By Trevor Busch
Creating a broad-based hiring policy requiring local residency for senior management could result in a Charter challenge, according to advice provided by the town’s legal experts.
At town council’s Jan. 23 regular meeting, a motion was passed directing administration, “To look into devising a policy in regards to requiring new management hires to live within the Town of Taber.”
In a legal brief prepared for the town by Megan Van Huizen of Brownlee LLP, various legal risks to the development of a broadly-applied hiring policy for management were detailed.
Applicable statutory provisions cited in the brief included Sec. 7 of the Charter of Rights and Freedoms, designed to protect the liberty of individuals from being infringed on by government actions or actors: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
It was also noted that it “has long been accepted that the Charter applies to municipalities’ actions and policies.”
“As I understand it, it would be different for each different manager, depending on what department it is,” said Mayor Henk DeVlieger, speaking at council’s Feb. 13 regular meeting. “I did a little bit of my own research at my own expense, and came to a similar thing, that if you write it up specifically for different positions, then it has a good chance that that is fair. Like they’ve said here, just one policy fits all, that doesn’t work, if I read in between the lines. So if council wants to go towards promoting living within the town of Taber, or a certain radius, you have to have a policy that is specifically tailored toward each management position.”
Another statutory provision detailed that is binding on municipalities was the Human Rights Act, specifically Sec. 7(1)(B), which states that, “No employer shall discriminate against a person with regard to employment or any other term or condition of employment, because of race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin (emphasis added by Brownlee LLP), marital status, source of income, family status or sexual orientation of that person or of any other person.”
“I think it needs to be looked at on a one-on-one basis, for each position,” said Coun. Laura Ross-Giroux. “I can’t justify that all of our management need to live here. I think we need to look at in on a case-by-case basis. Of course our director of emergency management needs to be here, and our CAO I believe needs to be here. As far as emergency response, most of the people that are on our emergency response and the EOC (Emergency Operations Centre) live here in town already. I can’t see broad policy happening with this.”
In the analysis of the Charter implications such a hiring policy could entail, Brownlee LLP cited the 1997 Supreme Court of Canada decision in the case of Godbout v. Longueil in which an employee was required to sign a declaration stating they would live in a city for the duration of their employment, in accordance with the city’s residency resolution.
According to Brownlee LLP’s brief, all nine judges found the requirement violated the Quebec Charter, while three considered the impact of the Charter (national). Of those three, La Forest J. found that a residency requirement attached to employment infringed on an individual’s liberty rights.
“The right to liberty enshrined in Sec. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy where individuals may make inherently private choices free from state interference.”
La Forest J.’s arguments did acknowledge that a residency requirement could be justified for positions of essential public importance that require proximity, such as police officers, firefighters, or ambulance personnel, but dismissed arguments regarding a desire for community familiarity for employees, or the economic benefit to the community of requiring employees to reside in the municipality, as an invalid justification for violating an employee’s constitutional rights.
However, the legal ramifications surrounding such a residency requirement remain something of grey area. Brownlee LLP recommended that, “In light of the unsettled nature of the law, we would caution against a residency policy which applies broadly to any and all new management positions. Particular justifications, which take into account the specific position and its essential requirements, should be outlined by the policy and would protect against Charter challenges.”
“We just talked about the legal opinion being against a broad policy,” said Coun. Andrew Prokop. “I’m suggesting not doing a broad policy, and as to Laura’s (Coun. Ross-Giroux) recommendations, I believe that kind of a scenario is way more feasible and understandable, and agreeable to our legal experts.”
Under the Human Rights Act, there remains some question if “place of origin” and “place of residence” should be regarded as one and the same. According to Brownlee LLP, Alberta courts have not considered the application of “place of origin” in the context of human rights legislation and a residency requirement.
Citing a series of legal precedents, Brownlee LLP went on to state that a residency requirement, “To the extent that it deals with living inside or outside town limits, would not likely violate Sec. 7 of the Act.”
“We just need to make sure as a council and administration that this is done right,” said Coun. Randy Sparks. “The only part that put a red flag up with me was the statement that said, ‘in light of the unsettled nature of the law’. So we have to be very careful because there hasn’t been a whole bunch of court law put forward for something like this.”
In its recommendations, Brownlee LLP concluded, “The risk of a successful Human Rights Complaint is unlikely; however, a residency policy is at risk for a Charter challenge. We would advise against a broadly-worded policy which applies to all management employees. While La Forest contemplated circumstances where a residency requirement will be justified, the town policy should demonstrate that proximate residence is essential or a bona fide requirement of each specific position. If the town wishes to pursue such a policy, in light of the Charter risks, we would advise outlining in detail the specific positions to which the policy would apply and the rationale for the residency requirements.”
“That’s what we should be looking for,” continued Sparks. “How important the position is, and how close they are is what we need to look at here, and then come up with a policy that way, because as it states very clearly in this opinion we received, that we cannot paint everyone in a managerial position with the same brush.”
Coun. Joe Strojwas was against a blanket hiring policy for all town employees, but appeared to be in favour of one for management staff, despite potential Charter risks.
“On a broad employee basis, I don’t think we need it. But it’s essential for senior management that work for the town that they be in close proximity to the town. In point three, it says ‘essential public importance’. That basically defines down to senior management, and that’s where our policy has to come in. Management, not a broad employee plan. That would be my position.”
Ross-Giroux also pointed out that what constitutes “proximity” must be clearly defined in any policy formulated by the town if it hopes to pass legal muster.
“I think also we need to define what is ‘proximity’ to Taber. Is it five kilometres? Is it 10 kilometres, is it 20 kilometres? That would have to be defined before we can incorporate it into any kind of policy.”
CAO Cory Armfelt suggested it would be difficult to make the argument that certain managers should be required to reside in the community or its immediate area.
“Myself, when I was the director of planning and economic development, there’s never a ‘planning emergency’. Planning is two weeks to 20 years ahead. It’s hard to build the case that there’s a planning emergency. I think it would be prudent to engage our legal experts in assisting us in crafting this policy, to make sure we don’t have a Charter challenge.”
DeVlieger acknowledged that some work would need to be done in defining what positions would be subject to a town hiring policy.
“From our side, we probably have to come up with why we think it is necessary to have these persons living in close proximity to the town. You have to have that as a argument.”
Following discussion, council voted unanimously (6-0) to direct administration to come back to council with a policy regarding senior management residing in the town of Taber. Coun. Rick Popadynetz was absent from the meeting, while Strojwas participated via teleconference call.
“Each of us as councillors, we wish that when people decided to be an employee of the Town of Taber, that they would want to live here,” said Sparks. “We can’t force them. That becomes very evident with the opinion we got — it’s against the Charter. I just wish that they would want to live here and be a part of our community.”
DeVlieger echoed Sparks’ remarks.
“That’s my wish, too, and I think if you live here 24/7 it will be beneficial. You will understand the character and who lives in the community, but it will enhance your job in your decision making.”