The Court ruled that the Act infringed a unions freedom of expression un-
der section 2(b) of the Charter and was not justified under section 1 of the Charter. See
Alberta (Information and Privacy Commissioner) v United Food and Commercial Work-
ers, Local 401, 2013 SCC 62 (available on CanLII).
59 PIPA, supra note 58, s 11. See also Personal Information Protection Act, SBC 2003, c 63,
s 11: Subject to this Act, an organization may collect personal information only for pur-
poses that a reasonable person would consider appropriate in the circumstances.
60 Re Parkland Regional Library (24 June 2005), Order F2005-003, online: ABOIPC
61 Ibid at para 24.
62 Ibid at paras 2526.
63 Ibid at para 26.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 391
the second stage of the Oakes proportionality test, minimal impairment,
without referring to it explicitly.
Similarly, a Nova Scotia arbitrator held that the Regional Municipali-
ty of Halifax, which recorded and stored for one year all incoming calls at
a call centre, violated provincial privacy legislation (i.e., the Municipal
Government Act, which protects privacy of information collected or used
by the municipality)64 and the collective agreement with call centre em-
ployees which included a duty to act reasonably.65 Although the munici-
palitys actions were for a legitimate business purpose (i.e., quality con-
trol, training, and dispute resolution), it was unnecessary in the circum-
stances, disproportionate to the invasion of the employees inherent priva-
cy rights, and therefore unreasonable. Quality deficiencies had already
improved through coaching and supervision. The arbitrator concluded
that the invasion of privacy was significantly out of proportion to any
benefit, potential or actual, gained or to be gained, by the employer.66
Note that the arbitrator referred specifically to proportionality when bal-
ancing between the benefits of collecting information and the harms of in-
vading the employees privacy: Proportionality is a tool to assist in the
assessment of whether justification has been made out. It calibrates the
intrusion to the interest protected. The operating principle is that the
more serious the intrusion, the heavier the burden will be, and vice ver-
sa.67
In provinces where no such legislation exists, there is a distinction be-
tween unionized and non-unionized workplaces. In a unionized environ-
ment, employers are required to exercise their managerial rights and dis-
64 SNS 1998, c 18, s 483(1)(c) states: Personal information shall not be collected by, or for,
a municipality unless … that information relates directly to, and is necessary for, an op-
erating program or activity of the municipality. Further, a municipality may use per-
sonal information only with consent (s 485(1)(b)) and may disclose personal information
only to meet the necessary requirements of municipal operation (s 485(2)(g)).
65 See Halifax (Regional Municipality) v Nova Scotia Union of Public and Private Employ-
ees, Local 2 (2008), 171 LAC (4th) 257 [Nova Scotia Union]. On judicial review, the find-
ing regarding the violation of the provincial act was reversed by the Supreme Court of
Nova Scotia, holding that voice recording did not amount to personal information. The
finding regarding the violation of the collective agreement was upheld. Although the
court did not agree that the implementation of the call recording system was unreason-
able, the arbitrators finding fell within the range of the available legal outcomes (see
Halifax (Regional Municipality) v Nova Scotia Union of Public and Private Employees,
Local 13, 2009 NSSC 283, 282 NSR (2d) 180.
66 Nova Scotia Union, supra note 65 at 308.
67 Ibid at 301302.
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392
cretion reasonably.68 In privacy cases, this reasonableness standard has
evolved into a balancing of interests test: weighing the employers inter-
est in running its business effectively and safely against the privacy in-
terests of employees. Arbitrators often assess the reasonableness of the
employers action or policy, the nature of the employers interests in ad-
vancing this action or policy, whether there are less intrusive means
available to address these interests, and the impact of the employers ac-
tion or policy on the employees.69
This reasonableness test embodies the first and second stages of the
Oakes proportionality test, but some elements of the third stage may be
identified too. One might argue, for example, that surveillance cameras
placed in workplace washrooms are reasonably needed to prevent thefts
in a workplace. That is, washroom cameras are the most effective way to
prevent thefts, and there is no less intrusive way of achieving this pur-
pose. However, most people will agree that this measure is still unreason-
able, due to the severity of privacy infringement, which cannot be offset by
the benefits of preventing thefts. That is, the reasonableness test some-
68 See Re Lumber & Sawmill Workers Union, Local 2537 v KVP Co Ltd (1965), 16 LAC 73
(Arbitrators: JB Robinson, D Wren, RV Hicks); Metropolitan Toronto (Municipality) v
CUPE, Local 43 (1990), 69 DLR (4th) 268 [Metropolitan Toronto].
69 See Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving
Pulp & Paper, Ltd, 2013 SCC 34 at para 27 (available on CanLII) [Paperworkers]. In
this recent case, the Supreme Court upheld an arbitration award concluding that the
employer exceeded the scope of its management rights under a collective agreement by
imposing random alcohol testing in the absence of evidence of a workplace problem with
alcohol use. The majority explicitly applied a proportionality test used by a substantial
body of arbitral jurisprudence (ibid at para 4), and stressed that [t]he dangerousness
of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the
proportionality exercise (ibid). Weighing the employers interest in random alcohol
testing as a workplace safety measure against the harm to the privacy interests of em-
ployees, the Court held that when a workplace is dangerous, an employer can test an
individual employee if there is reasonable cause to believe that the employee was im-
paired while on duty, was involved in a workplace accident or incident, or was return-
ing to work after treatment for substance abuse (ibid at para 5). It also stated that
a unilaterally imposed policy of mandatory, random and unannounced test-
ing for all employees in a dangerous workplace has been overwhelmingly re-
jected by arbitrators as an unjustified affront to the dignity and privacy of
employees unless there is reasonable cause, such as a general problem of
substance abuse in the workplace (ibid at para 6).
The dissenting opinion applied a reasonableness test (ibid at para 81). It held that there
is an arbitral consensus that an employer has to demonstrate evidence of an alcohol
problem in the workplace to justify a random alcohol testing policy (ibid at para 97) and
that the arbitration board came to an unreasonable decision because it departed from
this arbitral consensus when it required evidence of a significant or a serious problem
(ibid at para 104) and that the evidence of alcohol use be tied to accident or injury at the
plant (ibid at para 105).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 393
times entails a balancing act which is the third stage of the Oakes propor-
tionality test.70 As will be argued later, it would be useful to break down
the reasonableness test, which is a vague standard overall, into the three
more concrete stages of the Oakes proportionality test.71
Finally, in non-unionized workplaces, employers are generally allowed
to collect and use information about their employees in the absence of
specific legislation or common law rules. This has led courts to seek crea-
tive ways to remedy the situation of employees whose privacy was brutal-
ly invaded by their employers in some cases,72 and to acknowledge em-
ployees reasonable expectation of privacy even where workplace policies
allowing search and surveillance were in place.73 Recently, a tort of inva-
sion of privacy (called intrusion upon seclusion) was established in On-
70 See Harold M Smith & Joseph L Anthony, Walking the Centre Line: Balancing an
Employees Right to Privacy in Drug and Alcohol Policies in the Atlantic Offshore Oil
Industry (2003) 26 Dal LJ 591. Smith and Anthony argue that reasonableness is pred-
icated on a proportionality between the extent to which an employer-imposed rule is
necessary to protect a legitimate interest of the employer and the impact of said rule
upon an employees interests (ibid at 599). That is, reasonableness requires
a two-step inquiry[:] one must first, assess whether there is adequate cause
or justification for the rule (i.e., a legitimate employer interest to be protected
or objective facilitated by the operation of the rule), and second, assess the
reasonableness of the rule by considering whether the employers interest
could be protected or facilitated in a less intrusive fashion (ibid at 599600).
71 Indeed, in Paperworkers, proportionality was explicitly used, and the question was
framed in line with the third stage of the Oakes proportionality test: Was the benefit to
the employer from the random alcohol testing policy in this dangerous workplace pro-
portional to the harm to employee privacy? (supra note 69 at para 43).
72 See for example Colwell v Cornerstone Properties Inc (2008 CanLII 66139 (Ont Sup Ct)),
in which an employee who found out that a secret surveillance device had been in-
stalled for several months in her office suffered mental stress and left her job. She sued
for breach of contract amounting to constructive dismissal. The court held that the duty
of each party to treat each other in good faith was an implied term in her employment
contract and that the employers actions breached that duty. See also Entrop v Imperial
Oil Ltd (50 OR (3d) 18, 189 DLR (4th) 14 (Ont CA)), on drug and alcohol testing in a
nonunionized workplace, which was addressed through the lens of discrimination as
the employers measures infringed the rights of an employee with a history of substance
abuse.
73 See R v Cole (2012 SCC 53, [2012] 3 SCR 34), in which a high school teacher was
charged with possession of child pornography and unauthorized use of a computer. The
school policy permitted the use of work-issued laptop computers for incidental personal
purposes, but expressly prohibited the use or storage of inappropriate content and al-
lowed access by the school to private emails. The Supreme Court of Canada held,
among other things, that the ownership of the computer by the school board was not de-
terminative of the teachers expectation of privacy, and that [w]hile workplace policies
and practices may diminish an individuals expectation of privacy in a work computer,
these sorts of operational realities do not in themselves remove the expectation entire-
ly (ibid at para 3).
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394
tario and may be used against employers who invade the privacy of their
employees.74 However, this is merely a partial solution because it covers
only extreme cases of intentional action, thus allowing most employers to
continue collecting and using information about their employees. Subject-
ing employers actions to the principle of proportionality, even in the ab-
sence of specific privacy legislation, may be an appropriate solution.
We have seen that proportionality is used explicitly in at least two la-
bour and employment law contexts: just cause and privacy. However,
while the term proportionality has been invoked by courts in these two
contexts, this has not been consistent. In some cases the term has not
been mentioned. Moreover, the three stages of the proportionality test,
although they can often be found between the lines, are not usually ap-
plied separately and systematically.
C. Implicit Use
1.
Introduction
In this Part, we describe restrictive covenants, workplace discrimina-
tion, picketing, and unfair labour practice cases, in which courts have de-
veloped legal tests that are very similar to the proportionality test yet
lack any direct reference to proportionality.75 The legal tests developed in
some of these contexts are well-established and structured. One might
then ask why using proportionality in an explicit manner will be benefi-
cial in these contexts. Our answer is twofold: First, once it is demonstrat-
ed that the tests used in these contexts are, in fact, very similar to propor-
tionality, our argument is that it could prove beneficial to start using all
three stages of the test, a practice which, in some cases, would add addi-
tional relevant considerations into the analysis. Second, even if no change
is made to the jurisprudence on this particular topic and the same tests
prevail without referring to proportionality, by showing that courts are de
facto using the proportionality tests, the argument we wish to advance is
74 See Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241.
75 Cases on constructive dismissal (which limits managerial prerogative) can also be
viewed as reminiscent of proportionality. While employers legitimate objective is to run
a productive and profitable business and they often make changes in the workplace to
achieve that aim, a unilateral fundamental change, which a reasonable person in the
employees position would find unreasonable and unfair, such as major changes to the
compensation package, significant changes in duties (demotion), or substantial changes
to the location of employment (i.e., disproportionate change) amounts to repudiation of
the employment contract. See e.g. Farber v Royal Trust Co, [1997] 1 SCR 846, 145 DLR
(4th) 1; Mifsud v MacMillan Bathurst Inc (1989), 63 DLR (4th) 714, 35 OAC 356 (Ont
CA).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 395
that proportionality tests are generally useful in various contexts of la-
bour and employment law. They are already used in some contexts, and
can be used in other contexts. In other words, we are taking a broad look
at several contexts in labour and employment law, within which tests
have developed in ways that appear unrelated to one another, and we
show that, in fact, the tests are very similar in all of those contexts, and
also very similar to the Oakes proportionality test. This observation is, in
our opinion, useful as a general jurisprudential point: demonstrating the
importance and prevalence of proportionality as a general principle of law,
including in private law, even when it is not mentioned explicitly. This al-
so supports the first argument that proportionality tests should be used in
some additional contexts.
2. Restrictive Covenants
A prominent example of an implicit use of proportionality in the em-
ployment sphere is found in restrictive covenants cases. Generally, non-
competition clauses in an employment contract are viewed as a restraint
of trade and are presumed to be unenforceable, unless the employer
shows that the non-competition clause is necessary to protect the employ-
ers legitimate proprietary or business interests, that the non-competition
clause covers a reasonable length of time and geographic area, and that a
non-solicitation clause would not suffice to protect the employers legiti-
mate interests in the circumstances.76 As the Supreme Court of Canada
held:
A covenant in restraint of trade is enforceable only if it is reasonable
between the parties and with reference to the public interest. …
[C]ompeting demands must be weighed. There is an important pub-
lic interest in discouraging restraints on trade, and maintaining free
and open competition unencumbered by the fetters of restrictive cov-
enants. On the other hand, the courts have been disinclined to re-
strict the right to contract, particularly when that right has been ex-
ercised by knowledgeable persons of equal bargaining power. In as-
sessing the opposing interests the word one finds repeated through-
out the cases is the word reasonable. The test of reasonableness
can be applied, however, only in the peculiar circumstances of the
particular case.77
Reasonableness is a relatively vague legal concept. Proportionality, on
the other handwhich could be seen as a concretization of reasonable-
nessprovides more guidance through the three different stages. And, in
76 See e.g. Elsley v JG Collins Ins Agencies, [1978] 2 SCR 916 at 92426, 83 DLR (3d) 1
[Elsley]; Friesen v McKague (1992), 81 Man R (2d) 290 at paras 2021, 96 DLR (4th) 341
[Friesen]; Lyons v Multari, (2000) 50 OR (3d) 526 at paras 2123, 136 OAC 281.
77 Elsley, supra note 76 at 923.
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fact, the test used by judges to assess restrictive covenants appears to be
in line with proportionality. While proportionality is not mentioned explic-
itly in the prevalent legal analysis, two stages of the Oakes proportionality
test can be clearly identified. The employer is required to identify a legit-
imate objective (i.e., a proprietary or business interest) and to explain why
a non-competition clause is necessary to protect this objective. These re-
quirements resemble the test of rational connection. Furthermore, the
employer has to draft a reasonable restrictive covenant in terms of length
of time and geographic area, and must use a non-solicitation clause (i.e.,
rather than a non-competition clause) when it is effective in fulfilling the
legitimate objective. These requirements are very similar to the test of
minimal impairment. When there are less intrusive ways of achieving a
goal, the employer must choose these measures. As the Manitoba Court of
Appeal held:
The onus of proving that a covenant is reasonable as between the
parties falls upon the party relying on it, i.e., the plaintiffs in this
case. The presumption is rebuttable by evidence showing that the
covenant is reasonable in that it goes no further than is necessary to
protect the legitimate rights of an employer, and does not unduly re-
strain the employee.78
3. Discrimination
Another test that turns out to be very similar to proportionality is the
bona fide occupational requirement (BFOR) defence in workplace discrim-
ination cases. In Meiorin,79 the Supreme Court of Canada developed a
three-stage test to determine whether an employer may use the BFOR de-
fence after an employee or a job applicant has shown a prima facie case of
discrimination. Proportionality was mentioned briefly when the Court ex-
plained why direct discrimination and adverse effect discrimination
should both be subject to the same analysis, despite some semantic differ-
ences across provinces:
In both cases, whether the operative words are reasonable alterna-
tive or proportionality or accommodation, the inquiry is essentially
the same: the employer must show that it could not have done any-
thing else reasonable or practical to avoid the negative impact on the
individual.80
By contrast, the test itself, which includes three limbs, does not refer
to proportionality, but clearly includes elements of the Oakes proportion-
78 Friesen, supra note 76 at para 14.
79 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3
SCR 3, 176 DLR (4th) 1 [Meiorin cited to SCR].
80 Ibid at para 38.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 397
ality test. To determine whether a prima facie discriminatory standard is
a BFOR, an employer has to justify the impugned standard by establish-
ing on a balance of probabilities that
the employer adopted the standard for a purpose rationally connect-
ed to the performance of the job; that the employer adopted the par-
ticular standard in an honest and good faith belief that it was neces-
sary to the fulfilment of that legitimate work-related purpose; and
that the standard is reasonably necessary to the accomplishment of
that legitimate work-related purpose. To show that the standard is
reasonably necessary, it must be demonstrated that it is impossible
to accommodate individual employees sharing the characteristics of
the claimant without imposing undue hardship upon the employer.81
The first limb of this test explicitly adopts a rational connection test
(the first stage of the Oakes proportionality test). The employers justifia-
ble objective is to assign jobs to the most competent employees, and for
this purpose the employer develops workplace standards (i.e., the
measures). The second limb, requiring honesty and good faith, can be un-
derstood as an additional check on the legitimacy of the employers pur-
pose. If the employer acts in bad faithin an attempt to achieve illegiti-
mate goalsthen it arguably fails the rational connection test. The third
limb of the Meiorin test includes elements of all three stages of the Oakes
proportionality test. It examines, first, whether the workplace standard is
reasonably necessary to the accomplishment of the employers purpose.
This requires a rational connection between the workplace standard and
the employers purpose. Second, it also requires the employer to show ne-
cessitythat is, consideration of alternative and less intrusive ways of
achieving the employers goals. Alternatives may include, for example,
various ways in which individual capabilities may be accommodated.82
As the Court explains, there may be different ways to perform the job
while still accomplishing the employers legitimate work-related purpose.
… The skills, capabilities and potential contributions of the individual
claimant and others like him or her must be respected as much as possi-
ble.83 Finally, the third limb involves an act of balancing the interests
and rights of the employer, and those of the employee and other workers,
as part of the duty to accommodate and the undue hardship analysis. As
the Court elucidates, this act of balancing includes factors such as the fi-
nancial cost of the possible method of accommodation, the relative inter-
81 Ibid at para 54.
82 Ibid at para 64.
83 Ibid.
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changeability of the workforce and facilities, and the prospect of substan-
tial interference with the rights of other employees.84
The Court then lists a number of supporting questions that again re-
flect a very similar analysis to the Oakes proportionality test.85 These
questionsHas the employer investigated alternative approaches that
do not have a discriminatory effect, such as individual testing against a
more individually sensitive standard?; If alternative standards were in-
vestigated and found to be capable of fulfilling the employers purpose,
why were they not implemented?; Is there a way to do the job that is
less discriminatory while still accomplishing the employers legitimate
purpose?are all akin to the second stage of the Oakes proportionality
test. The question, Is it necessary to have all employees meet the single
standard for the employer to accomplish its legitimate purpose or could
standards reflective of group or individual differences and capabilities be
established? reflects the first stage of the Oakes proportionality test (or,
alternatively, could be understood as referring to minimal impairment).
The question, Is the standard properly designed to ensure that the de-
sired qualification is met without placing an undue burden on those to
whom the standard applies? resembles the third stage of the Oakes pro-
portionality test.
Subsequent cases have followed the same line of analysis. In Entrop v.
Imperial Oil,86 for example, Imperial Oil adopted an employee alcohol and
drug testing policy that included an automatic termination of employment
sanction for positive tests. The issue in court was whether this policy was
discriminatory on the basis of disability, which includes substance abuse.
The legitimate purpose of minimizing risk of impairment due to substance
abuse and ensuring a safe workplace, especially in safety-sensitive posi-
tions, was clearly identified. The Ontario Court of Appeal held that while
drug testing was, in general, rationally connected to work performance, it
could not measure present impairment of ability to perform work safely,
only past drug use. Accordingly, the court held that this testing could not
be justified as reasonably necessary to accomplish Imperial Oils legiti-
mate goal, which in this case appears to suggest that the policy failed the
rational connection test.87 It was also held that the sanction for a positive
test was too severemore stringent than needed for a safe workplace
84 Ibid at para 63.
85 Ibid at para 65.
86 Supra note 72.
87 Ibid at para 99.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 399
and not sufficiently sensitive to individual capabilitieswhich appears to
suggest that the policy also failed the minimal impairment test.88
4. Picketing
Another context we would like to discuss regarding implicit use of
proportionality involves cases concerning picketing. Proportionality may
be relevant to picketing in two different contexts. The first context is con-
stitutional and examines whether picketing should be permitted or re-
stricted by legislation or common law rules. The second context focuses on
the relationship between the union and the employer and assesses wheth-
er the use of picketing is appropriate, which involves the application of
the legislation or common law rule in the specific circumstances. The rel-
evance of proportionality in the first, constitutional context is clear. Pick-
eting is a form of expression and, as such, is protected under section 2(b)
of the Charter. Imposing limitations on picketing may therefore be justifi-
able only in accordance with section 1 and the Oakes test. Our focus in
this article is on the second context and its less obvious relevance to pro-
portionality. When determining, in specific circumstances, whether to is-
sue an injunction or not, courts examine a unions action and require cer-
tain standards to be met (as sometimes imposed by an injunction order),
in line with the principle of proportionality.
In the case of Pepsi-Cola,89 the Supreme Court of Canada dealt with
both contexts. First, it examined the constitutionality of banning or limit-
ing secondary picketing at common law and held that secondary picketing
should be allowed unless it involves a wrongful action (e.g., a crime or a
tort) because picketing engages freedom of expression, which is constitu-
tionally protected under section 2(b) of the Charter.90 The Court held that
the Charter is relevant despite the private nature of the matter because:
The Charter constitutionally enshrines essential values and princi-
ples widely recognized in Canada, and more generally, within West-
ern democracies. Charter rights, based on a long process of historical
and political development, constitute a fundamental element of the
Canadian legal order upon the patriation of the Constitution. The
88 Ibid at para 100.
89 RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, [2002] 1
SCR 156 [Pepsi-Cola].
90 The Court first delved into the relationship between common law and the Charter in
RWDSU v Dolphin Delivery Ltd ([1986] 2 SCR 573, 33 DLR (4th) 174), in which it stat-
ed that when a private party sues another private party under common law, the
Charter does not apply, but the principles of the common law should apply and be
developed in a manner consistent with the fundamental values enshrined in the
Constitution (ibid at 603).
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Charter must thus be viewed as one of the guiding instruments in
the development of Canadian law.91
Furthermore, since freedom of expression is not unlimited, being subject
to reasonable limitation under section 1, the Court subjected the common
law to section 1 values in the following: Limitations are permitted, but
only to the extent that this is shown to be reasonable and demonstrably
necessary in a free and democratic society.92
Next, the Court moved on to assess the dispute between the private
partiesPepsi-Cola and the trade unionand asked whether the use of
secondary picketing was appropriate. The Court held that the protest out-
side the homes of Pepsi-Colas management personnel was tortious, and
upheld the associated injunction order, but allowed the peaceful picketing
outside retail outlets selling Pepsi-Cola products.93 Although this wrong-
ful action approach does not explicitly require a balancing act, 94 the
Court recognized that courts and legislatures might have to provide sup-
plementary guidelines:
Doubtless issues will arise around the elaboration of the relevant
torts and the tailoring of remedies to focus narrowly on the illegal
activity at issue. Doubtless too, circumstances will present them-
selves where it will become difficult to separate the expressive from
the tortious activity. In dealing with these issues, the courts may be
expected to develop the common law sensitively, with a view to
maintaining an appropriate balance between the need to preserve
third-party interests and prevent labour strife from spreading undu-
ly, and the need to respect the Charter rights of picketers.95
In our view, maintaining an appropriate balance requires a proportionali-
ty analysis, which may be developed at common law. The Court recog-
nized that although picketing may cause economic harm to employers and
third parties, it is usually allowed because such economic harm is antici-
pated by our labour relations system as a necessary cost of resolving in-
dustrial conflict.96 However, the most problematic picketing, whose
value is clearly outweighed by the harm done to the neutral third party
or which causes irreparable harm to the employer, will either not be al-
91 Pepsi-Cola, supra note 89 at para 18.
92 Ibid at para 37.
93 Ibid at para 11617.
94 See Brian Langille, Why the Right-Freedom Distinction Matters to Labour Lawyers
And to All Canadians (2011) 34:1 Dal LJ 143 at 153.
95 Pepsi-Cola, supra note 89 at para 107 [emphasis added].
96 Ibid at para 45.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 401
lowed or be subject to some restrictions.97 Thus, these statements have
opened the door for a proportionality analysis in subsequent cases.98
In some jurisdictions, injunction orders in labour disputes are regulat-
ed by statute. In Ontario, for example, an employer or a third party has to
show that there are activities taking place that cause danger of damage to
property, or danger of injury to people, or obstruction of or interference
with lawful entry or exit from the property.99 While the statute does not
explicitly refer to proportionality, post-Pepsi-Cola cases have engaged in
an analysis that closely resembles the Oakes proportionality test. As will
be argued later, a more explicit use could better guide the reasoning by
providing detailed structure, and thus, provide much more useful prece-
dent for future cases.
In Unilux Boiler Corp. v. Fraser, 100 for example, when employees
committed tortious acts and criminal misconduct in the course of their
picketing, Unilux sought an injunction that would, among other things,
limit the number of picketers. The Ontario Superior Court of Justice ex-
amined this request and held that it was an unmerited infringement on
the Unions ability to provide support for the remaining strikers and to
exert pressure on their employers.101 In other words, the unions actions
met the first stage of the Oakes proportionality test: the picketing was ra-
tionally related to the aim of exerting pressure upon the employer. How-
ever, the court was willing to issue an order restraining the union from
preventing entrance or exit for any time longer than five minutes.102 That
is, the unions actions failed to meet the second stage of the Oakes propor-
tionality test. Apparently, the court felt that a five-minute delay at the
entrance was sufficient to achieve the goals of picketing, including convey-
ing information about the dispute and exerting social and economic pres-
sure on the employer, and accordingly, a longer delay could not be justi-
fied. Alternatively, perhaps the court felt that the unions actions did not
97 Ibid at para 106.
98 Here we wish to leave open the question as to who bears the burden of proof. The law
already imposes (at least in theory) a heavy burden of proof on applicants who wish to
obtain an injunction to restrain picketing. One might argue that they should also bear
the onus of proving that the picketing was disproportionate. But there are other rele-
vant considerations: On the one hand, it is the picketing trade union which has to exert
its powers proportionately. On the other hand, an injunction to restrain picketing might
be significantly detrimental to the trade union and infringes on its fundamental rights
and freedoms.
99 See Courts of Justice Act, RSO 1990, c C.43, s 102.
100 2005 CarswellOnt 4362 (WL).
101 Ibid at para 40.
102 Ibid at paras 4142.
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meet the third stage of the Oakes proportionality test, because the costs to
the employer outweighed the benefits of picketing when people were de-
layed at the entrance for more than five minutes. It is not clear from the
judgment which of the two tests was applied; the court only emphasized
the fact that some of the unions actions were unlawful.103 But some form
of a proportionality test is obviously required if injunctions are issued only
against delays at the entrance that are longer than five minutes. Why five
and not more or less? Either a minimal impairment test or the third stage
of the proportionality test is necessary to justify such a conclusion.
In Ogden Entertainment,104 striking workers at the Corel Centre in the
City of Kanata, where NHL games were played, had set up large picket
lines on nights with scheduled hockey games. They impeded the access of
passenger vehicles, public transit, commercial vehicles, team buses, and
more. Traffic jams resulted, causing traffic on the highway to back up for
many miles. The picketers did not distribute leaflets or try to communi-
cate with the occupants of any vehicles. The Ontario Court of Justice held
that the picketing amounted to a criminal offence and nuisance, and
stressed that the only thing the picketers achieved was the obstruction of
vehicles.105 It also stated that there might be a need for special rules to
apply in cases that involve large numbers of people who are not party to
the labour dispute.106 The court issued an injunction restraining the pick-
eters from interfering, blocking, or delaying any person or vehicle from
entering or exiting the Centre.107
This is another example of how courts resort de facto to a proportional-
ity analysis, and again, a more structured analysis in line with the three-
stage Oakes proportionality test could have been beneficial. The court
maintained that the picketers did not convey information to the public
and achieved nothing other than the obstruction of vehicles. This appears
to mean that their actions failed the first stage of the proportionality test:
no rational connection to a legitimate goal. However, a better articulation
of the unions goalan articulation that recognizes the need to exert eco-
nomic pressure on the employermay have led to a different conclusion.
Arguably, the analysis would have benefited from a discussion of the sec-
103 Ibid at paras 2023.
104 Ogden Entertainment Services v USWA, Local 440 (1998), 159 DLR (4th) 340, 43
CLRBR (2d) 39 (Ont Gen Div) [Ogden Entertainment cited to DLR].
105 Ibid at 34446.
106 Ibid at 347.
107 Ibid at 349. The Court of Appeal upheld the order except for the part where the court
directed the Ontario Provincial Police to enforce the order. This part was struck because
the order arose out of a civil proceeding. See Ogden Entertainment Services v USWA,
Local 440 (1998), 38 OR (3d) 448, 43 CLRBR (2d) 48 (Ont CA).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 403
ond stage: did the union have other alternatives that were less harmful to
the employer but also achieved its legitimate goals? The court did hold
that the picketers committed the tort of nuisance, which is clearly harm-
ful to the employer, but it did not consider whether other, less harmful
ways to achieve its legitimate goals were actually available to the union.
Moreover, as part of the balance of convenience examination that courts
employ to consider petitions for injunctions, the court weighed the em-
ployees interest in obstructing traffic against the employers right to en-
joy lawful entrance to and exit from its premises by its tenants, other em-
ployees, and members of the public.108 Not surprisingly, it concluded in fa-
vour of the employer.109 An explicit resort to the third stage of the propor-
tionality test could have led to a better articulation of the rights and in-
terests involved. Employees obviously do not have a right to obstruct traf-
fic per se, but they have a right to exert pressure on the employeror at
least a legitimate interest in doing soas a way to secure better work
conditions. The court should have considered not only the damage to the
employer and to the public but also the importance of the actions for the
picketers themselves.
In Ledcor,110 the workplace was under substantial renovations and, as
a result of picketing at the entrance that included delays of vehicles, con-
struction had to be shut down. The Ontario Superior Court of Justice al-
lowed the picketing, but to ensure that construction workers were let in,
the court limited the maximum number of picketers to twenty. The pick-
eters were further prohibited from obstructing or blocking entrances to or
exits from the site. This result resembles the minimal impairment test.111
The court, in effect, concluded that there were less intrusive ways to
achieve the objective and since the union had not chosen them, the court
had to impose some limitations.
In Industrial Hardwood, 112 the strikers set up a picket line and
blocked the entrance of vans carrying replacement workers. The delay
was up to an hour and included harassment of replacement workers and
damage to the vans. The Ontario Superior Court of Justice issued an or-
der that prohibited picketers from preventing vehicular access to the
workplace and also prohibited all picketing at the plant, except for the
purpose of communicating information to those wishing to receive it, and
108 Ogden Entertainment, supra note 104 at 349.
109 Ibid at 348.
110 Ledcor Industries Ltd v Sheet Metal Workers International Association, 2004 CanLII
16548 (Ont Sup Ct) [Ledcor].
111 Ibid at para 23.
112 Industrial Hardwood Products (1996) Ltd v International Wood and Allied Workers of
Canada, Local 2693, 2000 CarswellOnt 383 (WL Can).
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only for a maximum of five minutes. The order also limited the number of
picketers to four at each plant entrance. The Court of Appeal upheld the
order except for the limitation on the number of picketers.113
The Court of Appeal stated the unions legitimate objective as follows:
This analysis again echoes the three-stage Oakes proportionality test.
[Picketing] provides striking workers with the collective opportunity
to seek to persuade others of the rightness of their cause. It allows
them to express through collective action their solidarity in pursuit
of that cause. And it provides an important outlet for collective ener-
gy in what is often a charged atmosphere.114
Based on this starting point, the first stage of the Oakes proportionality
test was not met: blocking the entrance and harassing replacement work-
ers is not effective in achieving this objective. Providing replacement
workers with information, on the other hand, as the order suggests, is ra-
tionally related to the objective. The second stage of the Oakes propor-
tionality test was not met: there were less intrusive means to achieve the
objective. As the Court of Appeal stated, the delays were in the range of
half an hour, considerably longer than reasonably necessary for the pick-
eters to effectively communicate their position to the occupants of the
vans.115 The order therefore limited the delay to five minutes. The third
stage of the Oakes proportionality test was not met: the harms caused by
the picketing outweighed its benefits. The case did not involve any proper-
ty damage or personal injury, but the court considered the degree and du-
ration of obstruction to entry or exit to be very substantial.116 To be sure,
the results may have been different had the court considered the goals of
exerting pressure on the employer or preventing strikebreaking as well.
Even if the three stages of the proportionality test are applied explicitly
and separately, there is always room for discretion (and disagreement) on
how to apply them. But such an analysis can help in pointing attention to
all relevant considerations and in creating a more structured decision-
making process.117
113 Industrial Hardwood Products (1996) Ltd v International Wood and Allied Workers of
Canada, Local 2693 (2001), 52 OR (3d) 694, 196 DLR (4th) 320 (Ont CA).
114 Ibid at para 14.
115 Ibid at para 25.
116 Ibid at paras 2327.
117 For an additional example, see Aramark Canada Ltd v Keating, 2002 CarswellOnt
6031 (Ont Sup Ct). Note that, in this case, the court does consider the legitimate goal of
exerting pressure on the employer (ibid at para 29).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 405
5. Unfair Labour Practice
A final example of an implicit use of proportionality revolves around
unfair labour practice cases. Although the requirement of intentional in-
terference does not appear in certain (often central) provisions regulating
employers interference with trade unions, labour relations boards and
courts have insisted on finding that employers were intentionally involved
in unfair labour practice before holding them liable.118 A more balanced
approach might be to prohibit any sort of anti-union action by employers
subject to the principle of proportionality. That is, employers often exer-
cise their managerial prerogative to advance various actions in the work-
place. These actions might interfere with trade unions. When an employer
shows that: a) behind its action, there was a legitimate objective that is
rationally connected to the action; b) the action was the least intrusive
one to achieve the legitimate objective; and c) the harm to employees
rights and interests is not disproportionate to the benefits of achieving
that objective, the action would be allowed. In contrast, anti-union actions
that are not proportional would be considered unfair, and thus illegal, re-
gardless of the employers intention.
A few cases have followed this proportionality analysis, though implic-
itly. The leading example is CBC v. Canada (Labour Relations Board),119
in which the union filed an unfair labour practice complaint, claiming that
CBC had interfered with its actions when it forced the union president,
Goldhawk, to choose between his job as host of a radio program and his
role as union president. This move by CBC followed publication of an arti-
cle written by Goldhawk which the network thought was in violation of its
journalistic policy. The complaint was upheld by the Canada Labour Rela-
tions Board and the Supreme Court of Canada. While CBCs actions were
not intentionally anti-union, it was found liable because the unfair labour
practice provision in the federal code, as well as in other Canadian juris-
dictions, is not limited to intentional actions but broadly prohibits any in-
terference.120 As Brian Langille and Patrick Macklem describe it, it was
clear that CBC had interfered with employee representation, yet
[t]he issue, just as it is in human rights and constitutional analysis,
is of possible justification. This requires … a balancing or proportion-
ality analysis. And this is what the board and the Court did, with
118 See e.g. Labour Relations Act, supra note 33, s 70 (as opposed to s 72); International
Wallcoverings v Canadian Paperworkers Union (1983), 4 CLRBR (NS) 289 (OLRB) [In-
ternational Wallcoverings]; Brian Langille & Patrick Macklem, The Political Economy
of Fairness: Frank Iacobuccis Labour Law Jurisprudence (2007) 57:2 UTLJ 343 at
353.
119 [1995] 1 SCR 157, 92 DLR (4th) 316.
120 Canada Labour Code, supra note 33, s 94(1)(a).
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the result that the CBC was not able to justify its decision by refer-
ence to a compelling business justification of its action.121
In The Society of Energy Professionals v. Hydro One,122 the Board ex-
plained which factors come into play when assessing an employers con-
duct to determine whether it constitutes an unfair labour practice. The
board employed elements of proportionality, and especially elements of
the third stage of the Oakes proportionality test, which measures the se-
verity of the interference for the trade union against the benefits of
achieving the legitimate business goal, when it looked for more than in-
cidental interference with the trade union and examined whether there
was an imbalance of interests in favour of the protected activity,
whether the conduct threaten[ed] the formation or very existence of a
trade union, and whether the employer conduct [was] classic business
activity, such as a bona fide exercise of a managerial prerogative, such as
a layoff, or subcontracting decision.123 An explicit resort to all three stag-
es of the proportionality test could be more beneficial. The test would ask
whether the action that may interfere with the trade union would achieve
the legitimate business goal, thus testing rational connection. It would al-
so ask whether the action is necessary, or whether there are other, less
intrusive ways to achieve the legitimate business goal.
II. Justifications for Applying Proportionality in Labour and Employment
Law
A. Introduction
In the previous Part, we have shown that proportionality tests are al-
ready an important feature of Canadian labour and employment law. In
the current Part, we turn from the descriptive to the normative. To justify
the growing practice of resort to proportionality testsand to suggest that
this practice should be expanded and become more explicit and struc-
turedwe proceed in three steps. First, in Subsection B, below, we argue
that it is justified to place a high standard of behaviour on employers vis-
-vis their employeeshigher than the standard demanded in other con-
tracts. It is similarly justified to demand a higher standard from unions
when they are exercising powers that have the potential to harm employ-
ers and the public at large. Then, in Subsection C, we argue that the pro-
121 Langille & Macklem, supra note 118 at 353. See also International Wallcoverings, supra
note 118.
122 The Society of Energy Professionals v Hydro One Inc (2005), 123 CLRBR (2d) 42
(OLRB).
123 Ibid at para 76.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 407
portionality tests are an appropriate choice to guide such a higher stand-
ard, as they are more concrete than other (vague) standards, provide clear
guidance, and generally refrain from intervening in the choice of goals,
thus offering balanced solutions.124 In this context, it will be shown that
proportionality is already used by other legal systems and has proven use-
ful to solving labour law questions. Finally, in Subsection D, we discuss
the doctrinal issues. We argue that applying these proportionality tests is
within the discretion of the courts in the development of the common law
and, in some cases, when interpreting legislation. We also argue that ap-
plying these tests will have the added advantage of improved coherence
within the legal system.
B. A Higher Standard of Behaviour is Normatively Justified
A market economy is based, to a large extent, on self-interest. People
are allowed to act to advance their own interests. Indeed, they are ex-
pected to do so, and contract laws assume that a meeting of (self-)interests
will lead to an agreement that is beneficial to both parties, and indirectly,
to society at large. The law, therefore, generally supports such agree-
ments without requiring individual actors to consider either the interests
of others with whom they contract or other societal interests. There are
exceptions, as we shall see shortly, but this is the default rule.
The government, on the other hand, is expected to uphold a higher
standard. Government officials making a decision obviously think first
and foremost about the governments interests, and so they should. But
they also have to consider the implications for others; if a decision harms
someone, officials have to take this into account. The leading benchmark
used in recent years to examine governmental decisions is proportionality.
In Canada, as in many other countries, society expects the government to
act in accordance with the standard of proportionality, meaning that the
decision has to pass the three stages of the test mentioned above. Why
does the law demand a higher standard of behaviour from the govern-
ment, as compared with the standard required in dealings between pri-
vate actors? One answer could be the fact that the government acts as our
long arm, in that government officials represent us and make decisions
on our behalf. It is only natural that we demand that they do so with a
degree of respect for our intereststhat they, at the very least, take them
into consideration.
124 Subsection B and the first part of Subsection C are based, to some extent, on Davidov,
Proportionality, supra note 14; Guy Davidov, The Principle of Proportionality in La-
bour Law (in Hebrew) (2008) 31:1 Tel Aviv University Law Review 5. For additional
references, see ibid.
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There is, however, another justification that is just as valid. Govern-
ments have power, and power should be used responsibly. In various con-
texts, the law is designed to prevent the abuse of power by those who hold
it; public law can be seen as an example of this general legal rule. But
private actors hold power as well. Corporations have significant powers,
which the law limits in various waysfor example, with competition or
anti-trust laws, or consumer laws. In these regulated areas, private actors
can no longer act freely to promote their self-interest. Rather, the law cre-
ates limitations to ensure that the interests of other parties are consid-
eredthat is, that harms to others are minimized.125 Employment stand-
ards are, in effect, another example of this general rule. They are based
on the understanding that employment relationships are characterized by
a power imbalance. Employers sometimes abuse their superior powers,
and employment laws are designed to prevent thatfor example, by set-
ting a minimum wage. If the interests of employees are sufficiently con-
sidered, the wage cannot fall below a certain minimum.
In collective relations, both parties have powers, and the same ideas
apply. Here it is not only the employer, but also the union that is expected
to use its power responsibly. The law recognizes the right to strike (or
picket, etc.) and protects striking employees; in effect, unions have been
given a legal power to take collective industrial actions. At the same time,
it is justified to demand that decisions concerning such actions, which
create significant harms to both employers and the public at large, meas-
ure up to a high standard of behaviour, to ensure that the power is not
abused.
C. Proportionality is an Appropriate Choice of a Higher Standard of
Behaviour
It should be fairly easy to accept the argument in the previous section.
After all, labour and employment laws already create various limitations
on the exercise of power by employers and by unions. And, without getting
into the details of these laws, their basic existence is uncontroversial. The
question is, however: why should we add an additional limitation (propor-
125 Accordingly, in Germany, the Constitutional Court recognized a constitutional duty to
protect fundamental rights not only vis–vis the state but also vis–vis threats stem-
ming from private parties or societal forces. Since threats of this sort are themselves a
result of the exercise of fundamental rights, this duty can be fulfilled only by limiting
one group’s rights in order to protect the rights of another (Grimm, supra note 2 at
392). As Grimm points out, Canadian law also recognizes that protecting a vulnerable
or not […] powerful group in society may justify a limitation vis–vis those who profit
from this vulnerability (ibid, citing R v Edwards Books and Art Ltd, [1986] 2 SCR 713,
35 DLR (4th) 1).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 409
tionality) to the ones that are already detailed in legislation? Here, we of-
fer two separate answers.
The first is that adopting the principle of proportionality does not nec-
essarily create additional limitations. As we have shown in the previous
Part, in many cases the current lawwhether in the form of legislation or
common lawalready places limits on the use of power by employers or
unions. Thus, for example, employers are legally entitled to dismiss em-
ployees, but this power has various limitations. Unions are legally enti-
tled to organize picketing, but again, this power is not without limitations.
Judges are left with broad room for discretion when applying these laws;
thus, the three proportionality tests can be a useful aid. In other words, in
many cases, proportionality would simply structure the analysis. While
employee rights have been granted considerable weight in the case law,
applying proportionality would strike an appropriate balance between the
rights of employees and rights and interests of employers. As England ar-
gues, the use of proportionality is essential in ensuring that employee
rights are not advanced at the expense of unduly impairing employers
economic efficiency, from which everyone ultimately benefits.126
The second answer refers to situations in which proportionality would
indeed create new limitations on employers or unions. We argue that this
too is justified, at least in some contexts, and can be achieved by judicial
development of the common law. We discuss the doctrinal viability of this
proposal in the next Subsection. Here, we wish to justify the choice of in-
strument: Why proportionality and not some other standard?
The employment relationship is dynamic. Demands from an employee
change over time. Mutual expectations evolve, and so do workplace norms
and rules. New managers and co-workers replace old ones. Power can be
used, and abused, in different and unexpected ways. Some of these ways
are addressed by specific regulations, but regulations can never cover the
entire range of possibilities. It is therefore useful to leave some degree of
discretion for courts to prevent the abuse of power in unforeseen situa-
tions. This is accomplished through various open-ended standards. In-
deed, legislatures have established, and adjudicators have also developed,
a de facto requirement of fairness in some employment contexts.127 And,
as we have seen, employers are sometimes required by common law to
measure up to a reasonableness standard.128 Canadian courts have recog-
126 England, supra note 16 at 5.
127 See discussion in Part I, above, specifically on just cause dismissal and privacy in the
workplace.
128 See discussion in Part I, above, specifically on privacy and discrimination in the work-
place. Furthermore, Sullivan & Frase argue that the common law originally embraced
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410
nized implied contractual duties to treat employees with civility, decency,
respect, and dignity,129 and to exercise discretion reasonably, or at least
honestly and in good faith, when discretion may adversely affect employ-
ees interests.130 In other legal systems, a requirement of good faith in em-
ployment relations is increasingly gaining ground.131
The advantage of these open-ended standards is their ability to ad-
dress new problems in an ever-changing landscape. There is, obviously, a
price in terms of indeterminacy and vagueness.132 To enable workers to
know their rights and employers to know their obligations, we need con-
crete rules. To some extent, courts can develop such rules over the years
by implementing the open-ended concepts, but such rules are always in-
complete. We believe that the principle of proportionality offers a balance:
it is open-ended and yet includes relatively concrete rulesthe three-part
proportionality test. Admittedly it does not offer clear-cut solutions for
any given case. Yet the three-stage structure offers a principled way to
analyze the problem and promises a degree of determinacy and predicta-
bility higher than what can be found in open-ended standards.133
Proportionality also offers a balance in terms of respecting the rights
and interests of both parties. The default rule is that the employer is free
proportionality in the general sense, specifically common law limitations on compensa-
tory damages in contract and tort (supra note 5 at 14, 3749).
129 See Kevin Banks, Progress and Paradox: The Remarkable Yet Limited Advance of
Employer Good Faith Duties in Canadian Common Law (2011) 32:3 Comp Lab L &
Poly J 547 at 57477.
130 See ibid at 57880. See also Metropolitan Toronto, supra note 68, on the obligation of
management in a unionized setting to exercise its discretion reasonably, that is, collec-
tive agreements include an implied term of reasonable contract administration.
131 See e.g. in Israel, Davidov, Proportionality, supra note 14 at 7172. In Canada, there
is no general duty to act in good faith during the course of the employment relationship.
There is, however, a duty to act in good faith in the manner of dismissal (see Wallace v
United Grain Growers Ltd, [1997] 3 SCR 701, 152 DLR (4th) 1). Furthermore, there are
many cases in which courts in fact imposed an implied duty of fairness in the course of
the employment relationship. These cases revolve around constructive dismissal but re-
veal some important duties of fairness such as obliging employers to conduct perfor-
mance appraisals in a fair and sensitive manner, and to assign work duties in a fair and
reasonable way (England, supra note 16 at 22 ×.). See also Banks (su-
pra note 129) who argues that the common laws implied contractual duties and con-
straints imposed by tort law upon employers closely resemble a general duty of good
faith and fair dealing.
132 On the imprecision of good faith doctrines, see e.g. Reuben A Hasson, Good Faith in
Contract Law: Some Lessons from Insurance Law (19871988) 13 Can Bus LJ 93;
Shannon Kathleen OByrne, The Implied Term of Good Faith and Fair Dealing: Recent
Developments (2007) 86:2 Can Bar Rev 193.
133 As David Beatty argues, proportionality is more impartial and neutral than many other
legal principles (supra note 5 at 162, 16668).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 411
to make any managerial decision, so the principle of proportionality does
not generally intervene in business judgments and choices. The exception
is that society insists on a degree of respect for the rights and interests of
employees. Employers are not expected to completely internalize the costs
of their decisions on employees. They are, however, expected to refrain
from choosing means that do not advance their own goals, means that
harm the employees more than necessary to achieve these goals, and
means that infringe the rights of employees in a way that inflicts harms
disproportionate to the expected gains. In short, the proportionality test
ensures that the harms to employees are minimized, while also minimiz-
ing any intervention in business decisions.
This does not mean that every decision by every employer and every
union must be subject to a proportionality analysis. Some decisions are
entirely prohibited, and should remain sofor example, dismissing an
employee because of union activities. Other decisions are entirely within
the employers discretion, and should remain sofor example, choosing
the managers. Our focus here is on decisions that fall somewhere in be-
tweenthat is, allowed in principle, but subject to limitations. We argue
that the proportionality test is a useful and appropriate way to articulate
such limitations and to structure their analysis. We believe that the use of
this test is warranted and justified in the various contexts discussed in
the previous Part. We also believe that the same test could be useful and
justified in other labour and employment contexts. We give two examples
in the next Part; additional contexts could be considered in future re-
search.
There are two possible critiques of proportionality that should be con-
sidered here. First, a relatively open-ended standard could be difficult to
enforce. One could argue that such a standard would be relevant as a
matter of practice only for high-level employees, those with access to legal
advice and resources. This could lead to more disparity and higher ine-
quality between workers. However, if employers change their decision-
making process to consider the impact on employeesas required by pro-
portionality testslower-income employees can be expected to benefit as
well. Moreover, we do not propose to replace other (more concrete) stand-
ards, only to add another layer. There is no reason to believe that a re-
quirement to avoid unnecessary or excessive harms to employees would
detract in any way from the rights of other employees.
A second possible critique is that applying the principle of proportion-
ality, especially the third part of the test, requires adjudicators to engage
in an act of balancing and weighing various considerations. This might be
problematic, especially in a private sector context in which the decision
makers (in the current context, employers or trade unions) are in the best
position to engage in such an analysis; decision makers discretion should
not be replaced by the adjudicators discretion. Intervening in managerial
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412
decisions infringes the autonomy of employers and could be detrimental to
efficiency. Intervening in union decisions could be similarly detrimental to
unions autonomy and ability to achieve their goals.
Our response is twofold. First, as the examples in the previous Part
show, courts are already required to engage in balancing when applying
the law. We simply suggest replacing existing standards, such as reason-
ableness, with the more structured tests of proportionality. Second, pro-
portionality analysis involves very little intervention in the choice of
goals, except for very extreme situations in which certain goals will be
deemed illegitimate. Employers and unions will thus continue to have
very broad discretion in choosing their goals. The requirement to choose
means that are rationally related to that goal, and that will minimize the
negative impact on others as much as possible, is hardly a cause for con-
cern. Rationality and minimal respect for others are not ingredients in a
recipe for inefficiencyquite the contrary.134 The situation is a bit differ-
ent with regard to the third branch of the proportionality test, requiring
employers and unions to internalize, to some extent, the costs to others of
their decisions. To limit the harms of this demand, we suggest that the
level of scrutiny vary depending on the type of decision that is in question.
For example, when fundamental rights are at stake (such as equality, pri-
vacy, or freedom of association), stricter scrutiny is more appropriate
compared with the protection of other interests (such as ones job, as in
just cause cases). In the latter cases, the third stage of the proportionality
test could be relaxed, allowing intervention only in extreme cases of dis-
proportionality.
The many advantages of a proportionality test delineated above prob-
ably explain the ever-growing reliance on proportionality in the labour
and employment laws of other countries. Most notably, proportionality is
heavily used as a labour and employment law standard in Germany (ver-
hltnismigkeitsprinzip). Interestingly, the strongest example is found
in cases on the legality of strikes.135 The principle was established in 1971,
when the Federal Labour Court held that, due to their negative impact on
participants as well as third parties and the general public, strikes and
134 Admittedly, there are litigation costs as well as the costs of possible judicial mistakes
(i.e., when a court or adjudicator may decide that an employers actions were not in line
with the proportionality test based on a failure to understand the evidence). But such
costs are not significantly different than in any other context of labour and employment
law. In practice, employees rarely have the resources to sue, so the overall number of
cases is not likely to rise substantially when a new right is created.
135 See Manfred Weiss & Marlene Schmidt, Labour Law and Industrial Relations in Ger-
many, 4th ed (Alphen aan den Rijn, The Netherlands: Wolters Kluwer, 2008) at paras
49397.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 413
lockouts have to comply with the principle of proportionality.136 To meet
this requirement, industrial action must be suitable and necessary to
achieve legal aims; must be proportional to those aims; must be used only
after all other negotiations have failed (i.e., the last resort or ultima ratio
principle); must not exceed what is necessary to achieve the aim; and also,
both parties must contribute to restoring peace as extensively and as soon
as possible after the industrial action is over.137
In the European Union, the principle of proportionality applies in var-
ious private spheres, including discrimination law. In October 2000, the
EU adopted the Directive establishing a general framework for equal
treatment in employment and occupation for all people, irrespective of a
range of factors.138 While direct and indirect forms of discrimination are
prohibited,139 article 2(2)(b) provides that indirect discrimination can be
justified if it serves a legitimate aim and the means of achieving this aim
are objectively necessary and proportionate.
Furthermore, the European Court of Justice (ECJ) subjects trade un-
ions to the principle of proportionality. In the controversial Laval case,140
it was held that the right to take collective action (i.e., the right to strike)
was a fundamental one, but was subject to certain restrictions. Since it
might have infringed the right to provide services, which is one of the
fundamental freedoms guaranteed by the Treaty on the Functioning of the
136 BAG, 21 April 1971, AP Nr 43, cited in Carl Mischke, Industrial Action in German
Law (1992) 13:1 Indus LJ 1 at 8, n 38 (on art 9 GG Industrial Action).
137 See Mischke, supra note 136 at 9; Manfred Weiss, The Settlement of Labour Disputes
in Essential Services in the Federal Republic of Germany (1997) 18 Indus LJ 1 at 67;
Weiss & Schmidt, supra note 135 at para 494; Jens Kirchner & Eva Mittelhamm, La-
bour Conflicts in Jens Kirchner, Pascal R Kremp & Michael Magotsch, eds, Key As-
pects of German Employment and Labour Law (Berlin: Springer, 2010) 199 at 201. The
application of proportionality in this context raises extensive criticism. In constitutional
and administrative law, proportionality sets limits on the use of power to infringe fun-
damental rights, whereas in this context, it sets limits on the exercise of freedoms. See
Mischke, supra note 137 at 9, n 39.
138 EC, Council Directive 2000/78/EC of 27 November 2000 establishing a general frame-
work for equal treatment in employment and occupation, [2000] OJ L 303/16
[2000/78/EC].
139 Ibid, art 2.
140 Laval un Partneri Ltd v Svenska Byggnadsarbetarefrbundet, C-341/05, [2007] ECR I-
11845; [2008] 2 CMLR 9 [Laval]. Laval Un Partneri Ltd, a Latvian company, won a
contract from the Swedish government. It posted Latvian workers to Sweden to work on
site, yet they earned much less than comparable Swedish workers. A Swedish union re-
quested Laval to sign a collective agreement to improve those workers conditions.
When Laval refused, the union called a strike to blockade Lavals premises. When La-
val could not execute the contract, it claimed that the blockade infringed its right to free
movement of services. The Swedish court referred the case to the European Court of
Justice.
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414
European Union, it had to be exercised proportionately.141 This case and
other similar cases142 were criticized for their outcomes, which prioritize
economic interests over social interests. Brian Bercusson, for example, ar-
gues against the use of proportionality in the context of strikes because
strikes are linked to a collective bargaining process, and it is difficult to
apply proportionality to unions demands, which change and evolve
through a process of negotiation. Also, applying proportionality may nega-
tively affect the impartiality of the state in economic conflicts.143 However,
while the outcome of these cases was controversial, it does not mean that
the application of proportionality should be eliminated altogether. Several
commentators have proposed different ways of applying the proportionali-
ty test in this context.144 Moreover, the justification for using this stand-
ard as a limitation of strikes becomes stronger when employers also have
to conform to the same standard.
In the UK, the more structured principle of proportionality has re-
placed or, some have suggested, should replace the standard of reasona-
bleness in various employment contexts.145 The principle of proportionali-
141 EC, Consolidated Version of the Treaty on the Functioning of the European Union,
[2010] OJ C 83/47, art 56. In Laval (supra note 140 at para 94), the Court ruled that
protecting the workers of the host state against possible social dumping generally con-
stituted a justifiable objective. However, in this case, it was not justifiable because the
collective bargaining regime in the host state of Sweden was not precise and accessible
enough for an undertaking to determine its obligations in advance (ibid at para 110).
142 See e.g. International Transport Workers Federation and Finnish Seamens Union v Vi-
king Line ABP and O Viking Line Eesti, C-438/05, [2007] ECR I-10806, [2008] 1
CMLR 51.
143 See Brian Bercusson, The Trade Union Movement and the European Union: Judg-
ment Day (2007) 13:3 Eur LJ 279 at 304.
144 See Catherine Barnard, A Proportionate Response to Proportionality in the Field of
Collective Action (2012) 37 Eur L Rev 117; Nikolett Hs, The Principle of Proportion-
ality in Viking and Laval: An Appropriate Standard of Judicial Review? (2010) 1:2 Eu-
ropean Labour Law Journal 236; ACL Davies, One Step Forward, Two Steps Back?:
The Viking and Laval Cases in the ECJ (2008) 37:2 Indus LJ 126 at 148.
145 See e.g. David Cabrelli, The Hierarchy of Differing Behavioural Standards of Review in
Labour Law (2011) 40:2 Indus LJ 147. Cabrelli discusses the emergence of a hierar-
chy of standards of review of managerial prerogative. He argues that
a by-product of the common law and statutory initiatives lying at the heart of
the regulation of managerial autonomy has been the emergence of differing
behavioural standards of review in the employment relationship. The com-
mon law and statutory employment protection obligations which are imposed
on employers entail that their decision making and general conduct be as-
sessed by adjudicators in accordance with a variety of differing standards of
review (ibid at 147).
He argues that in disability discrimination cases the range of reasonable responses
standard was replaced by a proportionality test (ibid at 160).
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 415
ty is well-established in discrimination law.146 This development was in-
fluenced by the jurisprudence of the ECJ applying EU directives concern-
ing equal treatment.147 These directives have led to the amendment of ex-
isting measures and to the adoption of new measures prohibiting em-
ployment discrimination on various grounds.148 They have also required
the application of a proportionality test as part of the defence in indirect
cases of discrimination.149 That is, a neutral-on-its-face provision, criteri-
on, or practice can be justified if the employer shows that it was a propor-
tionate means of achieving a legitimate aim.150 While most cases deal with
employers who discriminated against their employees, trade unions are
also subject to the same analysis.151 However, English courts often apply a
test integrating proportionality and reasonableness; a test that requires
an objective balance between the discriminatory effects of the measure
and the reasonable needs of the discriminator, but avoids subjecting em-
ployers to the stricter ECJ standard, which demands that indirect dis-
crimination be necessary to meet a real need of the business.152
Another application of a proportionality test is possible in cases of un-
fair dismissal under the Human Rights Act 1998, under which courts
evaluate the justification for dismissing an employee relative to the in-
146 See Baker, supra note 14; Davies, supra note 14; David Cabrelli, Rules and Standards
in the Workplace: A Perspective from the Field of Labour Law (2011) 31:1 LS 21
[Cabrelli, Rules].
147 See EC, Council Directive 76/207/EEC of 9 February 1976 on the implementation of the
principle of equal treatment for men and women as regards access to employment, voca-
tional training and promotion, and working conditions, [1976] OJ L 39/40 (as amended
by EC, Directive 2002/73/EC of the European Parliament and of the Council of 23 Sep-
tember 2002 amending Council Directive 76/207/EEC, [2002] OJ L 269/15); EC, Coun-
cil Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, [2000] OJ L 180/22; 2000/78/EC,
supra note 138.
148 This influence had first emerged in the area of sex discrimination. See Paul Davies &
Mark Freedland, The Impact of Public Law on Labour Law, 19721997 (1997) 26:4
Indus LJ 311 at 32734. See also the new Equality Act 2010 ((UK), c 15), which brings
together the different grounds of discrimination within one piece of legislation.
149 See Baker, supra note 14 at 307.
150 See Equality Act 2010, supra note 149, s 19(2).
151 See Davies, supra note 14 at 288.
152 See Baker, supra note 14 at 30708. Baker critiques the way British courts apply pro-
portionality, as if it means only that if the employer can point to strong enough rea-
sons, even an unnecessary rule can be justified, but never the other way around. It is
nearly impossible to find a UK employment discrimination decision where the impact of
the discrimination is measured or weighed at all (ibid at 311). See also Davies, supra
note 14 at 300. Davies argues against the tendency of British courts to respect the em-
ployers decision where economic arguments are made (ibid at 30103).
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416
fringement of his or her rights guaranteed under the Act.153 The Act in-
corporates the European Convention on Human Rights protections into
UK law.154 Although the Act focuses on the public sphere, applicable in the
current context to public sector employees, a claim can be invoked against
private employers and trade unions by various indirect means prescribed
by the Act.155 Baker argues that the Act provides a great opportunity to
enhance the application of proportionality in British discrimination law
cases.156 Similarly, it has been argued that the application of proportional-
ity in workplace privacy cases may reconcile employee privacy with em-
ployers interests.157
In France, there is a general rule grounded in the Labour Code that
prohibits any infringement of workers rights that is not in line with the
principle of proportionality.158 In Israel, labour courts have been using
proportionality tests de facto for many years, and more recently they have
started referring to the principle explicitly.159 It is reasonable to assume
that this trend will expand into many more countries in the near future.160
153 The test for unfair dismissal under section 98(4) of the Employment Rights Act 1996
((UK), c 18) is the band of reasonable responses (see Iceland Frozen Foods Ltd v Jones,
[1982] IRLR 439 (EAT)). But in the context of the Human Rights Act 1998 there is a po-
tential for an application of a stricter test of proportionality. Nevertheless, in several
cases (see e.g. X v Y, [2004] IRLR 625; Pay v Lancashire Probation Service, [2004] IRLR
129 (EAT); Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470) where dismis-
sal was found within the range of reasonableness, courts have rejected the argument
that the dismissal was disproportionate infringement of human rights, because they ei-
ther viewed both tests as very similar or declined to apply a stricter test. These cases
were criticized by various scholars who still advocate the application of proportionality
in this context. See Cabrelli, Rules, supra note 146 at 39; Davies, supra note 14 at 288,
298300.
154 Human Rights Act 1998 (UK), c 42, s 3.
155 See Davies, supra note 14 at 288.
156 Baker, supra note 14 at 31617.
157 See Hazel Oliver, Email and Internet Monitoring in the Workplace: Information Priva-
cy and Contracting-Out (2002) 31:4 Indus LJ 321.
158 Art L 120-2 Code du travail states that [n]o[]one can limit the rights of the individual,
or individual and collective freedoms, unless the limitations are justified by the task to
be performed or are in proportion to the goal towards which they are aimed (cited in
Jean-Emmanuel Ray & Jacques Rojot, Worker Privacy in France (1995) 17:1 Comp
Lab LJ 61 at 64). See also Christophe Vigneau, Information Technology and Workers
Privacy: The French Law (2002) 23:2 Comp Lab L & Poly J 351.
159 See Davidov, Proportionality, supra note 14 at 66.
160 In Australia, for example, the principle of proportionality, which includes three parts
(suitability, necessity, and balancing), assumes a critical role in constitutional law. It
was first introduced in Commonwealth v Tasmania ((1983), 158 CLR 1 at 25961, 46
ALR 625) and was influenced by the jurisprudence of the ECJ and the European Court
of Human Rights. See Jeremy Kirk, Constitutional Guarantees, Characterisation and
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 417
D. Applying the Proportionality Test is Doctrinally Possible and Will
Improve Coherence
So far, we have argued that it is justified to apply the proportionality
tests in the labour and employment sphere and to private sector employ-
ers as well. But some might question whether this is possible as a matter
of doctrine, given the current jurisprudence of the Supreme Court of Can-
ada concerning the inapplicability of the Charter in private relations. The
proportionality test was developed in Oakes as an aid for the application
of the Charters section 1. It is therefore not surprising that any mention
of proportionality tends to evoke the idea that the Charter is being ap-
plied. Nonetheless, our argument does not rely on any change in constitu-
tional jurisprudence. It squares perfectly well with the current jurispru-
dence, because we are not advocating the direct application of the Charter
in relations between individuals. We simply use the same legal tool
proportionalityas an aid in another context. For this reason, the use of
proportionality is not necessarily limited to situations in which funda-
mental rights have been infringed. While most of the examples considered
in this article implicate fundamental rights, the same kind of analysis
that we argue is useful for deciding labour and employment law cases can
also be useful to analyzing the impacts on other interests deemed to be
justified of protection.
There are two separate doctrinal routes in which we have argued that
proportionality is used (and should be used): interpretation of legislative
provisions and the development of common law rules. In both cases, pro-
portionality tests can be infused into current doctrines, and to some ex-
tent, already have been infused. It does not mean that employees have
constitutional rights vis–vis the employer. It simply means that limita-
tions on employers and unions are placed into the same structure of anal-
ysisthe three-stage proportionality testthat is used in constitutional
law.
The common law route is perhaps more controversial. Brian Langille
has argued against any kind of balancing when applying the common
law; he maintains that people should be able to exercise their freedoms
without limitations, even when such freedoms negatively and substantial-
ly affect others and their interests, unless one has a legal right that limits
the Concept of Proportionality (1997) 21:1 Melbourne UL Rev 1. Kirk raises the ques-
tion whether the application of the principle should be limited to interests and rights
guaranteed by the constitution or should extend to any fundamental interest and right
that any institution, not limited to governmental institutions, aims at overriding. He
points out that many Australian cases refer to interests that derive from the common
law. In one case, the court indicated that proportionality will protect fundamental val-
ues traditionally protected by the common law (ibid at 43).
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418
anothers freedom.161 Such a right, he argues, arises from legislation, and
can also arise from the common law. At the same time, he assumes that
judges cannot develop the common law to create new rights. It is here
that we respectfully disagree. Take restrictive covenants, for example.
Judges developed rules to decide cases involving such covenantsand to
place limits on the freedom of employers to use such covenantsby rely-
ing specifically on the concept of reasonableness. It would be odd to sug-
gest that judges are not allowed to further develop these rules, in replac-
ing the vague reasonableness test with the three-stage proportionality
test.
As the Supreme Court held in Pepsi-Cola, the law should be developed
in line with the values enshrined in the Charter.162 The principle of pro-
portionality has been a central part of Canadian jurisprudence, used as an
aid to implement Charter values.163 Applying the same tests in the labour
and employment sphere has the added advantage of increasing coherence
within the legal system. As David Beatty argues, [e]xempting judge-
made rules that regulate how people interact personally and privately in
civil society from having to conform to the principle of proportionality is
worse than incoherence.164 It is inconsistent with the hierarchical rela-
tionship between supreme and subordinate laws. Furthermore, while
some argue that applying proportionality in private law might threaten
individual autonomy and freedom, the principle of proportionality is, in
161 Langille, supra note 94 at 150.
162 See supra note 91 and accompanying text. See also Pepsi-Cola, supra note 89 (although
the Charter is not directly relevant to a dispute between private parties, the right to
free expression that it enshrines is a fundamental Canadian value and the develop-
ment of the common law must therefore reflect this value at paras 20, 32). See also
Lorraine E Weinrib & Ernest J Weinrib, Constitutional Values and Private Law in
Canada in Daniel Friedmann & Daphne Barak-Erez, eds, Human Rights in Private
Law (Oxford: Hart, 2001) 43. See also June Ross, The Common Law of Defamation
Fails to Enter the Age of the Charter (1996) 35:1 Alta L Rev 117; John DR Craig, In-
vasion of Privacy and Charter Values: The Common-Law Tort Awakens (1997) 42:2
McGill LJ 355. Both Ross and Craig argue that the torts of defamation and invasion of
privacy should be developed in line with Charter values. Finally, see Susan B Boyd,
The Impact of the Charter of Rights and Freedoms on Canadian Family Law (2000)
17:2 Can J Fam L 293 (fundamental values, such as equality, as enshrined in the Char-
ter, have recently been applied in different family law contexts even in the absence of
government or state action, requiring their interpretation relative to common law con-
cepts).
163 See Beatty, supra note 5. See also Guy Rgimbald, Correctness, Reasonableness and
Proportionality: A New Standard of Judicial Review (2005) 31:2 Man LJ 239 (arguing
that a proportionality test, similar to section 1 analysis, should be used in Canadian
administrative law in order to guide courts in judicial review when the standard of re-
view is patent unreasonableness).
164 Beatty, supra note 5 at 165.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 419
fact, sensitive to these values, and without it, the threat to privacy and
autonomy is greater.165
We have argued in Part II that applying the three proportionality
tests in the labour and employment context is normatively justified. This
analysis followed the detailed exposition of the various ways in which
these tests are already being applied in Canadian labour and employment
law, in Part I. Our conclusion is, therefore, that the development exposed
in Part I is justified. However, as the examples have shown, the use of
proportionality tests has so far been incomplete and inconsistent. We be-
lieve that an explicit reference to the three-stage proportionality test and
a separate application of each stage will be highly beneficial. First, our
recommendation will ensure that all the right questions are asked and
that the examination is structured and principled. Second, this will make
it easier for employers, employees, and unions to anticipate the results of
litigation and understand the requirements demanded of them. Finally,
an explicit resort to proportionality will add coherence to labour and em-
ployment law. As we have seen, courts invoke many different tests that
are, in fact, very similar, and can be replaced with the same proportionali-
ty test.
III. Additional Applications
As described in Part I, there are many employment and labour con-
texts in which the principle of proportionality applies either explicitly or
implicitly. This raises the question of whether there are additional labour
and employment law contexts in which proportionality could be relevant
and its implementation beneficial. We believe that the answer is affirma-
tive, and offer one example in this Part: setting limits for strikes and lock-
outs. We hope that additional contexts will be explored in future research.
Canadian law stipulates some requirements prior to commencing a
lawful strike or lockout. These are mostly technical requirements, such as
a conciliation process, a no board report, and a strike vote.166 Currently,
there are almost no substantive restrictions on strikes or lockouts.167 For
example, a union may commence a lawful strike once it meets the tech-
nical statutory requirements even if the strike is unreasonable in the cir-
cumstances, or too destructive to the employers business or to third par-
ties. One might argue that a strike should not be limited once it meets the
technical statutory requirements, because the right to strike is fundamen-
165 Ibid.
166 In Ontario, see e.g. Labour Relations Act, supra note 33, s 79.
167 See e.g. Canada Labour Code, supra note 33, s 87.4.
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420
tal and arguably protected by the Charter.168 However, there are two main
justifications for the imposition of some limitations.
First, even the most fundamental and constitutional rights are not ab-
solute. There is always a need to balance competing rights and interests.
Second, when a strike is believed to be unreasonable or destructive, it is
currently limited by provincial and federal governments through back-to-
work legislation169 or specific legislation denying the right to strike in
some workplaces.170 These drastic actions against unions, which have be-
come increasingly popular, often result in major infringements of freedom
of association.171 A more balanced approach could involve subjecting the
act of strike or lockout to the principle of proportionality. Importantly,
such a system is already in existence in several other jurisdictions.172 In-
stead of broadening the scope of what is considered to be essential ser-
vices and consequently eliminating the right to strike altogether ex ante,
the principle of proportionality would ensure that unions may go on
strike, but use strike actions appropriately in a way that balances the in-
terests of all parties. The Labour Relations Board, when asked to issue a
back-to-work order, would have the authority to determine, on a case-by-
case basis, whether the strike was proportional or not, taking into account
168 See (2010) 15:2 CLELJ (a special issue on Is There a Constitutional Right to Strike in
Canada?). For a discussion of recent developments, see also the collection of essays in
(2012) 16:2 CLELJ.
169 See e.g. York University Labour Disputes Resolution Act, 2009, SO 2009, c 1 (in Ontar-
io); Protecting Air Service Act, SC 2012, c 2 (at the federal level). Note that while back-
to-work legislation is usually passed following a continuous strike, this federal law pre-
vented Air Canada workers from striking in the first place. For a full list of federal
back-to-work legislation, see Library of Parliament, Federal Back to Work Legislation,
1950 to Date, online: Parliament of Canada
170 See e.g. Toronto Transit Commission Labour Disputes Resolution Act, 2011, SO 2011, c
2 [TTC Act].
171 On the increasing tendency to use back-to-work legislation since the conservatives were
elected to a majority government in May 2011, see A Harper History of Back-to-Work
Legislation (28 May 2012), online: Global News
Back-to-Work Legislation]. For the ILO ruling in the matter of the back-to-work legis-
lation at York University (supra note 169), see ILO, Governing Body, 311th Sess, 360th
Report of the Committee on Freedom of Association, GB.311/4/1 (2011) at paras 32444,
online: ILO
ion in this case argued that this was a dangerous precedent of forcing workers in non-
essential services back to work while in a lawful strike position. The ILO ruled that the
repeated use of back-to-work legislation might destabilize labour relations in Ontario,
and that the legislative action in this matter was unjustifiable.
172 In Germany, see supra notes 135137 and accompanying text. In the EU, see supra
notes 140144 and accompanying text. In Israel, see Davidov, Proportionality, supra
note 14 at 6667.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 421
all relevant factors and circumstances.173 Obviously, such a proceeding
would have to be swift, but there is no reason to think that this would not
be possible. The default is that a strike is allowed, yet the Labour Rela-
tions Board may decide to issue an interim order until the final decision, if
this seems justified in the circumstances.
For example, instead of preventing all Toronto Transit Commission
(TTC) workers, regardless of their job position, from striking at all times
(no matter if it is at rush hour or not),174 TTC workers would generally be
allowed to strike. If the strike were too destructive, the TTC would be able
to file a complaint with the Ontario Labour Relations Board, which would
examine the particular circumstances of the case and determine whether
the union used the strike weapon proportionately. Assuming the justifia-
ble objective of the union is to reach a collective agreement, the board
would examine, first, whether a strike is effective in achieving this pur-
pose. It would then determine whether there are other means of achieving
this objective. It might be, for example, that the conciliation failed because
the union did not cooperate and rushed into a lawful strike position. It
might be that the unions decision to strike during rush hours for more
than a day was too intrusive. In such a case, the board would be able to
limit the nature and scope of the work stoppage. Finally, the board would
consider whether the damages of the strike outweigh its benefits.
The same proportionality analysis should apply to lockouts. When a
trade union commences a partial strike, an employer may impose a lock-
out for a legitimate purpose of protecting the business against inefficient
operation. However, sometimes the use of a lockout might be dispropor-
tionatefor example, when an employer uses a lockout to force the gov-
ernment into passing back-to-work legislation. In June 2011, the Canadi-
an Union of Postal Workers went on rotating strikes for two weeks. In re-
sponse, Canada Post decided to impose a full lockout and blamed the
strikers for losses of $100 million.175 This lockout created pressure on the
government, pressure that ended with the enactment of back-to-work leg-
islation. One might argue that a more balanced approach would be to sub-
ject the right to lockout to the principle of proportionality. The employer
would then have to show that it had used lockout for a legitimate purpose
and that the lockout was rationally connected to this purpose, that the
173 Similar to the picketing discussion, the question around the burden of proof remains
open for similar reasons (see supra note 102).
174 As the TTC Act does now (supra note 170, s 15(1)).
175 See Harper History of Back-to-Work Legislation, supra note 171 .
(2013) 59:2 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
422
lockout was the least intrusive way of obtaining this purpose, and that the
benefits of a lockout outweighed its damages.176
We realize that these proposals assume a degree of faith in the judicial
system, including courts and labour boards. Judges and adjudicators will
be given a greater role and broad discretion to assess the means chosen by
labour unions and by employers in light of their legitimate goals. Admit-
tedly, in other countries where proportionality is used in this context,
there are independent labour court systems, sensitive to the unique fea-
tures of employment relations. We believe, however, that because of the
important role played by proportionality in Canadian constitutional law,
Canadian judges and adjudicators are well positioned to perform this kind
of analysis, based on the default rule that the right to strike should be re-
spected, and limitations must be justified.
Conclusion
Proportionality is seen by enthusiastic proponents as the ultimate rule
of law.177 One does not have to go very far to appreciate the usefulness of
this principle as a legal tool. A demand that those holding power will use
it carefully and responsibly finds a concrete legal expression in the three-
stage proportionality test. An expectation that those infringing the rights
of others will not do so gratuitously also materializes in the proportionali-
ty test. Ever since the seminal Oakes judgment, proportionality has be-
come an important pillar of Canadian law. One cannot think about consti-
tutional law or discuss itin Canada as in many other countries
without referring to proportionality. We have argued that the same prin-
ciple plays an important role in Canadian labour and employment law as
well, a role not sufficiently acknowledged thus far. We further argued that
proportionality should play an even greater and more explicit role.
It is crucial to understand that by referring to proportionality, we do
not settle for an abstract, vague concept. We rather refer to the three sep-
arate stages of the proportionality test developed in the Oakes judgment,
following other legal systems. These stages allow one to consider the
means chosen to achieve a given goal. There is minimal intervention in
the choice of goals: in practice, a goal simply has to be legitimate. This is
appropriate for constitutional law, under which the elected branches of
government should be given as much freedom as possible to pursue the
176 Note that in Germany a lockout will be held to be in compliance with the principle of
proportionality only when the lockout was commenced in response to a strike that en-
dangered competition and thereby solidarity among employers. Consequently, lockouts
are prohibited in essential services in the public sector. See Weiss, supra note 137 at 6.
177 Beatty, supra note 5 at 160.
PROPORTIONALITY IN EMPLOYMENT AND LABOUR LAW CONTEXTS 423
goals of their choice, and it is similarly appropriate for labour and em-
ployment law, under which employers should be allowed to set their own
managerial goals with as little intervention as possible. The focus of the
proportionality test is on the goal-means connection: first, a rational rela-
tion must exist between them; second, the impairment of rights (or, more
generally, the harm to others) should be as minimal as possible; and final-
ly, the harm caused by the action through the chosen means should not be
disproportionate to the benefits gained by it.
We began the article by canvassing the different contexts in which
proportionality is already used in federal and provincial labour and em-
ployment laws. In some cases, courts have inferred from legislation a re-
quirement that employers act according to this test (or some of its parts).
In other cases, courts have developed similar tests as part of the common
law when considering problems without legislative solutions. In a few in-
stances, we found explicit reference to proportionality; in other cases, we
found that seemingly unrelated tests used by courts and adjudicators, in
fact, closely resemble the three-stage proportionality test. In all of these
contexts, we believe that a more explicit application of all three stages of
the proportionality test will prove useful to the analysis and the decision-
making process.
At least in some cases, demanding that employers and unions comply
with the three parts of the proportionality requirement means that a
higher standard of behaviour is imposed. Is this justified? We have argued
that it is. We further showed that one does not need to apply the Charter
to private relations in order to accept this conclusion. We then explored
the possibilities for further development and proposed an additional con-
text in which proportionality tests can be used and potentially offer better
solutions than current laws. Generally speaking, we believe that the in-
corporation of proportionality into labour and employment law could be
an important and useful development. Our findings are also of great rele-
vance to the more general discussion about the applicability of the princi-
ple of proportionality beyond the boundaries of public law.
