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Executive Summaries Sep 24, 2019

Major Privacy Breakthrough in the Construction Industry

Our labour rights and employment lawyers, Guy Tremblay and Marc-André Groulx were at the centre of an Tribunal administratif du travail ruling[1] with major impact for the construction industry.

Our client in this case was the Association de la construction du Québec (ACQ). They contested the constitutional validity of articles 35 - 38 of the Regulation respecting the hiring and mobility of employees in the construction industry (Regulation respecting mobility) and clauses 15(1) - 15(3) of the collective agreements in the business, public and industrial sectors which also concerned employee mobility.

ACQ asked the Tribunal administratif du travail (TAT) to declare the terms of the Regulation respecting mobility inoperative and said clauses of the collective agreements unwritten as they violated construction employees’ freedom and right to privacy by obliging them to establish their registered address in the region where they were carrying out construction work. Specifically, these clauses prevented the employer from hiring employees without a registered address in the region, even if work was being carried out 30 km from their domicile. Remember that both article 7 of the Canadian Charter of rights and freedoms and article 5 of the Quebec Charter of human rights and freedoms protect the right to freedom and respect for privacy, which includes the right to choose your place of residence.

ACQ argued that the courts recognise that “the choice of place of residence belongs to that limited category of elements related to the irreducible sphere of personal autonomy that must remain protected from State intervention”[2]. The Attorney General of Quebec and Unions associations argued that this regional belonging (in terms of domicile) rule was necessary and justified in order to stabilise and spread employment among the regions as well as to avoid violence at construction sites.

The TAT concluded that the Canadian and Quebec Charters gave the individual a margin of autonomy to make major decisions like choosing their domicile and protected the right of any person to choose the location in which to establish their residence. The Tribunal also concluded that this restriction on fundamental individual rights could not be justified and that this is a case in which we were witnessing “rather the strength of inertia of a complex system which has become difficult to justify in the current economic and social context.”[3]

The TAT therefore had no hesitation in declaring articles 35-38 unconstitutional and therefore inoperative, and the collective agreement clauses unwritten. 

This ruling is one of the most important privacy decisions since Godbout v. Longueuil (City of) Supreme Court of Canada ruling in 1997.

This case will surely have considerable repercussions as both the Public Prosecutor of Quebec and the Unions have already requested a Superior Court judicial review to overturn this decision.

Please contact our Employment and Labour Law team of over 20 lawyers with considerable experience in this area, so that they can answer your questions about the impact of this decision for your business.

Read the articles published on the Radio-Canada and Droit-inc websites to find out more.

[1] Association de la construction du Québec c. FTQ-Construction & al., CM-2017-1326.  [2] Ibid., para. 183.  [3] Ibid., para. 324

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