Godbout v. Longueuil (City) [1997] 3 S.C.R. 844: Right to privacy -- Residence requirement -- Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits -- Whether right to choose where to establish one's home falls within scope of right to privacy -- Whether residence requirement infringes employee's right to privacy -- If so, whether infringement justifiable

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

Civil rights -- Right to privacy -- Residence requirement -- Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits -- Whether right to choose where to establish one's home falls within scope of right to privacy -- Whether residence requirement infringes employee's right to privacy -- If so, whether infringement justifiable -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 5, 9.1.

Municipal law -- Resolution -- Residence requirement -- Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits -- Whether municipal resolution valid -- Whether residence requirement infringing "right to privacy" in Quebec Charter and "right to liberty" in Canadian Charter -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 5, 9.1 --Canadian Charter of Rights and Freedoms, s. 7.

Judgments and orders -- Rectificatory judgment -- Damages -- Court of Appeal ordering employee reinstated and awarding her damages from time of her dismissal until time of trial -- Court of Appeal's reasons indicating that no damages were awarded for period between trial and appeal because they had not been properly quantified -- No holding to that effect in formal judgment -- Whether Court of Appeal erred in issuing rectificatory judgment.

Civil procedure -- Appeal -- Court of Appeal ordering employee reinstated and awarding her damages from time of her dismissal until time of trial -- No damages awarded for period between trial and appeal because they had not been properly quantified -- Whether Court of Appeal erred in not permitting employee to introduce evidence at appeal hearing in respect of damages between trial and appeal -- Whether Court of Appeal erred in not requesting parties to submit additional argument on that issue -- Whether Court of Appeal erred in not remanding issue of damages to Superior Court -- Code of Civil Procedure, R.S.Q., c. C-25, art. 523.

The appellant city adopted a resolution requiring all new permanent employees to reside within its boundaries. As a condition of obtaining permanent employment as a radio operator for the city police force, the respondent signed a declaration promising that she would establish her principal residence in the city and that she would continue to live there for as long as she remained in the city's employ. The declaration also provided that if she moved out of the city for any reason, she could be terminated without notice. The respondent's position became permanent and, approximately one year later, she moved into a new house she had purchased in a neighbouring municipality. When she refused to move back within the city's limits, her employment was terminated. The Superior Court dismissed the respondent's action for damages and reinstatement, holding that the city's residence requirement did not contravene the Quebec Charter of Human Rights and Freedoms and that the Canadian Charter of Rights and Freedoms did not apply in this case. The Court of Appeal allowed the respondent's appeal, concluding that the residence requirement was invalid mainly because it was contrary to public order. It granted the respondent's request for reinstatement and awarded damages for the financial losses she suffered from the time of her dismissal until the time of trial. The court noted that the damages in respect of the income lost by the respondent during the period between the trial and the appeal ("interim damages") had not been properly quantified and should not be awarded, but no specific holding to this effect was included in the formal judgment. The respondent brought a motion for rectification, asking that the court amend its formal judgment and award the "interim damages". The Court of Appeal granted the motion and amended the formal judgment, but did not accede to the respondent's request to recover the "interim damages". The city appealed on the substantive issues, and the respondent cross-appealed on the damages issue.

Held: The appeal and cross-appeal should be dismissed. The city's residence requirement unjustifiably infringes s. 5 of the Quebec Charter.

(1) Appeal

Per La Forest, L'Heureux-Dubé and McLachlin JJ.: The ambit of s. 32 of the Canadian Charter is wide enough to include all entities that are essentially governmental in nature and is not restricted merely to those that are formally part of the structure of the federal or provincial governments. As well, under s. 32, particular entities will be subject to Charter scrutiny in respect of certain governmental activities they perform, even if the entities themselves cannot accurately be described as "governmental" per se. Since municipalities cannot but be described as "governmental entities", they are subject to the Canadian Charter. First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent. Second, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as "government", is indistinguishable from the taxing powers of the Parliament or the provinces. Third, and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction. Finally, and most significantly, municipalities derive their existence and law-making authority from the provinces. As the Canadian Charter clearly applies to the provincial legislatures and governments, it must also apply to entities upon which they confer governmental powers within their authority. Otherwise, provinces could simply avoid the application of the Charter by devolving powers on municipal bodies. Further, since a municipality is governmental in nature, all its activities are subject to Charter review. The Canadian Charter is therefore applicable to the residence requirement at issue in this case. The particular modality a municipality chooses to adopt in advancing its policies cannot shield its activities from Charter scrutiny. All the municipality's powers are derived from statute and all are of a governmental character. An act performed by an entity that is governmental in nature is thus necessarily "governmental" and cannot properly be viewed as "private".

The right to choose where to establish one's home falls within the scope of the liberty interest guaranteed by s. 7 of the Canadian Charter. The right to liberty in s. 7 goes beyond the notion of mere freedom from physical constraint and protects within its scope a narrow sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. The autonomy protected by the s. 7 right to liberty, however, encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. Choosing where to establish one's home is a quintessentially private decision going to the very heart of personal or individual autonomy and the state ought not to be permitted to interfere in this private decision-making process, absent compelling reasons for doing so. Support for this view is found in the fact that the right to choose where to establish one's home is afforded explicit protection in the International Convenant on Civil and Political Rights to which Canada is a party. The respondent's Charter claim did not implicate any notion of a constitutional "right to employment" or any other "economic right".

The respondent did not waive her right to choose where to establish her home by signing the residence declaration or by failing to move back within the city's limits. The respondent had no opportunity to negotiate the mandatory residence stipulation and, consequently, cannot be taken to have freely given up her right to choose where to live. Similarly, the respondent's attempt to assert her right to choose where to live by refusing to conform with the terms of the residence requirement cannot amount to a renunciation of that right.

Under s. 7, a deprivation by the state of an individual's right to life, liberty or security of the person will not violate the Canadian Charter unless it contravenes the "principles of fundamental justice". Deciding whether the infringement of a s. 7 right is fundamentally just may, in certain cases, require that the right at issue be weighed against the interests pursued by the state in causing that infringement. This balancing is both eminently sensible and perfectly consistent with the aim and import of s. 7, since the notion that individual rights may, in some circumstances, be subordinated to substantial and compelling collective interests is itself a basic tenet of our legal system lying at or very near the core of our most deeply rooted juridical convictions. As well, this balancing process will necessarily be contextual, insofar as the particular right asserted, the extent of its infringement, and the state interests implicated in each particular case will depend largely on the facts. Here, the residence requirement infringes the respondent's right to liberty in a manner that does not conform to the principles of fundamental justice. As justifications for the requirement, the city relied upon three "public interests": (1) the maintenance of a high standard of municipal services, (2) the stimulation of local business and municipal taxation revenue, and (3) the need to ensure that workers performing essential public services are physically proximate to their place of work. The first two cannot provide a sufficiently compelling basis upon which to override the respondent's right to decide where she wishes to live. As for the third one, while in certain circumstances a municipality might well be justified in imposing a residence requirement on employees occupying certain essential positions, the residence requirement at issue is too broad to be upheld on that ground since it applies not only to employees whose functions require that they be proximate to their place of work, but also to all permanent employees of the city hired after the municipal resolution was adopted. Moreover, even if the residence requirement were restricted to emergency workers, the respondent would not fall within that class of employees.

There is no need to examine the violation of s. 7 under s. 1 of the Canadian Charter, given that all the considerations pertinent to such an inquiry have already been canvassed in the discussion dealing with fundamental justice. Furthermore, a violation of s. 7 will normally only be justified under s. 1 in the most exceptional of circumstances, if at all. Such circumstances do not exist here.

The residence requirement also infringed s. 5 of the Quebec Charter by depriving the respondent of the ability to choose where to establish her home. Section 5 protects, among other things, the right to take fundamentally personal decisions free from unjustified external interference. The scope of decisions falling within the sphere of autonomy protected by s. 5 is limited to those choices that are of a fundamentally private or inherently personal nature. The right to be free from unjustified interference in making the decision as to where to establish and maintain one's home falls squarely within the scope of the Quebec Charter's guarantee of "respect for [one's] private life". Since the residence requirement imposed by the city essentially precluded the respondent from making that choice freely, it violates s. 5. Further, for the reasons given in relation to waiver under the Canadian Charter, the respondent did not waive her right to privacy under s. 5 of the Quebec Charter.

Section 9.1 of the Quebec Charter, assuming that it properly applies here, is to be interpreted and applied in the same manner as s. 1 of the Canadian Charter. Thus, the party seeking to justify a limitation on a plaintiff's Quebec Charter rights under s. 9.1 must bear the burden of proving both that such a limitation is imposed in furtherance of a legitimate and substantial objective and that the limitation is proportional to the end sought, inasmuch as (a) it is rationally connected to that end, and (b) the right is impaired as little as possible. Essentially for the reasons given in the discussion of fundamental justice in the context of s. 7 of the Canadian Charter, the first two objectives suggested by the city as the basis for imposing the residence requirement at issue are not so significant or pressing as to justify overriding the respondent's s. 5 right. As regards the third objective, it cannot be concluded that the very broad residence requirement at issue is either rationally connected to the end sought to be achieved, or that it is proportional to it. Moreover, the specific evidence advanced by the city in respect of the justifications it offered was scant and is incapable of permitting the city to discharge its burden of proof. The infringement of the respondent's s. 5 right is thus not justified under s. 9.1.

Per Gonthier, Cory and Iacobucci JJ.: For the reasons given by La Forest J., the city's resolution requiring its employees to reside within its boundaries was invalid because it unjustifiably violated s. 5 of the Quebec Charter. The infringement of s. 5 provides a good and sufficient basis for dismissing this appeal and there is thus no need to consider the application of s. 7 of the Canadian Charter. The application of s. 7 may have a significant effect upon municipalities and, before reaching a conclusion on an issue that need not be considered in determining the appeal, it would be preferable to hear further argument with regard to it, including the submissions of interested parties and intervening Attorneys General.

Per Lamer C.J. and Sopinka and Major JJ.: The city's residence requirement infringes the respondent's right to privacy under s. 5 of the Quebec Charter and is not justified under s. 9.1. This is sufficient to dispose of the appeal. It is unnecessary and perhaps imprudent to consider whether the residence requirement infringes s. 7 of the Canadian Charter in the absence of submissions from interested parties.

Section 5 of the Quebec Charter protects an employee's decision where to live as an aspect of his or her right to privacy. A municipality that seeks to uphold a residence requirement that infringes that section under s. 9.1 of the Quebec Charter must demonstrate that the requirement is imposed to advance a legitimate and substantial objective, and that the requirement is proportional to this objective, in that it is both rationally connected to the objective and constitutes a minimal impairment of the right protected by s. 5. These criteria must be applied flexibly and in a manner that is sensitive to the particular context and factual circumstances of each case. The objectives of improving the quality of services by fostering loyalty, of supporting the local economy, and of ensuring that certain essential employees be readily available are often invoked by municipalities to support a residence requirement. Under s. 9.1, these objectives may, depending on the circumstances of a case, be sufficiently compelling to justify an infringement of the employee's right to privacy. In the particular circumstances of this case, however, none of these objectives were sufficiently compelling to justify such an infringement.

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