12 October 2018By Michael Bookman
In Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, the Supreme Court of Canada addressed the intersection of the constitutional privilege afforded to legislative bodies and the rights of their unionized employees.
Background: Three security guards at Quebec’s National Assembly were dismissed for using security cameras from the National Assembly to observe people in nearby hotels.Through their union, the security guards filed grievances with the labour arbitrator under the collective bargaining agreement.
Judicial History: At first instance, the Speaker of the National Assembly argued that the labour arbitrator tasked with reviewing the security guard’s grievances did not have the authority to review the decision to fire the security guards because it was protected by parliamentary privilege – an immunity afforded to legislative branches of government in Canada under the Constitution Act, 1867 so that they can perform their constitutional functions.
The labour arbitrator disagreed. He held that that parliamentary privilege did not oust his authority to review the grievance.
Justice Bolduc of the Quebec Superior Court allowed the application for judicial review, reversing the decision of the labour arbitrator. His Honour held that parliamentary privilege protected the Speaker’s decision to dismiss the security guards and immunized the decision from any review by the labour arbitrator.
On appeal from Justice Bolduc’s decision, a majority of the Quebec Court of Appeal reinstated the labour arbitrator’s decision. It held that parliamentary privilege did not apply and the decision was reviewable by labour arbitrator.
The Decision of the Supreme Court of Canada: The majority of the Supreme Court of Canada agreed with the prior decisions made by the labour arbitrator and the majority of the Quebec Court of Appeal.
Justice Karakatsanis, writing for the majority, dismissed the appeal. Her Honour concluded that the scope of the parliamentary privilege did not extend so far as to immunize the Speaker from the consequences of managing the employment matters of the security guards. The Speaker of the National Assembly had failed to demonstrate that managing the National Assembly’s security guards was so closely and directly connected to its constitutional legislative functions that its decision to fire the security guards should attract immunity from the applicable labour regime.
For the majority, the necessity test demands that “the sphere of activity over which parliamentary privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role” [emphasis in original]. While the security guards performed an important task, their employment matters were not so central to the role and purpose of the National Assembly that decisions about them should attract parliamentary privilege.
Justices Brown and Côté dissented. In their view, the security of the National Assembly was a necessary part of its functioning in the constitutional order. Decisions about its security therefore fall within a sphere of activity protected by absolute parliamentary privilege.
The Takeaway: Parliamentary privilege is an absolute right but its scope is narrow and tethered to the purpose for which it is invoked. While parliamentary privilege protects legislative bodies in Canada so they can fulfill their constitutional role in our country, its scope is narrow.In this case, the security of the legislature were not sufficient to invoke this privilege and thus did not overwhelm the private rights held by, in this case, employees of those legislative bodies.