Should the application of the principle of proportionality be extended to include the private sphere and impose limitations on the actions of employers. Sometimes the application is explicit, even if it is incomplete (ie does not strictly follow all three stages of the Oakes proportionality test). We are therefore in favor of a more explicit and structured use of the three-step proportionality test in the above contexts.
The test developed by McKinley is similar to the first two stages of the Oakes proportionality test, although a more structured analysis could have been useful. In trade union contexts, the use of the principle of proportionality in disciplinary and dismissal cases is even more established. The second examination is similar to the first stage of the Oakes proportionality test in that it examines whether the chosen information gathering measure is effective in achieving the goal, that is, whether it is rationally connected to it.
The third examination is similar to the third phase of the Oakes proportionality test in that it weighs the proportionate benefits of collecting information against the harm to the employee's privacy. Finally, the fourth inquiry, which asks whether the employer has explored other, less privacy-invasive ways to achieve the goal, is also similar to the minimal restriction phase of the Oakes test. The arbitrator also ruled that the loss of privacy was limited to the disclosure of sending and receiving communications.
Secondly, has the employer considered the available alternatives and can the workplace problem be addressed in a less drastic way (i.e. the 'test of reasonableness')?47 This is similar to the second stage of Oakes proportionality. test. 71 In Paperworkers, proportionality was used explicitly, and the question was worded in line with the third stage of the Oakes proportionality test: “Was the benefit to the employer of the random alcohol testing policy in this dangerous workplace proportionate to the harm to employee privacy? ” (supra note 69 in paragraph 43). Although proportionality is not explicitly mentioned in mainstream legal analysis, two stages of the Oakes proportionality test can be clearly distinguished.
The third part of the Meiorin test includes elements of all three stages of the Oakes proportionality test. Firstly, it is examined whether the standard in the workplace is reasonably necessary to achieve the employer's objective. As the Court clarified, this balancing act includes factors such as “the financial costs of the possible accommodation method, the relative international costs”.
To justify such a conclusion a minimum test for impairment or the third stage of the proportionality test is needed. The court should have taken into account not only the harm to the employer and the public, but also the importance of the actions to the picketers themselves. The second stage of the Oakes proportionality test was not met: there were less drastic means to achieve the goal.
The third stage of the Oakes proportionality test was not met: the harms caused by picketing outweighed its benefits.
Justifications for Applying Proportionality in Labour and Employment Law
We submit that the application of these proportionality tests is within the discretion of the courts in the development of the common law and in some cases in the interpretation of legislation. In Canada, as in many other countries, society expects the government to operate under a proportionality standard, which means that a decision must pass the three stages of the test mentioned above. We argue that this too is justified, at least in some contexts, and can be achieved through judicial development of the common law.
In Canada, there is no general duty to act in good faith during the employment relationship. Moreover, there are many cases where judges actually impose an implicit duty of honesty in the course of the employment relationship. A second possible criticism is that the application of the principle of proportionality, especially in the third part of the test, requires jurors to engage in weighing different considerations.
In the latter case, the third stage of the proportionality test could be relaxed and allow intervention only in extreme cases of disproportionality. The many advantages of a proportionality test described above probably explain the ever-growing reliance on proportionality in labor and employment law in other countries. In the European Union, the principle of proportionality applies in various private spheres, including discrimination legislation.
Since it could have violated the right to provide services, which is one of the fundamental freedoms guaranteed by the Treaty on the Functioning of. The application of proportionality can also negatively affect the state's impartiality in economic conflicts.143 However, although the outcome of these cases was controversial, this does not mean that the application of proportionality must be eliminated completely. However, in the context of the Human Rights Act 1998, there is a potential for a stricter proportionality test to be applied.
The proportionality test was developed in Oakes as a tool for the application of the Charter's section 1. It fits perfectly well with the current jurisprudence, because we do not advocate the direct application of the Charter in relationships between individuals. The Impact of the Charter of Rights and Freedoms on Canadian Family Law Can J Fam L 293 (fundamental values, such as equality, as enshrined in the Charter, have recently been applied in different family law contexts, even in the absence of government or state action, which would have limited their interpretation relative to common law concepts required).
We argued in Part II that the application of the three proportionality tests in the labor and employment context is normatively justified. This analysis followed the detailed exposition of the various ways in which these tests are already applied in Canadian labor and employment law in Part I.
Additional Applications
Firstly, our recommendation will ensure that all the right questions are asked and that the exam is structured and principled. Second, when a strike is believed to be unreasonable or destructive, it is currently curtailed by provincial and federal governments through back-to-work legislation169 or special legislation denying the right to strike in certain workplaces.170 These drastic measures against unions, which are becoming increasingly popular, often result in serious violations of freedom of association.171 A more balanced approach could include subjecting a strike or lockout to the principle of proportionality. The Labor Relations Board, when asked to issue a reinstatement order, would have the power to determine on a case-by-case basis whether the strike was proportionate or not, having regard.
Note that while return-to-work legislation is usually passed after a sustained strike, this federal law prevented Air Canada employees from striking in the first place. For a complete list of federal back-to-work legislation, see Library of Parliament, “Federal Back to Work Legislation, 1950 to Date,” online: Parliament of Canada
The union in this case argued that forcing workers in non-essential services back to work while in a legal strike position is a dangerous precedent. The ILO ruled that the repeated use of back-to-work legislation could destabilize labor relations in Ontario, and that the legislative action in this matter was unjustifiable. For example, it could be that the conciliation failed because the union did not cooperate and rushed to a legal strike position.
It may be that the union's decision to strike for more than a day during peak hours was too intrusive. Sometimes, however, the use of a lockout can be disproportionate—for example, when an employer uses a lockout to force the government to pass back-to-work legislation. In response, Canada Post decided to institute a complete lockout and blamed the strikers for losses of $100 million.175 This lockout created pressure on the government, pressure that ended with the implementation of back-to-work closed legislation.
The employer must then show that it used the lockout for a legitimate purpose and that the lockout was rationally related to that purpose, that. However, we believe that because of the important role that proportionality plays in Canadian constitutional law, Canadian judges and justices are well positioned to conduct this type of analysis, based on the default rule that the right to strike must be respected, and the limitations must be justified. We have argued that the same principle also plays an important role in Canadian labor and employment law, a role that has not yet been sufficiently acknowledged.
