Syndicat des professeurs et des professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières, 2010 SCC 30, [2010] 2 SCR 132

                                                 SUPREME COURT OF CANADA

Between:

Syndicat des professeurs et des professeures de

l’Université du Québec à Trois-Rivières

Appellant

and

Université du Québec à Trois‑Rivières

Respondent

‑ and ‑

Confédération des syndicats nationaux

Intervener

Official English Translation

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

______________________________

Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières v. Université du Québec à Trois‑Rivières, 2010 SCC 30, [2010] 2 S.C.R. 132

Syndicat des professeurs et des professeures de l’Université

du Québec à Trois‑Rivières                                                                                               Appellant

v.

Université du Québec à Trois‑Rivières                                                                         Respondent

and

Confédération des syndicats nationaux                                                                           Intervener

Indexed as:  Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières v. Université du Québec à Trois‑Rivières

2010 SCC 30

File No.:  32776.

2009:  October 20; 2010:  July 29.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for quebec

Labour relations — Wrongful dismissal — Recourse — Jurisdiction of arbitrator or Commission des relations du travail — Act respecting labour standards establishing recourse before Commission des relations du travail in case of dismissal without good and sufficient cause, except where equivalent remedial procedure provided for elsewhere in legislation or in agreement — Grievance filed in which it was alleged that non‑renewal of employee’s contract amounted to dismissal without good and sufficient cause — Whether collective agreement provides for recourse equivalent to one provided for in statute — Whether labour standard prohibiting wrongful dismissal implicitly incorporated into collective agreement — Whether arbitrator or Commission has jurisdiction over complaint — Act respecting labour standards, R.S.Q., c. N‑1.1, s. 124.

The union filed a grievance against a decision not to renew the contract of a professor of the university.  The union argued that the university’s decision amounted to a dismissal without good and sufficient cause, contrary to clause 18 of the collective agreement and s. 124 of the Act respecting labour standards (“A.L.S.”), and that it violated the rules applicable to the non‑renewal of a contract under clause 12.04 of the collective agreement.  The arbitrator found that clause 12.04 established a remedial procedure equivalent to the one provided for in s. 124 A.L.S., and ordered the parties to proceed under that clause.  The Superior Court upheld the arbitrator’s decision, dismissed the motion for judicial review and returned the case to the arbitrator.  The Court of Appeal held that clause 12.04 did not establish a remedial procedure equivalent to the one provided for in s. 124 A.L.S., and it dismissed the union’s appeal on the basis that s. 124 was not implicitly incorporated into the collective agreement.

Held:  The appeal should be dismissed.

Per LeBel, Fish, Abella, Charron and Cromwell JJ.:  The provisions of the collective agreement regarding dismissal are sufficiently clear, and the arbitrator had jurisdiction to hear the grievance and grant any appropriate remedies on the basis of those provisions without considering the effect of s. 124 A.L.S. on the collective agreement.  For these reasons, and subject to the comments made in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, the grievance is remanded to the arbitrator to hear it as drafted.

Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.:  Clause 12.04 of the collective agreement does not adequately protect employees from dismissal without good and sufficient cause.  The possible grounds for challenging the non‑renewal of a contract are very limited, with the result that the recourse is much more limited in scope than the one available under s. 124 A.L.S.  As well, the burden of proof is on the employer under s. 124, while under clause 12.04, it is the employee who must prove that the decision is biased or that there is inconsistency in the reasons for the decision.  However, the recourse provided for in clause 18 is a procedure equivalent to the one set out in s. 124 A.L.S., and under it, the arbitrator has jurisdiction to hear the dismissal complaint.  In this recourse, the employer bears the burden of proving that it had valid reasons for dismissing the employee.  And there are no limits on the grounds the employee can raise.

The arbitrator correctly concluded that s. 124 A.L.S. should not be incorporated into the collective agreement.  However, he should have ordered the parties to proceed on the basis of the grievance as drafted, but without considering s. 124.  In stating that he was reaching a prima facie conclusion and that the employee could present evidence of abuse, the arbitrator did not rule out the possibility of determining whether the employer’s decision amounted to a dismissal.  That assessment is central to the consideration of good and sufficient cause and is reflected in clause 18.  Only after the hearing on the merits will the arbitrator be in a position to decide whether this case in fact involves non‑renewal for the purposes of the collective agreement or, rather, a dismissal without good cause.

Cases Cited

By LeBel J.

Applied:  Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61.

By Deschamps J.

Applied:  Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61; referred to:  Syndicat des professeurs du Cégep de Ste‑Foy v. Quebec (Attorney General), 2010 SCC 29, [2010] 2 S.C.R. 123; Québec (Procureur général) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1054, [2008] R.J.D.T. 1005; Buono v. Université du Québec à Montréal, 2008 QCCRT 348 (CanLII); Richelieu (Ville de) v. Commission des relations du travail, [2004] R.J.D.T. 937; Denis v. Lévesque Automobile ltée, D.T.E. 2000T‑58.

Statutes and Regulations Cited

Act respecting labour standards, R.S.Q., c. N‑1.1, s. 124.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1056, [2008] J.Q. n^o 4939 (QL), 2008 CarswellQue 4906, affirming a decision of Taschereau J., 2007 QCCS 569, [2007] J.Q. n^o 1051 (QL), 2007 CarswellQue 999, dismissing an application for judicial review of an arbitrator’s decision.  Appeal dismissed.

Gabriel Hébert‑Tétrault and Richard McManus, for the appellant.

Guy C. Dion, Johanne Panneton, André Asselin and Sébastien Gobeil, for the respondent.

Gérard Notebaert and Isabelle Lacas, for the intervener.

English version of the judgment of LeBel, Fish, Abella, Charron and Cromwell JJ. delivered by

[1]                              LeBel J. — I invite readers to refer to the facts as set out in the reasons of my colleague Deschamps J.  In this case, the provisions of the collective agreement regarding dismissal were sufficiently clear.  The arbitrator had jurisdiction to hear the grievance and grant any appropriate remedies on the basis of those provisions without considering the effect of s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1, on the collective agreement.

[2]                              For these reasons, and subject to my comments in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, I would dismiss the appeal without costs and would remand the grievance to the arbitrator to hear it as drafted.

English version of the reasons of McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. delivered by

[3]                              Deschamps J. — This appeal raises the same issue as Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61 (“S.F.P.Q.”), and Syndicat des professeurs du Cégep de Ste‑Foy v. Quebec (Attorney General), 2010 SCC 29, [2010] 2 S.C.R. 123.  The Court must determine whether s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”), is incorporated into the collective agreement and can therefore be applied by a grievance arbitrator.   The first paragraph of s. 124 reads as follows:

124.     An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

[4]                              The applicable principles are explained in S.F.P.Q., in which I conclude that the fact that s. 124 is a provision of public order does not mean that, in a collective bargaining context, only an arbitrator has jurisdiction to enforce the protection against dismissal without good and sufficient cause.  Where an adequate procedure is not set out in the collective agreement, the legislature has conferred exclusive responsibility for hearing complaints against such dismissals on the Commission des relations du travail (“C.R.T.”).

[5]                              In the instant case, the applicable collective agreement affords adequate protection and the arbitrator has jurisdiction to hear the employee’s complaint.  I would therefore dismiss the appeal with costs and remand the case to the arbitrator.

1.      Facts

[6]                              The relevant facts are as follows.  On December 14, 1998, France Tanguay was hired as a professor by the respondent, the Université du Québec à Trois‑Rivières.  On December 20, 2004, Ms. Tanguay’s employer did not renew her contract of employment and thus denied her the opportunity to acquire tenure.  The appellant, the Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières (“union”), filed a grievance alleging that the non‑renewal of Ms. Tanguay’s contract amounted to a dismissal without good cause, contrary to clause 18 of the collective agreement and s. 124 A.L.S.  The union also argued that the employer’s decision violated the rules applicable to the non‑renewal of a contract under clause 12.04 of the collective agreement.

[7]     Before the arbitrator, the employer presented preliminary arguments that the union could not rely on both the rules on non‑renewal of a contract and those on dismissal without good cause, and that the recourse provided for in s. 124 A.L.S. was not available because that section was not incorporated into the collective agreement.  The union replied that it was not necessary to argue that s. 124 A.L.S. was incorporated into the collective agreement, because an equivalent procedure was provided for in clauses 18 and 24 of the agreement.

2.       Decisions Below

2.1     Decision of the Grievance Arbitrator

[8]                              Arbitrator Denis Tremblay noted that the collective agreement provided for two types of recourses upon the termination of a teacher’s employment.  Employees whose contracts were not renewed could avail themselves of clause 12.04, while clause 18 applied to dismissals.  The arbitrator found, “prima facie”, that this case involved the non‑renewal of a contract by the employer and that clause 12.04 therefore applied.  But he held that it was unnecessary to consider clause 18, because the specific rules set out in clause 12.04 for contesting the non‑renewal of a contract were applicable, and they gave the employee an opportunity to show that the employer had abused its rights in relation to her.  On that basis, the arbitrator found that clause 12.04 established a remedial procedure equivalent to the one provided for in s. 124 A.L.S. and that there was no need to rely on the standard external to the collective agreement.  He upheld the employer’s objection and ordered the parties to proceed under clause 12.04 of the collective agreement.

2.2     Judgment of the Superior Court

[9]                              On judicial review of the decision to uphold the employer’s preliminary objection, Taschereau J. of the Superior Court endorsed the reasoning that led to the conclusion that clause 12.04 of the collective agreement established a recourse equivalent to the one provided for in s. 124 A.L.S.  He added that the purpose of clause 18 of the collective agreement was entirely different, since that clause applied to the dismissal of a professor, which, he found, was not what was in issue in this case.  Taschereau J. dismissed the application and ordered that the case be returned to Arbitrator Tremblay so that the arbitrator could rule on the grievance in accordance with his original decision: 2007 QCCS 569 (CanLII).

2.3      Decision of the Court of Appeal (Baudouin, Morin and Rochon JJ.A.)

[10]                          Although it set aside the part of the decision in which clause 12.04 of the collective agreement was found to establish a procedure equivalent to the one provided for in s. 124 A.L.S., the Court of Appeal nonetheless dismissed the appeal (2008 QCCA 1056 (CanLII)) for the reasons given in the companion case of Québec (Procureur général) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1054, [2008] R.J.D.T. 1005.

3.     Arguments of the Parties

[11]                          The employer submits that it decided not to renew the employee’s contract after completing the appraisal process provided for in the collective agreement.  It denies dismissing the employee.  It acknowledges that the arbitrator and the Court of Appeal disagreed about whether clause 12.04 establishes a remedial procedure that affords the same type of protection as s. 124.  However, the employer argues that clauses 18 and 24.11 clearly establish such a procedure and that, as a result, the implicit incorporation argument is unnecessary.  Apart from this, its submissions are similar to those of the Attorney General of Quebec in the companion appeals.

[12]                          The union argues that the only issue before this Court is whether the standard established in s. 124 A.L.S. is incorporated into the collective agreement.  In this regard, it reiterates the arguments raised by the appellants in S.F.P.Q.

4.     Analysis

[13]                          The following provisions of the collective agreement are relevant to this analysis:

[translation]

12.04   Where, exceptionally, an appraisal under article 11 results in a recommendation not to renew the contract of a professor who is finishing a second two (2)‑year contract, the professor may grieve the non‑renewal of the contract if the time limits set out in 11.11, 11.13, 11.16 and 12.07 and the procedure set out in article 11 have not been complied with, if there is clear evidence of bias, or if there is inconsistency in the reasons given for the decision.

18.01   The Board of Directors may, on the recommendation of the Vice‑Principal (Academic and Research), dismiss a professor for good cause.  The burden of proof is on the University.  The Board of Directors must notify the professor in writing and specify the reasons for the decision.  A copy must be sent to the Union.

24.05   The professor, alone or through the Union’s representative, or the Union must submit the duly signed grievance to the Vice‑Principal (Human Resources) within sixty (60) calendar days after the date on which the professor knew of the event giving rise to the grievance, but no later than six (6) months after the occurrence of that event.  Each of these time limits is mandatory.

24.11   . . .

In every case, the arbitrator must make a decision in accordance with this agreement, which the arbitrator may not vary in any way.

                                                                            . . .

The arbitrator may uphold or cancel any disciplinary action imposed by the University, or replace it with a reduced sanction.

If the professor has been dismissed or suspended or the professor’s appointment has been revoked, and if the professor’s grievance is submitted to an arbitrator appointed under this agreement, the arbitrator may

(a)   confirm the sanction;

(b)   vary or cancel the sanction and, if appropriate, award partial or total compensation minus any other amounts the professor has earned elsewhere; or

(c)   record any decision considered valid for the two (2) parties in the circumstances.

                                                                            . . .

[14]                          As I mentioned above, the employee’s grievance is based on three provisions: clauses 12.04 and 18 of the collective agreement and s. 124 A.L.S.  On the issue of whether the protection provided for in clause 12.04 corresponds to that provided for in s. 124 A.L.S., I agree with the Court of Appeal.  The provision of the collective agreement does not adequately protect employees from dismissal without good and sufficient cause.  The possible grounds for challenging the non‑renewal of a contract are very limited, with the result that the recourse is much more limited in scope than the one available under s. 124 A.L.S.  As well, the burden of proof is on the employer under s. 124, while under clause 12.04, it is the employee who must prove, for example, that the decision is biased or that there is inconsistency in the reasons for the decision.

[15]                          The situation is very different in the case of the recourse under clause 18, in which the employer bears the burden of proving that it had valid reasons for dismissing the employee.  As well, there are no limits on the grounds the employee can raise.  Clause 18 even states that the employer must have good cause for dismissing the employee.  A wording similar to that of clause 18 has been interpreted as establishing a remedial procedure equivalent to the one in s. 124 A.L.S. (see, for example, Buono v. Université du Québec à Montréal, 2008 QCCRT 348 (CanLII)).  Moreover, the courts often use the expression [translation] “good cause” to sum up the employer’s burden under s. 124 (see, for example, Richelieu (Ville de) v. Commission des relations du travail, [2004] R.J.D.T. 937 (Sup. Ct.); Denis v. Lévesque Automobile ltée, D.T.E. 2000T‑58 (C.A.)).  Finally, the arbitrator has powers that enable him or her to make an adequate remedial order.

[16] In my view, therefore, the recourse provided for in clause 18 of the collective agreement is a procedure under which the arbitrator has jurisdiction to hear the dismissal complaint.  Indeed, the collective agreement in the case at bar provides the type of protection against dismissal without good and sufficient cause on which s. 124 A.L.S. was based.  I accordingly find that the arguments presented to the arbitrator by the union should be accepted.  Those arguments are similar to the ones made by the employer in this Court as regards the scope of clause 18.

[17]                          The arbitrator did not order the parties to proceed before him on the basis of clause 18.  However, he found, prima facie, that this case involved the non‑renewal of a contract.  As well, he left the door open for the presentation of evidence of abuse of rights.  His decision concerned a preliminary objection.  In stating that he was reaching a prima facie conclusion and that the employee could present evidence of abuse, the arbitrator did not rule out the possibility of determining whether the employer’s decision amounted to a dismissal.  That assessment is central to the consideration of good and sufficient cause and, in the collective agreement that applies in this case, is reflected in clause 18.  Only after the hearing on the merits will the arbitrator be in a position to decide whether this case in fact involves non‑renewal for the purposes of the collective agreement or, rather, a dismissal without good cause.

[18]                          Thus, it is my opinion that the arbitrator correctly concluded that s. 124 A.L.S. should not be incorporated into the collective agreement.  However, he should have ordered the parties to proceed on the basis of the grievance as drafted, but without considering s. 124 A.L.S.  For these reasons, I would dismiss the appeal with costs and remand the case to the grievance arbitrator.

Appeal dismissed.

Solicitor for the appellant:  Richard McManus, Saint‑Denis‑sur‑Richelieu, Québec.

Solicitors for the respondent:  Fasken Martineau DuMoulin, Québec.

Solicitors for the intervener:  Pepin et Roy Avocats, Montréal.