Held: The appeal should be allowed.
The arbitrator did not exceed his jurisdiction by substituting a penalty which the disciplinary committee had no power to impose. Since the Regulation respecting the ethics is not part of the collective agreement, s. 60 of the Regulation pertaining to penalties applies only to the disciplinary committee and not to the arbitrator. The latter exercised the jurisdiction conferred on him by s. 100.13 of the Labour Code and clause 27.15 of the collective agreement. This jurisdiction allows him, in a disciplinary matter, to substitute the decision which he deems fair and reasonable, taking into account the circumstances concerning the matter. In a matter such as the present one, only a case where the decision of the arbitrator would constitute an abuse of power amounting to fraud and capable of producing a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. In the case at bar such an abuse was not established.
Cases Cited
Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, followed; Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; Syndicat des professeurs du CEGEP Vieux‑Montréal v. CEGEP Vieux‑Montréal, [1977] 2 S.C.R. 568, referred to.
Statutes and Regulations Cited
Code of Civil Procedure, art. 846.
Labour Code, R.S.Q., c. C‑27, ss. 100.13, 139.
Police Act, R.S.Q., c. P‑13, s. 3.
Regulation respecting the ethics and discipline of the policemen of the Communauté urbaine de Montréal, R.R.Q. 1981, c. C‑37.2, r. 1, ss. 57, 60, 72.
APPEAL from a judgment of the Quebec Court of Appeal1, which reversed a judgment of the Superior Court2, refusing to issue a writ of evocation. Appeal allowed.
1 J.E. 83‑253; Mtl. C.A., No. 500‑09‑001265‑818, February 9, 1983.
2 J.E. 81‑899; Mtl. S.C., No. 500‑05‑006917‑817, September 10, 1981.
Mario Létourneau, for the appellant.
Guy Lemay and Jacques Audette, for the respondent.
English version of the judgment of the Court delivered by
1. Chouinard J.‑‑The majority judgment of the Court of Appeal against which this appeal was brought reversed the judgment of the Superior Court and authorized a writ of evocation to be issued against the arbitral award made by the mis en cause on a grievance for dismissal.
2. The police officer represented by the Fraternité was found guilty of shoplifting two shirts with a total value of $60, an offence committed on September 21, 1979, and was dismissed: hence the grievance, dated May 13, 1980. The arbitrator found the penalty too severe and ordered that the police officer be reinstated, without financial compensation for the thirteen‑month period since the dismissal. The arbitrator concluded his award of some twenty‑one pages as follows:
[TRANSLATION] In view of the circumstances disclosed by the evidence as a whole, it seems to me that the dismissal of the complainant was too severe a penalty and that it is appropriate to order that the complainant be reinstated, within fifteen (15) days of this award, without compensation for the long period since the penalty was imposed.
The penalty thus retains sufficient rigour to serve as an example while doing justice to the complainant, who has paid quite dearly for the offence committed.
3. Section 57 of the Regulation respecting the ethics and discipline of the policemen of the Communauté urbaine de Montréal, R.R.Q. 1981, c. C‑37.2, r. 1, states that:
57. The committee of discipline shall be required to accept the certified copy of any final decision of a Canadian or foreign court declaring a policeman guilty of a criminal act and may then impose one or several of the penalties provided for in section 60.
4. The latter section provides:
60. The committee of discipline may impose one or several of the following penalties, for each allegation:
(a) a warning;
(b) a reprimand;
(c) a disciplinary transfer;
(d) a disciplinary suspension without pay for a maximum period of 60 working days;
(e) a demotion;
(f) dismissal.
5. It should be noted that according to these provisions the fact that a police officer has been convicted of a criminal offence does not necessarily entail dismissal. The police officer will be subject to one of the penalties specified in s. 60, and this may simply be a warning.
6. Reference should also be made to s. 72 of the Regulation:
72. This Regulation must not be interpreted as being able to affect a collective agreement arrived at between the Executive Committee of the Community and the Fraternité des policiers de la Communauté urbaine de Montréal Inc.
7. The parties are in fact covered by a collective agreement, clause 27.15 of which reads as follows:
27.15(a)In case of dismissal, suspension, reduction of rank or imposition of some disciplinary measure by the employer, the arbitrator may uphold the decision rendered or alter or quash it and direct, if should he see fit, the reimbursement by the employer of any money the policeman has lost as a result of the penalty imposed.
(b)However, the arbitrator may not modify or annul such decision unless it be unjust, in view of the evidence submitted.
(c)The powers of the arbitrator are limited to settling grievances in accordance with the letter and spirit of the agreement. In no case is the arbitrator authorized to add, deduct, alter or amend any matter whatsoever in this agreement.
8. The judges of the Court of Appeal as well as the Superior Court judge considered that the arbitrator derived his jurisdiction from this clause of the collective agreement and from s. 88m of the Labour Code, R.S.Q. 1964, c. 141, as amended by An Act to amend the Labour Code and the Labour and Manpower Department Act, 1977 (Que.), c. 41, s. 48, and corresponding at the time in question to R.S.Q., c. C‑27, s. 100.13:
100.13 In disciplinary matters, the court of arbitration may confirm, amend or set aside the decision of the employer; it may, if such is the case, substitute therefor the decision it deems fair and reasonable, taking into account the circumstances concerning the matter.
However, where the collective agreement provides for a specific penalty for the fault alleged against the employee in the case submitted to arbitration, the court of arbitration shall only confirm or set aside the decision of the employer, or, if such is the case, amend it to make it conformable to the penalty provided for in the collective agreement.
9. It was common ground that the collective agreement provides no specific penalty for the wrongful act alleged in the case.
10. Respondent submitted that before intervening and substituting a penalty for that imposed by the employer, the arbitrator should first determine whether the latter was unjust, which he did not do. Respondent based this argument on the fact that, in his conclusion cited above, the arbitrator characterized the dismissal as "too severe a penalty", but did not use the word "unjust". This argument appears to be without basis. The question of whether the arbitrator exceeded his jurisdiction in the context of this arbitral award is not simply a matter of the choice of words. After examining the provisions of the Regulation respecting the ethics and the provisions of the Labour Code, the arbitrator wrote: [TRANSLATION] "The question now is whether the penalty imposed was justified in the circumstances." After reviewing the particular circumstances of the case at bar, the arbitrator answered this question by concluding that the dismissal was "too severe a penalty". Additionally, in the following paragraph he wrote: "The penalty...retains sufficient rigour to serve as an example while doing justice to the complainant...." These observations appear to be quite sufficent in the context.
11. Respondent further submitted that the arbitrator could only impose one of the penalties specified in the Regulation respecting the ethics, which the disciplinary committee had the power to impose. Respondent further argued that the committee was correct in considering that the most severe penalty apart from dismissal, namely a sixty‑day suspension, was manifestly insufficient. Respondent wrote in its submission:
[TRANSLATION] In intervening as he did the mis en cause arbitrator relied on section 100.13 of the Labour Code, which provides that in a disciplinary matter an arbitrator may "substitute... the decision [he] deems fair and reasonable, taking into account the circumstances concerning the matter".
In giving the arbitrator this discretion, the legislator used the word "substitute" to indicate the extent of his mandate, and the dictionary Le Robert "Dictionnaire alphabétique et analogique de la langue française" gives the following definition of this word:
"SUBSTITUTE‑‑Put (thing or person) in place of another, to carry out the same function."
To begin with, it should be emphasized that while the arbitrator has the power to substitute his decision for that of the employer, the employer must still legally have the right to impose the disciplinary measures which the arbitrator decides to substitute.
Under the actual wording of section 60 of the Regulation respecting the ethics and discipline of the policemen of the Communauté urbaine de Montréal, a suspension of thirteen and one‑half (13½) months cannot be imposed by the disciplinary committee.
The function of a court of arbitration, under section 100.13 of the Labour Code, is to substitute its decision for that of the employer, but the award which the arbitrator makes must be something which the employer could have done: the employer definitely cannot have more disciplinary power than the employer itself would have had.
12. I find a complete answer to this argument in the following passage from the reasons of the Superior Court judge, which I adopt:
[TRANSLATION] This Regulation is not part of the collective agreement, and the arbitrator could only have exceeded his jurisdiction if the collective agreement referred to this Regulation or adopted it.
As a matter of fact, the purpose of this Regulation inter alia was to indicate the boundaries of the jurisdiction of persons required to impose disciplinary measures on behalf of an employer. Thus, the penalties provided in section 60 of the Regulation apply only to the disciplinary committee. In the absence of any specific provision to this effect, however, such as the second paragraph of section 100.13 of the Labour Code, the jurisdiction of the arbitrator cannot be limited.
As a matter of fact, the arbitrator in the case at bar exercised the jurisdiction conferred on him by the Act without being limited by it or by the agreement. In the exercise of this jurisdiction, which differs from that of the disciplinary committee acting on behalf of the employer, he could substitute the decision which he deemed fair and reasonable, taking into account the circumstances concerning the matter. This was the intent of the legislator and of the parties, which made no agreement to the contrary though they were entirely free to do so.
Thus, though the disciplinary committee could not impose a disciplinary suspension without pay for over sixty (60) working days without going on to dismissal, and though the fact that the arbitrator imposed a suspension without compensation for thirteen (13) and one‑half (½) months may give the impression of upholding the disciplinary committee, which since it could not impose such a penalty had no choice but to go on to dismissal, the fact remains that the arbitrator's jurisdiction differs from that of the disciplinary committee in that the Act, and the parties by their collective agreement, intended that the arbitrator should be able to substitute for the employer's decision the decision which he deemed fair and reasonable, taking into account the circumstances concerning the matter.
13. It is also necessary to consider the effect of the then applicable privative clause contained in s. 139 of the Labour Code, R.S.Q., c. C‑27:
139. No action under article 33 of the Code of Civil Procedure, or extraordinary recourse within the meaning of such code, or injunction shall be exercised against any council of arbitration, court of arbitration, arbitrator on grievances, certification agent, labour commissioner or the Court by reason of any act, proceeding or decision relating to the exercise of their functions.
14. In Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, Dickson J., as he then was, wrote at pp. 781‑82:
There is a very good policy reason for judicial restraint in fettering adjudicators in the exercise of remedial powers. The whole purpose in establishing a system of grievance adjudication under the Act is to secure prompt, final, and binding settlement of disputes arising out of interpretation or application of the collective agreement, or disciplinary action taken by the employer, all to the end that industrial peace may be maintained.
Take the present case. The appellant misconducted himself. The external tribunal to which the matter was referred considered that he should be disciplined, but only to the extent of a suspension. If the exercise of adjudicative authority does not permit remedial action by making the punishment fit the offence, then the decision of the adjudicator becomes largely a hollow pronouncement, signifying nothing. Either the grievance is allowed, in which case the appellant goes unpunished, a result which would seem wrong in the circumstances; or the appellant is discharged from employment, a result which, in the opinion of the adjudicator, for the mitigating reasons given by him, would result in injustice to the employee. In either case, the purpose of the adjudicative process in the administration of the collective agreement would be defeated. Relations between employer and union would become further exacerbated. If the process is to make any sense, a right to modify the severity of the discipline by imposing a lesser penalty must surely inhere in the exercise of adjudicative authority: see Re Polymer Corporation and Oil, Chemical, and Atomic Workers International Union, Local 16‑14, [1962] S.C.R. 338 (Sub nom Imbleau v. Laskin).
15. It is only where the decision of the arbitrator constitutes an abuse of power amounting to fraud and capable of producing a flagrant injustice that the courts may intervene in a case such as the one at bar.
16. In Syndicat des professeurs du CEGEP Vieux‑Montréal v. CEGEP Vieux‑Montréal, [1977] 2 S.C.R. 568, Pigeon J. wrote at p. 572:
This Court recently applied this rule in Air‑Care Ltd. v. The United Steel Workers of America, [1976] 1 S.C.R. 2. However, it is the duty of an arbitration board to interpret and apply the provisions of the agreement. A court may interfere with such interpretation and application only if they are an abuse of authority within the meaning of art. 846 C.C.P.
17. More recently, on November 22, 1984, long after the judgment of the Court of Appeal in the case at bar, which was rendered on February 9, 1983, this Court decided the case of Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, which in my opinion is conclusive.
18. That case concerned the very situation of dismissal of an employee, on the alleged ground that he had accepted favours from customers of the business, consisting of paid trips abroad. The employee's complaint of unjust dismissal was based on s. 124 of An Act respecting Labour Standards, R.S.Q., c. N‑1.1. Section 128 of that Act provides:
128. Where the arbitrator considers that the employee has not been dismissed for good and sufficient cause, he may
(1) order the employer to reinstate the employee;
(2) order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed;
(3) render any other decision he believes fair and reasonable, taking into account all the circumstances of the matter.
However, in the case of a domestic, the arbitrator may only order the payment to the employee of an indemnity corresponding to the wage and other benefits of which he was deprived due to dismissal up to a maximum period of three months.
19. The arbitrator directed the employer to rehire the employee and substituted for the dismissal a four‑month suspension without pay. This Court reversed the judgment of the Court of Appeal, which had authorized that a writ of evocation be issued, and restored the judgment of the Superior Court which had denied it. In the course of his reasons Beetz J., after citing art. 846 C.C.P., wrote at pp. 480‑81:
Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause.
I cannot say that the arbitrator's award constituted such an abuse.
The majority on the Court of Appeal appears in fact to have decided that the only reasonable sanction for the unquestionably reprehensible behaviour of appellant necessarily had to be the ultimate sanction of dismissal, and that by imposing a less severe penalty the arbitrator acted contrary to public order. It seems to me, be it said with the greatest respect, that this is coming close to confusing the appellant's actions and those of the arbitrator. I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole.
20. Respondent sought to make a distinction based essentially on the point disposed of above, namely that the disciplinary committee was limited to certain well‑defined penalties and that the arbitrator did not have the power to substitute for them a penalty which the disciplinary committee had no power to impose.
21. I consider that the rules stated in Control Data, supra, apply equally to the case at bar, and that it has not been shown "that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole".
22. Of course no one disputes this passage from the arbitral award, cited by respondent in its submission:
[TRANSLATION] Clearly, a police force is right to require exemplary rectitute and honesty from its members, since society relies on its police to ensure compliance with the law.
23. However, that is not what the Court has to decide.
24. Instead, the Court must determine, in accordance with the rules stated in Control Data, supra, whether the arbitrator exceeded his jurisdiction. In my opinion he did not do so.
25. I mentioned above that, under the Regulation respecting the ethics, the fact that a police officer has been found guilty of a criminal offence does not necessarily entail dismissal. Reference should also be made in part to s. 3 of the Police Act, R.S.Q., c. P‑13:
Qualifications. 3. To become a Police Force cadet, a member of the Police Force or a municipal cadet or policeman, a person must
(a) be a Canadian citizen;
(b) be of good moral character;
(c) never have been found guilty or pleaded guilty of an offence under the Criminal Code upon prosecution by way of indictment, or have pleaded guilty upon an information for an offence under the Criminal Code which, according to the information, should be prosecuted by way of indictment;
26. It appears from this section that a person convicted of an offence who is prosecuted by a summary proceeding, as is the case here, as opposed to a person convicted by a prosecution on indictment, is not necessarily barred from being a member of the Police Force. This does not mean that the conduct of the police officer in question is to be excused, but that it does not necessarily have the effect of barring him from such work and that there may be scope for a penalty less than dismissal. That is what the arbitrator had to decide.
27. For these reasons, I would allow the appeal with costs, reverse the judgment of the Court of Appeal and restore the judgment of the Superior Court denying leave to issue a writ of evocation.
Appeal allowed with costs.
Solicitor for the appellant: Mario Létourneau, Montréal.
Solicitors for the respondent: Lavery, O’Brien, Montréal.
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