P.E.I. appeal court deals Charter blow to political patronage

'A systemic problem the existence of which is so notorious and longstanding it requires no formal proof.' - Chief Justice Gerard Mitchell

Tory Premier Pat Binns

Charlottetown (22 Feb. 2006) - The appeal division of the Prince Edward Island Supreme Court has issued a sweeping ruling, blasting the province's Conservative government for violating the Canadian Charter of Rights and Freedoms by its "notorious" practice of political patronage.

After Premier Pat Binns came to power in 1996, the government fired hundreds of casual employees in the time-honoured provincial tradition of punishing enemies and rewarding friends when political power changes hands.

The mass exodus prompted approximately 800 of the workers to file complaints of political discrimination with the Human Rights Commission.

Binns responded by using his majority in the legislature to amend the provincial Human Rights Act the following year, restricting any settlements that might arise from the firings to token amounts.

Court challenge

Eleven employees refused to accept the cheap imposed settlements and challenged the government in court. They eventually won a lower court ruling in their favor and, last week, their case was bolstered big-time with a sweeping decision by the appeals division of the province's highest court.

Binns now has a 60-day window to decide whether to take the case to the Supreme Court of Canada.

The decision by Chief Justice Gerard Mitchell was damning in its scope and is bound to send a chill through political parties across Atlantic Canada, where the traditions of political patronage run deep.

"Patronage has a long tradition in this province," Mitchell wrote.

"It is a systemic problem the existence of which is so notorious and longstanding it requires no formal proof. One of the chief manifestations of the patronage system has been the wholesale purging of unprotected government employees that regularly follows a change of governing party."

Charter rights

The chief justice pointed out that the provincial legislature recognized patronage as a serious problem in 1975 when it added "political belief" to the list of prohibited grounds of discrimination in the Human Rights Act.

This was intended to protect employees from "the negative consequences arising from joining and supporting the registered provincial political party of their choice," he noted.

He also emphasized that this right is "now an associative activity protected by s. 2 (d) of the (Canadian Charter of Rights and Freedoms) which came into force in 1982."

Mitchell said the Binns government's intention was "clearly not intended to advance the cause of human rights. Quite the contrary," he wrote.

"For casual employees of the government, the amendments took away access to remedies that had previously been provided to protect and enforce their right to join and support the registered political party of their choice without fear of losing their jobs. It is clear, given the timing and context, the purposes of the amendments were to expedite the disposition of the large number of complaints that followed the 1996 election and to limit government’s exposure in the event a human rights panel found it to have discriminated against its casual employees on the basis of their political belief."

'A mockery'

Mitchell added:

"In my view, the exclusion of the employees (affected) from the full panoply of remedies available to others under the HRA is constitutionally impermissible.

"The impugned amendments to the HRA undermine the values served and protected by (the act) and create conditions which interfere with the exercise of that constitutional right.

"History has shown that absent adequate legislative protection against discrimination on grounds of political belief such employees are vulnerable to job loss because of patronage. Allowing the amendments to stand would discourage participation in the province’s political process and trivialize the consequences of discrimination on the basis of affiliation with a registered political party.

"The amending legislation sends a message that interfering with freedom of political association is not such a bad thing and actually quite affordable in terms of the
compensation that can be awarded under the HRA. This makes a mockery of the right to join and support a political party. Accordingly, I agree with the trial judge that the
legislation removing access to s. 28.4(1)(b) remedies for political belief discrimination violates s.2 (d) of the Charter."

So definitive was the ruling that a number of employees who accepted the 1997 cap and took token settlements are now trying to have their cases re-opened.

The response of the province will be closely monitored by the National Union of Public and General Employees (NUPGE) and its provincial component, the P.E.I. Union of Public Sector Employees (PEIUPSE). NUPGE

More information:
Full Text - Govt.PEI v. Condon et al. 2006 PESCAD 01