A-878-83
Donald Demaere (Applicant)
v.
The Queen in right of Canada as represented by
the Treasury Board (Respondent)
Court of Appeal, Urie, Ryan and Hugessen JJ.—
Ottawa, January 24, 25 and February 20, 1984.
Constitutional law — Charter of Rights — Mobility rights
— Application to review and set aside Appeal Board's decision
dismissing applicant's appeal from appointment of another to
position in Vancouver — S. 13, Public Service Employment
Act giving Commission power to determine area of competition
— Competition open only to employees in Pacific region and in
Training Institute in Cornwall — Applicant employed in Brit-
ish Columbia, but in Western region — Prima facie violation
of applicant's right to "pursue the gaining of a livelihood in
any province" under s. 6(2)(b) of Charter — S. 6(2) declaring
right to move to, reside in and pursue work in any part of
country — Interpretation reconciling differences in English
and French versions and consistent with Government discus
sion paper, published at time of constitutional discussions
containing persuasive evidence of mischief to be remedied —
S. 6(2)(b) right limited by s. 6(3) override provision — Four
conditions in s. 6(3) met — S. 6(3) clearly "law" — Double
test in S.C.C. decision in Kruger for "general application" of
law satisfied — Words "in force in a province" including
federal statutes — S.C.C. decision in The Queen v. George,
119661 S.C.R. 267 distinguished — No discrimination by
province of residence since exclusion by virtue of region of
employment — S. 28 application dismissed — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 6,
32, 52 — Public Service Employment Act, R.S.C. 1970, c.
P-32, ss. 13(a), 21 — Indian Act, R.S.C. 1952, c. 149, s. 87.
Public Service — Closed competition for position of air
traffic controller at Vancouver — Vancouver in Pacific
administrative region — Applicant stationed in British
Columbia but excluded as employee in Western region
Whether exclusion violating s. 6(2) Charter of Rights — Right
to pursue gaining of livelihood in any province — Exclusion
prima facie breach of right — S. 6(2) rights subordinated to
any laws or practices of general application in force in a
province by s. 6(3)(a) — S. 13(a), Public Service Employment
Act giving P.S.C. right to determine area in which applicants
must reside to be eligible for appointment — Federal law is
law "in force in a province" — S. 28 application dismissed —
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 13
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 6 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28.
Statutes — Interpretation — Rules of construction — Rule
that clauses of statute must be read in context applied —
English and French versions compared and reconciled —
Discussion paper published by Federal Government at time of
constitutional discussions considered to determine "mischief'
sought to be remedied by s. 6 — Double test laid down by
S.C.C. in Kruger case to determine whether a provincial law
"of general application" applied — S.C.C. decision in George
case that "in force in a province" meaning provincial legisla
tion distinguished — No provision specifically referring to
federal laws unlike legislation considered in George case —
Words not useless because federal laws may be in force in only
some provinces.
Application to review and set aside decision of Appeal Board
dismissing applicant's appeal from appointment in Vancouver
of an air traffic controller by closed competition. The applicant
is an air traffic controller stationed in northeastern British
Columbia in the Western region. Pursuant to the power to
determine the area of competition vested in the Public Service
Commission by section 13 of the Public Service Employment
Act, a competition open only to employees of the Pacific region
and of the Transport Canada Training Institute in Cornwall
was held for a position in the Pacific region. The applicant's
application was not considered. The question is whether the
applicant's right "to pursue the gaining of a livelihood in any
province" under paragraph 6(2)(b) of the Charter has been
violated by restricting the competition.
Held, the section 28 application is dismissed. The text of
subsection 6(2) is difficult and not made easier by substantial
differences between the English and French versions. The
English version of paragraph 6(2)(b) speaks of a right to
"pursue" the gaining of a livelihood in any province whereas
the French version speaks of a right "de gagner leur vie dans
toute province". In Re Skapinker and Law Society of Upper
Canada (1983), 145 D.L.R. (3d) 502, the majority of the
Ontario Court of Appeal interpreted paragraph 6(2)(b) to
mean a right to work not confined to "persons on the move".
The minority held that the right "only has significance when
the person wants to move to another province". The interpreta
tion of subsection 6(2) which comes the closest to reconciling
the two versions and to respecting the context in which it is
found is that it conveys the right to move to, reside in and
pursue work in any part of the country. This interpretation is
also consistent with a discussion paper published by the Federal
Government at the time of the constitutional discussions in
1980 containing persuasive evidence that the "mischief' sought
to be remedied by section 6 was not simply interprovincial
barriers to the movement of labour, but all such barriers within
the country, wherever they might be established and by what
ever level of government. The exclusion of the applicant from
the competition was a prima facie breach of his right to seek
employment anywhere in Canada. However the rights guaran
teed by subsection 6(2) are subject to subsection 6(3). In order
for the exception provided in paragraph 6(3)(a) to override the
rights granted by subsection 6(2), four conditions must be met.
The overriding provision must be contained in a "law or
practice". The Public Service Employment Act is a law. The
law must be "of general application". In Kruger et al. v. Her
Majesty The Queen, the S.C.C. held that a law is "of general
application" when it extends uniformly throughout the jurisdic
tion and is not "in relation to" one class of citizens in object
and purpose. The Public Service Employment Act satisfies both
branches of the test. The third condition is that the law must be
"in force in a province". The applicant submits that these
words limit the reach of the override to provincial legislation
and do not envisage federal laws at all based on the S.C.C.
decision in Her Majesty The Queen v. George, [1966] S.C.R.
267. In George the expression "all laws of general application
from time to time in force in any province" did not include
federal statutes. However, the opening words of the legislation
there in question were "Subject to ... any other Act of the
Parliament of Canada." Because of the specific reference to
federal laws, the reference to laws of general application in
force in any province did not include federal laws. In subsection
6(3) there are no restricting opening words. The words, "laws
... in force in a province" are broad enough to include federal
laws. The words are not useless since federal laws may be in
force in only some of the provinces. Therefore any violation of
the rights granted to the applicant by subsection 6(2) is justi
fied by the terms of the Public Service Employment Act. The
fourth condition is that "such law or practice must not dis
criminate amongst persons primarily on the basis of province of
present or previous residence". Condition (iv) is satisfied. The
applicant was not excluded from the competition because he
resides in British Columbia, but because he resides and is
employed in a part of that Province which is not in the Pacific
region.
CASES JUDICIALLY CONSIDERED
APPLIED:
Kruger et al. v. Her Majesty The Queen, [1978] 1 S.C.R.
104; Her Majesty The Queen v. Compagnie Immobilière
BCN Limitée, [1979] 1 S.C.R. 865.
NOT FOLLOWED:
Re Skapinker and Law Society of Upper Canada (1983),
145 D.L.R. (3d) 502.
DISTINGUISHED:
Her Majesty The Queen v. George, [1966] S.C.R. 267.
COUNSEL:
Catherine H. MacLean and Douglas Brown
for applicant.
John M. Sims for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: I have had the benefit of reading the
reasons for judgment of Mr. Justice Hugessen. He
states the facts and quotes the relevant legislative
and Charter provisions. I agree with him that the
section 28 application should be dismissed.
The right which paragraph 6(2)(b) of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] guarantees
to Canadian citizens and to permanent residents is
the right "to pursue the gaining of a livelihood in
any province". This right is, however, subject to
paragraph 6(3)(a) of the Charter. Paragraph
6(2)(b) and paragraph 6(3)(a), when read to
gether, have the effect of protecting a Canadian
citizen or a permanent resident against being
deprived of his right to pursue the gaining of his
livelihood in any province by a law or practice of
the province or by a federal law or practice in
force in the province which does not comply with
paragraph 6(3)(a); to fall within paragraph
6(3)(a), a law or practice must be of general
application and must not discriminate "among
persons primarily on the basis of province of
present or previous residence". The right guaran
teed by paragraph 6(2)(b) of the Charter would,
of course, also be subject to the reservation
expressed in the "subject only to" provision of
section 1 of the Charter. I would also note that the
rights specified in subsection 6(2) are subject to
paragraph 6(3)(b) as well as to paragraph 6(3)(a),
and that both subsections 6(2) and (3) are to be
read with subsection 6(4); only paragraph 6(3)(a)
is, however, relevant here.
The applicant claimed, in effect, that his right to
pursue the gaining of his livelihood in British
Columbia in a better position had been denied by
the restriction on his eligibility to be a candidate in
the competition which was imposed by the provi
sion that the competition was open only to
employees of the Pacific Region and of the Trans
port Canada Training Institute at Cornwall. The
limitation of which he complained was really a
determination of the part of the Public Service
eligible to compete; the determination was author
ized by section 13 of the Public Service Employ
ment Act [R.S.C. 1970, c. P-32] and was made,
under a regulation, in accordance with a Depart
ment of Transport personnel manual. The limita
tion did not "discriminate among persons primari
ly on the basis of province of present or previous
residence". That the determination might have
had some residential consequence did not change
its primary purpose.
For the reasons given by Mr. Justice Hugessen,
I agree that the Public Service Employment Act is
a law of general application, within the meaning of
those words in paragraph 6(3)(a) of the Charter,
in force in British Columbia, the Province in which
the applicant would be working if he were appoint
ed to the position under competition; the Act is in
fact a federal Act which applies everywhere in
Canada. Thus, the restriction of which the appli
cant complained was authorized by a law falling
within paragraph 6(3)(a) of the Charter. The
Charter right he claimed was subject to this law.
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This section 28 application raises
squarely the issue of the reach of section 6 of the
Canadian Charter of Rights and Freedoms and
particularly subsections 6(2) and 6(3). It also
requires that this Court consider the conflicting
interpretations that were given to subsection 6(2)
in the Ontario Court of Appeal in the case of Re
Skapinker and Law Society of Upper Canada
(1983), 145 D.L.R. (3d) 502, the appeal of which
to the Supreme Court of Canada is scheduled to be
heard shortly.
The appellant is an air traffic controller sta
tioned at Fort St. John, in the far northeastern
corner of British Columbia. Fort St. John is, for
administrative purposes, in the Western region of
the Canadian Air Traffic Administration.
In the spring of 1983, a closed competition was
held for an air traffic controller's position at Van-
couver. Vancouver is administratively within the
Pacific region of the Canadian Air Traffic
Administration. The competition was, by its terms,
only open to employees of the Pacific region and of
the Transport Canada Training Institute in Corn-
wall. Accordingly Mr. Demaere was excluded
from the competition and his application was not
considered. His appeal to an appeal board pursu
ant to section 21 of the Public Service Employ
ment Act, R.S.C. 1970, c. P-32, was dismissed,
hence the present section 28 application.
The only ground urged in support of the applica
tion is that the applicant's rights under subsection
6(2) of the Charter of Rights have been violated
by restricting the competition in such a way that
he is unable to pursue the gaining of his livelihood
as an air controller in Vancouver.
Section 6 of the Charter of Rights reads as
follows:
6. (1) Every citizen of Canada has the right to enter, remain
in and leave Canada.
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a
province other than those that discriminate among persons
primarily on the basis of province of present or previous
residence; and
(b) any laws providing for reasonable residency requirements
as a qualification for the receipt of publicly provided social
services.
(4) Subsections (2) and (3) do not preclude any law, pro
gram or activity that has as its object the amelioration in a
province of conditions of individuals in that province who are
socially or economically disadvantaged if the rate of employ
ment in that province is below the rate of employment in
Canada.
The text of subsection 6(2) is not easy. It is
rendered yet more difficult by the fact that there
are substantial differences between the French and
English versions. While both versions state that the
beneficiaries of the rights granted are Canadian
citizens and permanent residents of Canada, para
graph (a) of the English version gives a right "to
move to ... any province" while the equivalent
paragraph in the French version gives a right "de
se déplacer dans tout le pays". The conjunctive
"and" linking paragraphs (a) and (b) of the Eng-
lish version is absent from the French version.
Finally, paragraph (b) of the English version gives
only a right to "pursue" the gaining of a livelihood
in any province, something which at first blush
appears far more restricted than the French lan
guage right "de gagner leur vie dans toute
province".
The majority and minority judgments in the
Ontario Court of Appeal in the case of Skapinker
(supra) propose diametrically opposed interpreta
tions of paragraph (6)(2)(b). For the majority,
represented by Grange J.A., it is a right to work
not confined to "persons on the move". For the
minority, represented by Arnup J.A., the right
"only has significance when the person wants to
move to another province". (See pages 508 and
515 of D.L.R.)
With respect, it seems to me that there is room
for a middle ground between these two views. On
the one hand, I agree with Grange J.A., that there
is nothing in the language used and nothing in the
context that requires that the right be restricted to
persons moving from province to province. The use
of the words "in any province" does not suggest to
me that the rights granted are limited to those
persons who wish to cross provincial boundaries,
and the French text confirms me in this view.
On the other hand, I agree with Arnup J.A.,
that it would be strange indeed to find anything so
revolutionary as a constitutionally guaranteed
right to work buried in a paragraph of a section
whose principal thrust (and heading, although I
agree with both of them that that is not control
ling) is mobility rights. It is a fundamental rule of
construction that the various clauses of a statute
must be read in their context (Her Majesty The
Queen v. Compagnie Immobilière BCN Limitée,
[1979] 1 S.C.R. 865, at page 872). This rule must
surely apply to the Charter as well.
In my opinion, the interpretation of subsection
6(2) which comes the closest to reconciling the
versions in both official languages and to respect
ing the context in which it is found is that it
conveys the right to move to, reside and pursue
work in any part of the country. In other words,
while, on the one hand, I would not see the section
as granting a right to work, I also would not, on
the other hand, limit it to interprovincial mobility
rights.
This proposed interpretation is also consistent
with such background material as has been pro
vided to us. Counsel for the Attorney General of
Canada has given us a discussion paper published
by the Federal Government at the time of the
constitutional discussions in 1980, a paper entitled
"Securing the Canadian Economic Union in the
Constitution". This paper contains a survey "of
actual or potential restrictions on the interprovin-
cial mobility of goods, services, labour and capital
within Canada". Of the examples of restrictions on
the free movement of labour provided in this
survey, at least six have no reference whatever to
provincial boundaries and four of those six are
restrictions imposed by Federal Government poli
cies. The document itself talks of the need of
"ensuring that Canada will remain a country with
out internal barriers, a country within which
people, goods, services and capital will be able to
move freely". This is persuasive evidence indeed
that the "mischief' sought to be remedied by
section 6 was not simply interprovincial barriers to
the movement of labour but all such barriers
within the country, wherever they might be estab
lished and by whichever level of government.
I conclude, therefore, that the exclusion of the
applicant from the competition for the post of air
traffic controller at Vancouver was prima facie a
breach of his right to seek employment anywhere
in Canada as guaranteed by subsection 6(2) of the
Charter.
The question then arises as to whether such
breach can be saved by the provisions of paragraph
6(3)(a). That paragraph subordinates the rights
granted by subsection 6(2) to:
6. (3) ...
(a) any laws or practices of general application in force in a
province other than those that discriminate among persons
primarily on the basis of province of present or previous
residence ....
Paragraph 13(a) of the Public Service Employ
ment Act, R.S.C. 1970, c. P-32 specifically gives
the Public Service Commission the right to
13....
(a) determine the area in which applicants must reside in
order to be eligible for appointment ....
In order for the exception provided in paragraph
6(3)(a) of the Charter to override the rights grant
ed by subsection 6(2), four conditions must be
met. The overriding provision must be contained:
(i) in a law or practice;
(ii) of general application;
(iii) in force in a province; and
(iv) such law or practice must not discriminate
amongst persons primarily on the basis of province
of present or previous residence.
Condition (i) presents no difficulties: the Public
Service Employment Act is unquestionably a law.
As regards condition (ii), the issue as to when a
provincial statute is a law "of general application"
was settled conclusively by the judgment of the
Supreme Court of Canada in the case of Kruger et
al. v. Her Majesty The Queen, [1978] 1 S.C.R.
104. Dickson J., speaking for the Court, laid down
a double test as follows (at page 110):
It is necessary to look first to the territorial reach of the Act. If
the Act does not extend uniformly throughout the territory, the
inquiry is at an end and the question is answered in the
negative. If the law does extend uniformly throughout the
jurisdiction the intention and effects of the enactment need to
be considered. The law must not be "in relation to" one class of
citizens in object and purpose. But the fact that a law may have
graver consequence to one person than to another does not, on
that account alone, make the law other than one of general
application. There are few laws which have a uniform impact.
The line is crossed, however, when an enactment, though in
relation to another matter, by its effect, impairs the status or
capacity of a particular group.
While we are here dealing with a federal law, I
can see no valid reason for applying any different
test. It is, in my view, plain beyond dispute that
the Public Service Employment Act satisfies both
branches of the test.
Equally, in the circumstances of the present
case, I think condition (iv) is satisfied. The appli
cant was not excluded from the competition
because he resides in British Columbia, which is
the province of residence of all the eligible candi
dates employed in the Pacific region, but because
he resides and is employed in a part of that
Province which is not in the Pacific region.
The principal argument advanced by the appli
cant to exclude the application of the override
provision in subsection 6(3) of the Charter relates
to condition (iii). The submission is that the words
"in force in a province" limit the reach of the
override to provincial legislation and do not envis
age federal laws at all. The argument is based
entirely on the decision of the Supreme Court of
Canada in Her Majesty The Queen v. George,
[1966] S.C.R. 267, where it was held that the
expression
all laws of general application from time to time in force in any
province,
as found in section 87 of the Indian Act, [R.S.C.
1952, c. 149] did not include federal statutes. The
decision in George was affirmed and applied some
years later in Kruger, supra.
In my view, this argument must fail. Without in
any way diminishing the respect due to or the
authority of the George and Kruger decisions, it
seems to me that they must be read in their
context. They were concerned with the interpreta
tion of section 87 of the Indian Act, a federal
statute. The opening words of that section read:
87. Subject to the terms of any treaty and any other Act of
the Parliament of Canada, all laws of general application from
time to time in force in any province are applicable to .... [My
emphasis.]
The section therefore contained a specific provi
sion dealing with federal laws and it was the
reference to such laws which caused Martland J.,
speaking for the majority in George, to say (at
page 280):
... when the section refers to "laws of general application from
time to time in force in any province" it did not, include in that
expression the statute law of Canada.
These considerations are entirely absent in the
interpretation of subsection 6(3) of the Charter.
The words used, "laws ... in force in a province",
are certainly broad enough to include federal laws.
The words are not useless since it is not uncommon
for federal laws to be in force in only some of the
provinces. By the terms of section 32, the Charter
is expressly stated to apply to the Parliament and
government of Canada and, by section 52 [of the
Constitution Act, 1982], is made part of the
"supreme law" of Canada. In the absence of any
words of restriction in paragraph 6(3)(a), I am
unable to say that a federal law which is in force in
any or all of the provinces is not a law "in force in
a province" for the purposes of the Charter.
Accordingly I am of opinion that any violation
of the rights granted to the applicant by subsection
6(2) is justified by the terms of the Public Service
Employment Act and validated by the provisions
of paragraph 6(3)(a). I would therefore dismiss
the section 28 application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.