Working from Home: Privacy Concerns arise during COVID-19

Abstract

The principle of proportionality, which is designed to limit abuse of power and infringement of human rights by governments, has become a fundamental and binding legal principle in the jurisprudence of many countries. Ever since the seminal R. v. Oakes decision, when the Supreme Court of Canada interpreted s. 1 of the Canadian Charter of Rights and Freedoms as entailing a three-step proportionality test, proportionality has become an important pillar of Canadian law. This article examines whether the principle of proportionality extends or should extend to the private sphere and impose some limitations on employers and trade unions when they exert as much control over an individual’s life as governments. It first argues at a descriptive level that proportionality already plays a significant role (although often not explicitly) in various Canadian labour and employment law contexts, a role not sufficiently acknowledged thus far. It then turns to the normative level and explores the justifications for extending the application of proportionality to the private sphere and more specifically to the employment relationship. First, it explains why a higher standard of behaviour is required in employment relationships as opposed to other contracts. Second, it defends the use of proportionality stressing its legal and analytical merits. Lastly, it demonstrates that the application of proportionality fits within contemporary legal doctrines and advances legal coherence. The article therefore advocates a more explicit use and structured application of the three-stage proportionality test in various employment and labour law contexts. The findings of this article could thus contribute to the development of labour and employment law; they are also highly relevant to the more general discussion about the applicability of the principle of proportionality outside the boundaries of public law.