Parliamentary Privilege to Unjustly Dismiss: A Comment on Chagnon v. SFPQ

I. INTRODUCTION

In its recent decision of Chagnon v. Syndicat de la fonction publique et parapublique du Québec,¹ the Supreme Court of Canada dealt with whether parliamentary privilege protects legislatures from claims of unjust dismissal. The claim arose after the National Assembly of Québec dismissed three security guards for using cameras on the exterior of the Assembly to “peep” on guests in an adjacent hotel.² Upon dismissal, the employees filed a grievance seeking reinstatement and reimbursement of lost benefits.³ The President of the Assembly challenged the arbitrator’s jurisdiction to hear the grievance, arguing that the decision to dismiss the employees was protected by parliamentary privilege.⁴ The Court released three sets of reasons with Justice Karakatsanis writing for a six-judge majority, Justice Rowe writing concurring reasons, and Justices Côté and Brown writing joint dissenting reasons.⁵

II. THE TEST FOR DETERMINING THE SCOPE OF A PARLIAMENTARY PRIVILEGE

In determining whether the President’s decision to dismiss the security guards was protected by parliamentary privilege, both Karakatsanis J.⁶ and the joint dissenting justices⁷ adopted the test from Canada (House of Commons) v. Vaid.⁸ The test, coined as the “necessity test,”⁹ was outlined as follows in Vaid:

In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, 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.¹⁰

In Vaid, the Court applied this test to a similar set of facts. The case involved the dismissal of the Speaker of the House of Commons’ chauffeur, with the House of Commons arguing that its decision to dismiss the chauffeur was protected by a general privilege to manage its employees.¹¹ In applying the necessity test, the Court rejected the claim of privilege over the management of all the House’s employees; however, it concluded that there was “no doubt that privilege attache[d] to the House’s relations with some of its employees.”¹²

III. THE DECISIONS

In determining whether the decision to dismiss the security guards fell within the scope of parliamentary privilege, Karakatsanis J. and the dissenting justices accepted that the security guards played an essential role in ensuring the Assembly was able to carry out its constitutional mandate.¹³ However, the justices disagreed over the sphere of activity engaged by the dismissal decision. Karakatsanis J. held that the sphere of activity engaged was the management of the security guards’ labour relations, concluding that “enforcement of basic employment and labour protections for the security guards would not undermine the independence required for the Assembly to fulfil its mandate with dignity and efficiency.”¹⁴ By contrast, the dissenting justices held that the sphere of activity engaged in the dismissal decision was security.¹⁵ In concluding that the power to dismiss without cause was necessary for the assembly to fulfil their legislative function, the dissenting justices reasoned as follows:

All of the guards’ tasks fall within a sphere of activity that is necessary to the proper functioning of the Assembly, namely security. In particular, the guards exercise the privilege to exclude strangers on the President’s behalf.

…

  [W]here a speaker or president orders that someone be removed, the order can be carried out by another person, such as a doorkeeper. In exercising a parliamentary privilege, that person comes within a protected sphere of activity and therefore has the immunity conferred by the privilege to exclude strangers. Conversely, the speaker or president — who has the last word within this protected sphere of activity — can at any time revoke this delegation and prevent a guard from exercising this privilege on his or her behalf.

…

Otherwise, the delegation of a privilege would automatically mean its extinction, since the President would lose effective control of it — that is, control over the identity of the employees responsible for obeying the orders and instructions given by the President for the benefit of parliamentarians.¹⁶

Karakatsanis J. rejected this line of reasoning, holding that allowing a grievance would merely delay the finality of any termination decision and concluded that the ability to control who exercised the delegated privilege was not impaired.¹⁷

IV. COMMENTARY

The joint dissenting justices provided compelling reasons for recognizing a privilege to dismiss the Assembly’s security guards: if the President is not furnished with the ability to terminate security guards at will, the privilege to exclude strangers could be rendered wholly ineffective. If, for example, the President is forced to employ a security guard who is incapable or unwilling to exercise the delegated privilege to exclude strangers, it could lead to the Assembly being overrun by protestors and unable to perform its legislative function. While this may be a remote result of the failure of a security guard to exercise the privilege delegated to him or her, the Court has held that after a privilege is recognized as necessary in one circumstance, it is within the discretion of the legislature to determine on what grounds to exercise that privilege.¹⁸

Karakatsanis J.’s rejection of the delegated privilege argument by characterizing grievances as mere delays presupposes that conduct providing the President with a suspicion that a security guard could fail to exercise his or her delegated privilege would necessarily provide just cause for dismissal. This reasoning is flawed for two main reasons. First, because the onus to establish just cause rests on employers, they are required to provide evidence to support their decision to terminate.¹⁹ Second, while employers may have some evidence to provide cause for discipline, the evidence may not provide sufficient grounds for termination.²⁰ The effect of failing to provide evidence or sufficient grounds for termination on the President’s ability to control who exercises the delegated privilege is highlighted by the remedies for unjust dismissal: reinstatement and damages.²¹ In the former case, the legislature is forced to employ an employee who may not exercise the delegated privilege; whereas in the latter case, the legislature is penalized for selecting who can exercise the delegated privilege.

V. CONCLUSION

While Karakatsanis J.’s reasoning may be flawed, the judgment now stands as the leading authority on whether parliamentary privilege protects legislatures from claims of unjust dismissal. Given that Karakatsanis J. classified grievances as mere delays in the finality of termination decisions, it is difficult to imagine any scenario where the necessity test will be met. It is unlikely that the need to instantly finalize any termination decision will be necessary for a legislature to carry out its function. As a result, any hope provided by Vaid that the termination of some employees could fall within the scope of a parliamentary privilege has been erased.

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^* J.D. Candidate (Saskatchewan).

¹ 2018 SCC 39, 426 DLR (4th) 585 [Chagnon].

² Ibid at para 81.

³ Ibid at para 6.

⁴ Ibid at para 7.

⁵ This comment focuses on the reasons provided by Karakatsanis J. and the joint dissenting justices. The reasons provided by Rowe J. focused on whether legislatures are bound by legislation they enact regulating their operations and not whether parliamentary privilege can be raised in response to a claim of unjust dismissal.

⁶ Chagnon, supra note 1 at para 43.

⁷ Ibid at para 127.

⁸ 2005 SCC 30, [2005] 1 SCR 667 [Vaid].

⁹ Ibid at paras 41-46.

¹⁰ Ibid at para 46.

¹¹ Ibid at para 2.

¹² Ibid at para 75 [emphasis in original].

¹³ Chagnon, supra note 1 at paras 38–9, 78–80.

¹⁴ Ibid at para 44.

¹⁵ Ibid at para 131.

¹⁶ Ibid at paras 131, 139–40 [emphasis in original].

¹⁷ Ibid at 56.

¹⁸ Vaid, supra note 8 at para 29.

¹⁹ Donald J.M. Brown, David M. Beatty & Adam Beatty, Canadian Labour Arbitration, 4th ed (Toronto: Thomson Reuters, 2006) at 7:2300 (Westlaw).

²⁰ Ibid at 7:4000.

²¹ Ibid at 2:1570.