Thursday, July 18, 2013

When is legislation of quasi-constitutional status?

Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 has a
useful analysis of when a statute is to be given special consideration
as being of quasi-consititutional status:

A. Is the Safety Act "quasi-constitutional" legislation?

[22] Jenkins submits that the purpose and objectives of the Safety Act
are of such importance that the legislation is "quasi-constitutional"
in nature.

[23] Laws may be constitutional, quasi-constitutional, or of general
application. The paramountcy of legislation may be determined by
reference to, amongst other things, its characterization as
constitutional, quasi-constitutional, or of general application.
Each type or level of legislation is subject to somewhat different
rules of nterpretation.

[24] Quasi-constitutional legislation is paramount to laws of general
application. Any exemption to the application of quasi-constitutional
legislation must be explicit and narrowly interpreted.

[25] Quasi-constitutional legislation is identified by canvassing the
jurisprudence or by reading the legislation in question. Some
legislation, such as human rights legislation, has long been
identified by the courts as being quasi-constitutional in nature. On
occasion, the legislation in question may state that it is
quasi-constitutional in nature. Such is the case with the Official
Languages Act, R.S.N.W.T. 1988, c. O-1, as duplicated for Nunavut by
s.29 of the Nunavut Act, S.C. 1993, c.28, and the
Inuit Language Protection Act, S.Nu. 2008, c.17.

[26] There is no doubt that the objective of worker safety is
important to all of society; however, this alone does not make the
Safety Act quasi-constitutional in nature. Indeed, it might be said
that all legislation are enacted for the purpose of implementing
important public policy. Something more is required to raise
legislation to the status of quasi-constitutional.
[27] There is nothing in the subject matter of the Safety Act or in
the Safety Act itself to suggest that it is to be considered as
quasi-constitutional so I must proceed to consider any jurisprudence
on the issue.

[28] In the case of Chaisson v Kellogg Brown & Root (Canada) Co., 2007
ABQB 302, 267 DLR (4th) 639, rev'd 2007 ABCA 426, 289 DLR (4th) 95,
leave to appeal to SCC refused, [2008] 460 AR 179 (note) [Chaisson],
the court was dealing with the validity of pre-employment drug testing
and whether a potential employee had been discriminated against when
he was denied employment because of a failed drug test. In determining
the issue, the court was required to consider both occupational
safety legislation and human rights legislation. The court did not see
itself as dealing with two pieces of legislation, both of which were
quasi-constitutional. It viewed the legislation dealing with
occupational health and safety as legislation of general application.
The court stated:

In terms of first principles, the starting point is that human rights
legislation is to be given a broad, purposive interpretation which is to
be adapted to "changing social conditions" and evolving "conceptions
of human rights" [endorsing Driedger at para. 29 in Quebec
(Commission des droits de la personne et des droits de la jeunesse) v.
Montreal (Ville), 2000 SCC 27 (CanLII), [2000] 1 S.C.R. 665, 2000
SCC 27 (S.C.C.) "Boisbriand." Protected rights are to receive a broad
interpretation and exceptions and defences are to be narrowly
Human rights legislation is also quasi constitutional legislation; the
Act (s. 1(1)) contains a paramountcy clause in s. 1(1) which means that
in cases of conflict between statutes, human rights legislation will
govern. So while employers have a duty to maintain a healthy and safe
work environment under s. 2 of the Occupational Safety Act, they must
do so in a way which respects human rights. (Chaisson at para 50-51,
overturned on appeal on other grounds).
[29] I accept that the Safety Act must be interpreted in a broad
manner that will fulfill its objectives and purposes. This is required
by the Interpretation Act, R.S.N.W.T 1988, c.I-8, as duplicated for
Nunavut by s.29 of the Nunavut Act S.C. 1993,
c.28 [Interpretation Act], which is applicable to all legislation and
which provides as follows:
Remedial nature of enactments
10. Every enactment shall be construed as being remedial and shall be
given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects.

[30] The jurisprudence is clear that occupational health and safety
legislation sets the minimum standards for workplace safety and
employers and workers cannot contract out of its application. However,
the inability to contract out of minimum statutory
standards is quite different from finding that the legislation is
quasi-constitutional in nature.

No comments: