Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton [1994] 2 S.C.R. 406: Inspections -- Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector -- Whether these powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Charter of Rights -- Unreasonable search or seizure -- Inspections -- Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector -- Whether these powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter of Rights and Freedoms -- Act respecting Collective Agreement Decrees, R.S.Q., c. D-2, s. 22(e).

Civil rights -- Unreasonable search or seizure -- Inspections -- Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector -- Whether these powers of inspection, conferred by a provincial statute, infringe s. 24.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 -- Act respecting Collective Agreement Decrees, R.S.Q., c. D-2, s. 22(e).

Following a complaint, the appellant Comité paritaire was informed that work had been given sewing shirts with the brand of the respondent Sélection Milton to employees who were not paid. Inspectors from the Comité paritaire went to the respondent's premises on two occasions to obtain a list of the shirt sewing subcontracts given out by the respondent, see the respondent's pay register and visit its workshop in order to meet with the employees. Under the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees ("ACAD"), inspectors "may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay-list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree [and] require . . . all information deemed necessary". The respondent Potash, representing Sélection Milton, refused to grant the inspectors' requests on the ground that they had no search warrant. Proceedings were then brought against the respondents pursuant to s. 33 ACAD and the respondents were fined for having obstructed the inspection. The Court of Québec concluded that s. 22(e) did not infringe either s. 24.1 of the Quebec Charter of Human Rights and Freedoms or s. 8 of the Canadian Charter of Rights and Freedoms. On appeal by trial de novo, the Superior Court upheld this judgment, but the Court of Appeal allowed the respondents' appeal and rendered a verdict of not guilty. The court concluded that the second paragraph of s. 22(e) is inconsistent with s. 24.1 of the Quebec Charter and s. 8 of the Canadian Charter since it does not contain a requirement of reasonable and probable grounds to believe that the inspected employer is in fact covered by the decree.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The powers of inspection set out in the second paragraph of s. 22(e) ACAD are contemplated by s. 8 of the Canadian Charter. The power to make copies of documents is analogous to that of requiring documents to be produced and constitutes a seizure within the meaning of s. 8. As for the other inspection powers set out in the second paragraph, they may be assimilated to a search within the meaning of the same section. The visit to the premises is the foundation of the power to examine specific documents, verify certain working conditions, and require information. Despite being less invasive than a search, inspection is unquestionably an "intrusion".

These powers of inspection are reasonable and do not infringe s. 8. The ACAD is a regulatory statute whose purpose is to ensure decent working conditions in certain sectors of industry where employees are among the most vulnerable. The inspection powers set out in this Act enable the parity committees to monitor compliance by employers with the various decrees and observance of the working conditions they impose. The need for such powers is clear, especially since compliance with the standards imposed by the decrees depends first and foremost on employer honesty. Given that employers' activities are extensively regulated by the state, the reasonable expectations of privacy they may have with respect to the documents mentioned in s. 22(e), whose content is specifically provided for by the ACAD for professional employers, or with respect to the premises where an activity subject to specific standards is conducted, are considerably lower. Moreover, the particular limits placed on the inspection scheme protect, so far as possible, the right to privacy of the individuals affected. Inspectors may not make copies of any documents other than those mentioned in the second paragraph. They may not force an entry into a workplace if the employer refuses to admit them; they must rather bring proceedings for obstruction. The possibility that certain inspections may take place at the home of the employer or of the employees, when it coincides with their workplace, does not make the inspection powers less reasonable. These powers are sufficiently circumscribed by the nature of the persons affected -- the employer and employee -- to attain the purpose of the ACAD. The powers to check certain information and to require information deemed necessary are essential to the carrying out of the parity committees' function. These powers must be exercised in accordance with the purpose of the ACAD and it will always be possible to challenge abuses. Such a possibility does not alter the validity of the legislative scheme and the balance it strikes between the interests of society and the individual's right to privacy. Finally, the second paragraph of s. 22(e) is not unreasonable by reason of its application to all employers, and not only those that inspectors have reasonable grounds to believe are subject to a decree. Within the limits of their respective areas of application, the decrees are binding on all employers. If the inspection powers were not applicable to all employers, it would be impossible to verify whether some of them were covered by a given decree or acted in compliance with the conditions it imposes.

The criteria set out in Hunter, which were developed in a very different context, are not applicable. The exercise of the powers of inspection set out in the second paragraph of s. 22(e) does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. The possibility that those responsible for enforcing a statute will uncover in the course of inspections facts that point to a violation does not alter the underlying purpose behind the exercise of the powers of inspection. The same is true when the enforcement is prompted by a complaint. The complaint system is a practical means not only of checking whether contraventions of the ACAD have occurred, but also of deterring them. In view of the important purpose of regulatory legislation, the need for powers of inspection and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization.

The preceding analysis also applies to s. 24.1 of the Quebec Charter.

Per Sopinka, L'Heureux-Dubé, Gonthier, McLachlin and Major JJ.: The powers conferred on inspectors by the second paragraph of s. 22(e) ACAD are subject to the constitutional protection of s. 8 of the Canadian Charter. The right to obtain information from the employer and employees, and the right to examine documents and make copies of them, constitute a "seizure" within the meaning of s. 8 and, although it is an administrative inspection, the right of access by inspectors to work premises is comparable to a "search" within the meaning of this section. These searches and seizures are reasonable and do not infringe s. 8. The ACAD regulates certain industrial sectors through its mechanism for extending collective agreements by decree. Its purpose is to guarantee employees working in these sectors of activity minimum working conditions. This social objective is very important, as the employees covered by the decrees are among the most vulnerable. In this context, the powers of inspection of the parity committees are essential to ensure implementation of the decrees, particularly as compliance with the decrees is primarily a matter of honesty and integrity on the part of employers.

The expectations of privacy which employers covered by the disputed provision may have are not very high. The documents that may be examined or reproduced under s. 22(e) relate only to the coverage of employers by the ACAD and various decrees. The keeping of most of these documents is in any case required by the ACAD or other legislation. These documents are commercial in nature, and the mere possibility of seizure of information of a personal nature cannot by itself determine whether the powers conferred by the ACAD are reasonable. The ACAD does not authorize the seizure of documents of a personal nature, and in the event that such documents would be seized, one could always apply to the courts for an appropriate remedy. Finally, the expectations of privacy which employers may have are further reduced by the fact that the powers of inspection are exercised at the employees' workplace, even discounting the fact that the right of access conferred by the ACAD is relatively limited.

The standard of reasonableness is less strict in a matter involving the regulation of an industrial sector than it is in criminal matters. Since the ACAD is regulatory legislation providing for administrative inspections in a regulated industrial sector, the rules in Hunter, requiring a system of prior authorization based on the existence of reasonable and probable grounds, do not apply. Administrative inspections involving a visit to the premises without prior authorization are not unreasonable in the context of the ACAD. The visit of the premises must be necessary in order to properly serve the regulatory objective and be rationally connected to the main purpose of the Act. Moreover, the ACAD significantly circumscribes the manner in which the inspection will take place. The visit must be made at a reasonable time and takes place at the employees' workplace. The inspectors cannot freely engage in a search of the premises. Access to the workplace is permitted solely in order to consult certain documents and obtain information from the employer and employees. Nor does the ACAD permit inspectors to use force to gain access to the workplace. In the event of a refusal by the employer, the inspectors can only lay charges for obstruction of an inspection. With respect to visits to a workplace for administrative purposes, the powers conferred by the disputed provision imply only a minimum and very circumscribed intrusion in a context in which employers have a lower expectation of privacy. It is of the very nature of an administrative inspection in a regulated industry that it takes place when there are no reasonable grounds to believe that a particular offence has been committed. Finally, the rule in U.S. jurisprudence requiring that a warrant be obtained before undertaking an administrative inspection, a rule which has now been abandoned in practice, is not desirable here.

Furthermore, an inspection resulting from a complaint made by an employee is insufficient in itself to justify inspectors being subject to the requirements of Hunter. There is an important distinction between having reasonable and probable grounds to believe that an offence was committed and simply having an information. An inspection will often be necessary before it is even possible to establish the existence of reasonable grounds to believe that a breach of the law has occurred. This is the position mandated by the fact that the ACAD covers only a regulated industrial sector. Finally, a complaint such as the one filed here which is proved valid once the inspection is completed leads not to a penal proceeding but to a civil claim for wages. Civil actions are clearly not contemplated in Hunter.

Reasonable and probable grounds to believe that the "inspected" employer is in fact covered by the decree are not essential to the constitutional validity of the second paragraph of s. 22(e). Even if the powers conferred by that paragraph may potentially be exercised against all employers and not merely those subject to a decree, these powers are not unreasonable. All employers, as well as all employees, come within the ambit of the ACAD, because it is the nature of the work done by an employee and not the employer's type of business which matters in determining whether they are subject to the application of the decrees. In view of the particular scheme of the ACAD, inspectors must have the means of determining whether a given employer is in fact subject to a decree. Such a determination is sometimes difficult without prior inspection given the technical nature of the provisions for the application of decrees. In addition, it should be assumed that, because of their particular expertise on a parity committee, inspectors will, in most cases, conduct inspections at the premises of employers which they suspect are subject to a decree. In this way, not only will abuses be avoided but infringements of reasonable expectations of privacy will be minimal.

The analytical approach and the tests developed in relation to s. 8 of the Canadian Charter apply equally to s. 24.1 of the Quebec Charter. According to this analysis, the second paragraph of s. 22(e) does not infringe s. 24.1.

The request for the production of documents provided for in the fourth paragraph of s. 22(e) constitutes a "seizure" within the meaning of s. 24.1 of the Quebec Charter, but this seizure is reasonable and does not infringe s. 24.1. The fourth paragraph places adequate limits on the documents of which the inspectors have the power to request consultation or production.

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