Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 SCR 666

                                                 SUPREME COURT OF CANADA

Between:

Concordia University

Appellant

and

Richard Bisaillon, Régie des rentes du Québec,

Concordia University Faculty Association (CUFA),

John Hall and Howard Fink

Respondents

AND BETWEEN:

Concordia University Faculty Association (CUFA)

Appellant

and

Richard Bisaillon, Régie des rentes du Québec,

Concordia University, John Hall and Howard Fink

Respondents

Official English Translation: Reasons of LeBel J.

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

______________________________

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666, 2006 SCC 19

Concordia University                                                                                       Appellant

v.

Richard Bisaillon                                                                                           Respondent

and

Régie des rentes du Québec                                                                         Respondent

and

Concordia University Faculty Association (CUFA),

John Hall and Howard Fink                                                                         Respondents

- and -

Concordia University Faculty Association (CUFA)                                        Appellant

v.

Richard Bisaillon                                                                                           Respondent

and

Régie des rentes du Québec                                                                         Respondent

and

Concordia University, John Hall and Howard Fink                                   Respondents

Indexed as:  Bisaillon v. Concordia University

Neutral citation:  2006 SCC 19.

File No.:  30363.

2005:  December 14; 2006:  May 18.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Labour relations — Collective agreements — Pension plan — Jurisdiction of grievance arbitrator — Collective agreements referring expressly to pension plan established by university — Motion for authorization to institute class action filed in Superior Court by unionized employee disagreeing with decisions made by university respecting administration and use of pension fund — Majority of members of class action group covered by one of collective agreements between university and unions — Whether this dispute relating to pension plan within jurisdiction of Superior Court or of grievance arbitrator.

In 1977, the appellant university established a pension plan for its employees.  The vast majority of the plan’s members are unionized employees covered by one of the nine collective agreements between the university and its nine certified unions.  The respondent B, a unionized employee of the university, applied to the Superior Court for authorization to institute a class action against the university in order to contest a number of decisions made with respect to the administration and use of the pension fund.  Before the application was filed, one union that had, following negotiations with the university, agreed to the measures now contested by B, tried to have the motion dismissed, submitting that the Superior Court lacked jurisdiction.  The other eight unions supported and financed B’s attempt to institute a class action.  The Superior Court allowed the declinatory exception.  It found that only a grievance arbitrator would have jurisdiction to hear the case, since the pension plan was a benefit provided for in the collective agreement and since the dispute therefore resulted from the application of that agreement.  The Court of Appeal set aside that decision.  It considered, on the one hand, that the instant case had nothing to do with the collective agreement that applied to B, since the pension plan existed independently of any collective agreement, and, on the other hand, that a grievance arbitrator would not have the necessary jurisdiction to hear all the claims raised in the class action, that is, that his or her jurisdiction would not extend to the claims of the employees covered by the other eight collective agreements or those of the non‑unionized employees.

Held (McLachlin C.J. and Bastarache and Binnie JJ. dissenting):  The appeal should be allowed.  The decision of the Superior Court should be restored.

Per LeBel, Deschamps, Abella and Charron JJ.:  The Superior Court was correct in allowing the declinatory exception to dismiss for lack of jurisdiction.  The class action procedure cannot have the effect of conferring jurisdiction on the Superior Court over a group of cases that would otherwise fall within the subject‑matter jurisdiction of another court or tribunal.  Except as provided for by law, this procedure does not alter the jurisdiction of courts and tribunals.  Nor does it create new substantive rights.  In the circumstances of the instant case, B’s class action is incompatible with the exclusive jurisdiction of grievance arbitrators and the representative function of certified unions.  The situation is certainly complex, but it does not justify disregarding the fundamental rules governing the law of collective labour relations.  [2] [22] [45]

In the case at bar, B should have used the grievance procedure provided for in his collective agreement to resolve the dispute with his employer regarding the pension plan.  For all the unionized members of the group covered by the class action, the disputes fall within the exclusive jurisdiction of grievance arbitrators appointed under the applicable collective agreements, as each arbitrator’s in personam jurisdiction is limited to grievances of employees covered by the collective agreement in question.  With regard to the subject‑matter aspect of the dispute, each of the collective agreements in force at the time the motion was filed refers expressly to the pension plan.  In the relevant provisions, the university made a commitment to the unions to offer the pension plan to the employees covered by the agreements in accordance with the conditions of the plan.  The unions thus obtained certain assurances with respect to the maintenance of the plan and the eligibility of the employees they represented.  In short, the parties decided to incorporate the conditions for applying the pension plan into the collective agreement.  In this context, the employer appeared to retain effective control over the administration of the pension plan while committing itself, at least implicitly, to respect and fulfil various rights and obligations provided for in the plan or arising out of the legislation applicable to it.  In so doing, it also recognized the in personam and subject‑matter jurisdiction of the grievance arbitrator.  This is not a case that would justify the Superior Court in exercising its exceptional residual jurisdiction.  [47‑55]

To ascribe the status of representative to B by granting his motion for authorization to institute a class action would be incompatible with the legal mandates of representation accorded by the Labour Code to the nine certified unions representing the university’s employees.  The pension plan, having been negotiated and incorporated into the collective agreement, became a condition of employment in respect of which B lost his right to act on an individual basis.  B accordingly does not have the power to apply to the ordinary courts to demand the application of provisions of this plan.  [56]

The solution in the instant case is not free of procedural difficulties, particularly because of the multiplicity of possible proceedings and of potential conflicts between separate arbitration awards in respect of the different bargaining units.  However, confirming the jurisdiction of grievance arbitrators would not automatically lead to multiple arbitration proceedings.  Civil procedure includes a number of ways to resolve the problems caused by multiple proceedings.  There is nothing from which to infer that arbitration could give rise to abuses of right through which the various unions would profit excessively from the procedure available to them.  [58‑61]

Finally, the question whether a class action limited to non‑unionized employees lies was not before this Court.  The Court accordingly refrains from ruling on this subject.  [63]

Per McLachlin C.J. and Bastarache and Binnie JJ. (dissenting):  A labour arbitrator enjoys exclusive jurisdiction over matters whose essential character arises out of the interpretation, application, administration or violation of a collective agreement, but his or her exclusive jurisdiction does not extend beyond that point.  Since, in the instant case, the pension plan transcends any single collective agreement, the only forum with jurisdiction to hear this claim is the Superior Court.  [67] [75] [99]

The fund associated with the pension plan is a single entity.  It constitutes one patrimony in which employees covered by nine different collective agreements and hundreds of different employment contracts are entitled to share.  Because of the multiplicity of collective agreements, the issues involved in B’s claim are independent of the collective agreement and relate directly to the indivisible fund.  They are not products of bilateral labour negotiations that resulted in the collective agreement, nor could they be, given that employees with different collective agreements and employment contracts all share in them equally.  Consequently, the presence of a single fund, in contrast with the multiple collective agreements and employment contracts that were concluded well after it was created, helps establish that the essential character of B’s claim arises out of the plan.  Because the fund is indivisible, and because more than one collective agreement seeks to regulate access to the pre‑existing fund, no single collective agreement could purport to alter or affect the fund itself.  To allow one to do so would be to let the parties to that collective agreement dictate the content of the fund for all other beneficiaries.  [77‑80]

The risk of contradictory rulings is inevitable, both in theory and in practice, if the essential character of the dispute is said to arise out of the collective agreement linking B to the university.  This is so because the same issue must also be said to arise, in its essential character, out of each of the other collective agreements and employment contracts linking fund beneficiaries to the university.  The result is that the same claim, shared by all fund beneficiaries but capable of being resolved in only one way, may be decided differently by different arbitrators, each of whom is acting within his or her own jurisdiction.  There is no way of reconciling contradictory orders like this.  Bringing B’s claim before the superior court is the only way to avoid a multiplicity of proceedings and contradictory results.  In the end, it is also the only principled and practical way for B’s claim to be resolved.  [91‑93] [96]

Cases Cited

By LeBel J.

Referred to:  Nadon v. Anjou (Ville d’), [1994] R.J.Q. 1823; Comité d’environnement de La Baie inc. v. Société d’électrolyse et de chimie Alcan ltée, [1990] R.J.Q. 655; Syndicat national des employés de l’Hôpital St‑Charles Borromée v. Lapointe, [1980] C.A. 568; Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46; Malhab v. Métromédia C.M.R. Montréal inc., [2003] R.J.Q. 1011; Tremaine v. A.H. Robins Canada Inc., [1990] R.D.J. 500; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; Carrier v. Québec (Ministre de la Santé et des Services sociaux), [2000] Q.J. No. 3048 (QL); Hamer v. Québec (Sous‑ministre du Revenu), [1998] Q.J. No. 1600 (QL); Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001 SCC 39; Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206; Isidore Garon ltée v. Tremblay, [2006] 1 S.C.R. 27, 2006 SCC 2; Hémond v. Coopérative fédérée du Québec, [1989] 2 S.C.R. 962; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; R. v. Mills, [1986] 1 S.C.R. 863; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Allen v. Alberta, [2003] 1 S.C.R. 128, 2003 SCC 13; J.M. Asbestos Inc. v. Lemieux, SOQUIJ AZ‑85149091, rev’d [1986] Q.J. No. 613 (QL); Union internationale des employés professionnels et de bureau, local 480 v. Albright & Wilson Amérique ltée (2000), 28 C.C.P.B. 306; Emerson Electric Canada ltée v. Foisy (2006), 50 C.C.P.B. 287, 2006 QCCA 12; Hydro‑Québec v. Corbeil (2005), 47 C.C.P.B. 200, 2005 QCCA 610; Association provinciale des retraités d’Hydro‑Québec v. Hydro‑Québec, [2005] R.J.Q. 927, 2005 QCCA 304; Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1992] 2 S.C.R. 7; Syndicat des professionnelles et professionnels du gouvernement du Québec v. Paquet (Collège d’enseignement général et professionnel régional de Lanaudière et Syndicat des professionnelles et professionnels du gouvernement du Québec, section locale 8), [2005] Q.J. No. 678 (QL), 2005 QCCA 109; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495.

By Bastarache J. (dissenting)

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001 SCC 39; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Lacroix v. Société Asbestos ltée (2004), 43 C.C.P.B. 267; J.M. Asbestos Inc. v. Lemieux, [1986] Q.J. No. 613 (QL); Union internationale des employés professionnels et de bureau, local 480 v. Albright & Wilson Amérique ltée (2000), 28 C.C.P.B. 306; Emerson Electric Canada ltée v. Foisy (2006), 50 C.C.P.B. 287, 2006 QCCA 12, aff’g (2005), 50 C.C.P.B. 261; Hydro‑Québec v. Corbeil (2005), 47 C.C.P.B. 200, 2005 QCCA 610; Vidéotron ltée v. Turcotte, [1998] Q.J. No. 2742 (QL); London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766; Elkview Coal Corp. v. U.S.W.A., Local 9346 (2001), 205 D.L.R. (4th) 80, 2001 BCCA 488; Syndicat des professionnelles et professionnels du gouvernement du Québec v. Paquet (Collège d’enseignement général et professionnel régional de Lanaudière et Syndicat des professionnelles et professionnels du gouvernement du Québec, section locale 8), [2005] Q.J. No. 678 (QL), 2005 QCCA 109; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23.

Statutes and Regulations Cited

Civil Code of Québec, S.Q. 1991, c. 64, art. 1261.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 55, 462, 940 et seq., 999, 1000, 1002, 1003, 1007.

Labour Code, R.S.Q., c. C‑27, ss. 1(f), 21, 28, 47.2, 100.1, 100.12, 101.

Supplemental Pension Plans Act, R.S.Q., c. R‑15.1, ss. 6, 24, 146.5, 243.2, 243.1 to 243.19.

Authors Cited

Beaulieu, Jacqueline, et autres.  Loi sur les régimes complémentaires de retraite: annotations et commentaires.  Québec: Régie des rentes du Québec, 1992 (feuilles mobiles mises à jour mars 1998, envoi n^o 6).

Blouin, Rodrigue, et Fernand Morin.  Droit de l’arbitrage de grief, 5^e éd.  Cowansville, Qué.: Yvon Blais, 2000.

Crête, Raymonde. “Les régimes complémentaires de retraite au Québec: une institution à découvrir en droit civil” (1989), 49 R. du B. 177.

Ferland, Denis, et Benoît Emery, dir.  Précis de procédure civile du Québec, vol. 2, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 2003.

Gagnon, Robert P.  Le droit du travail du Québec, 5^e éd.  Cowansville, Qué.:  Yvon Blais, 2003.

Gagnon, Robert P., Louis LeBel et Pierre Verge.  Droit du travail, 2^e éd.  Sainte‑Foy: Presses de l’Université Laval, 1991.

Lauzon, Yves.  Le recours collectif.  Cowansville, Qué.:  Yvon Blais, 2001.

Savard, Manon, et Anouk Violette.  “Les affaires Weber, O’Leary, et Canadien Pacifique Ltée: que reste‑t‑il pour les cours de justice?”, dans Développements récents en droit du travail (1997).  Cowansville, Qué.: Yvon Blais, 1997, 49.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.) (2004), 42 C.C.P.B. 161, 2004 CarswellQue 688, [2004] Q.J. No. 3238 (QL), setting aside a decision of Crépeau J. (2003), 36 C.C.P.B. 180, [2003] Q.J. No. 4279 (QL).  Appeal allowed, McLachlin C.J. and Bastarache and Binnie JJ. dissenting.

Guy Du Pont, Nancy Boyle, Nick Rodrigo and Jean‑Philippe Groleau, for the appellant/respondent Concordia University.

John T. Keenan and Harold C. Lehrer, for the respondent/appellant Concordia University Faculty Association.

Mario Évangéliste and Marie Pépin, for the respondent Richard Bisaillon.

No one appeared for the respondents Régie des rentes du Québec, John Hall and Howard Fink.

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

LeBel J. — 

I.       Introduction

1                                   This appeal concerns an application for authorization to institute a class action filed by a unionized employee of Concordia University (“Concordia”).  According to the class action, Concordia wrongfully used the fund of an employee pension plan to pay for contribution holidays and cover administrative costs, and to finance early retirement packages.  This case raises sensitive legal issues connected with the relationships between civil remedies, the class action in particular, the jurisdiction of labour tribunals and the statutory framework governing supplemental pension plans.

2                                   In the case at bar, the class action is an inappropriate remedy.  In the circumstances of the case, such an action is incompatible with the exclusive jurisdiction of grievance arbitrators and the representative function of certified unions.  The Superior Court was therefore correct in allowing the declinatory exception to dismiss for lack of jurisdiction raised by the appellant, the Concordia University Faculty Association (“CUFA”), and dismissing the motion for authorization to institute a class action.  For the reasons that follow, I would allow the appeal, set aside the Court of Appeal’s decision reversing the judgment of the Superior Court and restore that judgment.

II.      Origin of the Case

3                                   On January 1, 1977, Concordia established a supplemental pension plan for its employees (“Pension Plan”).  This plan amended and replaced pension plans previously established by Sir George Williams University and Loyola College, which had been merged to form Concordia.

4                                   The Pension Plan is governed by the Supplemental Pension Plans Act, R.S.Q., c. R‑15.1.  As required under that Act, it has been registered with the Régie des rentes du Québec (s. 24).  The Pension Plan is the only such plan offered to Concordia employees, and all eligible employees, unionized or not, may participate in it.  It is a defined benefit pension plan to which the employer is required to contribute to ensure that members receive a fixed benefit amount upon retirement.  Employees themselves may also contribute to the plan.  These contributions and the income derived from them are paid into the pension fund, which is a trust patrimony appropriated to the payment of the benefits to which the beneficiaries are entitled.

5                                   According to the evidence, the Pension Plan has over 4,100 members. Approximately 350 of its active members are non‑unionized professional employees or managers.  The vast majority — over 80 percent — of the Pension Plan’s members are unionized employees covered by one of the nine collective agreements between Concordia and its nine certified unions.  Each of these collective agreements refers in one way or another to the Pension Plan.  Seven of them specifically provide that the employees they cover are entitled to participate in Concordia’s pension plan in accordance with the terms set out in the plan.  In the collective agreement between Concordia and one union, CUPFA, Concordia agrees to maintain the existing Pension Plan for employees in its bargaining unit.  Finally, the collective agreement applicable to another union, CULEU‑Vanier, refers indirectly to the Pension Plan by specifying the ages at which employees become eligible for full retirement benefits or for early retirement.

6                                   The Pension Plan has been amended several times since being established in 1977.  Some of the amendments led to disagreements between Concordia and most of the unions.

7                                   As a result of these disagreements, the respondent Bisaillon, claiming to represent all members of Concordia’s pension plan, applied to the Superior Court for authorization to institute a class action against Concordia in order to contest a number of decisions made with respect to the administration and use of the pension fund.  Mr. Bisaillon, who has been an employee of Concordia for many years, has been a member of several unions certified to negotiate with it.  He has contributed to the Pension Plan since its establishment.  At the time the motion for authorization was filed, he was a member, and president, of CUSSU‑TS, a certified union.  At the time the motion was heard, however, he had become a member of CUPFA.

8                                   In his motion for authorization, Mr. Bisaillon submitted that Concordia had made several changes to the Pension Plan without notifying the members or obtaining their consent.  According to the respondent, Concordia first amended the Pension Plan in order to charge the plan’s administrative costs to the pension fund, whereas Concordia itself had assumed those costs in the past.  Concordia also changed certain provisions of the plan in order to grant itself contribution holidays and to reclaim part of the surplus in the event of termination of the plan.  The respondent consequently submitted that, in so doing, Concordia had wrongfully subtracted from the pension fund an estimated $41,626,800 in the form of contribution holidays, an estimated $15,000,000 by having the fund cover the plan’s administrative costs and, finally, another $15,000,000 by using a portion of the Pension Plan’s surplus in support of its downsizing program.  According to the conclusions set out in his motion, Mr. Bisaillon’s intention in seeking to institute this class action was to obtain a declaration that the changes made to the Pension Plan were null and to compel Concordia to pay back the money it had unlawfully taken from the pension fund.  Concordia and CUFA contested the motion.

9                                   Before the application for authorization to institute a class action was filed, CUFA had, following negotiations with Concordia, agreed to the measures now contested by Mr. Bisaillon.  The appellant CUFA represents nearly 30 percent of the Pension Plan’s active members.  The other eight unions had also tried, unsuccessfully, to negotiate with Concordia regarding these amendments, at the same time seeking a variety of improvements to the Pension Plan for their members.  Despite this impasse, these eight unions filed no grievances under their respective collective agreements to contest the measures taken by Concordia.  Instead, they supported and financed the respondent’s attempt to institute a class action.

10                               CUFA tried to have Mr. Bisaillon’s motion to authorize the institution of a class action dismissed.  To this end, it filed a motion in the Superior Court in which it raised a declinatory exception and asked that the respondent’s application for authorization be dismissed.  In its motion, CUFA, supported by Concordia, submitted that the Superior Court lacked jurisdiction.  According to CUFA’s submissions, the dispute concerned issues relating to collective bargaining and to the implementation of a collective agreement, which are within the exclusive jurisdiction of a grievance arbitrator.  It added that the application by the respondent Bisaillon to be authorized to represent all the Pension Plan’s members interfered unduly with the performance by the certified unions of their representative function in respect of most of these members.  Finally, the appellant submitted that Mr. Bisaillon, who is bound by a collective agreement that incorporates the provisions of the Pension Plan by reference, must use the grievance procedure to resolve any dispute with his employer regarding the plan.

III.    Judicial History

A.     Quebec Superior Court (2003), 36 C.C.P.B. 180

11                               On April 25, 2003, Crépeau J. of the Superior Court allowed CUFA’s declinatory exception and accordingly dismissed the respondent Bisaillon’s motion for authorization to institute a class action.  According to Crépeau J., the Pension Plan was a benefit provided for in the collective agreement, and the dispute therefore resulted from the application of that agreement.  Consequently, only a grievance arbitrator would have jurisdiction to hear the case.  Crépeau J. noted that the respondent did not have an individual right distinct from those provided for in the collective agreement.  He also pointed out that the conditions of employment of 80 percent of the plan members Mr. Bisaillon wished to represent had been established by agreements and that these conditions included the Pension Plan.  Crépeau J. added that Mr. Bisaillon had conceded that this class action was part of a negotiating strategy of the eight unions, which were dissatisfied with Concordia’s refusal to negotiate improvements to the Pension Plan.

B.      Quebec Court of Appeal (2004), 42 C.C.P.B. 161

12                               According to the Court of Appeal, the instant case had nothing to do with the collective agreement that applied to the respondent Bisaillon.  In its view, the Pension Plan existed independently of any collective agreement.  Moreover, a grievance arbitrator appointed under a collective agreement would not have the necessary jurisdiction to hear all the claims raised in the class action, that is, his or her jurisdiction would not extend to the claims of the employees covered by the other eight collective agreements or those of the non‑unionized employees.  The Court of Appeal then expressed its concern about the chaos that could ensue if different arbitration tribunals were to render contradictory decisions.  In light of this, the essential character of the dispute favoured having the Superior Court exercise its residual jurisdiction over all matters not falling within the jurisdiction of another court.  This result was supported by the Superior Court’s exclusive jurisdiction over class actions under art. 1000 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”).  For these reasons, the Court of Appeal allowed the appeal and dismissed CUFA’s motion for declinatory exception.

IV.    Analysis

A.     Issue

13                               This appeal raises the issue of the compatibility of the class action with collective representation mechanisms in labour law, with the system for applying collective agreements and with the procedure for resolving labour disputes through grievance arbitration.  In short, can the class action be used to bypass the representation and grievance resolution mechanisms established under Quebec labour law?

14                               To answer this question, I will begin by reviewing the legal framework governing the various aspects of the issue raised by this appeal.  To this end, I will analyse the nature of the class action, the collective representation system in Quebec labour law, the jurisdiction of grievance arbitrators and the statutory framework governing supplemental pension plans.

B.      Legal Framework

(1)  Nature of the Class Action: A Procedural Vehicle

15                               The class action, which is provided for in arts. 999 et seq. C.C.P., is a procedure that enables one member of a group to sue, without a mandate, on behalf of all members of the group whose legal recourses raise similar questions (arts. 999(d) and 1003 C.C.P.).  The procedure is commenced when one of the members of the group brings a motion for authorization to institute a class action (art. 1002 C.C.P.).  If authorization is granted, the Superior Court ascribes the status of group representative to the moving party.  The representative must be in a position to represent all the group members adequately (art. 1003(d) C.C.P.).  Article 1000 C.C.P. provides that the Superior Court has exclusive jurisdiction over class actions.

16                               The class action has a social dimension.  Its purpose is to facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights (Nadon v. Anjou (Ville d’), [1994] R.J.Q. 1823 (C.A.), at p. 1827; Comité d’environnement de La Baie inc. v. Société d’électrolyse et de chimie Alcan ltée, [1990] R.J.Q. 655 (C.A.); Syndicat national des employés de l’Hôpital St‑Charles Borromée v. Lapointe, [1980] C.A. 568).  This Court has already noted that legislation on class actions should be construed flexibly and generously: Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, at para. 14; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46, at para. 51.

17                               The class action is nevertheless a procedural vehicle whose use neither modifies nor creates substantive rights (Malhab v. Métromédia C.M.R. Montréal inc., [2003] R.J.Q. 1011 (C.A.), at paras. 57‑58; Tremaine v. A.H. Robins Canada Inc., [1990] R.D.J. 500 (C.A.), at p. 507; Y. Lauzon, Le recours collectif (2001), at pp. 5 and 9).  It cannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not do so: D. Ferland and B. Emery, eds., Précis de procédure civile du Québec (4th ed. 2003), vol. 2, at pp. 876‑77.

18                               For example, in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211, this Court confirmed that the provisions of the Code of Civil Procedure pertaining to class actions did not change the substantive rules of evidence (paras. 31‑36).  Thus, unless otherwise provided, the substantive law continues to apply as it would in a traditional individual proceeding.  L’Heureux‑Dubé J. stated the following in this regard: “Those provisions certainly do not create new rules of evidence; rather, they adapt to class actions the methods by which a right, which previously could be claimed only by each person entitled to it, may be exercised” (para. 32).

19                               Similarly, recourse to this procedural vehicle does not change the legal rules relating to subject‑matter jurisdiction.  The Quebec Court of Appeal discussed this question in, inter alia, Carrier v. Québec (Ministre de la Santé et des Services sociaux), [2000] Q.J. No. 3048 (QL).  In that case, the appellant, a medical specialist, had applied to the Superior Court for authorization to institute a class action to contest the legality of an agreement between the Minister of Health and the Federation of Medical Specialists of Quebec.  The agreement, which provided for lower pay for certain physicians in their first few years of practice, had been negotiated under a special collective bargaining system established by the Health Insurance Act, R.S.Q., c. A‑29.  That Act gave a council of arbitration exclusive jurisdiction over disputes resulting from the interpretation or application of this type of agreement.

20                               Having concluded that the case fell within the exclusive jurisdiction of the council of arbitration, the Court of Appeal had no difficulty holding that the motion for authorization to institute a class action should be dismissed.  Its focus on that occasion was on the procedural nature of the class action:

[translation]  The provisions of the Code of Civil Procedure respecting class actions are purely procedural and do not create substantive law.  It cannot therefore be concluded from the fact that a class action must by instituted in the Superior Court that a special scheme supplanting jurisdictional rules has been created.  [para. 55]

21                               In Hamer v. Québec (Sous‑ministre du Revenu), [1998] Q.J. No. 1600 (QL), the purpose of the proposed class action was to have the court vacate notices of assessment that had been sent to a large number of taxpayers pursuant to the federal  Income Tax Act  and Quebec’s Taxation Act.  The Quebec Court of Appeal began by noting that the tax legislation applicable to the case had conferred special jurisdiction in such cases on the Court of Québec and the Tax Court of Canada.  It then summarized and confirmed — correctly, in my view — the trial judge’s opinion regarding the effect of the class action procedure on the jurisdiction of the courts:

[translation]  The Superior Court concluded that commencing a suit by means of a representative proceeding, as in the case of this motion for authorization to institute a class action, did not in any way alter the Superior Court’s subject‑matter jurisdiction.  Rather, it postulated that such jurisdiction already exists with respect to the matter in dispute.  Consequently, the trial judge dismissed the appeal.  This judgment contains no error of law subject to review by this Court.  [para. 5]

22                               In short, the class action procedure cannot have the effect of conferring jurisdiction on the Superior Court over a group of cases that would otherwise fall within the subject‑matter jurisdiction of another court or tribunal.  Except as provided for by law, this procedure does not alter the jurisdiction of courts and tribunals.  Nor does it create new substantive rights.  Determining whether such a proceeding lies in respect of issues relating prima facie to the law of collective labour relations thus requires a careful review of the institutions and fundamental rules specific to this branch of law.  It is to this subject that I must now turn.

(2)  Collective Representation System in Labour Law

23                               The Labour Code, R.S.Q., c. C‑27 (“L.C.”), recognizes that any association of employees having a representative character in relation to a separate group of employees within an employer’s enterprise is entitled to be certified (s. 21 L.C.).  This separate group — the bargaining unit — consists of one or more employees whose association is deemed appropriate for collective bargaining purposes (R. P. Gagnon, Le droit du travail du Québec (5th ed. 2003), at p. 289).  The certification of an association of employees produces a variety of legal consequences, both for the association itself and for the employees and the employer.

24                               First, the Labour Code gives certified unions a set of rights, the most important of which is most certainly the monopoly on representation.  When it is certified, a union acquires the exclusive power to negotiate conditions of employment with the employer for all members of the bargaining unit with a view to reaching a collective agreement.  Once a collective agreement is in place, the union’s monopoly on representation also extends to the implementation and application of the agreement.  For example, a certified union holds a monopoly with respect to the choice of solutions for the implementation of the collective agreement.  “The union's power to control the process includes the power to settle cases or bring cases to a conclusion in the course of the arbitration process, or to work out a solution with the employer, subject to compliance with the parameters of the legal duty of representation” (Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001 SCC 39, at para. 45).

25                               Second, the monopoly on representation also has a significant impact on employees’ rights.  Our system of collective representation proscribes the individual negotiation of conditions of employment.  A screen is erected between the employer and the employees in the bargaining unit (Noël, at para. 42).  This screen prevents the employer from negotiating directly with its employees and in so doing precludes the employees from negotiating their individual conditions of employment directly with their employer (Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206; Noël; Isidore Garon ltée v. Tremblay, [2006] 1 S.C.R. 27, 2006 SCC 2).  Moreover, once a collective agreement is signed, it becomes the regulatory framework governing relations between the union and the employer, as well as the individual relationships between the employer and employees:  Hémond v. Coopérative fédérée du Québec, [1989] 2 S.C.R. 962, at p. 975; Noël, at para. 43; Isidore, at para. 14.

26                               The system of collective representation thus takes certain individual rights away from employees.  In particular, employees are denied the possibility of negotiating their conditions of employment directly with their employer and also lose control over the application of those conditions.  In return, by negotiating with the employer with one voice through their union, employees improve their position in the balance of power with the employer (Isidore, at para. 38).  Moreover, the individual interests of each member of the bargaining unit are protected in a system of collective representation.  For example, in order to be certified to represent employees, a union must obtain the support of a majority of the employees in the bargaining unit (s. 28 L.C.).  Furthermore, having regard to the provisions of s. 21 L.C., it follows from the case law that employees must, inter alia, have a certain commonality of interests where labour relations are concerned and that this helps to protect employees’ individual interests.  Lastly, while the monopoly on representation confers rights upon certified unions, it also imposes upon them a duty to act properly by, for example, taking into account the competing interests of all employees in the bargaining unit: s. 47.2 L.C.; Noël, at paras. 46‑55.

27                               Finally, the collective representation system in labour law has a significant impact on the employer.  It requires the employer to recognize the certified union and to enter into good‑faith collective bargaining exclusively with it.  However, the employer also derives various benefits from the collective representation system.  In particular, employers acquire the right to industrial peace for the term of the collective agreement and can, in principle, expect that disagreements stemming from the implementation and application of the collective agreement will be negotiated with the union or settled through the grievance arbitration process.  As I noted in Noël:

The impact of this system on the employer is sometimes overlooked.  Although the scheme imposes obligations on the employer relating to the employees and the union, it offers employers, in return, the prospect of temporary peace in their companies.  An employer can expect that the problems negotiated and resolved with the union will remain resolved and will not be reopened in an untimely manner on the initiative of a group of employees, or even a single employee.  This means that, for the life of a collective agreement approved by the bargaining unit, the employer gains the right to stability and compliance with the conditions of employment in the company and to have the work performed continuously and properly.  However reluctant the members of a dissenting or minority group of employees may be, they will be bound by the collective agreement and will have to abide by it.

In administering collective agreements, the same rule will apply to the processing and disposition of grievances.  Administering the collective agreement is one of the union's essential roles, and in this it acts as the employer’s mandatory interlocutor.  If the representation function is performed properly in this respect, the employer is entitled to compliance with the solutions agreed on.  [paras. 44‑45]

28                               It is worth noting that the monopoly on collective representation is not limited to the context of the collective agreement but extends to all aspects of employee‑employer relations (Isidore, at para. 41; Noël, at para. 57).  The union’s monopoly with respect to collective bargaining is based not only on the existence of a collective agreement, but also on the certification of the union (Isidore, at para. 38; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at pp. 1007‑8).  For this reason, any negotiations regarding conditions of employment that are not mentioned in the current collective agreement must be conducted by the certified union.

(3)  Jurisdiction of Grievance Arbitrators

29                               As Robert P. Gagnon explains, [translation] “A grievance arbitrator’s jurisdiction depends on two factors.  The first has to do with the subject or the nature of the dispute; this is the subject‑matter aspect of the arbitrator’s jurisdiction.  The second factor relates to the persons who are parties to the dispute; this therefore is the personal aspect of the arbitrator’s jurisdiction” (p. 506).  It should be noted however that subject‑matter jurisdiction includes the power to grant an appropriate remedy (R. v. Mills, [1986] 1 S.C.R. 863, at p. 890, and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 63‑66).  Thus, in order to acquire jurisdiction in a given case, a grievance arbitrator must have jurisdiction over the essential subject matter of the dispute in order to ultimately grant an appropriate remedy.

(i)   Subject‑Matter Jurisdiction of Grievance Arbitrators

30                               I will begin by reviewing the subject‑matter aspect of the jurisdiction of grievance arbitrators.  The Labour Code gives the grievance arbitrator exclusive jurisdiction over “any disagreement respecting the interpretation or application of a collective agreement” (ss. 1(f) and 100.1 L.C.).  To determine whether a dispute arises out of a collective agreement, it is necessary to follow the analytical approach adopted by this Court in Weber.  As McLachlin J. explained, “The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement” (Weber, at para. 52).

31                               The first stage of this approach consists in identifying the essential character of the dispute.  On this point, the Court has stressed that what must be done is not limited to determining the legal nature of the dispute.  On the contrary, the analysis must also take into account all the facts surrounding the dispute between the parties: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 25 and 29.

32                               At the second stage, it must be determined whether the factual context so identified falls within the ambit of the collective agreement.  In other words, it must be determined whether the collective agreement implicitly or explicitly applies to the facts in dispute.  In Regina Police, this Court explained this second stage of the analysis as follows:

Simply, the decision‑maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement.  Upon determining the essential character of the dispute, the decision‑maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations.  It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly.  If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide . . . . [para. 25]

33                               This Court has considered the subject‑matter jurisdiction of grievance arbitrators on several occasions, and it has clearly adopted a liberal position according to which grievance arbitrators have a broad exclusive jurisdiction over issues relating to conditions of employment, provided that those conditions can be shown to have an express or implicit connection to the collective agreement: Regina Police; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Allen v. Alberta, [2003] 1 S.C.R. 128, 2003 SCC 13.

34                               What can be said about issues involving the interpretation or application of provisions of collective agreements relating to pension plans?   The Quebec Court of Appeal has on numerous occasions held such issues to be within the exclusive jurisdiction of the grievance arbitrator.

35                               In J.M. Asbestos Inc. v. Lemieux, SOQUIJ AZ‑85149091, the Superior Court held that a council of arbitration appointed pursuant to a collective agreement did not have jurisdiction to hear a dispute between a unionized employee and his employer regarding the interpretation of pension plan provisions.  The complainant wanted the employer to recognize that he was disabled for the purposes of the pension plan.  The Court of Appeal set aside the Superior Court’s decision and confirmed that the council of arbitration had jurisdiction.  In the Court of Appeal’s view, the dispute arose out of the interpretation, application, performance or violation of the collective agreement.  Article 22 of the agreement provided that the benefits plan, including the pension plan, existing at the time the agreement was signed should be maintained for the duration of the agreement.  Even though the pension plan was in effect long before the collective agreement was signed, the Court of Appeal concluded that the inclusion of art. 22 in the agreement had transformed the obligations arising out of the plan into obligations to the union (J.M. Asbestos Inc. v. Lemieux, [1986] Q.J. No. 613 (QL), at para. 8).

36                               Subsequently, in Union internationale des employés professionnels et de bureau, local 480 v. Albright & Wilson Amérique ltée (2000), 28 C.C.P.B. 306, the Quebec Court of Appeal held that a grievance arbitrator had jurisdiction to decide whether a contribution holiday the employer had granted itself was valid.  The collective agreement provided that the employer was to continue contributing to the pension plan throughout the term of the collective agreement and that no changes could be made to the plan without the union’s consent (para. 24).

37                               Lastly, in Emerson Electric Canada ltée v. Foisy (2006), 50 C.C.P.B. 287, 2006 QCCA 12, the Court of Appeal accepted the prevailing line of authority, according to which issues relating to a pension plan that has been incorporated into a collective agreement arise, at least implicitly, out of the collective agreement (para. 4).  In that case, as in the cases I mentioned in the preceding paragraphs, the collective agreement provided, inter alia, that the employer was to continue offering the pension plan for a specified term.  A provision or reference of this nature in a collective agreement is sufficient to establish the arbitrator’s jurisdiction over a dispute respecting the interpretation or application of a pension plan.

38                               Another approach, one even more favourable to finding that a grievance arbitrator has jurisdiction, appears to be being developed in decisions of the Quebec Court of Appeal.  For example, in Hydro‑Québec v. Corbeil (2005), 47 C.C.P.B. 200, 2005 QCCA 610, the Court of Appeal held that an arbitrator had jurisdiction without relying on the existence in the collective agreement of any reference to the pension plan.  In that case, the Court found the pension plan to form part of the employees’ remuneration and conditions of employment and, on that basis, to be an integral part of the collective agreement.  (See also Association provinciale des retraités d’Hydro‑Québec v. Hydro‑Québec, [2005] R.J.Q. 927, 2005 QCCA 304.)  Since practically all collective agreements address employee remuneration, grievance arbitrators would, under this approach, almost automatically have jurisdiction in such cases.  Similarly, M. Savard and A. Violette have expressed the view that the inclusion in a collective agreement of very general clauses, such as the classic clause recognizing the employer’s management rights, could confer jurisdiction over issues regarding the application and implementation of benefits plans, including pension plans.  A grievance arbitrator would thus have jurisdiction over such issues even in the absence of an express reference to the pension plan in the collective agreement (“Les affaires Weber, O’Leary, et Canadien Pacifique Ltée: que reste‑t‑il pour les cours de justice?”, in Développements récents en droit du travail (1997), 49, at pp. 72‑73).  In the case at bar, however, there is no need to rule on the validity of this approach, since, as I will explain, the collective agreements in question make express reference to the Pension Plan.

(ii)   In Personam Jurisdiction of Grievance Arbitrators

39                               I will now turn to the in personam jurisdiction of grievance arbitrators.  It is true that the courts generally focus on the subject‑matter aspect of the grievance arbitrator’s jurisdiction, which I have just discussed.  However, as the Court of Appeal concluded in the instant case, [translation] “the arbitrator responsible for hearing grievances arising out of the collective agreement between the respondent and the intervener has no jurisdiction to hear claims of persons to whom the agreement does not apply” (para. 14).  In my view, there is no disputing this conclusion.  R. Blouin and F. Morin refer to this dual aspect of the arbitrator’s jurisdiction:

[translation]  In fact, if there is a collective agreement, a grievance is possible if the dispute can be resolved based on the collective agreement.  However, it must be added that a grievance will be possible only to the extent that the disagreement involves parties with a connection to the agreement in question, that is, the employer and the certified union or the employees to whom the collective agreement applies.

(Droit de l’arbitrage de grief (5th ed. 2000), at p. 149)

40                               When a grievance arbitrator finds it impossible to resolve a dispute or a part of a dispute because he or she does not have jurisdiction over the parties, the ordinary courts retain jurisdiction over the dispute (Gagnon, at p. 547).  Such situations are likely to arise where the grievance arbitrator cannot claim to have authority over persons considered to be third parties in relation to the collective agreement and cannot render decisions against them.  However, there is nothing to prevent third parties from voluntarily and expressly submitting to a grievance arbitrator’s jurisdiction, thereby bestowing jurisdiction upon him or her: Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1992] 2 S.C.R. 7.

41                               The inherent limits on their in personam jurisdiction do not mean that grievance arbitrators have to ensure that their decisions have no effect on third parties.  It is possible for third parties who do not belong to the bargaining unit, such as company managers, to be directly or indirectly affected by an arbitration award.  However, these third parties will not be legally bound by the award: Syndicat des professionnelles et professionnels du gouvernement du Québec v. Paquet (Collège d’enseignement général et professionnel régional de Lanaudière et Syndicat des professionnelles et professionnels du gouvernement du Québec, section locale 8), [2005] Q.J. No. 678 (QL), 2005 QCCA 109, at para. 40.  As we shall see, the mere fact that the same issue arises in the collective agreements of several different bargaining units with a single employer does not oust the jurisdiction of the grievance arbitrator in favour of the ordinary courts.

(iii)  Residual Jurisdiction of the Superior Court

42                               Grievance arbitrators have very broad powers, both explicit and implicit, so as to be able to grant any remedies needed to implement the collective agreement: see, inter alia, s. 100.12 L.C. and R. P. Gagnon, L. LeBel and P. Verge, Droit du travail (2nd ed. 1991), at p. 710.  Despite this broad arbitral jurisdiction, the ordinary courts retain a residual inherent jurisdiction in any exceptional cases in which a grievance arbitrator might lack the powers he or she needs to grant the remedy required to resolve a dispute: Weber, at para. 57; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495.  This residual jurisdiction would be useful, if not essential, if, for example, an arbitration tribunal were unable to adopt needed provisional measures in a timely manner (Gagnon, at pp. 546‑47).  This special jurisdiction of the Superior Court is not in issue in the case at bar.

(4)  Statutory Framework Governing Supplemental Pension Plans

43                               To complete this review of the legal framework of this appeal, brief consideration must now be given to the statutory framework governing supplemental pension plans in Quebec.  Under the Supplemental Pension Plans Act, the Régie des rentes du Québec has a general mandate to ensure that pension plans are administered and operated in compliance with that Act.  The Régie des rentes does not, however, act as an administrative tribunal with the power to resolve disagreements over the interpretation of pension plans (R. Crête, “Les régimes complémentaires de retraite au Québec: une institution à découvrir en droit civil” (1989), 49 R. du B. 177, at p. 209; Régie des rentes du Québec, Loi sur les régimes complémentaires de retraite: annotations et commentaires (loose‑leaf), at pp. 245‑1 and 245‑2).  The Act does not provide generally for a special forum to which the parties to a pension plan might apply to resolve contractual disputes between them.  It does, however, provide for a few exceptions.  First, it establishes a consensual arbitration procedure for cases in which there is disagreement over an amendment to a pension plan that confirms the employer’s right to appropriate surplus assets to the payment of employer contributions (s. 146.5).  The employer, each of the certified unions concerned, and all active plan members not represented by a union must agree to submit to private arbitration.  This arbitration procedure is the one provided for in arts. 940 et seq. C.C.P.  Furthermore, s. 243.2 of the Act provides that “[a]ny matter relating to the allocation of a surplus of assets determined upon the termination of a pension plan comes under the exclusive jurisdiction of the arbitrators”, in accordance with the specific provisions of the Act (ss. 243.1 to 243.19).

44                               The case at bar does not correspond to any of these situations provided for in the Act.  On the one hand, the dispute is outside the ambit of s. 146.5, and the parties have not agreed to use the arbitration procedure from the Code of Civil Procedure.  On the other hand, since the Pension Plan is still effective, the dispute in the instant case does not concern the termination or winding‑up of the plan.  To determine the appropriate forum for this dispute and, in so doing, to rule on the merits of the respondent Bisaillon’s motion for authorization to institute a class action, it is therefore necessary to refer to the general rules governing the jurisdiction of grievance arbitrators.

C.     Bar to the Class Action

45                               The situation before the Court is certainly complex.  It concerns interrelationships involving Concordia, several bargaining units and their respective collective agreements, and non‑unionized staff.  However, this complexity does not justify disregarding institutions and fundamental rules governing the law of collective labour relations, such as the jurisdiction of grievance arbitrators.  Yet the authorization of a class action on behalf of the group the respondent Bisaillon claims to represent would have just that result in the circumstances of the instant case.

(1)  Incompatibility of the Class Action With the Mechanisms of Collective Representation and of Implementation of the Collective Agreement

46                               The respondent’s position undermines two pillars of our collective labour relations system: the exclusivity of the arbitrator’s jurisdiction and the collective representation system.  Although these principles overlap in their application to the case at bar, I will deal with them separately.

(i)   Exclusivity of the Arbitrator’s Jurisdiction

47                               The Superior Court lacks subject‑matter jurisdiction with respect to both the dispute between Mr. Bisaillon and Concordia and most of the disputes concerning the other members of the group covered by the class action.  These various disputes fall within the exclusive jurisdiction of the grievance arbitrators appointed under the applicable collective agreements.

48                               I will begin by discussing the in personam jurisdiction of grievance arbitrators.  In the instant case, the Court of Appeal rejected the arbitration option adopted by the Superior Court, because, inter alia, it felt that a grievance arbitrator did not have the required jurisdiction to rule on the issues raised in respect of all the members of the group covered by the class action (para. 12).  In my view, the Court of Appeal erred in adopting this position.

49                               The Court of Appeal should not have focussed on determining whether the grievance arbitrator under one agreement had jurisdiction over every potential member of the group covered by the class action.  Instead, it should have begun by determining whether a grievance arbitrator had jurisdiction to rule on the individual proceeding between Mr. Bisaillon and Concordia.  It should then have enquired into the nature of the individual claims of the majority of the other members of the group and into the in personam jurisdiction of the arbitrator with regard to those claims.  Absent such an analysis, the Court of Appeal’s position removed individual proceedings, over which the arbitrator had jurisdiction, from the grievance arbitration process and assigned them to the Superior Court — which otherwise had no jurisdiction over the parties or the subject matter — simply because a motion for authorization to institute a class action had been filed.  This position disregards both the principles applicable to class actions and the nature of this procedure.

50                               Furthermore, with regard to the subject‑matter aspect of the dispute, the jurisdiction of the arbitrator under each of Concordia’s collective agreements has been established in the case at bar.  The facts alleged in the respondent Bisaillon’s motion, namely, the unilateral amendments made by the employer to the Pension Plan and the question of their validity, are at least implicitly, and perhaps even explicitly, linked to the collective agreements and to the application thereof.

51                               As I mentioned above, each of the collective agreements in force at the time the motion was filed refers in one way or another to the Pension Plan.  This was true, more specifically, of the collective agreement that originally applied to the respondent Bisaillon.  On this subject, a degree of uncertainty remains as to which collective agreement is applicable to the respondent Bisaillon for the purposes of this appeal.  The issue is not determinative, however, since the relevant provisions appear to be similar.

52                               The collective agreement applicable to Mr. Bisaillon at the time his motion for authorization was filed contained the following provisions:

32.01:

Employees covered by this collective agreement are eligible for the University benefits program, in accordance with the conditions stipulated therein.

32.02:

The Benefits Program consists of the following:

Life Insurance;

Health Insurance;

Salary Insurance;

Pension Plan. [Emphasis added.]

53                               As for the collective agreement applicable to Mr. Bisaillon at the time the judge heard the application, it provided as follows:

15.03   Pension Plan

(a) The Employer agrees to maintain the Pension Plan currently in use for employees at the coverage and benefit levels and under the terms and conditions set by the Pension Committee and the Board of Governors. [Emphasis added.]

54                               In these provisions, Concordia made a commitment to the unions to offer the Pension Plan to the employees covered by the agreements in accordance with the conditions of the plan.  The unions thus obtained certain assurances with respect to the maintenance of the plan and the eligibility of the employees they represented.  In effect, the parties decided to incorporate the conditions for applying the Pension Plan into the collective agreement.  In this context, the employer was not in the position of a third person, such as an insurer providing insurance benefits proposed by the parties to the collective agreement.  On the contrary, Concordia appeared to retain effective control over the administration of the Pension Plan while committing itself, at least implicitly, to respect and fulfil various rights and obligations provided for in the plan or arising out of the legislation applicable to it.  In so doing, it also recognized the in personam and subject‑matter jurisdiction of the grievance arbitrator.

55                               This is not a case that would justify the Superior Court in exercising its exceptional residual jurisdiction.  If the respondent’s allegations proved to have merit, the grievance arbitrator would have the necessary jurisdiction in a grievance proceeding to declare the employer’s decisions to be null, and to decide on an appropriate remedy.  Accordingly, the Superior Court did not err in declaring that it lacked jurisdiction to hear the case on the basis that the grievance arbitrator had exclusive jurisdiction in the matter.

(ii)   Union’s Monopoly on Representation

56                               To ascribe the status of representative to the respondent Bisaillon by granting his motion for authorization to institute a class action would be incompatible with the legal mandates of representation accorded by the Labour Code to the nine certified unions representing Concordia employees.  The Pension Plan, having been negotiated and incorporated into the collective agreement, became a condition of employment in respect of which the employees lost their right to act on individual basis, independently of the union representing them.  As confirmed in Noël, the employees no longer have the power to apply to the ordinary courts to demand the application of provisions of the plan.  Contrary to all these principles, a class action in the case at bar would jeopardize an explicit agreement — entered into within the framework set out in the Labour Code — between CUFA and Concordia with respect to the very subjects to which it applies.

57                               If the eight unions that disagreed with Concordia felt that their collective agreements had been violated, it was up to them to assert the rights of the employees they represent.  As the disagreement arose, at least implicitly, out of the collective agreement, the unions should have pursued the collective bargaining process begun with the employer or filed a grievance with an arbitrator to defend the rights of their bargaining units.  Their tactical decision to yield their power of representation to Mr. Bisaillon disregarded the legal mandates the Labour Code attributes to them as certified unions and the obligations it imposes on them in respect of the employees and the employer.

(2)  Problems Resulting From the Arbitration Solution

58                               Although I am of the view that the trial judge correctly concluded that the Superior Court lacked jurisdiction in the instant case, I must admit that this solution is not free of procedural difficulties, particularly because of the multiplicity of possible proceedings and of potential conflicts between separate arbitration awards in respect of the different bargaining units.  However, the potential difficulties are not sufficient to justify referring the matter to the Superior Court and holding that it has jurisdiction.

59                               Since the grievance arbitrator derives his or her jurisdiction from the collective agreement for a particular bargaining unit, each of the unions involved in the case at bar could of course, pursuant to its own agreement, file a grievance alleging the unlawfulness of the employer’s amendments to the Pension Plan.  The filing of such grievances could give rise to a series of parallel arbitration proceedings.

60                               The Court of Appeal was accordingly concerned about the chaos that could ensue if contradictory decisions were to result.  The respondent has not demonstrated that a real possibility of such procedural chaos exists.  It is not a foregone conclusion that confirming the jurisdiction of grievance arbitrators would automatically lead to multiple arbitration proceedings.  Various options remain open under the fundamental rules of labour law.  Thus, it is possible in such situations that all, or at least a large number of, the unions would decide to come to an agreement with the employer to submit the various grievances to a single arbitrator.  In the instant case, it would be hard for the employer to oppose this approach, which I feel should have been the preferred one for all the parties involved.  Moreover, should one arbitrator decide a grievance filed by one of the unions in the union’s favour, all the employees would benefit indirectly from this award, since all the money wrongfully taken from the pension fund would be returned.  Any grievances filed by the other unions would, in practice, become moot.  Assuming the worst, if there were contradictory or incompatible arbitration awards, Concordia could probably, subject to the limited possible grounds for judicial review by the Superior Court, resolve any conflict by complying with the award least favourable to it.

61                               Does the solution adopted in the case at bar effectively give the unions nine kicks at the can, allowing each one in turn to file a grievance, with the ultimate aim of requiring the employer to abide by the award most unfavourable to it?   I think not.  There are a number of tools of civil procedure that can be used to resolve the problems caused by multiple proceedings.  I see nothing from which to infer that arbitration could give rise to abuses of right through which the various unions would profit excessively from the procedure available to them.

62                               Furthermore, the problems associated with multiple proceedings are not unique to arbitration.  If the motion for authorization to institute a class action had been granted in the instant case, nothing would have prevented some members, whether unionized or not, from requesting exclusion from the class action in order to pursue individual recourses (art. 1007 C.C.P.).

63                               What then can be said about the rights of non‑unionized members?   To begin with, they too would benefit indirectly from an arbitration award in favour of one of the unions but would not be legally bound by such an award.  In the instant case, this Court did not have to rule on the validity of a civil suit undertaken by the non‑unionized employees to assert their own rights, be it by means of a declaratory action, an action in nullity or a class action.  The question whether a class action limited to non‑unionized employees lies was not before this Court, so I will refrain from expressing an opinion on the subject.  I will simply note that modern civil procedure is flexible and would not leave these employees without effective recourse, and that this Court need not rule on the form and nature of that recourse at this time.

64                               In short, despite the fear that procedural difficulties — which, I might add, would not be insurmountable — might result from a decision in favour of arbitration, the class action option cannot be accepted.  To authorize a class action in the case at bar would be to deny the principles of the exclusivity of the grievance arbitrator’s jurisdiction and of the union’s monopoly on employee representation.  The Superior Court was thus correct in granting the motion for declinatory exception and dismissing the respondent Bisaillon’s motion for authorization to institute a class action.

V.     Disposition

65                               I would therefore allow the appeal, set aside the judgment of the Court of Appeal and restore the decision of the Superior Court, with costs throughout.

The reasons of McLachlin C.J. and Bastarache and Binnie JJ. were delivered by

Bastarache J. (dissenting) —

1.      Introduction

66                               I have had the opportunity to read the reasons of my colleague Justice LeBel, and I agree with many of the arguments raised in his analysis.  Thus, we agree that, although the respondent Bisaillon started this case as a class action, this cannot affect the substantive rights of those implicated therein.  Accordingly, we agree that the crux of this appeal lies in considering the proper jurisdiction of the labour arbitrator.  We further agree that, once established, the exclusive jurisdiction of arbitrators must continue to be protected by this Court, and that employees cannot sidestep the exclusive representation of their bargaining agents.  Finally, we are in agreement on the specific point that pension plans form part of employees’ conditions of employment and are often vigorously negotiated as part of the collective bargaining process.

67                               Where I part ways with LeBel J. is the specific conclusion, on the facts of this case, that this pension dispute can be traced back to the collective agreement that binds the respondent to the appellant university — or that it can be said to arise out of any collective agreement involving the appellant university, for that matter.  Far from constituting a departure from the general principles elaborated by my colleague, my conclusion recognizes that the role of labour arbitrators and labour unions must be respected.  But Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, demands a nuanced and contextual analysis animated by the relevant factual matrix before a decision on jurisdiction can be reached (paras. 52-53); see also Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at para. 25.  In the present appeal, this analysis leads to the conclusion that the pension plan at issue (the “Plan”) transcends any single collective agreement or employment contract and, therefore, falls outside the exclusive jurisdiction of the labour arbitrator.

68                               The claim advanced by the respondent centres around the financing of the Plan itself.  It is unaffected by the particular agreement binding a given member of the Plan to the appellant university.  Thus, while I agree that pension plans may sometimes be “swallowed up” by collective agreements that incorporate them, this cannot be what happened here.  In this case, unlike those cited by LeBel J., the indivisible nature of the Plan patrimony contrasts directly with the nine distinct collective agreements and hundreds of distinct employment contracts that bind the Plan members to the appellant university.  Put simply, the Plan transcends any one collective agreement.  To state otherwise — in other words, to state that the Plan does indeed arise out of a given collective agreement — implies that the parties to that collective agreement, and the arbitration that results therefrom, effectively have the power to bind all other persons who have an interest in the Plan.

69                               Because the Plan cannot be reduced to a single collective agreement, it should be expected that problems will result if a labour arbitrator is given exclusive jurisdiction by virtue of one such agreement.  As LeBel J. acknowledges, these problems indeed loom large if his approach is accepted.  For instance, one can anticipate that different courts and arbitrators, all gaining jurisdiction from different collective agreements and employment contracts, could come to mutually incompatible decisions on how the appellant university should administer the Plan.  If this was an unfortunate consequence of the correct application of Weber, and a necessary evil in guarding the rightful territory of labour unions and arbitrators, then I, like my colleague, would be willing to accept it.  With respect, however, I believe the risk of inconsistent decisions is symptomatic of a misapplication of Weber.  I cannot agree that Weber allows for the same party to be bound by inconsistent directions from different courts and arbitrators, all claiming — rightfully, according to my colleague — to have jurisdiction over the essential character of the dispute.  The fact that this possibility exists here confirms that the essential character of this appeal arises out of something other than the collective agreement:  the Plan itself.

70                               In my reasons I will follow this Court’s jurisprudence suggesting that employees can have employment-related rights that do not give rise to a labour arbitrator’s exclusive jurisdiction.  I will then apply the Weber framework to determine that the present dispute is one of those situations.  Finally, I will conclude by discussing the implications of adopting an approach that does not conform to the principles of Weber.

2.      A Labour Arbitrator’s Exclusive Jurisdiction Is Not Unlimited

71                               As my colleague LeBel J. observes, there are two “exclusivities” implicated in this dispute.  The first is the exclusive right that unions have to represent the members of the relevant collective bargaining unit.  The second is the exclusive right that labour arbitrators have to decide disputes that arise out of the collective agreement.  While the first exclusivity may be relevant in determining who has a sufficient interest to bring forth the pension claim, it is the second exclusivity that will determine which forum has jurisdiction to hear it.  Because these two exclusivities do not necessarily have the same scope, the first exclusivity must not be used as a proxy for the second.  The fact that a union can act pursuant to its monopoly over representation does not imply that the labour arbitrator has the exclusive jurisdiction to hear its argument.  Conversely, a decision that the labour arbitrator does not possess exclusive jurisdiction over a matter will not necessarily mean that an employee, personally, has a sufficient interest to by-pass his/her union and apply for a remedy: compare Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001 SCC 39, at para. 70.  Jurisdiction must be established first.  Only then will it fall upon the decision-maker, properly seized of the dispute, to determine if it should proceed as pleaded.

72                               Without detracting from the importance of the first exclusivity, then, it is most relevant to the present appeal to recognize the limits that exist with respect to the second.  On this point, the jurisprudence admits of no doubt.  An employee may have any number of rights related to his/her employer, even relating to his/her employment, that fall outside the exclusive jurisdiction of the labour arbitrator:  see Weber, at para. 54; Regina Police Assn., at para. 24.  This Court had the opportunity to consider such a situation in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”).  That case involved a claim that certain employees were discriminated against by the addition of a new term to the collective agreement.  The majority held that the labour arbitrator did not have exclusive jurisdiction on application of the principles discussed in Weber.  In no uncertain terms, McLachlin C.J. wrote that Weber “does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer‑union disputes” (para. 11).  While I disagreed with the majority’s conclusion that the essential character of that dispute was one of human rights, I agree completely with this comment.  Once it was determined that the dispute, in its essential character, did not arise out of the collective agreement, it clearly followed that the appellant’s recourse to the Quebec Human Rights Tribunal was to be preserved.

73                               Morin confirms that the simple fact a dispute arises out of an employee’s conditions of employment is insufficient to trigger the exclusive jurisdiction of the labour arbitrator.  What is more, even where elements in a dispute arise specifically out of the collective agreement, the exclusive jurisdiction of the labour arbitrator will not arise unless the essential character of the claim arises out of the collective agreement.  It is not enough to say that the employee would not be here but for this collective agreement.  If the appellants are to succeed in the present appeal, they will need to go further than showing a mere connection between the respondent’s claim and the provisions of the collective agreement.

3.   The Labour Arbitrator Does Not Have Exclusive Jurisdiction Over the Respondent’s Claim

74                               The claim advanced by the respondent concerns the financing of the fund associated with the Plan (the “Fund”).  Specifically, and as my colleague ably describes (at para. 8), this dispute concerns the legality of various actions taken by the appellant university that served, according to the respondent, to deprive the Fund beneficiaries of more than $70,000,000.  The respondent wants these actions to be declared null, with the appropriate amounts being returned to the Fund.

75                               This is not a straightforward situation.  Nobody contests that unions can and do negotiate various provisions of a pension plan as part of their collective bargaining strategies.  The appellant university has been able to identify a few such issues in its own negotiations with unions — but they do not include the financing issues at the heart of the respondent’s claim.  Further, all parties recognize that a given union could negotiate pension benefits that would apply to its members exclusively and that, in such a case, it would be the responsibility of the employer to deliver those benefits in a way that did not run afoul of its agreements with other unions.  At the same time, however, it is beyond doubt that the only forum with jurisdiction to hear this claim by the non-unionized employees interested therein is the Quebec Superior Court.

76                               The question before us is therefore whether this particular dispute implicates collective agreement issues that would necessitate dividing jurisdiction between the courts and labour arbitrators, or whether it is more principled to locate the essence of this particular pension dispute outside the collective agreement.  According to Weber, the labour arbitrator will enjoy exclusive jurisdiction only if the essential character of the respondent’s claim can properly be reduced to a matter arising out of a single collective agreement, concluded between a single union and the employer.  I conclude that this is not the case for the respondent’s claim.

3.1    The Respondent’s Claim Implicates the Fund as an Indivisible Patrimony

77                               The Fund itself is a single entity.  It constitutes one patrimony from which all beneficiaries are entitled to benefit:  see s. 6 of the Supplemental Pension Plans Act, R.S.Q., c. R-15.1; art. 1261 of the Civil Code of Québec, S.Q. 1991, c. 64.  Neither in fact nor in law can it be understood as the amalgam of various parts, each one associated with a particular employment agreement.  It is one indivisible whole.

78                               The indivisibility of the Fund is central to an understanding of the respondent’s claim against the appellant university.  To be precise, it explains why the respondent’s claim is shared by every other beneficiary of the Fund.  After all, there are nine different unions and hundreds of different employees who are interested in this claim.  There are nine different collective agreements and hundreds of different employment contracts that entitle beneficiaries to a share in the Fund.  But when it comes to the respondent’s claim against the appellant university, these differences all disappear.  It is not simply that the other beneficiaries have an interest in the respondent’s claim, in the way that a manager may have an interest in how labour disputes get resolved (see LeBel J.’s reasons, at para. 41).  All Fund beneficiaries share the same claim.  This is because the claim arises out of the single Fund, not the diverse employment relationships and union affiliations of the beneficiaries.  If the Fund is under financed, regardless of their collective agreement or employment contract, the beneficiaries are all affected in the same way.  Equally, a decision on the respondent’s claim affects all Fund beneficiaries:  as my colleague notes,

should one arbitrator decide a grievance filed by one of the unions in the union’s favour, all the employees would benefit indirectly from this award, since all the money wrongfully taken from the pension fund would be returned. [para. 60]

In my view, this confirms that the respondent’s claim transcends the specific collective agreement or employment contract that forms the basis of an employee’s entitlement.

79                               The conclusion I reach does not ignore the role that the respondent’s collective agreement plays in his claim.  I recognize that the respondent’s relationship to the appellant university is the reason why he cares about the Fund:  but for his employment, he would not have any interest in the financing of the Fund.  Yet, his collective agreement means nothing more to this claim; it is hardly its essential character.  The issues involved in the respondent’s claim are completely independent of the collective agreement and relate directly to the indivisible Fund.  They are not the product of the bilateral labour negotiations that resulted in the collective agreement, nor could they be, given that employees with different collective agreements and employment contracts all share in them equally.  As Binnie J. wrote in Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, where this Court held a pre-employment agreement to be outside the jurisdiction of the labour arbitrator, “[s]uch disputes are foreign to the collective agreement and are not embraced by the legislative intent favouring arbitration” (para. 24).

80                               On the facts before us, the presence of a single Fund, in contrast with the multiple collective agreements and employment contracts that were concluded well after it was created, helps identify that the essential character of the respondent’s claim arises out of the Plan.  Because the Fund is indivisible, and because more than one collective agreement seeks to regulate access to the pre-existing Fund, no single collective agreement could purport to alter or affect the Fund itself.  To do so would be to let the parties to that collective agreement dictate the content of the Fund for all other beneficiaries.  Likewise, to find jurisdiction for the respondent’s claim on the basis of his collective agreement would be to let the labour arbitrator dictate the content of the Fund for beneficiaries beyond his/her jurisdiction.  A dispute that transcends the collective agreement cannot be dealt with as if it affected only the one union.  This insight, of course, is nothing new.  It is merely an application of the holding in Weber.

3.2    Recourse to the Labour Arbitrator Presumes the Simplicity of a Single Union Situation or the Specificity of the Dispute to a Single Collective Agreement Negotiation

81                               The respondent’s claim against the appellant university cannot be reframed as a bilateral labour dispute that conforms to the paradigm of labour arbitration.

82                               This is not to suggest that pension disputes will necessarily, or even usually, fall outside the exclusive jurisdiction of the labour arbitrator.  I agree with my colleague that the jurisprudence in Quebec and elsewhere in Canada supports the notion that pension disputes are often arbitrable.  However, this will only be the case where the pension dispute does not transcend the collective agreement in question.  Each case must be analyzed on its facts because it is always possible for a pension dispute to arise independently of the collective agreement:  compare Lacroix v. Société Asbestos ltée (2004), 43 C.C.P.B. 267 (Que. C.A.).

83                               Where there is one pension plan that applies wholly and uniquely to a single bargaining unit, it will be comparatively easy to contend that the pension dispute arises out of the collective agreement between the employer and the union.  The union, after all, represents all the members of the pension plan and bargains for the content of this plan on their behalf.  To say the labour arbitrator lacks jurisdiction simply because the totality of the plan is not found on the paper labelled “Collective Agreement” would be unduly formalistic, and would ignore this Court’s instruction that the essential character of the dispute need only “implicitly” arise out of the collective agreement to bestow exclusive jurisdiction on the labour arbitrator: see Regina Police Assn., at para. 25.

84                               Additionally, even if the pension plan in question has some other elements that transcend a single union’s negotiations, a labour arbitrator will possess exclusive jurisdiction over a dispute that concerns an issue specific to a given collective agreement.  For instance, an employer may have negotiated access to the pension plan differently with one union than with another.  A dispute surrounding this unique provision, being rooted in the discrete collective agreement that binds the parties, can be considered in isolation without affecting the rights of those persons not bound by that collective agreement.  The labour arbitrator will enjoy exclusive jurisdiction over this issue.

85                               These two situations where pension matters often fall to the labour arbitrator — i.e., where there is a single union involved and where the issues in dispute are unique to a single collective agreement negotiation — are merely instances of the rule in Weber. They are situations where the pension matters in dispute may properly be said to fall within the ambit of negotiations between the unions and the employers and the collective agreements that resulted therefrom.  This is precisely what happened in those cases cited by my colleague LeBel J.  In J.M. Asbestos inc. v. Lemieux, [1986] Q.J. No. 613 (QL) (C.A.), Union internationale des employés professionnels et de bureau, local 480 v. Albright & Wilson Amérique ltée (2000), 28 C.C.P.B. 306 (Que. C.A.), Emerson Electric Canada ltée v. Foisy (2006), 50 C.C.P.B. 287, 2006 QCCA 12, and Hydro-Québec v. Corbeil (2005), 47 C.C.P.B. 200, 2005 QCCA 610, the scope of the disputes was restricted to issues arising out of, and thus the persons bound by, the applicable collective agreements.  The same cannot be said about the respondent’s claim, where the essential character of the dispute transcends the collective agreement.  In fact, this difference has not escaped the Quebec courts:  both the Quebec Court of Appeal, in the Hydro-Québec appeal (at paras. 31-32) cited by LeBel J., and the Quebec Superior Court, in the Foisy decision ((2005), 50 C.C.P.B. 261, at para. 83) that was affirmed in the brief appeal judgment cited by LeBel J., explicitly made this distinction part of their rulings.

86                               The present situation is more closely analogous to one where a collective agreement includes a benefit for employees that is external to that agreement — for example, where an insurance policy is incorporated into the collective agreement.  In both situations, but for the collective agreement, the employee would not have the benefit.  But in both situations, despite the fact that entitlement to the benefit is tailored to the collective agreement, the contours of the benefit itself have been determined elsewhere.  Accordingly, appellate courts have held that even where insurance policies are referenced in a collective agreement, this fact does not transform the insurance dispute into one that arises out of the collective agreement, and does not serve to create jurisdiction for the labour arbitrator over the third-party insurer:  see Vidéotron ltée v. Turcotte, [1998] Q.J. No. 2742 (QL) (C.A.); London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766 (C.A.); Elkview Coal Corp. v. U.S.W.A., Local 9346 (2001), 205 D.L.R. (4th) 80, 2001 BCCA 488.  Put differently, the union and employer may arbitrate disputes relating to the insurance provisions of the collective agreement; but scrutiny of the insurance policy itself, which implicates broader interests and individuals beyond the collective agreement, is another matter entirely.  The same can be said about the Plan.  The collective agreements in question may confirm the availability of the Plan for employees, but they do not —  and cannot — go so far as to affect the substance of the Plan itself.  Nothing prevents a labour arbitrator from claiming exclusive jurisdiction over those matters that arise out of the collective agreement.  But nothing justifies this jurisdiction extending beyond that point, either, where the dispute would concern matters and parties that fall well outside the scope of the collective agreement’s application.  Again, this is nothing more than an application of Weber.

3.3    Conclusion on Jurisdiction

87                               Based on the foregoing, it is clear to me that the respondent’s claim against the appellant university is not one over which the labour arbitrator could enjoy exclusive jurisdiction.

88                               The essential character of the dispute transcends any collective agreement based on which the labour arbitrator could assert exclusive jurisdiction.  Any attempt by a labour arbitrator to decide the respondent’s claim would call upon the arbitrator to determine issues and bind parties that reach far beyond the individual collective agreement properly in front of him/her.  This unique characteristic of the respondent’s claim was not present in any of the jurisprudence canvassed by my colleague.

89                               The labour arbitrator does not have jurisdiction over the parties to this dispute either.  While LeBel J. restricts the scope of the claim to the respondent and the appellant university (at paras. 47 and 49), with respect, I cannot accede to this reasoning.  One cannot simply declare that the labour arbitrator has jurisdiction over the relevant parties by artificially restricting who qualifies as a party.  In this pension dispute, all Fund beneficiaries share in this claim and should be involved.  The labour arbitrator’s jurisdiction does not extend that far.

4.  Contradictory Rulings as a Result of the Misapplication of Weber

90 I will conclude my reasons by referring to the possibility of contradictory rulings mentioned by my colleague LeBel J.  While he characterizes this possibility as an unfortunate consequence of the statutory scheme, I respectfully believe it is a direct consequence of his misapplication of Weber to the present facts.  I endeavour to show that this risk is inevitable, both in practice and in theory, based on his reasoning.

91                               That the risk of contradictory rulings is inevitable in practice should be clear from my colleague’s reasons.  While he suggests that unions might agree to be bound by a singular arbitration, and while other claims might be discarded as abusive, he also emphasizes that persons not party to the arbitration could not be legally bound by the arbitration (paras. 41, 60-61 and 63).  In fact, LeBel J. himself raises the great incentive that employees would have for bringing multiple claims:  “Concordia could probably, subject to the limited possible grounds for judicial review by the Superior Court, resolve any conflict by complying with the award least favourable to it” (para. 60 (emphasis added)).  With regard to the respondent’s claim, so long as the arbitrator renders a decision that is unsatisfactory to one of the remaining eight unions or approximately 350 employees covered by the Plan, one could expect the dispute to be reopened.

92                               That the risk of contradictory rulings is inevitable in theory is even more worrisome in my view.  This risk arises because LeBel J.’s application of Weber yields too many forums with jurisdiction.  On the issue “Did the appellant university illegally take money from the Fund?”, my colleague decides that its essential character arises out of the collective agreement linking the respondent to the appellant university.  But by the same token, the same issue must also be said to arise, in its essential character, out of each one of the other collective agreements and employment contracts linking Fund beneficiaries to the appellant university.  The result is that the same claim, shared by all Fund beneficiaries but capable of being resolved in only one way, may be decided differently by different arbitrators, each of whom is acting within his/her jurisdiction.

93                               Let me be clear:  this is not akin to a situation where different arbitrators interpret a legislative provision differently, or where different arbitrators apply the same legislative provision differently to similar sets of facts.  It is not even akin to a situation where the same section of a collective agreement is interpreted one way by an arbitrator seized of one set of facts, and another way by another arbitrator seized of a different set of facts.  This would be a situation where the same indivisible Fund would be said to contain a certain amount of money according to one arbitrator, and a different amount of money according to another.  Thus, the inconsistency that would plague the respondent’s claim is not the kind of inconsistency that troubles courts but still gives litigants clear guidance; it is the kind of inconsistency that purports to resolve the same, singular claim in different ways.  There is no way of reconciling contradictory orders like this.

94                               An arbitrator faced with deciding the respondent’s claim would therefore be confronted with a truly absurd situation.  Because his/her jurisdiction would be restricted to the collective agreement before him/her, his/her decision could only bind the persons affected by that collective agreement:  Syndicat des professionnelles et professionnels du gouvernement du Québec v. Paquet (Collège d’enseignement général et professionnel régional de Lanaudière et Syndicat des professionnelles et professionnels du gouvernement du Québec, section locale 8), [2005] Q.J. No. 678 (QL), 2005 QCCA 109, at paras. 38-40; s. 101 of the Labour Code, R.S.Q., c. C-27.  Yet, because his/her decision would determine the status of an indivisible Fund that affects parties beyond the collective agreement, his/her decision would effectively bind them as well — unless they chose to seek another determination from another arbitrator, at which point the parties that the original arbitrator sought to bind would be thrust into limbo.  This situation is made even worse by two additional facts.  First, the appellant university would be a party to all these arbitrations, and thus would be legally bound by all of them.  Second, without engaging in a thorough analysis of the applicable standard of review, I would expect that the arbitrators’ decisions would be entitled to some deference:  compare Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at paras. 34-40; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at paras. 12-16; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23, at paras. 15-30.  This means that mutually incompatible decisions that emerge from the arbitrators could not be reconciled on review so long as each one is reasonable (or, perhaps, so long as each one is not patently unreasonable).

95                               With respect, I believe a proper application of Weber necessarily precludes such a result.  By focussing on the essential character of the dispute, this Court established that a dispute can only be framed in one way, and jurisdiction is to be decided on that basis.  No doubt, this exercise can be artificial at times:  the respondent’s claim implicates labour interests just as it implicates pension rights.  But this exercise is nonetheless absolutely necessary.  So long as the essential character of a dispute arises out of a collective agreement, the effect of any one arbitrator’s decision can be confined to that collective agreement without giving rise to concerns about contradiction.  But if “essential character” is given the broad meaning adopted by my colleague, such that the essential character of a single dispute can be said to arise out of many different sources simultaneously, with each yielding jurisdiction for different forums, the insight of Weber is defeated.

96                               In my view, the absurd multiplicity of proceedings associated with the respondent’s claim is symptomatic of a misapplication of the Weber test.  Bringing the claim in front of the Quebec Superior Court’s inherent jurisdiction is the only way to avoid this result because it is the only solution that recognizes that the essential character of this dispute transcends any one collective agreement, and thus the exclusive jurisdiction of any labour arbitrator.  It is the only principled and practical way for the respondent’s claim to finally be resolved.  At the same time, and for the same reason this claim escapes the labour arbitrator’s exclusive jurisdiction in the first place, a decision by the Quebec Superior Court will not imperil any of the terms negotiated individually by any of the unions involved.  Such matters remain the exclusive domain of the labour arbitrator.

97                               In reaching this conclusion, I do not comment on whether the respondent’s proposed class action should be certified as such.  That is a matter for the Quebec Superior Court to decide.  Accordingly, the possibility that some litigants may opt out of the class action and begin their own court proceedings is irrelevant at this stage.  The respondent’s claim may be argued individually, authorized as a class action, or joined with independent actions by other beneficiaries; it may even need to be resolved by an appellate court.  But whichever of these options ultimately materializes, an application to the Quebec Superior Court is still the only procedure that offers the hope of conclusively settling how the appellant university should finance the Fund.

98                               I also do not purport to decide whether the respondent has a “sufficient interest” to proceed with this claim independently of his union:  see art. 55 of the Code of Civil Procedure, R.S.Q., c. C-25.  This Court has only been asked to determine whether the Quebec Superior Court has jurisdiction.  Now that this has been established, though, that court may still refuse to render judgment if it is not convinced of the sufficiency of the respondent’s interest in the claim:  see art. 462 of the Code of Civil Procedure.  Again, any uncertainty concerning the answer to this question cannot serve to remove jurisdiction from the Quebec Superior Court.  To the contrary, the Quebec Superior Court is the only forum vested with the jurisdiction to hear this claim whomever may be most suited to advance it.

5.  Conclusion

99                               While a labour arbitrator enjoys exclusive jurisdiction over matters whose essential character arises out of the interpretation, application, administration or violation of a collective agreement, his/her exclusive jurisdiction does not extend beyond that point.  Rather, in such a situation, the inherent jurisdiction of the superior court will be engaged.  In the present appeal, the respondent’s claim transcends the collective agreement binding him to the appellant university and directly implicates the Fund of which he is but one of many beneficiaries.  The essential character of this dispute cannot be said to arise out of a collective agreement.

100                           I would dismiss the appeal.

Appeal allowed with costs, McLachlin C.J. and Bastarache and Binnie JJ. dissenting.

Solicitors for the appellant/respondent Concordia University:  Desjardins Ducharme Stein Monast, Montréal; Davies Ward Phillips & Vineberg, Montréal.

Solicitors for the respondent/appellant Concordia University Faculty Association:  Keenan Lehrer, Montréal.

Solicitors for the respondent Richard Bisaillon:  Pépin & Roy, Montréal.