In 2005 the Supreme Court of Canada set out a comprehensive framework for examining claims of parliamentary privilege. Courts could examine whether a matter over which privilege was claimed fell within a recognized category of privilege or could be demonstrated to be necessary for a legislature to carry out its constitutional functions. Courts could determine the scope and extent of any claimed privilege and whether the matter at issue fell within the scope of the claimed privilege. If it was established that it did, the courts could not inquire into the exercise of the privilege (i.e., how or why the matter was determined as it was). In this earlier case of Vaid (2005 SCC 30) the Court determined that the management of employment matters was not, in an of itself, covered by the parliamentary privilege of legislatures to manage their internal affairs. It did however leave open the possibility that certain employees and employment decisions might be covered by other privileges and therefore not be amenable to general labour and employment laws . In that case the court stated that “ I have no doubt that privilege attaches to the House’s relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all.” (Vaid para 75).
In its recent decision in Chagnon v Syndicat de la function publique et parapublique du Quebec (2018 SCC 39) the Supreme Court once again struggled with the relationship between employment decisions and parliamentary privilege, and once again refused a blanket application privilege over employment decisions, even though the employees carried out function that might have fallen within a recognized privilege. Chagnon is a case where the Court was asked to determine whether security personnel were such employees, and therefore fell within the category of “some employees” contemplated by the Court in Vaid. In doing so the court, the court added a functional gloss to its earlier categories theory of activities covered by privilege.
The facts in Chagnon are straight forward. Security personnel at the Quebec National Assembly were using surveillance equipment to peer into rooms in hotels near the Assembly. They were dismissed, and they grieved this decision. The Speaker of the Assembly claimed that the arbitrator did not have jurisdiction to inquire into the Speaker’s decision since to do so would infringe two privileges enjoyed by the Assembly. First, the legislature has the privilege to ensure its own security and since these were security personnel, they were a category of employees that fell within the definition of “some employees” referred to in the Vaid decision. In addition, the Speaker argued the related privilege of the legislature to exclude strangers. Security personnel were required to assist the Speaker and the Assembly in carrying out this protected security measure and therefore were required to be trusted to be able to do so. In both instances the arguments were based on the reasoning of the Court Vaid that focussed on categories of matters being the underlying structure for privilege and the focus of the question of who constituted “some employees” was also a question of categorization or grouping of employees. If this was the case, then privilege would apply to all decisions relating to such employees.
The Court, in Chagnon, recognized that the framework set out in Vaid was not nuanced enough. Attempts to group, or distinguish, employees and all decisions relating to those employees into watertight containers was not possible. Although all the Justices were prepared to acknowledge that the provision of security was a category of privilege, they were divided on whether this should be the basis to deny all personnel who carried out security functions recourse to the courts or labour boards for all decisions regarding them, including employment decisions. The Court puts the issue this way ” The present case highlights the difficulty with trying to recognize a category of privilege that includes all aspects of the management of a group of employees and decisions with regards to all functions these employees perform.“ (para 37)
The way around this problem, for the majority, was to shift the focus from categorization of work to classify groups of employees (in this case security) to one of the function or purpose of the decision under review.
This functional or pragmatic approach has two aspects. First the Court focuses on the different types of decisions that may be required of managers (including the Speaker) that may affect employees. Some decisions are operational and relate to the work to be performed, and others are related to employment matters and other personnel management functions. Decisions that are more operational or go to the carrying out of the function that is protected by privilege, such as the providing of security itself, or are intrinsically connected to these functions will be protected by privilege. Those of a more managerial nature will not be protected.
[I]t may be necessary, to maintain order in the National Assembly’s chamber itself, for the President to have the absolute right to oversee certain functions exercised by a given group of employees or certain aspects of their employment relationship. But it does not necessarily require the recognition of a broad privilege over their management. Employees often perform diverse duties and many aspects of managing their employment relationship would have no bearing on the protection of the Assembly’s constitutional role. Unreviewable authority over all functions and absolute power over all aspects of how this group of employees is managed is not necessary in light of the purpose of inherent legislative privileges. (para 45)
A second aspect of the approach is to ask whether the decision requested of the decision maker will have the effect of interfering with the privileges of the legislature. In this case one would ask whether hearing a grievance of a dismissal interfers with a privilege—ie security or a decision related to security.
The necessity test also requires that the immunity that is sought from the executive and judicial branches of government — here a privilege over the management of the security guards — be necessary, in that “outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (Vaid, at para. 46).(Chagnon para 41)
The question for the Court essentially becomes twofold: the nature of the decision– or to use the category language of the Vaid decision, the category of the subject matter of the decision; and the effect of the decision on the constitutional functions of the legislature, or matters recognized as falling within parliamentary privilege In Chagnon there was no evidence that the decision was anything other than a matter of employee discipline. The decision itself appears to have no connection to the provision of security as such. This was a mere garden variety labour decision that any employer might have to make. As a result, the first aspect of the pragmatic and functional approach was not met. Since the case was based on jurisdiction, there was no determination on the merits so there is no way to determine whether any final decision might have an impact on security itself. This would be a matter for the Speaker to argue at any future hearing on remedy, assuming the dismissal was not warranted. Therefore, there was no basis on which to consider the second aspect of the approach.
In many ways the decision in Chagnon is consistent with, and a clarification of, Vaid. It reconciles and refines the earlier decision by recognizing that the usual concerns that animate labour law also occur within the legislative workplace. These include the fact that employees may carry out a multitude of functions, and that there is a distinction between employment decisions and operational ones. The court however also recognizes that the operational decisions of the legislature are of a different order and where the operational decision is one that falls within privilege, the courts and adjudicators cannot directly or indirectly interfere with the exercise of those decisions.
The approach of the court may be pragmatic and sensible based on the clear-cut distinction in this case between an employment and an operational decision However, as is the case with other employers, including the government, cases will arise that have both operational and employment dimensions. These could include contracting out, levels of staffing, shift schedules, equipment, and even possible discipline related to the carrying out of operations. In the parliamentary context these may present a unique problem since the operational decision might be protected by privilege. In such cases balance will have to tip in favour of the legislature. As Justice Rowe states in his concurring reasons “The legislature is not like a department or a regulatory agency; it is the central pillar of representative democracy. Profound deference should be shown as to how it chooses to operate.” (para 74)
Whether this decision is a mere clarification of Vaid or whether it opens the door to courts examining the exercise of privilege by questioning the claimed purpose of the decision under review remains to be seen.
Courts, adjudicators, and those who may wish to push this decision beyond clear cases of employment decisions may need to be reminded that if the decision is one that can be based on a category of privilege, then that is the end of the matter. The exercise of that decision-making power, and the reasons for such an exercise of the privilege are not reviewable. To protect against the possible expansion of this decision, legislatures, and those who exercise decision making powers may have to provide a clear indication of the purpose of the decision, at the time that the decision is made. Not only is this this good management, but it may provide the necessary basis and evidence upon which to found a claim of privilege. There are enough bases for careful and proper claims based on privilege. And as this case demonstrates overbroad claims, and attempts to stuff matters into categories without examining the “true” underlying basis for a decision, will not only fail, but risks the courts seeking a means to address what it perceives as inequities and providing possible new avenues to infringe upon the independence of legislatures.