JUSTICE FRANK IACOBUCCI ON PRINCIPLES OF FAIRNESS IN EMPLOYMENT LAW
by Elizabeth Desjardins
Thesis Submitted in partial fulfillment of the requirements for the Degree of Bachelor of Business Administration with Honours
Acadia University April, 2013 © Copyright by Elizabeth Desjardins, 2013
This thesis by Elizabeth Desjardins
is accepted in its present form by the
School of Business Administration
as satisfying the thesis requirements for the degree of
Bachelor of Business Administration with Honours
Approved by the Thesis Supervisor
______Dr. James Grant, Date
Approved by the Head of the Department
______Dr. Ian Hutchinson, Date
Approved by the Honours Committee
______Pritam Ranjan, Date
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I, Elizabeth Desjardins, grant permission to the University Librarian at Acadia University to reproduce, loan or distribute copies of my thesis in microform, paper or electronic formats on a non-profit basis. I however, retain the copyright in my thesis.
______Signature of Author
______Date
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Acknowledgments
I would like to thank Dr. Jim Grant for his faith in my work and for being generous with his time. Thanks to you and Dr. Terrance Weatherbee for encouraging me to go on this journey. Thanks also extend to my second reader, Dr. Kelly Dye, and research professor,
Dr. Donna Sears for supporting me through the process. I would also like to extend gratitude to the following professors at Acadia University: Dr. Scott Follows, Dr. Marc
Ramsay, Dr. Jun Yang, Dr. Stephen Maitzen, Randall Balcome, and Dr. Michael
Sheppard.
In addition, I would like to recognize the support of the Desjardins and Gregory families.
I also wish to acknowledge the never-ending support of my fellow classmates: Stephanie
Pineau, Mike Craig, Kazi Kashfia Rahman, Laura Jacquard, Termsap Paul
Khemapukpong, Andrea MacGregor, Mitch Harris, Matthew Kohlenberg, Isaac Porter, and Tyler Honeywood.
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Table of Contents Introduction ...... 1 Purpose of Study...... 2 Study Motivation ...... 2 Importance of Research ...... 3 Focus of Research...... 3 Study Description ...... 4 Thesis Organization ...... 4 Literature Review ...... 6 Judicial Review Summary ...... 6 Arguments in Favour of Judicial Review ...... 9 Dialogue Between the Courts and the Legislature ...... 14 Justice Iacobucci’s Academic versus Judicial Work ...... 19 Labour and Employment Jurisprudence ...... 21 Political Leanings and Reasonableness ...... 23 Methodology ...... 26 Case Selection Method ...... 26 Introduction to Case Content Analysis ...... 28 Grounded Theory and Case Analysis ...... 29 Data Analysis Procedures ...... 30 Summary...... 30 Findings and Case Analysis...... 31 Judicial Review of Statutes in Little Sisters ...... 32 Dialogue in Vriend v. Alberta...... 36 Academic Influence in Wallace v. United Grain Growers, Ltd ...... 40 Employment Jurisprudence in McKinley v. BC Tel...... 43 Political Leanings in Honda v. Keays...... 47 Discussion and Conclusion ...... 53 Judicial Review ...... 53
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Dialogue ...... 55 Academic Influence ...... 57 Employment Jurisprudence ...... 59 Political Leanings ...... 60 Limitations ...... 62 Future Research ...... 63 Conclusion ...... 64
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Abstract
The purpose of this research is to identify themes in Supreme Court of Canada
Justice Frank Iacobucci relating to employment law. Previous research on Justice
Iacobucci did not focus specifically on employment law or did not attempt to identify his decision-making criteria (Langille & Macklem, 2007). Since there is much scholarly and public debate about whether the Supreme Court of Canada came to the right decision on a particularly decisive issue, it is important to understand any principles the justices may follow (Roach, 2007).
The chosen cases reflect those that scholars consider watershed cases in their respective fields (Roach, 2007). Through the grounded theory approach to analysis, themes within the cases became prominent (Kelle, 2005). These themes related to or contrasted with what appeared in the existing literature (Langille & Macklem, 2007).
The results show different influences of Justice Iacobucci’s approach to law, including: the power of judicial review, the dialogue metaphor, his time as an academic, existing employment jurisprudence, and political leanings. Most notably, the research showed that, although justices often claim that they do not use ethical theories, Justice
Iacobucci in particular valued the principles of justice. A principled decision usually meant a fairer outcome for both parties than if the justice did not rely on such principles.
He also tended to produce consistent outcomes among similar cases. Future lawyers can learn from Justice Iacobucci’s method in order to understand how to create the best possible outcome.
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Introduction The world of work in Canada continues to undergo significant changes, and human resource departments and employment relations legislation has to change accordingly. The response to this changing workforce is not only through action commenced by employers independently, but also through legislation. Canadians demand that there be rules in place to protect employees from their employers in various capacities. Sometimes the legislature fails to take into consideration the extent of a law and its potentially harmful effects on either employees or employers. It is at this time that the Supreme Court of Canada steps in to provide a remedy. In the cases of dismissal, they must balance the allegations of the employer with the rights and protections of the employee. They must decide whether the misconduct of the employee was severe enough to warrant dismissal, or in the cases of wrongful dismissal, how the employer must compensate the employee. The purpose of this research is to examine cases relating to employment relations through the work of Justice Iacobucci.
This chapter provides a synopsis of the study and its purpose, the motivation behind the study, and the importance of this work for lawyers and scholars of employment relations in Canada. The chapter concludes with a brief overview of each chapter in the thesis.
Justice Frank Iacobucci contributed to a positive change in employment relations.
He believed in the value of fairness and it made a notable impact on all his decisions
(Langille & Macklem, 2007). Although most justices claim not to follow any particular philosophy for making decisions, he seemed to understand decisions as a dialogue between the courts and the public (Hogg & Bushell, 2007). He did this by supporting employees in cases where the employer treated them unfairly. Justice Iacobucci redefined
1 the extent to which an employer would be responsible for an employee in the case of wrongful dismissal. He also reiterated how employers are to handle dishonest employees.
His values are important not just for employment relations but all Canadian law.
Purpose of the Study
The purpose of this study is to discover and analyse the effects of Justice
Iacobucci’s Supreme Court career on Canadian law, specifically wrongful dismissal in employment law. There has been no previous research on how he approached making judicial decisions concerning employment and labour law (Langille & Macklem, 2007).
The legal and ethical importance of an employment law decision indicates that more research should be devoted to this area of study.
Study Motivation
The tremendous importance of Supreme Court decisions is the motivation for performing this research. Because Supreme Court justices have tenure until the age of seventy-five, it is important for a prime minister and his ministers to make the best possible choice for Canada (Slayton, 2011). By 2013, over half of the Supreme Court justices will be appointees of Prime Minister Stephen Harper, and if he remains in power until 2014, there will be at least six of nine. Although there are certainly political motivations, it is important for the prime minister to choose a justice who will make consistently fair decisions. Previous research established arguments that Justice Iacobucci has a “realistic account of the political economy of fairness” (Langille & Macklem, 2007, p. 344). This research will focus on employment relations decisions. Employment, and especially wrongful dismissal, is a major issue in Canada. The courts must protect employees while still maintaining employees’ commitments to their employers.
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Importance of Research
The need for an analysis of Justice Iacobucci’s employment law decisions comes from a gap in previous research. Although previous research is available on his employment decisions, no one has researched whether he followed a consistent decision- making model (Langille & Macklem, 2007). One strong potential of an ethical model for legal decision-making is the dialogic model between courts and legislatures (Hogg &
Bushell, 1997). Although Justice Iacobucci and all Supreme Court justices claim not to follow any decision-making criteria, he was one of the first judges to support the claims made in Peter Hogg and Allison Bushell’s original article on the topic (Hogg, Bushell
Thorton, & Wright, 2007). The original interpretation is limited to constitutional law
(Hogg & Bushell, 1997). However, an understanding of dialogue can apply to employment law. This interpretation would mean that there is a dialogue between the legal system and Canadian society, particularly employers. This research will use a qualitative analysis to fill the research gap. A better understanding of employment law will come of an investigative analysis of the decisions of one Supreme Court justice.
Focus of Research
This research will focus on Justice Iacobucci’s decisions in the broad area of employment and labour law. The goal is to provide insight into the judicial decision- making process of a very consistent justice. Using Justice Iacobucci’s decisions as a fulcrum for fair judicial results, cases written by other justices could be analysed using the same criteria.
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Study Description
The research proposed will be a qualitative analysis of documents related to
Justice Frank Iacobucci’s Supreme Court decisions, and an attempt to discover the effects and impacts of his decisions. Qualitative research is preferable to quantitative research in this area because the aim of the research is to uncover the ideals that Justice Iacobucci may have held. Quantitative research would be more relevant if the study were testing a hypothesis. This research is qualitative, and therefore it will be subjective because of the opinions held by the authors of the cited articles. However, this research is exploratory, not causal, and therefore a subjective analysis is an appropriate medium (Zikmund &
Babin, 2009).
Obtaining data for the study will come from an analysis of Supreme Court of
Canada cases written in part by Justice Iacobucci. The cases will come from the LexUM database. They will address issues relating to employment and business in both criminal and civil law. Cataloguing of cases will be according to whether it upheld the current law.
If not, the coding will take into account the remedy given, such as striking down or reading in.
Thesis Organization
The organization of this thesis is into six chapters: introduction, literature review, methodology, findings and analysis, discussion of results, and conclusion. The focus of the literature review is to assess the previous research on this subject matter. The research has investigated Justice Iacobucci’s voting tendencies and decision analysis. There will also be a discussion of the legitimacy of judicial law making. The chapter on methodology will explain the method for comparing and analysing employment relations
4 cases. The findings and analysis chapter will show the results of method to compare the cases. It will consist of a brief explanation of each case and a comparison to other cases.
The chapter on discussion and results will analyse each case in depth with what previous research uncovered about Justice Iacobucci’s decision-making. Lastly, the conclusion will present ending remarks on the findings. This section will also discuss shortcomings of the research and areas for further analysis.
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Literature Review This chapter will provide an overview of the literature that analyses Justice
Iacobucci’s Supreme Court of Canada decisions. The first focus of the literature review will be a broad examination of judicial review in general. Judicial review is the issue of who should have the final interpretative authority: the courts (in this case, the Supreme
Court) or politicians (through the legislation they enact) and employers (through their policies, which are especially relevant in employment law). Once a basic summary of judicial review is in place, the next section of the literature review will focus mainly on previous analyses of Justice Iacobucci’s Supreme Court of Canada career.
The purpose of the literature review is to first draw attention to the question of how a court influences statute or employment policy. After that discussion is established, the analysis turns to Justice Iacobucci’s role in changing the face of employment law, in order to make law that is fairer to all the involved parties. The goal of this analysis is to show that the Supreme Court of Canada can come to a fair decision even when it makes or interprets a law in a way that is counter to the original intent of the legislation. The literature review will help to uncover possible notions of justice in Justice Iacobucci’s decision-making process.
Judicial Review Summary
There is a broad set of problems concerning judicial review. Jeremy Waldron
(2006), in his article “The Core of the Case against Judicial Review”, argues explicitly against judicial review in most circumstances. Under most systems of government, especially those in the Western democracies that he is for the most part considering, legislators create laws respected by both its constituents and its judiciary (Waldron,
2006). Although he does make an exception in cases where the government is sufficiently
6 corrupt such that the legislation is of no ethical importance, he does not offer any guidance for those conditions (Waldron, 2006). The main thrust of his argument comes from his reasoning that judicial review offers no better protection of individual and societal rights compared to legislative supremacy (Waldron, 2006).
Waldron (2006) describes the problem of the judiciary as being required to interpret the arcane language of statutes into a meaningful ruling while the public debate focuses on another issue entirely. Judges still feel they must make their ruling in reference to the wording of the law and not on whether that interpretation creates a better public policy (Waldron, 2006). This kind of an interpretation can make some decisions seem inadequate, especially if it overturns a previous ruling. Conversely, the public debate is rarely about the wording but about a better understanding and application of the law (Waldron, 2006). Judges are far more limited in what they can do compared to legislatures, who are free to re-write the law if it is not being enforced in the way they choose. The most troubling part of the split between public discussion and judicial discussion is that “courts are good at deciding some issues and not others” (Waldron,
2006, p. 1376). When a court makes a decision that is consistent with their reading of the law but not with what the legislature intended, it is difficult to determine who has the best understanding of the law.
One of the biggest problems with judicial review is that judges can create precedent in a way that legislation does not. Precedent binds future generations to past decisions, effectively withholding their right to decide the best interpretation of rights for their own time (Waldron, 2006). Because of this judicial rule, legislation offers the better option because it is easier for politicians to change the law in the future since laws do not
7 depend on precedence in the same way that judge-made law does. A system of judicial review can limit self-governance, which is a key part of a democratic system of government (Waldron, 2006).
Waldron (2006) recognizes that the judiciary and the legislature can have conflicting views of rights. The impact of these differing views is that the legislature may enact a law according to what standard they want imposed in the law, and then when a case brings a problem with the law to a judge, he or she may interpret it in a way that is contrary to the original intention of the statute (Waldron, 2006). Lawyers and the public may be confused about how to act accordingly. Rights may potentially go unprotected if the judge imposes a more limiting rule. New policy issues will also require further interpretation (2006). This causes significant conflict that may not be necessary if judiciary followed the intent of the politicians (Waldron, 2006). In the conclusion to
Waldron’s paper, he does not argue that judicial review is inappropriate in all circumstances. He argues that judicial review is harmful in situations where the legislature is not corrupt and where reasonable disagreements about the proper interpretation of rights exist, as a society that can debate about rights should not have their views overridden by courts (Waldron, 2006).
Perceptions of unfairness seem apparent when the Supreme Court of Canada’s opinion is against one’s own or even the society’s consensus, and to some extent, it is difficult to support judicial review when the decisions are disagreeable. In the same vein, other commentators have criticised Waldron’s arguments against judicial review as “a crude simplification; in fact a red herring” (Dworkin, 2011, p. 396). Not surprisingly,
Waldron has responded to previous criticism by insisting that even though some may
8 claim to be in favour of judicial review, and defend it, they can all agree that the validity of judicial review often depends on whether the court makes a correct decision, and not on whether the legislation was correct to begin with (Waldron, 2006). While Waldron
(2006) continues to have a negative opinion of judicial review, he does tolerate its use in countries that clearly have a dysfunctional and possibly tyrannical legislature.
In Canada, the jurisprudence of judicial review spun off into a dialogic theory, whereby the courts and legislature are able to communicate back and forth, so to speak, through the outcomes of cases and the creation of new legislation. A discussion of dialogue will appear later in this chapter. For now, it is sufficient to note that part of
Justice Iacobucci’s success as a judge comes from his respect for proponents on both sides of the judicial review debate. His analysis and understanding of judicial review means he arrived at an approach that is acceptable to all parties. He sought to have all parties treated fairly and valuably (Hogg, Bushell Thorton, & Wright, 2007). He worked to ensure that all material facts were available and understood (Hogg et al., 2007). A contributing factor in his appreciation of judicial review stemmed from his appreciation for procedural justice. In contrast to Waldron, Ronald Dworkin disagrees with many of
Waldron’s conceptions of judicial review and is more reflective of Justice Iacobucci’s fair and comprehensible outcomes (Dworkin, 2011). The next section dedicates itself to a brief discussion outlining why judicial review should be favoured.
Arguments in Favour of Judicial Review
Arguments against judicial review have created problems for judges, especially those at the Supreme Court of Canada level. Although judges face criticism from all levels, even from their own peers, criticisms of the validity of their work cause hurdles in
9 the justice system. When judges feel that legislatures are looking over their shoulders, some judges are often tempted to back off from their own opinions and respect what the legislation states as its interpretation (Hogg & Bushell, 1997). In Canada, this is especially prominent because of the notwithstanding clause, which allows the government to override certain Charter rights (Hogg & Bushell, 1997).
Dworkin (2011) provides counter-arguments to complaints against judicial review. He says that judicial review is democratic and worth having in a nation even where the legislature does what seems correct to the majority of the people (Dworkin,
2011). One reason for this is the fact that judges have relatively little power when compared to the elected government: “Unlike presidents, prime ministers, and governors, constitutional judges have no power to act independently” (Dworkin, 2011, p. 397).
Judges at the Supreme Court level generally have to be a part of the majority for their opinion to get through, although dissenting views can lead to some changes in the legislature. On the other hand, the prime minister and other higher-up members of
Parliament have relatively few limitations on their power (Dworkin, 2011). This is to allow these democratic representatives to do what is best for her or his constituents. They are able to exert more power than the Supreme Court can through this lack of limitations.
Representatives can democratically do what they believe is in the best interests of their constituents even though it may not be what voters actually want. Dworkin (2011) mentions a study that “could not confidently rank judicial review as overall more damaging to political equality, on any measure, than several other features of complex representative government” (p. 398). He concludes that through this line of reasoning judicial review is at least as bad as legislative supremacy.
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Dworkin (2011) goes on to establish why judicial review should in fact be favoured. He insists that judicial review actually contributes to governmental legitimacy.
This is because few nations “have a strong record of protecting the legitimacy of their government by correctly identifying and respecting the rights of individuals” (Dworkin,
2011, p. 398). Judicial review in nations such as these contributes by offering a non- majoritarian opinion. While they have clearly made some mistakes in prominent cases, and others of where the opinion has varied on controversial issues, overall they contribute by offering some opinion ignored in traditional discussions of this issue (Dworkin, 2011).
Another reason why judicial review can be favourable is the inclusion of full-length opinions. The Supreme Court of Canada generally writes an in-depth opinion which considers and discusses all the arguments and why they are or are not reasonable. In this way, the government may see exactly why and where its policy has gone wrong, and in fact could even attempt to change the law based on what the Supreme Court hints would be acceptable in a law on this issue (Dworkin, 2011).
Judicial review is a way to rein in both legislative and executive decisions
(Dworkin, 2011). It is also a tool to restrain judicial review itself. If a lower court makes an inappropriate or controversial decision, and it moves up to the Supreme Court of
Canada level, they can determine the validity of the decision in the same way they do with interpreting the validity of any law. Although judicial review cannot override
Supreme Court decisions, this does not make the process any less democratic. There are procedures that differ between democratic countries and some of these could improve the judicial process in a way that judicial review does not. However, this does not mean the judicial review is an inappropriate tool. As Dworkin (2011) notes, “The choice of a
11 majority decision procedure hardly suggests that that procedure is intrinsically fairer than a different process that includes judicial review” (p. 485).
Properly designed and understood, judicial review respects the political process by better representing the views of constituents (Dworkin, 2011). Judicial review can protect people from the influence of the one-sided arguments generally presented by politicians in power, and even from political opponents as well. More importantly, it protects citizens from incumbent politicians during election season who change their policy in order to remain in power. Dworkin (2011) mentions criticisms arguing that a small group of judges should not be able to decide the outcome of a controversial issue.
He counters that politicians themselves are a relatively small group of people in relation to the populous, and yet it is acceptable for them to make decisions on behalf of their constituents that goes against the popular opinion (Dworkin, 2011). Although politicians should obviously have the ability to use discretion while making decisions, judges have to interpret law in a way they believe to be consistent (Dworkin, 2011). Judicial review, along with other policies in place, help the democratic process overall.
In an earlier work, Dworkin (1996) wrote a treatise about how to interpret laws.
There are several competing theories, and he discusses their strengths and weaknesses.
The most prominent of these is textualism, which states that the wording of the law is the expectation of performance and nothing more (Dworkin, 1996). He argues that although it may sound good in theory, it does not work in practice (Dworkin, 1996). Dworkin’s
(1996) own argument is as follows: where broad appeals are used, there must be general ethical principles in play. Many laws, especially those relating to the Canadian Charter of Rights and Freedoms, use general ethical principles in their wording. For example,
12 when a law speaks of guaranteeing ‘equality’ for its citizens, this is an ethical principle
(Dworkin, 2011). When lawmakers use broad ethical principles, judges must interpret them in the way that best reflects that morality (Dworkin, 1996). This of course leads to the secondary and perhaps troubling question of what ethical theory judges should use.
Most judges are insistent that they do not use any theory, ethical or otherwise, when making decisions (Dworkin, 1996). However, many analyses done by legal scholars suggest that judges do fall within a particular category of decision-making, such as on a liberal-conservative spectrum (Alarie & Green, 2007). Their analysis does not point to a particular theory that any given judges subscribe to, but it is apparent that judges do favour consistency in their decisions, and this consistency generally comes from following a set theory of law.
Dworkin (1996) strongly disagrees with critics who say that although a decision may have a lot of good ethical substance, and it is an ethically right decision, that does not mean that it is legitimate. According to Dworkin (1996), this criticism is invalid. If it is ethical, then of course it is legitimate, because legitimacy depends on morality. He sums up his argument nicely by saying, “The moral reading…explains why fidelity…to law demands that judges make contemporary judgements of political morality”
(Dworkin, 1996, p. 37).
Of course, judicial review is not appropriate for all legislative error, and certainly not in all cases. As Dworkin mentions, “the problem of justifying judicial decisions is particularly acute in ‘hard cases’” where relying on precedent is not an option (Dworkin,
1975, p. 1057). Despite the problems that arise from a lack of precedent, judges have to use their best judgement in difficult decisions. They must act, in some sense, as
13 legislatures (Dworkin, 1975). They must weigh the evidence and come to a fair conclusion as the legislature would in the same circumstances (Dworkin, 1975).
However, it is not fair to say that they are acting as ‘deputy legislatures’ (Dworkin,
1975). They may make a decision that has a different outcome from what the legislatures were hoping for, but rarely do they do that explicitly (Dworkin, 1975). They only weigh the particular circumstances in front of them, which is different from how the legislature makes a law. Legislatures mostly rely on abstract considerations. When a case actually appears before any court, and particularly the Supreme Court, they are dealing with a concrete example of the potential weakness of the law. When a case has no previous precedent, or when there is reason to override precedent, it is fair that they make decisions of their own accord without feeling the need to respect or succumb to the legislative opinion (Dworkin, 1975). This is especially true when one party enacted a law, and another party is in power by the time the issue arrives at the Supreme Court. Some critics may say the Court should follow the guidelines of the enactors, whereas others say they should follow the current lead (Dworkin, 1975). However, the Court must ultimately do what they feel is the correct decision (Dworkin, 1975).
Dialogue between the Courts and the Legislature
Kent Roach is a law professor who focuses on criticism of dialogue between the courts and the legislatures. The dialogue metaphor implies a certain communication between the two parties. Hogg and Bushell (1997) originally described the traditional definition of the dialogue metaphor. They defined it as “where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue” (Hogg
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& Bushell, 1997, p. 79). It also encompasses ‘second-look’ cases, where the legislature changes a judicial decision but the law ends up back at the Supreme Court, where they can potentially override again with possibly stronger conditions (Hogg & Bushell, 1997).
Roach tends to use it in a broader way that encompasses any deliberation between the courts and the legislatures, not just actual decisions and rewrites, but also members of either party expressing their views in the media before making a decision (Roach, 2007).
When the legislature makes known their disagreement with the Supreme Courts’ ruling but chooses not to override the law, it does not necessarily decrease the validity of the law. Roach (2007) maintains, “If Canadian governments have been unwilling to use the override, this suggests that they have not been prepared to justify its use to the Canadian public” (p. 464). They may disagree with the Supreme Court, but not enough to attempt to validate an override.
As Roach (2007) mentions, “One of the strengths of the dialogue metaphor is that it can facilitate thinking about the respective roles of courts and legislatures throughout much of the law” (p. 449). This thought process about the roles of courts and legislatures is important when building on the strengths of common law. The dialogic metaphor works because the members of the Supreme Court often hold different opinions than both the legislature and each other, thus creating a debate that can strengthen the interpretation of the law (Roach, 2007). They can also interpret the law in a way that may not be explicitly within the text but creates a better law for everyone. As Roach (2004) writes,
“Judges can add value to societal debates about justice by listening to claims of injustice and by promoting values and perspectives that may not otherwise be taken seriously in
15 the legislative process” (p. 71). Each party is independent enough from the other to come up with a different understanding of the law.
Justice Iacobucci was fond of this metaphor, citing it many times in Vriend v.
Alberta (1998) shortly after the Hogg and Bushell paper was originally published (Roach,
2007). Roach (2007) mentions the criticism “the dialogue metaphor does not justify the role the courts play in the dialogue [but] in Justice Iacobucci’s hands, dialogue had a substantive and principled core” (p. 450). Justice Iacobucci did not just accept the metaphor as true but built upon it, adding to its meaning his beliefs of how the law should work. He sought to do his best to protect minorities by using his judicial overrides, while at the same time maintaining that there are limits to what the court should impose on a democratic society (Roach, 2007). He also contributed to opening up conversation between the courts and the legislature while each still maintain their distinct functions
(Roach, 2007). For these reasons, he felt able to change a certain law drastically by striking it down while still paying respect to the legislature and those in favour of the law.
Roach (2007) notes that the first case in which Justice Iacobucci commented on the metaphor dialogue was Vriend v. Alberta (1998). This controversial case dealt with whether sexual orientation was a prohibited ground of discrimination in the province of
Alberta; the government and many other citizens felt strongly that it was not. Because the government chose not to include this ground in the law, and there existed clear discrimination against a minority, Justice Iacobucci had to balance what was the right thing to do with his clear usurpation of the legislature’s purview. He chose to strike down a democratically enacted law with the majority still in favour of it. By doing this, he and the rest of the sitting Supreme Court of Canada justices contributed to a conversation not
16 just in society but with the legislature as well (Roach, 2007). In fact, the Alberta government chose not to override this rule (Roach, 2007). Even though the government did not veto the Court’s decision, they did engage in dialogue by having an open discussion about what exactly they felt was wrong with the Court’s decision (Roach,
2007). Justice Iacobucci contributed to a clearer discussion of the law by explicitly endorsing a dialogue between the judiciary and the legislature (Roach, 2007).
Justice Iacobucci appreciates that legislatures need to make laws in a way that satisfies the principles of the people, but that when these are in conflict the Courts are necessary (Roach, 2007). Roach (2007) reinforces this by writing, “The participation of the parties increases the legitimacy of judicial decisions…this means that legislatures should rule through public, prospective, understandable, and general rules” (p. 454).
When the legislature fails to make laws according to these rules, the courts must step in to correct the error. Justice Iacobucci understood this problem, and he would intervene when he felt that the legislature was overstepping its bounds (Roach, 2007).
Roach (2007) hypothesizes that Justice Iacobucci’s status as a first-generation
Canadian may have had an impact on his views of “the importance of process and more inclusive participation for those who are not normally in power” (p. 455). Although this reasoning is debatable, he did clearly have respect for those in weaker positions, which is especially vivid in his decisions between employees and employers. He was especially harsh when employers wronged employees, because those employers were being unfair and had much greater ‘authority’ (Roach, 2007) and bargaining power (Wallace v. United
Grain Growers, Ltd., 1997).
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In one of Justice Iacobucci’s early Supreme Court cases, he discussed the role of the Court in promoting and changing the common law (Roach, 2007). He held that the common law should reflect what is the most fair decision for the circumstances: “Justice
Iacobucci held for the Court that the common law rule should evolve in light of social and legal acceptance” of the value at stake in the law and the Charter in general (Roach,
2007, p. 456). Although this was not a case dealing with employment relations, employment law has evolved in a similar fashion. Employers no longer think of employees as people who should be glad that they have employment at all and accept their employer’s terms. Now, there is much back-and-forth discussion about acceptable working conditions and pay. When an employer wrongs an employee, the courts are much better equipped to find in favour of the employee than to accept the employer’s allegations. Employment relations have evolved in Canadian society, as well as the common law.
Roach (2007) concludes in his paper that Justice Iacobucci is a very fair and tolerant judge, who often encourages cohesion with his colleagues. As a sensible justice, he is rarely prone to anger, although he occasionally can exhibit it when he finds that the party in the wrong, or his own colleagues, made a poor majority decision (Roach, 2007).
Roach also considers Justice Iacobucci instrumental to changing the law in Canada. He writes, “Justice Iacobucci was attentive to the different roles played by courts in developing the common law and interpreting statutes and to the idea that the courts should act as the legislature’s good-faith partner by interpreting statutes in a manner that accepts and internalizes the legislature’s purpose” (Roach, 2007, p. 462). He compares
Justice Iacobucci to an ideal justice by writing, “he or she would have a commitment to
18 fairness and process and a faith that a fair and empathetic hearing will make even the loser more willing to accept the result…Justice Iacobucci enriched the dialogue that is our collective process of self-government” (Roach, 2007, p. 477).
Justice Iacobucci’s Academic versus Judicial Work
Justice Iacobucci understands that law is not a ‘one-way street’. It is a collaborative effort involving not just competing political parties, but also individual citizens and judges (Roach, 2007). He believes that the laws would work best if they were more like a dialogue between all affected parties (Roach, 2007). Since he had a business background, Roach finds this belief especially obvious in his early writing on corporate law: “Iacobucci’s academic work in corporate law was concerned with legal process questions such as the basic structures of cooperation and legality in complex organizations” (Roach, 2007, p. 455). He understood the importance of digging deeper to find the issue below the surface in order to come up with the most favourable interpretation of the law. In his post-academic employment as a senior administrator, he discovered the importance of fairness and dialogue when governing different groups of people (Roach, 2007). He later applied this to his work in judging, where he sought to find the interpretation that would work out for everyone by weighing the opinions of all the parties, including the legislatures who created the law in the first place.
Prior to Justice Iacobucci’s career on the Supreme Court, he held academic positions. Specifically, he was a law professor at the University of Toronto (Bancheri,
2005). During this time, he wrote articles for the academic community, critically analysing law (Iacobucci, 2007). Edward Iacobucci, Justice Iacobucci’s son and fellow
University of Toronto law professor, analysed whether his father’s views changed from
19 his time as an academic to his appointment to the bench (Iacobucci, 2007). Edward
Iacobucci challenged the consistency of his views (Iacobucci, 2007). He ultimately concludes that Justice Iacobucci’s opinion did change somewhat, but argues that it was for the better (Iacobucci, 2007). He does this in the context of corporate control contests.
One such case is a hostile takeover attempt and the other is a proxy contest (Iacobucci,
2007).
In his academic work, he considers a hostile takeover attempt in “The Exercise of
Directors’ Powers: The Battle of Afton Mines” (as cited in Iacobucci, 2007). While takeovers can inject new life and funds into the company, they also pose a hazard to shareholders and employees (Iacobucci, 2007). A bidder who takes over the company may end up liquidating it, costing shareholders their investments and employees their jobs (Iacobucci, 2007). In Canadian law, the current directors of a corporation have the authority to manage such takeovers, but an obvious conflict of interest exists, since it is in their best interest not to relinquish control of their company (Iacobucci, 2007). Although
Justice Iacobucci was skeptical of the managers’ intentions, he agreed with the court that the directors of an organization should be able to decide for themselves whether a takeover is the appropriate action, because the court does not have the same expertise that the directors do (Iacobucci, 2007).
When then-Prime Minister Brian Mulroney appointed Justice Iacobucci to the
Supreme Court of Canada, one of his early corporate law cases was Blair v. Enfield
Consolidated Corporation (1995) (Iacobucci, 2007). This case deals with proxy control contests, and the indemnification that follows when the board tries to recover costs from an ousted member (Iacobucci, 2007). According to Justice Iacobucci in the Court’s
20 unanimous decision, an ousted member is able to apply for financial reimbursement by the corporation that dismissed him if he meets three criteria: he must be party to the litigation, his costs must be reasonable, and he must act in the best interests of the corporation (Iacobucci, 2007). Justice Iacobucci was clear in his decision that the shareholders and owners of the corporation should be deciding the rules of their board, because he notes it “is essentially a private contractual matter” (as cited in Iacobucci,
2007, p. 260).
In these corporate law cases, Justice Iacobucci correctly identified the problems with conflict of interest in corporations (Iacobucci, 2007). Although he came to somewhat different conclusions between his academic and judicial writings, they share the same belief that corporations should be able to decide what is in their best interest
(Iacobucci, 2007). Neither of these cases directly relates to his employment relations decisions; however, both of these cases deal with the limitations of the courts, which can sometimes affect employment concerns.
Labour and Employment Jurisprudence
Justice Iacobucci has had an impressive Supreme Court career based on his employment decisions alone. As Brian Langille and Patrick Macklem point out,
“Although Frank Iacobucci ran some rather large operations during his magnificent career…he was not a labour lawyer in his pre-Supreme Court life” (Langille & Macklem,
2007, p. 343). While he presumably picked up some knowledge of employment relations during his pre-Supreme Court career as a provost at the University of Toronto, most of his labour law knowledge came directly from his Supreme Court career (Langille &
Macklem, 2007). Because making good labour law decisions requires a broad knowledge
21 of many areas of law, it is a difficult task to make a significant impact. As his decisions indicate, he has “a necessary precondition to principled decision making. It is a task
Frank undertook with insight and passion” (Langille & Macklem, 2007, p. 343).
One particular area of labour jurisprudence that Justice Iacobucci excelled in is wrongful dismissal. The cases of McKinley v. BC Tel (2001) and particularly Wallace v.
United Grain Growers Ltd. (1997) show that he attempted to come to a decision that was fair and agreeable by both sides while still maintaining that employees have unequal bargaining power. He often approached his decisions with common sense and empathy.
While employee misconduct requires punishment, employer misconduct is a far more serious wrong. In a case like McKinley, the employer dismissed the employee for dishonesty, and the Supreme Court had to decide whether the punishment was too severe for the “nature and seriousness of the dishonest behaviour” (Langille & Macklem, 2007, p. 347). In Wallace, he had to deal with the employer’s poor behaviour during dismissal.
In both of these cases, and other wrongful dismissal cases, Justice Iacobucci showed tremendous ability to interpret correctly the labour law by determining what exactly are grounds for dismissal and how they must handle dismissed employees.
Although contract law relates to employment law, there are differences of interpretation that set them apart. As Langille and Macklem write, “Note Justice
Iacobucci’s conception of rights and obligations that arise not from the will of the parties but from the employment relationship itself” (Langille & Macklem, 2007, p. 348). The parties of the contract do not clearly contract for good will, despite good will being in both of their minds. For example, there is most likely not a clause in a contract stating that the employer will treat the employee with basic human respect and dignity, but it is
22 an implied term. In any case, the “will of the parties” is generally unbalanced in favour of the employer, who has the most bargaining power (Langille & Macklem, 2007). In order to restore this imbalance, both employers and justices have to hold a conception of what the employee’s rights are, even in cases like McKinley where it is not always clear.
In these decisions and others, Justice Iacobucci used a jurisprudence of fairness as explanation for the Supreme Court’s opinion (Langille & Macklem, 2007). Part of this jurisprudence is to consider the best possible outcome for both parties, and then see where the best middle ground would be. In other words, “Justice Iacobucci looked to the results of a contrary outcome, that already vulnerable employees would be rendered even more vulnerable…and sought to avoid that outcome” (Langille & Macklem, 2007, p.
352). He would go beyond the literal meaning of the law and attempt an interpretation that best protects employees from employment-related hardships.
Political Leanings and Reasonableness
In both academic work and in newspapers, critics often debate Justice Iacobucci’s political leanings (Alarie & Green, 2007). Benjamin Alarie and Andrew Green suggest that some say he is liberally inclined, because of his views on the areas of criminal law
(Alarie & Green, 2007). However, author Philip Slayton suggests that he did not get appointed to Chief Justice by Jean Chrétien because “he was unfairly considered as being in the Mulroney camp” (Slayton, 2011). This issue raises the question of how much his leanings affected his employment law opinions. If he was a consistently liberal voter his labour law decisions would be in favour of the employee, and if conservative, the employer. Because many of his decisions do favour the weaker employee, this tends to place him far left of centre.
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However, Alarie and Green have produced an empirical analysis of his career on the Supreme Court. They find that, compared to all of the fellow judges with whom he shared tenure, he is in fact only slightly left of centre (Alarie & Green, 2007). According to their method, “Justice Iacobucci’s voting record in each of the five areas of law can be seen to be close to the average for all justices, with a slightly higher-than-average liberal voting record in Charter, criminal, and tax appeals, and a slightly lower-than-average liberal voting record in Aboriginal and labour appeals” (Alarie & Green, 2007, p. 212-
213). He was slightly more conservative in his labour law rulings than the Supreme Court average (Alarie & Green, 2007, p. 213).
Another aspect of the Supreme Court decisions depends on who else is serving on the Court at the time, and who is voting in a particular case. Alarie and Green used their method to establish agreement ratios between all the justices (Alarie & Green, 2007).
According to this data, Justice Iacobucci agreed with the most liberal judge, Justice Fish,
87 per cent of the time, whereas he agreed with the most conservative judge, Justice
L’Heureux-Dubé, only 67 per cent of the time (Alarie & Green, 2007). He agreed the most often with Justices Cory and Arbour at 91 per cent of the time (Alarie & Green,
2007). Interestingly, Justice Cory is slightly more conservative than Justice Iacobucci himself is, but Justice Arbour is only slightly less liberal than Justice Fish is. In other words, Justice Iacobucci often agreed with one justice who was slightly more conservative than he and another who is far more liberal (Alarie & Green, 2007). This data demonstrates that Justice Iacobucci is very much a consensus-building member of the Court. He is able to agree very often with the most conservative member and agrees most often with members of both sides. Although most other Justices have similar or
24 better agreement ratios, Alarie and Green regard him as particularly committed to attempts at building consensus (Alarie & Green, 2007). On the other hand, Justice
L’Heureux-Dubé’s ratios range from 56 per cent to 80 per cent of the time, and she is therefore the least agreeable member on the Supreme Court during Justice Iacobucci’s tenure (Alarie & Green, 2007).
Alarie and Green note that “there were six justices [of fifteen] with whom Justice
Iacobucci agreed over 85 per cent of the time: Justices Arbour, Cory, Binnie, Major, Fish, and Sopinka” (Alarie & Green, 2007, p. 222). Of these, all except the previously mentioned Cory are more liberal than Justice Iacobucci (Alarie & Green, 2007). This data would tend to suggest that he is more liberal than the early assertion by the writers that he is only slightly left of centre and therefore would be inconsistent with the findings overall
(Alarie & Green, 2007). However, Alarie and Green continue: “Justice Iacobucci’s 85 per cent agreement rate persists across the five types of law (criminal, Charter, Aboriginal, labour, and tax) with Justices Arbour and Cory” dropping Charter agreement with Justice
Major; Charter and Aboriginal with Justice Binnie; and Charter and labour with Sopinka
(Alarie & Green, 2007, p. 222). In the area of labour law, Justice Iacobucci’s clearest allies were Justices Arbour, Cory, Major, and Binnie (Alarie & Green, 2007). These allies are essential to showing that Justice Iacobucci was able to convince many of his colleagues to come to an agreement. While the justices may have decided the cases differently on their own, under Justice Iacobucci’s focus on teamwork, the Supreme
Court of Canada came to a fair decision for all parties. In terms of the shift in opinions,
Justice Iacobucci’s importance may have meant a different outcome in many cases.
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Methodology The method of this study is a qualitative examination of case law, a focused reading of Justice Frank Iacobucci’s written Supreme Court of Canada decisions and an example of a case that overturned his ruling. I employed a grounded theory approach to examine the content of a number of cases of the Supreme Court chosen because Justice
Iacobucci wrote them and because they related in some way to broader theories of justice, especially in the employment relationship. In this chapter, I will outline the methods used in this study including case selection, case content analysis, grounded theory, and data analysis procedures.
Case Selection Method
The cases selected for this study are from the Supreme Court of Canada and concern issues broadly related to employment. They include cases of wrongful dismissal and hiring practices, discrimination in the workplace, and import bans affecting businesses. Cases were included if Justice Iacobucci had constructed an argument for fairness, whether he had explicitly dealt with fairness or others had attributed it to him in subsequent literature.
I familiarized myself with several of the decisions through discussions of cases in classes related to employment, the law, or philosophy. These cases are noteworthy or controversial in the field of employment relations (Hogg et al., 2007). McKinley v. BC
Tel (2001), Vriend v. Alberta (1998), Wallace v. United Grain Growers, Ltd. (1997), and
Honda v. Keays (2008) were key cases in Organizational Behaviour, Human Resource
Management, and Employment Relations classes, as academics consider them watershed cases for employment and human rights. A legal philosophy course on Justice and Law:
Rights, Laws, and Judges discussed the cases of Little Sisters v. Canada (2000) and
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Vriend (1998) due to the ethical dimensions presented by the judges. Vriend was also one of the crucial cases in Social and Political Thought, as it was the main case that introduced the dialogue metaphor beyond academic literature. The cases do not cover all of the available cases written by Justice Iacobucci, either in the majority or the dissent, but this examination does not intend to be exhaustive.
In terms of case content, the cases can be broken down into different legal categories and themes. McKinley (2001) falls into the categories of wrongful dismissal in employment law and damages. The Supreme Court of Canada further divides wrongful dismissal into dishonest conduct and the questionable jury’s verdict from the original trial
(McKinley v. BC Tel, 2001). Damages awarded to McKinley were for an extended period of notice, as well as for aggravated and punitive damages. Vriend (1998) was a challenge under the Alberta Individual Rights Protection Act and falls into constitutional law. The
Charter challenge debated “whether appellants have standing to challenge legislative provisions other than those relating to employment” (Vriend v. Alberta, 1998). The constitutional concern is the application, equality rights, and remedies of the Charter
(Vriend v. Alberta, 1998). Wallace (1997) is about both bankruptcy and wrongful dismissal as it relates to civil procedures and employment law. The challenge with Mr.
Wallace’s bankruptcy was “whether damages for wrongful dismissal [should have been] included in ‘salary, wages, or other remuneration’” (Wallace v. United Grain Growers,
Ltd., 1997). The wrongful dismissal stemmed from the employer’s summary dismissal of
Wallace. Little Sisters (2000) dealt with whether Customs legislation infringes on freedom of expression, equality rights, or both (Little Sisters v. Canada, 2000). Finally,
Honda v. Keays (2008) deals with wrongful dismissal, aggravated damages, and
27 reasonable notice of termination. Honda v. Keays (2008) is from after Justice Iacobucci left the Court, but it is an example of how a decision was overturned. The issue is the reasonable notice period for an employee of Keays’ longevity and position. Another issue stems from the way in which Honda dismissed Keays, and whether aggravated damages are available.
These cases are broadly employment related. Justice Iacobucci wrote a decision for each of them and they all deal with the relationships between employees and employers. The cases relate directly to the employment relationship, or more broadly to maintaining a business with employees Moreover, in each case Justice Iacobucci had constructed a decision around the essential question, ‘what is fair?’ All of these cases are watershed cases in their respective fields, and thus are important illustrations from Justice
Iacobucci’s Supreme Court of Canada career.
Introduction to Case Content Analysis
The research begins with a subjective analysis of legal cases to explore the concept of fairness in Justice Iacobucci’s decisions. Since this research is exploratory, and not causal, a subjective analysis is an appropriate medium (Zikmund & Babin, 2009).
Qualitative research is preferable to quantitative research in this area because the aim of the research is to uncover the ideals that Justice Iacobucci may have held. The cases chosen concern employment law in some capacity and have Justice Iacobucci as a co- author. These cases help to identify Justice Iacobucci’s “political economy of fairness”
(Langille & Macklem, 2007, p. 344). Although the cases are but a brief sample of legal fairness in general, and Justice Iacobucci’s cases more specifically, they offer insight into
“the sense of perplexity that makes law worth thinking about” (Weinrib, 2007, p. 144).
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Using case analysis allows new analysis to be made while still “draw[ing] on already existing theoretical concepts” (Kelle, 2005, p. 2).
Grounded Theory and Case Analyses
The approach used here to analyze cases is grounded theory, which is a form of research using an inductive approach by reviewing primary data, such as interviews, or secondary data, such as articles, related to a given topic, and establishes a thesis from the resulting data (Kelle, 2005). The thesis uses archival research as its foundation, which is
“any sort of information, previously collected by others, amenable to systematic study”
(Jones, 2010, p. 1008). Using archival research and grounded theory in particular means that the literature review will sensitize the researcher to the relevant material (Kelle,
2005).
The analysis begins with an initial cursory reading to determine the content of the cases and Justice Iacobucci’s role in them. This cursory reading helped sort the employment-related cases from others that connected to the concept of fairness. Before starting the secondary reading, background research on the topic inspired a list of potential themes to assess. These themes included inequality of bargaining power, unequal access to information for bargaining, employee vulnerability especially with respect to tenure, and the Court’s willingness to act to limit unilateral ER actions. After choosing the themes, a secondary reading allowed for a more detailed analysis, which is one of the main benefits of using grounded theory (Kelle, 2005). The purpose of creating a list of themes in the secondary reading is to focus the analysis on relevant issues.
Grounded theory usually uses coding and categorizing to ensure that the chosen theory will fit the data (Kelle, 2005). In this case, the coding is a bit less strict in order not to
29 focus on preconceived ideas. Minimal coding allows for original ideas to rise to the surface.
Highlighted quotes indicate relevance to one or more of the themes. Some cases had heavy usage, while others only had a few sections relating to any of the themes.
However, each case did have relevant subject matter. These quotes became the pivotal subjects for further analysis.
Data Analysis Procedures
The data analysis begins with a brief summary of the case. A grounded theory approach as described by Glaser and Strauss where the researcher reads each case and compares it to others to find common themes will identify important areas (Kelle, 2005).
By focusing on a small number of common themes, a more detailed and in-depth examination can produce new insight and understanding (Kelle, 2005).
Summary
This chapter describes the process of analysing the case law related to Justice
Iacobucci. As discussed, the analysis will be through a method known as grounded theory, using inductive research to review primary and secondary data. I will use information gained from this grounded theory approach to find common themes in the cases. These themes will relate back to the literature. The review of primary and secondary sources will provide depth to the cases written by Justice Iacobucci.
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Findings and Case Analysis
Each case chosen reflects the nature of common law decisions in Canada related to employment. Throughout the process of analysis, questions arose that relate to the themes uncovered in the review of the relevant literature. These themes include judicial review of statutes in Little Sisters v. Canada (2000); dialogue between the courts and the legislature in Vriend v. Alberta (1998); Justice Iacobucci’s nuanced approach to law inspired by his years in academia in Wallace v. United Grain Growers (1997); employment jurisprudence in McKinley v. BC Tel (2001); and political leanings in Honda v. Keays (2008), a case Justice Iacobucci was not a part of. These decisions highlight
Justice Iacobucci’s dedication to principled decision- making, which he “undertook with insight and passion” (Langille & Macklem, 2007, p. 343), as well as the change in his legacy after his retirement. Similarly, he understood “the importance of process and more inclusive participation for those who are not normally in power” (Roach, 2007, p. 455).
While all of these cases broadly concern employment, two are particularly strong examples of the Justice Iacobucci’s jurisprudence. Wallace demonstrates Justice
Iacobucci’s frustration with “the behaviour of employers who subject employees to callous and insensitive treatment in their dismissal, showing no regard for their welfare”
(Wallace v. United Grain Growers, Ltd., 1997, para. 88). This case illustrates a classic case of wrongful dismissal, and the written decision is a great example of Justice
Iacobucci’s understanding of the complexities of employment law.
McKinley discusses wrongful dismissal and the role of the employee’s dishonesty.
In reference to the aspect of the employee’s dishonesty, as Justice Iacobucci notes, “the nature and context of such dishonesty must be considered” (McKinley v. BC Tel, 2001,
31 para. 1). Additionally, “an employee’s misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship” (McKinley v. BC Tel, 2001, para.33). Although this case is another example of employers acting poorly towards an employee, Justice Iacobucci found that “the employer’s conduct, standing alone, was not considered sufficiently offensive to constitute an actionable wrong” (McKinley v. BC Tel,
2001, para.86). These two cases are great examples of Justice Iacobucci coming to a fair conclusion that both parties find to their satisfaction.
Overall, the five main themes reflected in the finding and analyses are Judicial
Review, Dialogue between the Courts and Legislatures, Justice Iacobucci’s Academic
Versus Judicial Work, Political Leanings and Reasonableness, and Labour and
Employment Jurisprudence. Each of these themes applies to at least one of the cases analysed in this chapter.
Judicial Review of Statutes in Little Sisters
The case of Little Sisters concerns a bookstore in Vancouver that catered to gay and lesbian special interests. Because they import most of their erotica from the United
States, their stock had to go through Customs. There were no specific rules at the time for what qualified as obscene, and Customs delayed much of Little Sisters’ stock at the border, sometimes indefinitely. The appellants argued that the Customs legislation infringed their rights under the Canadian Charter of Rights and Freedoms, especially considering the trial judge found that the Customs agents intentionally targeted the store.
In a 6:4 decision, the majority of the Supreme Court found that although Customs
32 targeted Little Sisters, by refusing books to the store that Customs allowed to other local businesses, the infringement was justified.
In this case, Justice Iacobucci was part of the dissent, along with Justices Arbour and LeBel. He wrote, “It is the legislation itself, and not only its application, that is responsible for the constitutional violations” (Little Sisters v. Canada, 2000, p. 9-10). He agreed with Justice Binnie that the legislation did not mandate proper training for
Customs officials for their role in deciding what imports are obscene. However, while the majority of the Court upheld the relevant legislation despite its constitutional flaws, the three dissenters would deem the law unconstitutional and strike it down. As Justice
Iacobucci notes, “the Customs legislation does not minimally impair the appellants’ rights, nor do the benefits of the legislation outweigh its detrimental effects on the right of free expression” (Little Sisters v. Canada, 2000, para. 164), which harms the appellants’ commercial interests and is against the interests of society as a whole.
The appellants’ argued that different standards of obscenity exist within the gay and straight communities (Little Sisters v. Canada, 2000). While this line of argument did not sway any of the judges, it did inspire Justice Iacobucci to consider the differences between expressive goods, such as art and literature, and other goods brought into
Canada. Justice Iacobucci writes, “The Customs legislation lacks the most basic procedures necessary for a fair and accurate determination of whether something is obscene. Compounding these legislative deficiencies is the fact that Customs officers, while no doubt well-intentioned and conscientious civil servants, lack the training, time or resources to accomplish the task set for them” (Little Sisters v. Canada, 2000, para.
166). Had Justice Iacobucci written for the majority, the judiciary would force the
33 legislature to change the statute. Judicial review is the common name for this practice, and it can be highly contentious.
In the case of Little Sisters v. Canada (2000), judicial review would mean the legislature would have to reconsider the entire scope of the law. In many cases, judicial review is accepted and the legislatures create a law that is more in line with the public values of Canadian society (whom the judges represent). However, there are cases where the legislature does not believe the Supreme Court has the correct understanding of the law. When the judiciary hands down their decision, the legislature generally has to accept the ruling, with limited exceptions. In this case, the legislature had to make some changes to the law so that the Customs officials receive better training on obscenity.
Judicial review is controversial because some see it as taking away the ability of the legislature to rule effectively (Waldron, 2006). Jeremy Waldron reasons that judicial review does not protect individuals in society any better than the legislature (2006). The owners of Little Sisters and others who face obscenity charges at the border probably do not agree entirely with Jeremy Waldron. Justice Iacobucci, at least in this case, seems to agree with Waldron’s opponent, Ronald Dworkin. Dworkin argues that judicial review contributes to governmental legitimacy by “identifying and respecting the rights of individuals” (2011, p. 398). Dworkin acknowledges that the legislature does not make laws in a vacuum (2001). The legislature pays attention to all the decisions a court renders, regardless of whether they are in the majority, and can modify the law in response. Since Canada is a common law system, the Supreme Court of Canada can render its own decisions that become a part of the law.
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In Little Sisters, Justice Iacobucci provides an extensive analysis of the multiple
Charter rights denied to the appellant bookstore (Little Sisters v. Canada, 2000). He refers to his hope that Parliament consider a drastic change to the laws concerning imports:
No doubt there are many other steps that could be taken to improve the current
system. I put these suggestions forward to show that there is a variety of
approaches available to Parliament to underscore the importance of ensuring
Canadians have access to as many expressive materials as possible while realizing
the practical constraints that are involved. Because the present regime essentially
treats books like any other commodity, I hope that Parliament will review and
revise the current Customs legislation to reflect the seminal importance of
freedom of expression in our Canadian democracy. (Little Sisters v. Canada,
2000, para. 281)
This statement reflects Justice Iacobucci’s commitment to the rights of minorities. He respects the legislature, but recommends judicial review when appropriate. Judicial review in Canada can be a highly contested aspect of the legal regime, but can produce fair decisions when in principled hands. In Little Sisters v. Canada (2000), Justice
Iacobucci sought a decision that would radically alter the current law. A majority decision would ease the import process of art and literature for the owners of Little
Sisters. Although he was unsuccessful in his attempt at judicial review in this case, the legislature had the opportunity to reassess the law as it stood.
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Dialogue in Vriend v. Alberta
Justice Iacobucci was consistent in his vision of the Supreme Court as a dialogue between the courts and the legislature. Regardless of the consequences for the legislature,
Justice Iacobucci was firm in his belief that the judiciary is representative of minorities and those with unequal bargaining power in Canada and protects their rights against majority rule.
In general, Justice Iacobucci believed that the courts should have a limited effect on the legislature, and should not intervene too substantially in the laws as enacted by elected officials (Roach, 2007). However, this belief depends on the expectation that the legislature is not needlessly harming minority rights. When the legislature did not meet these expectations, Justice Iacobucci sought to override the law, using the dialogue metaphor. Law professor and dialogue critic Kent Roach has praised Justice Iacobucci’s unique approach to dialogue: “the dialogue metaphor does not justify the role the courts play in the dialogue, [but] in Justice Iacobucci’s hands, dialogue had a substantive and principled core” (Roach, 2007, p. 450). Justice Iacobucci not only maintained the dialogue metaphor, he actively built upon it.
In the case of Vriend v. Alberta (1998), issues arose surrounding the role of the legislature. Vriend’s employer dismissed him for being gay, and the Individual’s Rights
Protection Act in Alberta did not protect against discrimination due to sexual orientation.
This absence was not due to an honest mistake; the legislature repeatedly refused to include sexual orientation (Vriend v. Alberta, 1998). Other provinces at the time had either explicitly included the term ‘sexual orientation’ or had implied it as a part of sex discrimination (Vriend v. Alberta, 1998). In response, the trial judge, and eventually all of
36 the members of the Supreme Court (with Justice Major dissenting in part) agreed that
Alberta needed to read ‘sexual orientation’ into the provincial human rights code.
The government of Alberta at the time did not agree with this instance of ‘reading in’. The premier did have an option in this case to disagree with the Supreme Court. In the Canadian Charter of Rights and Freedoms, there is a section known as the notwithstanding clause that allows governments to override certain Charter rights
(Roach, 2007). The Alberta government could have passed the exact same law (the human rights code without reference to sexual orientation), and added the notwithstanding clause. In that case, anyone in Alberta discriminated against due to their sexual orientation would have absolutely no grounds to plead their case.
In the end, Alberta did make the changes recommended by the Supreme Court and did not attempt to override their decision. The province’s decision may have been due in part to Justice Iacobucci’s written decision. In it, he writes at length about the metaphor of dialogue between the courts and the legislatures. He even validates the use of the notwithstanding clause: “Governments are free to modify the amended legislation by passing exceptions and defences which they feel can be justified under s. 1 of the
Charter. Thus when a court reads in, this is not the end of the legislative process because the legislature can pass new legislation in response” (Vriend v. Alberta, 1998, para. 178).
Although Justice Iacobucci felt strongly that the province had wronged Vriend, he was aware of the use of the override. As Roach (2007) points out, “For better or worse, s.33
[the override clause] is part of the Canadian Constitution, and dialogue proponents are correct in situating dialogue within the possibility of the override. Justice Iacobucci’s dialogue included the override” (p. 464). Justice Iacobucci did not ignore the province’s
37 right to override Supreme Court decisions in certain cases. He did not attempt any kind of judicial supremacy. At the same time, he used reason to convince the legislature that reading in sexual orientation was the correct choice.
All the members of the Supreme Court who heard the case were unanimous that the non-inclusion of sexual orientation in the human rights code infringed the right to equality. However, one judge was hesitant to read sexual orientation in. Justice Major, originally from Alberta, was known as slightly more liberal than Justice Iacobucci (Alarie
& Green, 2007). While he was in agreement with the Court that Alberta had failed to protect Vriend and others from discrimination, he thought that it was within the province’s rights to reconsider the subject. He wrote, “While reading in may be appropriate where it can be safely assumed that the legislature itself would have remedied the underinclusiveness by extending the benefit or protection to the previously excluded group, that assumption cannot be made in this appeal” (Vriend v. Alberta, 1998, p. 9). He argued that instead of reading in, the Court should issue a suspended declaration of invalidity, which would allow the Alberta legislature to discuss the issue again. However, the rest of the Court disagreed. As Kent Roach wrote, “Justice Iacobucci was understandably reluctant to place the entire quasi-constitutional human-rights code at risk by using a suspended declaration of invalidity” (2007, p. 473). Using a suspended declaration would mean that for a period, there would be no human rights code in Alberta at all, until the matter was settled. This solution is obviously harmful to all Albertans, who will not be protected during this time. More practically, the Alberta government had discussed the inclusion of sexual orientation into the human rights code, and had
38 repeatedly rejected it. Had the Supreme Court issued a suspended declaration, it is doubtful that the province would have come to a different conclusion.
Roach (2007) mentions another reason why Justice Iacobucci’s writing helped convince the Alberta legislature not to use the override. Alberta’s use of the override would mean that the province is committed to their interpretation of equality rights.
Although the province was able to disagree with the Supreme Court in this case, they would have faced repercussions in the next election cycle. As Roach wrote,
Had Alberta used the override to overrule Vriend, everyone would [have]
recognized that it was disagreeing with equality rights as they had been
interpreted by the Supreme Court. The fact that such an interpretation of equality
rights would have been viewed as unjust by most does not discredit the override
as a dialogic device; it only helps explain why the Supreme Court’s interpretation
of equality rights in Vriend was not rejected by the elected representatives of
Alberta. In Vriend, Justice Iacobucci faced the real possibility that Alberta might
use the override to reject the Court’s ruling, but he did not let this prospect deter
him from making a principled decision. (2007, p. 465)
Justice Iacobucci stayed true to his principled beliefs about equality while still maintaining that the legislature has the power to make their own choices regarding human rights.
Justice Iacobucci’s understanding of judicial and legislative dialogue “recognized a need to respond to…the ‘counter-majoritarian difficulty’ of striking down democratically elected laws” (Roach, 2007, p. 451). Instead of attempting to convince the legislature that following the Supreme Court is the only option, he wrote a balanced
39 decision in order to provoke a conversation about the law (Roach, 2007). In the end, the legislature and people of Alberta did have a discussion of the merits of the decision.
Although many disagreed, the majority agreed in principle with the opinion of the
Supreme Court. The attribution of this outcome can be, at least in part, because of the principled writings of Justice Iacobucci (Roach, 2007). Justice Iacobucci’s “concerns about anti-discrimination and constitutional accountability” struck close to many people
(Roach, 2007, p. 453). Even those who did not initially support the rights of homosexuals understood that if the legislature did not see fit to protect them against discrimination, there could be future incidents in which Alberta would not protect others against discrimination (Roach, 2007, p. 453). Justice Iacobucci’s written opinion in Vriend v.
Alberta (1998) helped define dialogue in judicial review and continues to be one of the most important cases of human rights issues in the employment relationship.
Academic Influence in Wallace v. United Grain Growers, Ltd.
In his years before sitting on the Supreme Court of Canada, Justice Iacobucci was a professor at the University of Toronto (Iacobucci, 2007). During this time, he published a few research papers (Iacobucci, 2007). Although his understanding of the law grew and deepened, he maintained a consistent view (Iacobucci, 2007). One example of academic influence, in terms of a deep understanding of a fair and consistent outcome, appears in
Wallace v. United Grain Growers, Ltd. (1997).
Wallace is one of the most well-known cases of wrongful dismissal. Wallace worked for a commercial printing press that was a competitor to United Grain Growers
(Wallace v. United Grain Growers, Ltd., 1997). In 1972, United Grain Growers met
Wallace about the possibility of employment (Wallace v. United Grain Growers, Ltd.,
40
1997). Since Wallace was forty-five at the time, he wanted a guarantee of job security, and received assurance from United Grain Growers that he could work until retirement if he performed well (Wallace v. United Grain Growers, Ltd., 1997). Wallace did perform well, earning top sales each year he worked for them (Wallace v. United Grain Growers,
Ltd., 1997). In 1986, United Grain Growers discharged him, allegedly for cause (Wallace v. United Grain Growers, Ltd., 1997). United Grain Growers maintained this allegation until the commencement of the original trial (Wallace v. United Grain Growers, Ltd.,
1997). The original trial judge rewarded Wallace twenty-four months’ notice, while the
Court of Appeal reduced it to fifteen months, saying that the trial judge “may have allowed an element of aggravated damages to creep into his assessment and that recent awards in such cases had been getting too high” (Wallace v. United Grain Growers, Ltd.,
1997, p. 3).
Justice Iacobucci wrote a famous response to the wrongful dismissal case. In it, he restored the twenty-four months’ reasonable notice (Wallace v. United Grain Growers,
Ltd., 1997). He rationalized the high end of reasonable notice in this case due to the way
UGG treated him (Wallace v. United Grain Growers, Ltd., 1997). He based his analysis on “an obligation of good faith and fair dealing in the manner of dismissal” (Wallace v.
United Grain Growers, Ltd., 1997, p. 5). He determined that in the common law, both parties owe good faith to each other, and United Grain Growers failed in this part. They made false and unsubstantiated claims about dismissing him with just cause when, in fact, he had been one of their best employees (Wallace v. United Grain Growers, Ltd.,
1997). Employers should be consistent in their behaviour regarding employees. United
Grain Growers were interested enough in Wallace to induce him to leave his previous
41 employer (Wallace v. United Grain Growers, Ltd., 1997). They should have maintained this respect by continuing to value him until retirement. The sudden change in attitude was a power play by management.
Justice Iacobucci developed the idea of good faith dealings during the academic stage of his career (Weinrib, 2007). Ernest J. Weinrib, a former student, wrote an article describing how Justice Iacobucci is
A beloved teacher...his humour and humanity were as conspicuous in the
classroom as elsewhere. He projected a sense of camaraderie with his students,
making it clear through every gesture and inflection, through every wisecrack,
through every histrionic raising and lowering of the eye-brows, that he took
delight in being with us, that all persons in the class had his respect and affection.
(2007, p. 132)
Justice Iacobucci clearly believed in the value of all the people with whom he interacted.
The attitude he had concerning his students is the same attitude he had to fairness in the judicial process. He believed that regardless of their position, courts should treat both parties fairly. This principle of fairness is particularly apparent in Wallace v. United
Grain Growers, Ltd. (1997). At first glance, the case seems unfair to United Grain
Growers, Ltd. However, Justice Iacobucci understood that fairness is a two-way street; since United Grain Growers did not act fairly toward Wallace, they would not receive fairness in return. Justice Iacobucci reflected on his background in education in this decision. His academic background clearly influenced his opinions on wrongful dismissal and helped to develop an attitude of fairness. A weaker party with unequal bargaining power is a key aspect of wrongful dismissal, and Justice Iacobucci furthered the law to be
42 fairer in this respect. If an employer does something unethical, it is up to the courts to correct this imbalance. The courts correct this imbalance through fashioning limits to the arbitrary exercise of power by employers, and shift some of that power to the weaker employees.
Employment Jurisprudence in McKinley v. BC Tel
Another theme that is prevalent in Justice Iacobucci’s decisions is his attitude towards employment jurisprudence; specifically that he tries to find an outcome that is fair to both parties while compensating the weaker party.
Primarily, Justice Iacobucci appeared to be concerned with balancing the inequality of bargaining power between the employer and the employee. In the case of
McKinley v. BC Tel (2001), the employee had a medical condition that required him to take a leave of absence (McKinley v. BC Tel, 2001). Later, McKinley “indicated to his employer that he wished to return to work, but in a position that carried less responsibility. He was advised that BC Tel would attempt to find another suitable position for him within its corporate structure” (McKinley v. BC Tel, 2001, p. 2).
However, BC Tel did not find him another position and ended up dismissing him a few months later (McKinley v. BC Tel, 2001). McKinley then sued for wrongful dismissal
(McKinley v. BC Tel, 2001). In response, “B.C. Tel took the position that they had just cause for the appellant’s summary dismissal, alleging that he had been dishonest about his medical condition, and the treatments available for it” (McKinley v. BC Tel, 2001, p.
3). BC Tel found a letter written by McKinley to his doctor, which noted that the doctor had prescribed medication to McKinley that would have allowed McKinley to continue working at a job of the same stress level. It was up to the Supreme Court to decide
43 whether McKinley’s dishonesty was to a degree that it constituted just cause, or whether
BC Tel had wrongfully dismissed him and therefore owed a period of reasonable notice.
If BC Tel had wrongfully dismissed McKinley, the Court would have to determine the period owed and whether BC Tel owed aggravated damages.
Justice Iacobucci wrote a unanimous decision in favour of McKinley. In it, he had to give “extensive consideration to what sorts of employee conduct are serious enough to give just cause for dismissal” (Adell et al., 2011, p. 125). Part of this question related to the standard of dishonest conduct in employees. Justice Iacobucci outlines three main authoritative approaches to dishonest conduct. The first of these is “that context must be considered” (McKinley v. BC Tel, 2001, para. 29). This approach favours an understanding of all the issues surrounding the dishonesty. If the court finds the employee to be dishonest, it is not necessarily immediate grounds for just cause. The court must consider various factors, such as the severity of the misconduct (McKinley v. BC Tel,
2001). The second approach is “that dishonesty in and of itself warrants dismissal without notice” (McKinley v. BC Tel, 2001, para. 41). This interpretation suggests that, regardless of any other factors, dishonesty is always grounds for just cause dismissal. While there are certain advantages to maintaining a harsh rule for dishonesty, Justice Iacobucci notes,
“in all of the cases considered here, where cause was found to exist, courts were confronted with very serious forms of employee dishonesty” (McKinley v. BC Tel, 2001, para. 47). The final approach that Justice Iacobucci gives is his own: an “applicable standard for assessing whether and in what circumstances dishonesty provides just cause”
(McKinley v. BC Tel, 2001, para. 48). He suggests that there are not necessarily multiple factors that a court must consider when deciding if dishonesty is grounds for just cause.
44
The most essential justification “is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship” (McKinley v. BC Tel, 2001, para. 48). The
Privy Council originally established this principle in Clouston & Co. v. Corry (1906) and it has been used in wrongful dismissal law ever since (McKinley v. BC Tel, 2001).His understanding of the case suggests that McKinley’s dishonesty was not serious enough to validate a harsh interpretation (McKinley v. BC Tel, 2001). Therefore, he agreed with the trial judge that in this case, dishonesty was not grounds for just cause and that BC Tel had wrongfully dismissed McKinley.
The Court’s decision in McKinley became a watershed case for what constitutes just cause (Adell et al., 2011). Although there are situations where the employee clearly intends to “undermine the obligations and faith inherent to the employment relationship”
(McKinley v. BC Tel, 2001, p. 4), McKinley simply failed to disclose the available treatment options. In fact, there is some evidence that he believed that the stronger medication was a secondary option, and that the best treatment would be to find a position that entailed less stress (McKinley v. BC Tel, 2001). Justice Iacobucci understood that employees who fail to disclose all pertinent information might not be attempting to undermine the employment relationship. Employees may act in self-interest without considering the repercussions if their employer were to discover that they had been less than honest. Justice Iacobucci understood this rationalization and it became the basis of his principled reasons in employment jurisprudence.
In cases of unequal bargaining, such as McKinley, Justice Iacobucci favoured a balanced approach. He wrote,
45
Underlying the approach I propose is the principle of proportionality. An effective
balance must be struck between the severity of an employee’s misconduct and the
sanction imposed. The importance of this balance is better understood by
considering the sense of identity and self-worth individuals frequently derive from
their employment. (McKinley v. BC Tel, 2001, para. 53)
Justice Iacobucci strongly believed that the punishment must match the severity of the dishonesty. He made a similar statement in Wallace v. United Grain Growers, Ltd.
(1997) about the importance of protecting vulnerable parties (1997). In the view of the
Supreme Court, McKinley’s dismissal by BC Tel was unwarranted by his behaviour.
McKinley had not lied about anything that undermined the employment relationship.
Indeed, he wanted to keep working at BC Tel, just in a job that was not as stressful
(McKinley v. BC Tel, 2001). Although he was dishonest about his need to transfer jobs, he was concerned about his health at the time. Therefore, the Court saw that McKinley’s dishonesty was worthy of some form of punishment, but that dismissal for cause went too far. Justice Iacobucci also gave a lot of weight to the role of personal identity in work. He notes that most adults, regardless of how they feel about their job, relate it directly to their self-identity. Since employment is so important in society, dismissal can be a traumatic event for the person and affect their place in society, especially when the former employer accuses them of wrongdoing. In regards to a painful dismissal, Justice
Iacobucci wrote that
Not only is work itself fundamental to an individual's identity, but “the manner in
which employment can be terminated is equally important”…. Given this
recognition of the integral nature of work to the lives and identities of individuals
46
in our society, care must be taken in fashioning rules and principles of law which
would enable the employment relationship to be terminated without notice. The
importance of this is underscored by the power imbalance that this Court has
recognized as ingrained in most facets of the employment relationship. (McKinley
v. BC Tel, 2001, para. 53-54)
Employers need to consider the manner of dismissal, regardless of the cause. If they do not consider the employee’s needs, they are abusing the power balance in their relationship. Justice Iacobucci saw this imbalance in employment law, and it became part of his jurisprudence to stop it. McKinley v. BC Tel (2001) clearly builds on the decision in
Wallace v. United Grain Growers, Ltd. (1997). Justice Iacobucci elaborated on a test that would limit an employer’s ability to act unilaterally in decisions. The test is of particular importance in cases where the employer can further harm the employee or increase the employee’s vulnerability. Justice Iacobucci consistently supported the more vulnerable party in his decisions, and since that party is often the employee, he made great contributions to employment jurisprudence in McKinley v. BC Tel (2001).
Political Leanings in Honda v. Keays
Honda v. Keays (2008) is not a case that features Justice Iacobucci. He retired four years before the Supreme Court of Canada heard the case (Slayton, 2011). However, this case has a great impact on Justice Iacobucci’s legacy on the Supreme Court of
Canada. The decision, a harsh interpretation of wrongful dismissal, effectively overrode his writing in Wallace v. United Grain Growers, Ltd. (1997). This case is an example of how the political leanings of the judiciary may affect the outcome of a case that has precedence to go the other way (Alarie & Green, 2007).
47
Honda v. Keays (2008) started as a wrongful dismissal case. Keays was an employee of Honda Canada for eleven years before doctors diagnosed him with chronic fatigue syndrome (Honda v. Keays, 2008). He lived off disability benefits until the insurance company discontinued his benefits, independently of any intervention on
Honda’s part (Honda v. Keays, 2008). He then returned to work, and Honda placed him in a disability program that allowed him to take absences from work, provided his physician approved them (Honda v. Keays, 2008). Keays’ absences eventually became more frequent, and “the notes [Keays] offered to explain his absences changed in tone, leaving the employer to believe that the doctor did not independently evaluate whether he missed work due to disability” (Honda v. Keays, 2008, p.2). When Honda asked Keays to meet with their own occupational therapist, Keays refused, based on the advice of his counsel (Honda v. Keays, 2008). After Keays continued to refuse to meet with the occupational therapist, Honda terminated him (Honda v. Keays, 2008).
When Keays sued for wrongful dismissal, the trial judge followed the Supreme
Court’s decision in Wallace v. United Grain Growers, Ltd. (1997). The trial judge “found that [Keays] was entitled to a notice period of 15 months….He increased the notice period to 24 months to award additional damages dependent on the manner of dismissal.
He also awarded punitive damages against the employer in the amount of $500,000, a costs premium, and costs on a substantial indemnity scale” (Honda v. Keays, 2008, p. 2).
When Honda appealed the decision, the Court of Appeal reduced the costs premium and the punitive damages, but otherwise upheld the decision (Honda v. Keays, 2008).
However, when Honda appealed again, the Supreme Court overturned the decision in part. They maintained that Keays had been wrongfully dismissed (Honda v. Keays,
48
2008). The Court did not feel that twenty-four months was justified. The majority of the
Court lowered the dismissal period to fifteen months (Honda v. Keays, 2008). They considered Honda’s treatment of Keays to be “in no way an egregious display of bad faith justifying an award of damages for conduct in dismissal” (Honda v. Keays, 2008, p.
4). Honda’s actions toward Keays were not of the severity to warrant punishment to
Honda. Although Keays clearly suffered from Honda’s conduct, “damages are not available for the actual loss of a job or for pain and distress suffered as a consequence of being terminated” (Honda v. Keays, 2008, p. 3). Courts generally reserve punitive damages for situations where the employer has severely improper conduct and needs punishment. In this case, like in Wallace v. United Grain Growers, Ltd. (2008), the Court did not believe the conduct was harsh enough to validate issuing punitive damages for
Keays (Honda v. Keays, 2008).
The different members on the Supreme Court at the time can account for part of the difference between the two cases. Wallace v. United Grain Growers, Ltd. featured
Justices Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci, and Major. Nearly ten years later, the only remaining member was Justice
McLachlin, who was now in the role of Chief Justice. The other members in the Honda v.
Keays (2008) decision were Bastarache, Binnie, LeBel, Deschamps, Fish, Abella,
Charron, and Rothstein. In Wallace v. United Grain Growers, Ltd. (1997), Justice
McLachlin had dissented in part, along with Justices La Forest and L’Heureux-Dubé. The dissenters empathized more than the majority on the issue of aggravated damages. Justice
Iacobucci and the other majority judges felt that, while United Grain Growers, Ltd. acted regrettably, it was not severe enough for aggravated damages on its own, but rather
49 contributed to the additional notice period (Wallace v. United Grain Growers, Ltd.,
1997). Conversely, the dissenters believed that Wallace’s mental distress and loss of reputation qualified him for aggravated damages against his employer (Wallace v. United
Grain Growers, Ltd., 1997).
The split essentially came down to whether the compensation should fall under an extended notice period, as Justice Iacobucci suggested, or under aggravated damages, as recommended by Justice McLachlin (Wallace v. United Grain Growers, Ltd., 1997). The minority seemed influenced by the idea that aggravated damages would make it easier for employers to predict reasonable notice periods. Justice McLachlin wrote,
As Iacobucci J. points out, employment contracts have characteristics quite
distinct from other types of contracts as a result of the often unequal bargaining
power typically involved in the relationship. This results in employee
vulnerability -- a vulnerability that is especially acute at the time of dismissal. The
nature of the relationship thereby necessitates some measure of protection for the
vulnerable party. Requiring employers to treat their employees with good faith at
the time of dismissal provides this special measure of protection. (Wallace v.
United Grain Growers, Ltd., 1997, para. 138)
Justice McLachlin and the dissenters would have ensured that employers take into account the fragility of the employee at this traumatic time, by including aggravated damages for bad faith dismissal.
Although Justice McLachlin seemed to have more compassion for the employee in Wallace v. United Grain Growers, Ltd. (1997), that changed in Honda v. Keays (2008).
Justice McLachlin was the only judge left from the Wallace v. United Grain Growers
50
Ltd. (1997) case, and, surprisingly, she was in the majority against the employee. The political sway of the judges and the Supreme Court as a whole may explain part of the reason why there is a shift in tone. At the time of Wallace, although the Court tended to be more conservative overall, the labour decisions were more liberal (Alarie & Green,
2007). The judges at this time voted liberally in labour law decisions 54.82% of the time, compared to an overall average of all appeals at just 36.6% (Alarie & Green, 2007).
Although data is not available for 2008, there is some early data available for some of the
Supreme Court members serving at the time, specifically Justices Bastarache, McLachlin,
Binnie, LeBel, Deschamps, and Fish. According to this data, although these members tended to be more liberal in general, the labour decisions were more conservative. The average liberal voting percentages come to 50.6% in labour law, and 45.3% overall
(Alarie & Green, 2007). It is difficult to determine why conservative judges tend to vote liberally in labour law, and vice-versa. Part of the reason may be that there are just more decisions in areas such as criminal or Charter law, and the judges are more conservative in these cases due to the serious implications. The reason for the shift over time is more obvious. As members chosen by liberal Prime Ministers started to retire in 2006, those chosen by conservative Stephen Harper replaced the judges with a liberal orientation.
Justice Iacobucci’s writings tended to be moderate, reflecting a balance between the two extremes (Alarie & Green, 2007). He took a middle ground that appealed to many members of the Supreme Court. His consensus-building approach meant that his decisions were usually in the majority and both the plaintiff and the defense found the outcome acceptable. Although a Conservative Prime Minister brought him to the
Supreme Court, arguably he was never a staunch conservative, and was always open to
51 new ideas (Alarie & Green, 2007). The stacking of judges chosen by a Conservative
Prime Minister may account for the variance that has since occurred in the Supreme
Court. The labour decisions of late have somewhat dampened the effect of Justice
Iacobucci’s legacy, but his works are still highly influential in other areas of law and in legal scholarship.
Justice Iacobucci’s writing shows a developed understanding of different theories of justice. He favoured judicial review and the dialogue metaphor as legal theories that best supported fairness. Judicial review allows the judiciary to intervene in cases where those in power are undermining the weaker parties, and dialogue encourages an open discussion and communication between the parties. He sought to apply the principles that produced the most desirable outcome for both parties. His time as an academic also influenced him, which had an impact on his employment jurisprudence. He framed the individual case in the larger context of the law, improving the societal debate. Finally, although one of his most famous decisions was effectively overturned, it is still influential and shows his moderate political sway.
52
Discussion and Conclusion
The case analysis reflects themes in the researched articles. These themes have an impact on important Supreme Court of Canada decisions. One of these themes is Justice
Iacobucci’s use of judicial review and the dialogue metaphor to come to a fair decision.
He also took inspiration from his time as an academic, influenced both by his published work and from teaching. Concepts of fairness were important in his employment jurisprudence, which he became famous for on the Supreme Court of Canada. Finally, his political leanings show that he was generally a centrist judge who favoured collaboration and cohesion over split courts. The following section will develop a deeper analysis of how elements of the literature reflect what Justice Iacobucci wrote in his famous
Supreme Court cases, and how important recognizing these themes are to future lawyers and judges.
Judicial Review
According to past research, Justice Iacobucci’s dissenting opinion in Little Sisters v. Canada (2000) offered a uniform interpretation of judicial review (Hogg et al., 2007).
In Little Sisters v. Canada (2000), the Supreme Court of Canada had to rule on whether the Customs officers infringed the appellant store’s Charter rights when they stopped homosexual books and art from entering the country. The majority decided that while
Customs needed to provide better training to staff for potentially objectionable content, they did not strike down the relevant law. Justice Iacobucci wrote for the dissent.
Particularly interesting is the extent to which Justice Iacobucci wanted to implement his ruling. Although the majority decided that part of the law was unconstitutional and the legislature needed to rewrite it, Justice Iacobucci wanted to nullify the entirety of the law
53 and have the legislature reconsider all aspects of the import law. If Justice Iacobucci’s opinion had been in the majority, this use of judicial review would have been a major intervention by the judiciary. For example, the legislature would have had to discuss the case extensively before coming to a decision, and then it would have to pass by majority vote (Waldron, 2006). However, Justice Iacobucci offered compelling arguments for why the legislature should reconsider the law. The appellant bookstore faced discrimination that was partially due to how the law was enforced, but mainly resulted from the intention behind the law itself (Little Sisters v. Canada, 2000). Additionally, even if Justice
Iacobucci’s opinion was in the majority and the legislature faced judicial review, the elected officials would have the opportunity to discuss the issues with the current law.
Although they would be limited, since the new law must be significantly different from the old law, it would give the current government an opportunity to restructure the law.
The legislature does not often change laws that it need not. This opportunity does not completely validate the use of judicial review, of course. A broader understanding of the complaints against judicial review is necessary.
The current study demonstrated that judicial review is a contentious matter for courts, especially at the level of the Supreme Court of Canada. Any attempt to override the legislature is fraught with difficulty. It is particularly troublesome in cases where protecting minority rights may not be in the best interests of society. In Little Sisters v.
Canada (2000), Justice Iacobucci called for a theory of justice that would have rewritten the relevant law. However, his approach did not hold sway with the majority of the
Supreme Court of Canada at the time. Although the majority saw fit to change some aspects of the law, they were unwilling to make the drastic changes that would have seen
54 the Little Sisters store properly compensated. Justice Iacobucci’s commitment to the rights of the minorities did not alter his beliefs that courts should find a fair solution that both parties find acceptable. He made a recommendation to Parliament that other options beside the limited one that the Supreme Court of Canada decided on are available. He wrote, “No doubt there are many other steps that could be taken to improve the current system. I put these suggestions forward to show that there is a variety of approaches available to Parliament to underscore the importance of ensuring Canadians have access to as many expressive materials as possible while realizing the practical constraints that are involved” (Little Sisters v. Canada, 2000, para. 281). He expressed the sentiment that the Supreme Court of Canada could further the customs and import laws to be fairer for all businesses to import works of art, but the final say in the matter would always be
Parliament. Judicial review may not always be either appropriate or successful, but it is an available option that can lead to just decisions. This decision represents a form of justice that does not attempt to follow a textualist interpretation of the law (Dworkin,
2006). Justice Iacobucci showed his preference for using the written law to find a fair outcome. Since the Customs officers wronged the appellant bookstore, the most equitable outcome would be to demand compensation for Little Sisters. Additionally, the Supreme
Court of Canada should have changed the law so that future businesses do not face discrimination when importing works of art.
Dialogue
As seen in past research, Justice Iacobucci was an early proponent of the dialogue metaphor (Hogg et al., 2007). Justice Iacobucci referred to dialogue both explicitly and implicitly. In terms of implicit references, he often relied on a theory of justice that aimed
55 for a discussion between the two parties with an outcome acceptable to both. He referred most explicitly to dialogue in decisions where the legislature may consider the ruling controversial and alterable. While he was clearly aware of the legislature’s power to rewrite the law (with some restrictions), he sought instead to present his decision as clearly and reasonably as possible. As he wrote, “Governments are free to modify the amended legislation by passing exceptions and defences which they feel can be justified under s. 1 of the Charter. Thus when a court reads in, this is not the end of the legislative process because the legislature can pass new legislation in response” (Vriend v. Alberta,
1998, para. 178). By appealing to dialogue, he showed that the legislature could change the law, but put the onus on them to supply the appropriate justification. In the Vriend v.
Alberta (1998) case, the Supreme Court of Canada decided unanimously that the province could not discriminate based on sexual orientation. The legislature had the opportunity to override this decision, but opted not to, presumably because they could no longer rationalize the discrimination.
Justice Iacobucci’s use of the dialogue metaphor was cautiously optimistic.
Although he believed that the best way to establish justice is through discussion, he was also hesitant to allow the legislature to override completely the Supreme Court of
Canada’s decision, since the legislature had created the unfair law in the first place.
However, the strength of his argument was usually enough to convince the legislature not to challenge the law. Justice Iacobucci’s role as a member of the Supreme Court was to protect minority rights, and although he did not always side with the weaker party, he always considered their complaints. More broadly, he hoped to encourage the same kind of fair dealings between the judiciary and the legislature. As Roach notes, “In Vriend
56
(2007) Justice Iacobucci faced the real possibility that Alberta might use the override to reject the Court’s ruling, but he did not let this prospect deter him from making a principled decision” (p. 465). This use of principled reasoning meant that although
Justice Iacobucci was cautious about its acceptance, he knew the province would be hard- fought to find a reasonable flaw with it.
Finally, Justice Iacobucci’s contribution affected how social and political philosophers understood the dialogue metaphor. Roach (2007) wrote, “The dialogue metaphor does not justify the role the courts play in the dialogue, [but] in Justice
Iacobucci’s hands, dialogue had a substantive and principled core” (p. 450). Justice
Iacobucci contributed to the dialogue metaphor early on and altered the relationship between the legislature and the judiciary. This use of the dialogue metaphor reflects how much he valued fairness. A strong sense of justice underpins his effort in seeking out the most equitable outcome. Although this decision was unpopular at the time, it shows a remarkable dedication to seeking out the fairest decision. Justice Iacobucci did not take this decision lightly, and Vriend v. Alberta (1998) ended up being an important launching point for the dialogue metaphor.
Academic Influence
Justice Iacobucci’s pre-Supreme Court of Canada career was as a professor at the
University of Toronto. His time here deepened his understanding of law and his respect for principled reasoning. Previous research analysed an example of an article he wrote at this time with a decision he made later on as a Supreme Court of Canada judge
(Iacobucci, 2007). His son and fellow legal scholar Edward Iacobucci wanted to know whether he was consistent in his legal analysis over time. He wrote of his father’s
57 analysis, “his approaches to these cases are internally consistent…. Iacobucci's analyses stand on their own, but they also stand together” (Iacobucci, 2007; p. 268). This previous research clearly shows that he valued consistency. Although there were some changes in his strategy for dealing with the cases, these changes come from his continued growth and improvement.
During his time as a professor, he also developed his understanding of fair dealings. This principled approach to the appropriate conduct between differing parties, especially when the parties may be uncooperative, most likely came from his time lecturing to students. Former student and legal philosopher, Ernest J. Weinrib (2007) described Justice Iacobucci as,
a beloved teacher...his humour and humanity were as conspicuous in the
classroom as elsewhere. He projected a sense of camaraderie with his students,
making it clear through every gesture and inflection, through every wisecrack,
through every histrionic raising and lowering of the eye-brows, that he took
delight in being with us, that all persons in the class had his respect and affection
(p. 132).
Justice Iacobucci respected his students, regardless of their background and experiences, and he showed the same respect to those he met before the Supreme Court of Canada.
This camaraderie was clearly apparent not just in his personal interactions, but also in the decisions he wrote. He made sure to respect both parties, but was also willing to be harsh to a party that had violated the principle of fairness in its dealings with others. His high respect for fair dealings has inspired others in academics to provide commentary on his approach to decision-making. Therefore, the cycle repeats for those who did not
58 originally experience the impact of his decisions are able to understand their importance and consequences.
Employment Jurisprudence
As noted in previous research, Justice Iacobucci demonstrated his particular insight and passion in labour relations cases (Langille & Macklem, 2007). As Langille and Macklem write,
To be a good labour lawyer requires an overview, a coherent account, of all the
various and disparate laws (common law, employment-standards law, human-
rights law, collective bargaining law – and much else) that bear upon the lives of
human beings engaged in productive activity – often, not always, and
decreasingly, within the legal category we call ‘employment’ (p. 343).
Similarly, he applied the notions of fairness he found in employment jurisprudence across other areas of law, as well as in life (Langille & Macklem, 2007). His work in this field helped develop labour law across Canada into something that recognized the inequality of bargaining power between employers and employees (Langille & Macklem, 2007). In
McKinley v. BC Tel (2001), Justice Iacobucci had to provide “extensive consideration to what sorts of employee conduct are serious enough to give just cause for dismissal”
(Adell et al., 2011, p. 125). He discussed ways in which courts have dealt with previous cases of employee dishonesty, and then provides his own interpretation of what precedence would provide the best outcome to both the employee and employer here.
Because of the way the Supreme Court of Canada decided the case, it became precedent for future decisions regarding wrongful dismissal (Adell et al., 2011). All other
Canadian courts must accept this case as precedent, and can only alter the outcome by
59 proving that the material facts of the case at hand differ from McKinley v. BC Tel (2001).
Justice Iacobucci’s balanced approach is a part of his legacy as a Supreme Court of
Canada judge. His sense of equality relates to procedural justice, in that he treated both parties fairly and gave an extensive explanation of how he got to his decision. Procedural justice is a cornerstone of a fair legal decision. It is especially important in employment law because of the bargaining positions of the parties. All lawyers in employment-related areas must genuinely acknowledge the employee’s weakness compared to his or her employer, and use Justice Iacobucci’s employment jurisprudence to come to the decision that is fairest for all parties.
Political Leanings
There appears to be a difference in the outcome of the case based on the membership of the Supreme Court of Canada at the time. The variation suggests that the weaker party may not always get a fair outcome, depending on the bias that the members may have. The political sway was evident in the Honda v. Keays (2008) decision, which overrode Justice Iacobucci’s famous opinion Wallace v. United Grain Growers, Ltd.
(1997). The Court heard this case four years after Justice Iacobucci retired, with Justice
McLachlin as the sole remaining member of the Supreme Court. The decision in Honda v. Keays (2008) differed from Justice Iacobucci’s decision style. While Justice Iacobucci focused on procedural justice in all his cases, the case did not offer an elaborate explanation of how it differed from precedent. Further, the majority did not attempt to find a middle ground. They were only willing to go as far as acknowledging that his dismissal was wrongful but did not extend costs beyond that. The Supreme Court of
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Canada used different methods to come to a decision in this case that did not reflect equitability or procedural justice principles.
Alarie and Green (2007) performed an empirical analysis of the political leanings of all the Supreme Court of Canada judges who served with Justice Iacobucci. They rated the judges based on how they decided cases in different categories. The results indicate that Bastarache and McLachlin were more conservative overall, while LeBel and Fish, who dissented in part in this case, were more liberal overall (Alarie & Green, 2007). It is difficult to say whether the Supreme Court of Canada has become more conservative in the past six years under a Conservative government, since data is not available past 2007.
However, more appointments by a Conservative prime minister would suggest that more members of the Supreme Court of Canada might have right-wing inclinations. Although each individual judge differs in his or her political views, it can be problematic for the parties if all the judges seem to be stacked at the same end of the political spectrum.
Part of Justice Iacobucci’s success comes from his ability to work with his colleagues. He had a relatively low rate of dissent at 5% compared to the average of 8%
(Alarie & Green, 2007). As Alarie and Green (2007) tentatively note, “The best that can be done is to search our analysis for evidence that Justice Iacobucci was not a consensus builder in his time on the Court. We find nothing that suggests that Justice Iacobucci was not a consensus builder on the Court and find evidence that is consistent with an increasing ability to reach agreement with his colleagues during his tenure” (p. 226). Of all the members of the Supreme Court of Canada, researchers regard him as the one who could get people working together (Alarie & Green, 2007). His shift, albeit slight, along the political spectrum in voting relates to his interest in consensus: “Justice Iacobucci
61 may have voted more liberally over this period because he valued consensus and by voting more liberally was able to secure agreement more readily with his newer, more liberal-minded colleagues” (Alarie & Green, 2007, p. 224). In keeping with his desire to meet in the middle in decisions, he may have changed his voting strategy somewhat.
However, Alarie and Green (2007) warn, “it is difficult to sort out cause and effect from this data” (p. 224) since there could have been material differences in the cases that the researchers have not accounted for. Regardless of the reason for political shifts in the
Supreme Court of Canada’s decisions, and Justice Iacobucci’s in particular, the impact was generally more positive for labour law cases during Justice Iacobucci’s tenure
(Alarie & Green, 2007). Had Justice Iacobucci been on the Supreme Court of Canada for the Honda v. Keays (2008) decision, the outcome may have been different. He was a consensus maker and focused on a fair result for all his decisions. Although the overruling of much of Wallace v. United Grain Growers, Ltd. (1997) diminished the impact of the decision, future lawyers can still find value in his emphasis on collaborative decision-making.
Limitations
The main limitation that arose from the research was the sheer volume of
Supreme Court of Canada cases that Justice Iacobucci wrote in. There is no complete listing of his judgments, so it is difficult to search cases for relevant themes. Furthermore, even if such a listing were available, the length of this research is insufficient to cover all possible themes. Some areas of Justice Iacobucci’s jurisprudence may be more important to understanding labour law specifically, but this research comprises one judge’s decisions as a whole.
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Future Research
This research has provided some insight into the jurisprudence of Justice
Iacobucci, specifically as it applies to employment-related matters. However, some aspects either did not arise in this research or could use a more thorough investigation.
The following are suggestions for future research.
Research could compare the labour law jurisprudence of Justice Iacobucci with
another Supreme Court of Canada judge. This judge could be either one who
served with him, to provide a direct comparison, or someone before or after his
tenure, to show how the law changed over time.
Research could focus specifically on one specific area of Justice Iacobucci’s
labour law jurisprudence, such as wrongful dismissal or harassment. This
research would require a thorough case analysis.
Additionally, research that examined the effect of age or tenure on the opinions
of Supreme Court of Canada justices could prove interesting. Perhaps there is
some evidence that younger or less experienced judges are more likely to rule
one way compared to older or more experienced judges.
Although this research focused on a justice from the Supreme Court of Canada,
there are interesting employment law decisions that do not make their way
through to the highest level of Canadian courts. Perhaps Justice Iacobucci or his
colleagues would have come to a different decision if not for the poignant
arguments presented by the courts before them. It may prove interesting to
analyze cases in the trial and appellant courts as well.
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Justice Iacobucci emphasised fairness in his decisions. Further research could
find the source of this ideal. Some of the previous researchers identified his
education or socio-economic background as influential to his view “the
importance of process and more inclusive participation for those who are not
normally in power” (Roach, 2007, p. 455), but further analysis may identify
different sources.
Another interesting area of research into employment law would expand beyond
national borders to compare employment law among other countries. If the laws
and judiciary system is similar, differences can be attributed to a differing
interpretation.
Conclusion
Justice Iacobucci offered a unique understanding of fairness as applied to employment law and other areas of law that affected employees. Although all
Supreme Court of Canada judges claim not to follow any ethical or jurisprudential system, the analysis showed that Justice Iacobucci had a strong belief in the powers of judicial review and dialogue to come to the fairest decision for all parties.
Previous research indicated that this jurisprudence was particularly important to employment law (Langille & Macklem, 2007). This research indicates that there is value in extrapolating his jurisprudence to cases that may not qualify as labour law but still have an impact on employees, particularly in the area of labour law where there is frequent criticism of the true meaning of the decisions.
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