Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 SCR 61

                                                 SUPREME COURT OF CANADA

Between:

Syndicat de la fonction publique du Québec

Appellant

and

Attorney General of Quebec

Respondent

‑ and ‑

Commission des normes du travail and Confédération des syndicats nationaux

Interveners

And Between:

Syndicat de la fonction publique du Québec

Appellant

and

Attorney General of Quebec

Respondent

‑ and ‑

Confédération des syndicats nationaux

Intervener

Official English Translation

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

______________________________

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

Syndicat de la fonction publique du Québec                                                                     Appellant

v.

Attorney General of Quebec                                                                                          Respondent

and

Commission des normes du travail and Confédération

des syndicats nationaux                                                                                                  Interveners

‑ and ‑

Syndicat de la fonction publique du Québec                                                                     Appellant

v.

Attorney General of Quebec                                                                                          Respondent

and

Confédération des syndicats nationaux                                                                           Intervener

Indexed as:  Syndicat de la fonction publique du Québec v. Quebec (Attorney General)

2010 SCC 28

File Nos.:  32771, 32772.

2009:  October 20; 2010:  July 29.

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

on appeal from the court of appeal for quebec

Labour relations — Wrongful dismissal — Recourse — Jurisdiction of arbitrator or Commission des relations du travail — Arbitration procedure provided for in collective agreement with respect to dismissal not available to employees without job security — Act respecting labour standards establishing recourse before Commission des relations du travail in case of dismissal without good and sufficient cause, except where equivalent remedial procedure provided for elsewhere in legislation or in agreement — Grievances filed in which employees complained they had been dismissed without good and sufficient cause — Whether labour standard prohibiting wrongful dismissal implicitly incorporated into collective agreement — Whether arbitrator or Commission has jurisdiction over complaint — Act respecting labour standards, R.S.Q., c. N‑1.1, s. 124.

The collective agreement for government employees between the union and the Quebec government provided that casual employees hired for periods of less than one year and with less than 12 months of service, and probationary employees, may not, on being terminated, grieve their dismissal.  The employment of C, a casual employee, and that of L, a probationary employee, were terminated.  The union filed grievances in which it alleged that the employees had been dismissed without good and sufficient cause.  As a preliminary matter in each of their cases, the employer challenged the arbitrator’s jurisdiction on the ground that jurisdiction over the complaints of wrongful dismissal lay with the Commission des relations du travail (“C.R.T.”).  The union argued that the standard of public order provided for in s. 124 of the Act respecting labour standards (“A.L.S.”) is implicitly incorporated into every collective agreement and that the arbitrator accordingly had the necessary jurisdiction to dispose of the grievances.  In C’s case, the arbitrator concluded that she had jurisdiction to hear the grievance, allowed the grievance and held that C had been wrongfully dismissed.  In L’s case, the arbitrator upheld the employer’s preliminary objection to his jurisdiction to hear the grievance.  On judicial review, the Superior Court held that the arbitrators had exclusive jurisdiction over the grievances.  The Court of Appeal set aside that decision.  It rejected the implicit incorporation argument and concluded that the C.R.T. has exclusive jurisdiction to decide a wrongful dismissal complaint.

Held (McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting):  The appeals should be allowed.

Per LeBel, Fish, Abella, Charron and Cromwell JJ.:  The implicit incorporation argument is not consistent with the words of the A.L.S. and disregards the drafting techniques used by the Quebec legislature when it intends to incorporate a specific standard into collective agreements or individual contracts of employment.  If the legislature had intended to incorporate the substantive standard established in s. 124 A.L.S. into every collective agreement, it would have done so expressly.  The status of the A.L.S. as a statute of public order must be considered from the perspective of how the hierarchy of relevant sources of labour law affects the content and implementation of collective agreements, not from that of the implicit incorporation argument.  The arbitrator considering a dismissal grievance must determine, in light of the modifications to the collective agreement that flow from the public order status of the A.L.S., whether he or she has the power under that agreement to grant the dismissed employee a remedial measure equivalent to the one available under s. 124 A.L.S.  If the answer to this question is no, the arbitrator lacks jurisdiction and must decline it in favour of the C.R.T.  In addition to ensuring recognition of the arbitrator’s jurisdiction, this approach enables the arbitrator to review the situation in the context of the entire collective agreement and to consider all relevant factors in analysing the equivalence of the recourse.  It is also consistent with the alternative nature of the recourse before the C.R.T., since the C.R.T. will hear a complaint only if the arbitrator who has initial jurisdiction to interpret the agreement determines that he or she cannot offer the employee a recourse equivalent to the one available through the C.R.T.

C and L were credited with two years of uninterrupted service within the meaning of the A.L.S. and could not, therefore, as a result of s. 124, be dismissed without good and sufficient cause.  Because the clauses of the collective agreement applicable respectively to C and L denied the employees access to grievance arbitration to contest their dismissal, they are inconsistent with the substantive standard in s. 124 A.L.S., are absolutely null and are therefore deemed unwritten.  The arbitrator considering the grievance must therefore examine the collective agreement to determine whether the agreement grants a recourse equivalent to the one available under s. 124.  To conclude that the recourses are equivalent, both decision‑makers must have the power to review the employer’s decision and order appropriate remedies within a procedural framework of comparable effectiveness.  In these appeals, the C.R.T. can overturn the dismissal, order the employee’s reinstatement or fix indemnities.  Since the grievance arbitrator acts under the collective agreement and the Labour Code — which establishes and supplements the arbitrator’s powers — he or she has an equivalent capacity for intervention.  The proceedings would therefore be brought before decision‑makers with similar powers of intervention and similar guarantees of independence and impartiality.  As a result, the arbitrators had jurisdiction to hear the grievances of C and L, consider the merits of the decisions to dismiss them and take appropriate remedial action.

Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. (dissenting):  There is no rule conferring exclusive jurisdiction to resolve disputes between unionized employees and their employers on grievance arbitrators.  Rather, it is necessary in each case to interpret the relevant legislation and consider the nature of the dispute in order to determine whether the arbitrator’s jurisdiction is exclusive.

Where the applicable legislative scheme is concerned, there is nothing to indicate that the legislature believed the various forms of protection provided for in the A.L.S. were implicitly incorporated into all collective agreements.  For the application of s. 124 A.L.S., it designated a forum in the Act for cases in which the agreement negotiated by the parties does not provide for one.  Neither the A.L.S. nor the Labour Code provides support for a conclusion that s. 124 is incorporated into the collective agreement.  Respect for the arbitration procedure does not lead to the conclusion that the procedure is of public order.  The legislature has given unions a monopoly on representation, but it may also designate a forum other than an arbitrator where it considers it appropriate to do so.  Given that the A.L.S. is of public order, a collective agreement may not contain standards that are prohibited by the A.L.S. or are inferior to standards established in it.  An employer may not dismiss an employee without good and sufficient cause if the employee is credited with at least two years of uninterrupted service within the meaning of the A.L.S.  However, there is no requirement that the parties confer responsibility for the enforcement of this protection on a grievance arbitrator.  Thus, a collective agreement could not provide that the employer may, at will, dismiss a person who has two years of uninterrupted service.  Although any provision to that effect would be found to be null, this does not mean that the standard established in the A.L.S. is incorporated into the collective agreement.  Arbitrators are bound by the collective agreement and the Labour Code, and in particular by s. 100.12(a), which provides that they may “interpret and apply any Act or regulation to the extent necessary to settle a grievance”.  This jurisdiction presupposes that the grievance is based on the collective agreement.  The provisions conferring jurisdiction on grievance arbitrators and the C.R.T. are both found in the Labour Code.  If the procedure applicable to all unionized employees wishing to avail themselves of s. 124 A.L.S. were the one provided for in their collective agreement, the legislature would have said so clearly.  It instead gave the parties the freedom to include this procedure in their agreement, although in so doing it made sure that no employee would be without a recourse.

Nor does the nature of the dispute indicate that it is within the exclusive jurisdiction of the grievance arbitrator.  Both the arbitrator and the C.R.T. have recognized expertise with respect to dismissal complaints.  Not only is the C.R.T. the exclusive alternative forum designated in the A.L.S., but an analysis of how it is set up also confirms that its expertise in deciding whether there is good and sufficient cause for the dismissal of an employee cannot be denied.

In these appeals, the clauses of the collective agreement that limit access to the grievance procedure are not contrary to public order, as they do not deprive C and L of the protection provided for in s. 124 A.L.S.  Limiting access to the grievance procedure is not prohibited by either the A.L.S. or the Labour Code.  The parties have not generally incorporated the standards established in the A.L.S. into their collective agreement.  There is no provision in the A.L.S. to the effect that the collective agreement must make the grievance procedure available in respect of all the standards established in that statute.  Rather, the A.L.S. establishes a recourse for cases in which the agreement does not provide for one.  Because of restrictions on the arbitration procedure, C and L do not have an adequate remedial procedure within the meaning of s. 124 A.L.S.  The C.R.T. is therefore the appropriate forum to settle their wrongful dismissal complaints.

The role of the courts is to interpret legislation in a manner consistent with its purpose.  The A.L.S. was enacted to protect employees.  Pursuant to the interpretation adopted here, there is a simple way to achieve that purpose — by referring to the words used and avoiding artificial disputes.  The A.L.S. has borrowed from the collective bargaining scheme by including a type of protection found in many collective agreements.  There is no justification for holding now that every collective agreement must include that protection.  The exception made for cases in which collective agreements afford adequate protection reflects this historical reality.  There is no defect in the Labour Code or in the A.L.S. or collective agreements that needs to be cured by judicial interpretation.  Moreover, the A.L.S. is already a legislative work in progress.  It would be inappropriate to accept an interpretation whose effect would be to create weaknesses in a structure that has been built following lengthy debate.  The legislature is free to step in to provide for new recourses in respect both of s. 124 A.L.S. and of the other standards.  It alone has the authority to do so.

Cases Cited

By LeBel J.

Referred to:  Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Barnier, [1980] 1 S.C.R. 1124; Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949.

By Deschamps J. (dissenting)

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261; Ateliers Roland Gingras inc. v. Martin, [1988] R.J.Q. 523; Giguère v. Cie Kenworth du Canada, Division de Paccar du Canada Ltée, [1990] R.J.Q. 2485; Malo v. Côté‑Desbiolles, [1995] R.J.Q. 1686; Joyal v. Hôpital du Christ‑Roi, [1997] R.J.Q. 38; Commission scolaire Chomedey de Laval v. Dubé, [1997] R.J.Q. 1203; Université du Québec à Hull v. Lalonde, 2000 CanLII 11322; Dubé v. Secrétariat de l’Action Catholique de Joliette, 2001 CanLII 12979; Beauséjour

v. Lefebvre, [1986] R.J.Q. 1407, aff’d [1988] R.J.Q. 639; Syndicat du personnel enseignant du Centre d’études collégiales en Charlevoix v. St‑Laurent, 2007 QCCS 1005 (CanLII); Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949; Commission des normes du travail v. Campeau Corp., [1989] R.J.Q. 2108; Commission des normes du travail v. Hawker Siddeley Canada inc., [1989] R.J.Q. 2123; Commission des normes du travail v. Domtar Inc., [1989] R.J.Q. 2130; Québec (Commission des normes du travail) v. Cie minière I.O.C. inc., 1995 CanLII 5324; Commission des normes du travail v. Cie de papier de St‑Raymond ltée, [1997] R.J.Q. 366; Syndicat des employé(es) de soutien du Cégep André‑Laurendeau v. Lavoie, 2007 QCCS 322 (CanLII); Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Roy, 2007 QCCS 1172 (CanLII); Balthazard‑Généreux v. Collège Montmorency, [1997] T.T. 118; Lecavalier v. Montréal (Ville), [1997] D.T.T.Q. No. 14 (QL); Robitaille v. Société des alcools du Québec, [1997] T.T. 597; Calcuttawala v. Conseil du Québec — Unite Here, [2006] R.J.D.T. 1472; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; McLeod v. Egan, [1975] 1 S.C.R. 517; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27.

Statutes and Regulations Cited

Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001, ss. 32, 369.

Act respecting labour standards, R.S.Q., c. N‑1.1, ss. 1 “agreement”, “employee”, “uninterrupted service”, 81.18, 81.19, 81.20, 93, 94, 102, 122, 123, 123.4, 123.7, 123.13, 123.15, 123.16, 124, 125, 126, 126.1, 127, 128.

Act respecting labour standards, S.Q. 1979, c. 45, s. 126.

Act respecting occupational health and safety, R.S.Q., c. S‑2.1.

Act to amend the Act respecting labour standards, S.Q. 1997, c. 2, s. 2.

Act to amend the Act respecting labour standards and other legislative provisions, S.Q. 1990, c. 73, s. 61.

Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions, S.Q. 2001, c. 26, s. 144.

Charter of human rights and freedoms, R.S.Q., c. C‑12.

Civil Code of Québec, S.Q. 1991, c. 64, art. 1438.

Employment Standards Act, R.S.O. 1990, c. E.14, ss. 64.5(1), (2), (3), (4).

Employment Standards Act, 1968, S.O. 1968, c. 35.

Labour Code, R.S.Q., c. C‑27, ss. 1(f) “grievance”, 16, 17, 62, 64, 100, 100.12(a), (f), 114, 118, 137.12, Sch. I, s. 15.

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48(1), (12)(j).

Minimum Wage Act, R.S.Q., c. S‑1.

Minimum Wage Act, R.S.Q. 1941, c. 164.

Pay Equity Act, R.S.Q., c. E‑12.001.

Women’s Minimum Wage Act, R.S.Q. 1925, c. 100.

Authors Cited

Côté, Pierre‑André, avec la collaboration de Stéphane Beaulac et Mathieu Devinat. Interprétation des lois, 4^e éd. Montréal:  Thémis, 2009.

Dubé, Jean‑Louis, et Nicola Di Iorio.  Les normes du travail, 2^e éd.  Sherbrooke:  Revue de droit Université de Sherbrooke, 1992.

Gagnon, Robert P.  Le droit du travail du Québec, 6^e éd.  Cowansville, Qué.:  Yvon Blais, 2008.

Hébert, Gérard, et Gilles Trudeau.  Les normes minimales du travail au Canada et au Québec:  Étude juridique et institutionnelle.  Cowansville, Qué.:  Yvon Blais, 1987.

Morin, Fernand, Jean‑Yves Brière et Dominic Roux.  Le droit de l’emploi au Québec, 3^e éd. Montréal:  Wilson & Lafleur, 2006.

Québec.  Assemblée nationale.  Journal des débats, 2^e sess., 35^e lég., 23 mai 1996, p. 1325, 1332, 1334.

Vallée, Guylaine.  “Les lois de l’emploi et la convention collective”, dans Dominic Roux et Anne‑Marie Laflamme, dir., Rapports hiérarchiques ou anarchiques des règles en droit du travail:  Chartes, normes d’ordre public, convention collective, contrat de travail, etc.:  Actes du colloque tenu à l’Université Laval/8 novembre 2007.  Montréal:  Wilson & Lafleur, 2008, 81.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1046, [2008] J.Q. n^o 4944 (QL), 2008 CarswellQue 4906, reversing a decision of Fraiberg J., 2006 QCCS 5230, [2006] R.J.D.T. 1400, [2006] J.Q. n^o 14258 (QL), 2006 CarswellQue 9642, dismissing an application for judicial review of an arbitrator’s decision.  Appeal allowed, McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1054, [2008] R.J.D.T. 1005, [2008] J.Q. n^o 4945 (QL), 2008 CarswellQue 4906, reversing a decision of Fraiberg J., 2006 QCCS 5230, [2006] R.J.D.T. 1400, [2006] J.Q. n^o 14258 (QL), 2006 CarswellQue 9642, allowing an application for judicial review of an arbitrator’s decision.  Appeal allowed, McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting.

Pierre Brun and Sophie Cloutier, for the appellant.

Michel Déom, for the respondent.

Robert L. Rivest and Dalia Gesualdi‑Fecteau, for the intervener Commission des normes du travail.

Gérard Notebaert and Isabelle Lacas, for the intervener Confédération des syndicats nationaux.

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

LeBel J. —

I.      Introduction

A.    Nature of the Cases

[1]     This Court has before it two appeals by the Syndicat de la fonction publique du Québec (“S.F.P.Q.”), which represents two employees of the Quebec government covered by a collective agreement between the S.F.P.Q. and the government.  Those employees no longer work for the Quebec government.  They and the S.F.P.Q. are challenging the termination of their employment on the basis that they were not dismissed for a good and sufficient cause.  It is common ground that the employees were entitled to present their unlawful dismissal complaints to a neutral outside decision‑maker.  The issue is whether a grievance arbitrator designated under the collective agreement or the Commission des relations du travail (“C.R.T.”) has jurisdiction to hear a complaint in relation to the rights conferred on employees in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”).  The appellant argues that the arbitrator has this jurisdiction.  The respondent submits that jurisdiction over these cases lies with the C.R.T.  In addition to the issue of the choice of forum, these appeals raise the more general issue of how the A.L.S., as a statute of public order, affects the content of collective agreements.

B.  Solution

[2]     In my opinion, the grievance arbitrator must be held to have jurisdiction over the complaint for the purpose of determining whether the grievance and arbitration procedure set out in the collective agreement is equivalent to the recourse provided for in s. 124 A.L.S.  This is because of the effect of the A.L.S., as a statute of public order, on the content of collective agreements entered into under the Labour Code, R.S.Q., c. C‑27 (“L.C.”).  If the grievance and arbitration procedure is equivalent, the arbitrator must hear the grievance.  If it is not, the grievance must be referred to the C.R.T.  For the reasons that follow, I would find that, in the instant cases, the arbitrators had jurisdiction to hear the grievances.  I would therefore allow both appeals and restore the judgment of the Quebec Superior Court.

II.      Origins of the Cases

A.      The Collective Agreement

[3]     These appeals arise out of a disagreement over the application of the collective agreement for government employees for 1998‑2002 between the Quebec government and the S.F.P.Q.  One of the conditions of employment provided for in that agreement is that certain employees without job security may not, on being dismissed, grieve their dismissal before the designated grievance arbitrator except in special circumstances.

[4]     Case 32771 concerns clause 4‑14.28 of the collective agreement, which provides that the agreement’s disciplinary provisions — including clause 4‑14.21, pursuant to which employees may grieve disciplinary action taken against them — do not apply to seasonal or casual employees unless they were hired for periods of one year or more or have, in the case of casual employees, at least 12 months of service.  No other recourse is provided for as regards employees to whom the grievance procedure is not available.

[5]     Case 32772 concerns clause 5‑17.04 of the agreement, which provides that an employee dismissed during or at the end of a probationary period may not grieve the dismissal.  That clause reads as follows:

[translation]  5‑17.04 A decision by the Deputy Minister to terminate the employment of a temporary employee during or at the end of the probationary period provided for in section 13 of the Public Service Act or in the Directive concernant la classification des emplois de la fonction publique et sa gestion may not be grieved unless the purpose of the decision is to avoid the application of the second paragraph of this article.

However, following that probationary period, the Deputy Minister may lay off a temporary employee only because of a shortage of work, as a result of workforce reduction or under Chapter 6‑0.00.

Like any collective agreement, the agreement in issue here must be interpreted in light of the relevant provisions of the complex legislative scheme governing labour relations in Quebec.

B.    The Legislative Framework

[6]     The Quebec legislature has created an extensive legislative framework for labour relations in that province to take account of the fact that employees are often in a vulnerable position in relation to their employers, and to establish a stable, orderly system of labour relations.  As is the case elsewhere in Canada, that framework is set out in a number of statutes that govern various aspects of individual and collective labour relations.  The A.L.S., which lays down minimum conditions of employment, plays a particularly important role for both unionized and non‑unionized employees in Quebec.  It represents the Quebec legislature’s most significant intervention in this area of labour relations and forms, together with the Act respecting occupational health and safety, R.S.Q., c. S‑2.1, the cornerstone of Quebec’s statutory employment law scheme (R. P. Gagnon, Le droit du travail du Québec (6th ed. 2008), at p. 143).

[7]     The A.L.S. is designed to provide Quebec employees with a minimum level of protection to which the parties to an employment relationship may not make exceptions.  It was enacted in 1979 with the objective of improving the existing protection — considered insufficient — afforded by labour legislation that was exclusively economic in nature, such as the Minimum Wage Act, R.S.Q., c. S‑1.  Because of the functional imbalance inherent in the employee‑employer relationship, the pre‑A.L.S. statutes did not lead to the establishment of fair conditions of employment (F. Morin, J.‑Y. Brière and D. Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at p. 52).

[8]     The A.L.S., which is social legislation, establishes — in Chapter IV — a wide range of standards that constitute a minimum level of protection applicable to many aspects of employment, including the payment of wages, family or parental leave and the termination of employment.  The recourses needed to ensure compliance with the standards established in the A.L.S. are provided for in Chapter V.  To reflect changing societal attitudes in this area, the A.L.S. has been amended frequently.  Certain changes have been made to the complaint system under s. 124 A.L.S., and the number of years of uninterrupted service employees must have in order to present complaints is no longer five, but two.  The protection of s. 124 is what the appellants are invoking in the instant cases.

[9]     Section 124 A.L.S. gives employees who have completed two years of uninterrupted service in the same enterprise a recourse they can exercise if they are dismissed without good and sufficient cause:

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

If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.

[10] In Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261, the Quebec Court of Appeal considered the nature of the rights established in s. 124 A.L.S. and recognized that the section has a normative duality.  Although procedural in form, s. 124 does not just create a remedy, as it also establishes a substantive labour standard that prohibits the dismissal or termination of an employee without good and sufficient cause once the employee has completed the required period of service.  This standard applies to every individual contract for a fixed or indeterminate term, and every collective agreement.  It accordingly constitutes an exception to the traditional principles of freedom of contract, and it limits the employer’s discretion to terminate any contract of employment with an indeterminate term at will upon giving sufficient notice.

[11] The A.L.S. also establishes a recourse that employees can exercise in the event of a failure to comply with the substantive standard.  That recourse, originally exercised before an arbitrator, then before a labour commissioner and now before the C.R.T. (Morin, Brière and Roux, at p. 1293), allows a dismissed employee to obtain specific performance of the employer’s obligation by being reinstated in the workplace or receiving equivalent monetary compensation.  However, the recourse remains alternative in nature, since it can be exercised before the C.R.T. only where an equivalent remedial procedure is not provided for elsewhere in the A.L.S., in another Act or in an agreement, including a collective agreement.  Insofar as the Quebec legislature accepts that an authority other than the one mentioned in s. 124 A.L.S. may have jurisdiction to rule on compliance with the labour standard established by that section, the procedural and substantive aspects of s. 124 can be considered severable from one another.

[12] Collective agreements are governed, first and foremost, by the L.C., which, except in certain specific sectors, provides the exclusive framework for organizing collective labour relations (Morin, Brière and Roux, at p. 808).  In particular, it contains the legal rules that govern the establishment of conditions of employment by employees and employers through collective bargaining, and it ensures the application of the resulting collective agreements by establishing mandatory grievance and arbitration procedures (Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27, at para. 93).  The first paragraph of s. 100 L.C. provides that every grievance arising out of the application of a collective agreement must be submitted to a grievance arbitrator:

100.     Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.

[13]        Arbitrators also have the power — under s. 100.12 L.C. — to interpret and apply any Act or regulation if necessary to settle a grievance.  Statutes of public order, such as the A.L.S., are binding on arbitrators, who are required to take them into account in carrying out their mandates.  Under s. 62 L.C., provisions of a collective agreement that are contrary to public order or prohibited by law are null.

[14] This, then, is the legislative context of the employees’ grievances in the instant cases.

C.    The Grievances, the Bases for the Grievances and the Employers’ Objections

[15] In case 32771, the S.F.P.Q. challenged the dismissal of Claude Mireault, a casual employee of Pépinière forestière de Berthier, an organization that comes under the authority of Quebec’s Ministère des Ressources naturelles, de la Faune et des Parcs.  According to the evidence accepted by the grievance arbitrator, Maureen Flynn, five grounds were raised for the decision to dismiss Mr. Mireault: an unsatisfactory appraisal of his work, his negative leadership style as it affected both his performance and how the other employees viewed the organization, his misogynistic attitude, and the fact that some employees were afraid of him.  At the time of his dismissal, Mr. Mireault had completed 188 days of service between April 23, 2001 and December 2, 2003, or fewer than the 260 days of service needed, as negotiated by the parties, to avail oneself of art. 4‑14.21 of the collective agreement.  However, he argued that he had completed the two years of uninterrupted service required by s. 124 A.L.S.  On that basis, he sought to have his dismissal overturned, and claimed all the rights and benefits provided for in the collective agreement that applied to him.

[16] In case 32772, the S.F.P.Q. contested the dismissal of Lahcene Messaoudan, a probationary employee of Quebec’s Ministère du Revenu.  Mr. Messaoudan’s employer alleged that he had worked [translation] “illegally” by preparing tax returns for individuals and businesses in exchange for remuneration, that he had consulted the department’s files and used its equipment for purposes unrelated to his work, and that he had lied to his employer.  Mr. Messaoudan claimed to have been constructively dismissed, and he sought immediate reinstatement and payment of the related wages and benefits, plus interest, since the date of his dismissal.  Like Mr. Mireault, he submitted that he had completed the two years of uninterrupted service required by s. 124 A.L.S. and that he was therefore entitled to contest his dismissal despite the fact that he was a probationary employee.

[17] As I mentioned above, the collective agreement for Quebec government employees provides that seasonal and casual employees hired for periods of less than one year, and probationary employees, may not grieve their dismissal before the designated grievance arbitrator.  Mr. Mireault and Mr. Messaoudan both fell within one of those classes of employees.  As a preliminary matter in each of their cases, therefore, the employer challenged the arbitrator’s jurisdiction to hear the grievances filed by the union.  The union countered that the substantive labour standard in s. 124 A.L.S. is implicitly incorporated into every collective agreement and that the arbitrators therefore had the necessary jurisdiction to dispose of the grievances.

III.    Judicial History

A.     Arbitration Tribunal

(1)   Case 32771

[18] Arbitrator Maureen Flynn accepted the S.F.P.Q.’s argument that because the A.L.S. is a statute of public order, the substantive standard established in s. 124 A.L.S. is incorporated into the collective agreement.  She therefore dismissed the employer’s preliminary objection and concluded that she had jurisdiction to hear Mr. Mireault’s grievance.  On the merits, she found that the employer had not shown that Mr. Mireault had done anything serious enough to warrant dismissing him without first applying the principle of progressive discipline.  She accordingly allowed the grievance and held that Mr. Mireault had been wrongfully dismissed:  [2006] R.J.D.T. 329.

(2)   Case 32772

[19] Arbitrator Pierre Laplante upheld the employer’s preliminary objection to his jurisdiction to hear Mr. Messaoudan’s grievance.  After finding that the parties’ intention that temporary employees who are on probation should not be entitled to challenge their dismissal before an arbitration tribunal was inconsistent with the standard in s. 124 A.L.S., Arbitrator Laplante concluded that s. 124 A.L.S. was not incorporated into the collective agreement.  He therefore held that he had no jurisdiction to hear the grievance: D.T.E. 2006T‑473, SOQUIJ AZ‑50370564.

B.     Quebec Superior Court

[20] On judicial review of the two arbitrators’ decisions, Fraiberg J. adopted Arbitrator Flynn’s reasoning and held that the arbitrators had exclusive jurisdiction over the disciplinary grievances.  He accordingly dismissed the motion for judicial review in Mr. Mireault’s case and allowed the one in Mr. Messaoudan’s case: 2006 QCCS 5230, [2006] R.J.D.T. 1400.

C.      Quebec Court of Appeal

[21] There were six appeals raising similar legal issues that the Court of Appeal heard together, including the two I am considering in these reasons.

[22] In reviewing the scope of s. 124 A.L.S., the Court of Appeal noted that the provision’s complexity — it contains both a labour standard and a procedural mechanism for implementing the standard — had been recognized in several decisions.  A complaint under s. 124 A.L.S. can be presented only if no equivalent — that is to say, equally effective — remedial measure is provided for in an Act or an agreement.  The Court of Appeal considered it clear that if s. 124 A.L.S. were implicitly incorporated into every collective agreement, the effect would be to truncate that provision significantly, as the exception to the C.R.T.’s jurisdiction to hear the complaint of an employee covered by a collective agreement would become superfluous.

[23] After examining the legislative scheme established by the A.L.S. and the L.C., the Court of Appeal rejected the argument that the legislation does not give the C.R.T. exclusive jurisdiction.  In its view, the complaint in question in s. 126 A.L.S. has to be the one filed under s. 124 A.L.S., over which the C.R.T. has exclusive jurisdiction pursuant to s. 114 L.C.  The Court of Appeal pointed out that, in decisions concerning the jurisdiction of grievance arbitrators, the Supreme Court of Canada has stressed the fundamental importance, in such cases, of determining the legislature’s intention.  In the cases at bar, the legislature did not choose to give a grievance arbitrator jurisdiction where an employee covered by a collective agreement presents a complaint under s. 124 A.L.S.; instead, it opted for a specialized tribunal, the C.R.T.  Nor, the Court of Appeal stated, was there any indication that the C.R.T. had any difficulty carrying out its statutory mandate.

[24] For these reasons, the Court of Appeal allowed the appeals and set aside the judgment of the Superior Court.  It accordingly found that the grievances of Mr. Mireault and Mr. Messaoudan were not properly before the arbitrator and dismissed them: 2008 QCCA 1046 (CanLII) and 2008 QCCA 1054, [2008] R.J.D.T. 1005.

IV.     Analysis

A.      Issue

[25] The parties are asking this Court to determine whether the substantive standard of public order set out in s. 124 A.L.S., which prohibits the dismissal without good and sufficient cause of an employee who has two years of uninterrupted service, is implicitly included in every collective agreement.  In my view, the issue is framed incorrectly and does not reflect the true question raised by the appeals.  To me, the issue is not whether the provisions of the A.L.S. are incorporated into the collective agreement or how jurisdiction is formally conferred on the C.R.T.  Rather, these appeals raise a question about the hierarchy of sources of Quebec labour law and more specifically about how the A.L.S., as a statute of public order, affects the content of collective agreements and thus the jurisdiction conferred on the grievance arbitrators responsible for interpreting and applying such agreements.

B.     Arguments of the Parties

(1)   Union’s Arguments

[26] The S.F.P.Q. argues, relying mainly on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, that the substantive standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.

[27] The S.F.P.Q. submits that the principle of implicit incorporation of basic legal rules established in Parry Sound is not limited to the area of human rights, but also applies to the minimum labour standards established in various Canadian statutes.  Where such standards are so incorporated, the grievance arbitrator remains the appropriate decision‑maker except where it is clear from the legislation and from the legislature’s intention that the application and implementation of a standard has been conferred exclusively on another authority and that the matter is therefore excluded from the arbitrator’s usual jurisdiction.  The parties may not enter into an agreement that bypasses or eliminates the right to the recourse provided for in s. 124 A.L.S.; the legislature’s intention to grant the recourse to all employees, whether unionized or not, is a matter of directive public order.  However, the implicit incorporation of s. 124 in no way affects the validity of a clause of a collective agreement that denies or limits the right to grieve in the case of certain employees without job security to whom the standard established in s. 124 A.L.S. does not apply.

[28] According to the appellant, the labour standard established in s. 124 A.L.S. can be severed from the procedure provided for in that section.  Collective agreement provisions that contravene or are inferior to that standard are of no force or effect and are deemed not to exist, which means that the arbitrator has jurisdiction to determine whether an employee was dismissed for a good and sufficient cause.  The S.F.P.Q. submits that its position is consistent with the essential role of grievance arbitration in a unionized workplace, and with the fact that this dispute resolution mechanism is of mandatory public order.  To refuse to incorporate the labour standard established in s. 124 A.L.S. into the collective agreement would amount to allowing the parties to exclude protection of the employment relationship from the jurisdiction of arbitrators and to make the C.R.T. responsible for such protection.  Such a conclusion would be inconsistent with the legislature’s intention.

[29] The S.F.P.Q. maintains that, to correctly interpret the final portion of the first paragraph of s. 124, it is essential to ask whether a remedial measure is provided for not only in an agreement but also in another Act.  The appellant points out that a binding grievance arbitration scheme is provided for in “another Act” within the meaning of s. 124 A.L.S., namely the L.C.

[30] The S.F.P.Q. adds that its position is consistent with the union’s monopoly on representation.  Since a union has no duty to represent employees who exercise individual recourses available to them alone, such as a complaint under s. 124 A.L.S., the Court of Appeal’s decision creates two separate classes of unionized employees.  The first consists of employees whose union has a duty to represent them under the collective agreement because they have a right to grieve a dismissal without good and sufficient cause after two years of service.  These employees are distinguished from the members of a second class who are not entitled to performance of the duty of fair union representation under their collective agreement because they have no right to grieve a wrongful dismissal after two years of uninterrupted service.  The only recourse available under the agreement to employees of this second class is to present complaints to the C.R.T. on their own.  Therefore, this second class of unionized employees enjoys more limited rights than all other employees, including non‑unionized employees, who may be represented by the Commission des normes du travail.

[31] According to the S.F.P.Q., the Court of Appeal’s decision would lead to a multiplicity of parallel recourses in collective labour relations matters.  It requires the employee and the union to exercise two recourses against the employer’s decision to terminate the employee: a grievance filed by the union and a complaint presented by the employee under s. 124 A.L.S.  The S.F.P.Q. submits that the legislature intended to give the C.R.T. only a residual jurisdiction over the recourse provided for in s. 124 A.L.S., but also intended to extend the application of the substantive right established in that section to all employees, including non‑unionized employees.  The exception according to which a complaint cannot be presented where another remedial procedure is provided for in an agreement therefore remains relevant even if the standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.

(2)   Respondent’s Arguments

[32] The respondent submits that the issue of whether the C.R.T. has jurisdiction should be decided before the issue of whether the standard established in s. 124 A.L.S. is implicitly incorporated into the collective agreement.  She argues that the incorporation of that standard would frustrate the legislature’s intention even though the standard is of public order.  Section 124 provides that employees may not exercise the recourse under it if there is an equivalent remedial procedure in the A.L.S., in another Act or in an agreement.  Unionized employees who cannot avail themselves of their grievance procedure because it is not an equivalent remedial procedure for the purposes of s. 124 A.L.S. must proceed before the C.R.T.  If the content of s. 124 were incorporated into every collective agreement, the exception in that section for recourses recognized to be equivalent would be pointless.

[33] According to the respondent, s. 124 A.L.S. is a procedural provision that contains a substantive legal rule, and these two components form an indivisible whole.  The rights provided for in s. 124 are individual rights of public order and are held only by employees.  The fact that a right is of public order cannot be reconciled with the possibility of a third party waiving the application of a provision such as s. 124 in the holder’s place.  The respondent submits that no other conclusion can be reached absent a clear expression of legislative intent, as, for example, in s. 102 A.L.S.

[34] The respondent adds that the legislative scheme of ss. 124 et seq. of the A.L.S. forms a coherent whole.  It does not involve one complaint concerning the substantive right and another complaint serving as a procedural vehicle.  Rather, there is only one complaint.  The respondent argues that the exercise of rights provided for in a statute of public order does not create or revive an individual contract.  The union’s monopoly on representation does not preclude this legislative choice, which the respondent submits was correctly interpreted and applied by the Court of Appeal.

C.     The Implicit Incorporation Argument and Its Weaknesses

[35] The parties’ submissions are focussed on the question whether the substantive labour standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.  According to the incorporation argument, which the S.F.P.Q. supports, the standard, which can be severed from the procedural mechanism also provided for in s. 124, is implicitly incorporated into every collective agreement so as to give grievance arbitrators jurisdiction over grievances relating to the application of the standard.  Accordingly, if an employee credited with two years of uninterrupted service alleges that he or she has been dismissed without good and sufficient cause, the union representing the employee can file a grievance with the arbitrator even if the collective agreement does not expressly provide that the employee can challenge the grounds for dismissal.

[36] In her reasons, my colleague Deschamps J. discusses the implicit incorporation argument and concludes from her analysis that “neither the A.L.S. nor the L.C. provides support for [it]” (para. 100).  I agree with her on this point.  In my opinion, this argument, as presented by the appellant, is not consistent with the words of the A.L.S. and disregards the drafting techniques used by the Quebec legislature when it intends to incorporate a specific standard into collective agreements or individual contracts of employment.

[37] The determining factor here is what the Quebec legislature has chosen to say where its intention has in fact been to incorporate standards established in the A.L.S. into collective agreements.  Section 81.20, para. 1 A.L.S. provides a very good illustration of the drafting technique it prefers:

81.20.  The provisions of sections 81.18, 81.19, 123.7, 123.15 and 123.16, with the necessary modifications, are deemed to be an integral part of every collective agreement.  An employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available to employees under the agreement.

If, as the S.F.P.Q. contends, the legislature had intended to incorporate the substantive standard established in s. 124 A.L.S. into every collective agreement, it would have done so in the same manner as in s. 81.20 A.L.S., that is, by saying so expressly.  There is no reason to think that the legislature chose to use two different drafting techniques to achieve the same result in the same statute.  To conclude that it did so would be inconsistent with the presumption that a change in the term used to express a legal concept indicates a change in meaning and that a term generally retains the same meaning throughout a statute (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at pp. 400‑401; R. v. Barnier, [1980] 1 S.C.R. 1124, at pp. 1135‑36; P.‑A. Côté, with S. Beaulac and M. Devinat, Interprétation des lois (4th ed. 2009), at p. 382).

[38] The incorporation of standards may result from the will of the parties as expressed in their collective agreement.  However, it is readily apparent that, unlike, for example, in Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949 (C.A.), there is nothing in the collective agreement in issue in the instant cases to the effect that the provisions of the A.L.S. are deemed to replace those of the agreement.

[39] In my opinion, the perspective from which the status of the A.L.S. as a statute of public order must be considered here is not really that of whether the provisions of the A.L.S. are implicitly incorporated into collective agreements, but that of how the hierarchy of relevant sources of labour law affects the content and implementation of such agreements.  Only by examining the agreement from the perspective of the adaptations flowing from this public order status can it be determined whether the grievance arbitrator or the C.R.T. has jurisdiction to rule on the challenges of the employees and their union against the employees’ dismissal.

D.  Impact of Public Order Status on the Content of Collective Agreements

[40] Section 93 expressly provides that the A.L.S. is a statute of public order.  It reads as follows:

93.  Subject to any exception allowed by this Act, the labour standards contained in this Act and the regulations are of public order.

In an agreement or decree, any provision that contravenes a labour standard or that is inferior thereto is absolutely null.

Under s. 93, an exception to the A.L.S. may be made only where one of the Act’s provisions so allows or where, as provided for in s. 94 A.L.S., the parties to a contract of employment or a collective agreement negotiate conditions that are more advantageous to the employees.  Otherwise, any provision of a collective agreement that deprives an employee of the minimum conditions of employment set out in the A.L.S. is absolutely null (Isidore Garon, at para. 112).

[41] Viewed narrowly, the fact that the A.L.S. is a statute of public order would mean only that the parties cannot agree to eliminate the recourse available to employees under s. 124 A.L.S.  Such an interpretation seems too restrictive.  The public order status the legislature has attributed to this provision means that no individual contract or collective agreement can prevent an employee credited with two years of uninterrupted service who is dismissed without good and sufficient cause from contesting his or her dismissal, and that any provision of such an agreement that purports to do so is of no effect.  The agreement survives, but any of its provisions that are inconsistent with the minimum standard are of no effect.  They are deemed unwritten, as provided for in ss. 62 and 64 L.C., and the agreement must be considered, interpreted and applied accordingly.  In other words, the legislation limits the parties’ freedom of contract by denying any effect to the provisions included in the agreement that are inconsistent with standards of public order, or by requiring the parties to adopt conditions of employment that are at least as advantageous to employees as those provided for in the A.L.S.  Thus, the public order status of the legislation affects the actual content of the contract of employment or collective agreement, and not just its legal framework.

[42] I cannot therefore accept the respondent’s view that the only effect of the public order nature of the legislation in the instant cases is to preclude the parties from stipulating that an employee may not exercise the recourse provided for in s. 124 A.L.S.  Instead, the mandatory nature of the standard means that any provision of an agreement that is inconsistent with the prohibition against the dismissal without good and sufficient cause of an employee credited with two years of uninterrupted service will be deemed unwritten, which alters the content of the collective agreement.  The rest of the contract or agreement will survive a finding that the clause is invalid (ss. 62 and 64 L.C. and art. 1438 of the Civil Code of Québec, S.Q. 1991, c. 64).  It is from this perspective that the collective agreement as altered by the standards of public order established in the legislation must therefore be examined to determine whether an employee may apply the agreement to contest his or her dismissal before a grievance arbitrator.

[43] To determine whether an equivalent recourse exists for the purposes of s. 124 A.L.S., therefore, we must consider whether the collective agreement as altered provides for rights and recourses equivalent to those established in the A.L.S. for reviewing and sanctioning the dismissal without good and sufficient cause of employees credited with two years of uninterrupted service.  It is only if the agreement does not provide for such recourses that the employee will have to take his or her complaint to the C.R.T.

[44] As Professor Guylaine Vallée correctly points out, [translation] “[i]n the collective labour relations context, it is up to the parties to give effect to the hierarchy of sources under the collective agreement or during the grievance process.  The interplay among the rules deriving from those sources in a unionized environment must be determined by collective labour relations authorities and not outside such authorities” (“Les lois de l’emploi et la convention collective”, in D. Roux and A.‑M. Laflamme, eds., Rapports hiérarchiques ou anarchiques des règles en droit du travail: Chartes, normes d’ordre public, convention collective, contrat de travail, etc.: Actes du colloque tenu à l’Université Laval/8 novembre 2007 (2008), 81, at p. 88).  In accordance with these principles, the grievance arbitrator designated by the parties must, in considering a dismissal grievance, determine, in light of the modifications to the agreement that flow from the public order status of the A.L.S., whether he or she has the power under that agreement to grant the dismissed employee, if appropriate, a remedial measure equivalent to the one available under s. 124 A.L.S.  If the answer to this question is no, the result will be a finding that the arbitrator lacks jurisdiction and must decline it in favour of the C.R.T.

[45] In addition to ensuring recognition of the arbitrator’s jurisdiction, this approach enables the arbitrator to review the situation in the context of the entire collective agreement and to consider all relevant factors in analysing the equivalence of the recourse.  It is also consistent with the alternative nature of the recourse before the C.R.T., since the C.R.T. will hear a complaint only if the grievance arbitrator who has initial jurisdiction to interpret the agreement determines that he or she cannot offer the employee a recourse equivalent to the one available through the C.R.T.  In light of these principles, I will now consider the collective agreement that applies in the instant cases to determine whether the grievance arbitrators had jurisdiction to hear the grievances filed by Mr. Mireault and Mr. Messaoudan.

E.     Analysis of the Agreement in Issue

(1)   Case 32771

[46] At the start of these reasons, I discussed the provision in issue in this case, clause 4‑14.28 of the collective agreement for Quebec government employees, which provides that seasonal or casual employees may avail themselves of certain of the disciplinary provisions of the agreement only if they were hired for periods of one year or more.  The last paragraph of that clause adds that, [translation] “[d]espite the foregoing, articles 4‑14.01 to 4‑14.06 and 4‑14.21 to 4‑14.27 apply to casual employees hired for periods of less than one (1) year who have twelve (12) months of service or more.”

[47] Clause 4‑14.21 gives employees on whom disciplinary action is imposed the right to grieve that action [translation] “in accordance with the grievance procedure, on condition that grievances concerning suspension or dismissal are submitted within thirty (30) days after the suspension or dismissal takes effect”.  Clause 4‑14.21 is therefore one of the clauses of which seasonal or casual employees hired for periods of less than one year who are credited with fewer than 12 months of service may not avail themselves.

[48] Mr. Mireault was a casual employee of the Ministère des Ressources naturelles, de la Faune et des Parcs.  At the time he was dismissed, he did not have either a contract of employment for one year or more or 12 months of service as defined in clause 5‑18.06 of the agreement.  As a result, clause 4‑14.28 excluded him from the class of employees who could grieve their dismissal.

[49] Mr. Mireault argues that he was credited with two years of uninterrupted service within the meaning of the A.L.S.  Therefore, under s. 124 A.L.S., he could not be dismissed without good and sufficient cause, and he met the conditions for having a neutral authority determine whether his dismissal was lawful.  Clause 4‑14.28 of the collective agreement precluded the exercise of that right, since it prohibited Mr. Mireault, as a casual employee, from submitting his complaint to arbitration.

[50] However, on the basis of the principles discussed above, clause 4‑14.28 is absolutely null and therefore deemed unwritten because it is inconsistent with the substantive standard in s. 124.  Clause 4‑14.28 denies employees who have completed two years of uninterrupted service the right to contest a dismissal without good and sufficient cause.  It is therefore necessary to go back to clause 4‑14.21, which establishes the right to file a grievance.  The arbitrator considering the grievance must examine the collective agreement, bearing also in mind the powers conferred on arbitrators under s. 100 L.C., to determine whether, in light of the public order status of the A.L.S., the agreement grants a recourse equivalent to the one available under s. 124 A.L.S.  In other words, what must be determined is whether the arbitrator can review a dismissal made without good and sufficient cause and grant remedies equivalent to those that could be ordered by the C.R.T.

[51] To conclude that the recourses are equivalent, both decision‑makers must have the power to review the employer’s decision and order appropriate remedies within a procedural framework of comparable effectiveness.

[52] The C.R.T. can overturn the dismissal, order the employee’s reinstatement or fix indemnities (s. 118 L.C. and ss. 127 and 128 A.L.S.).  Since the grievance arbitrator acts under the collective agreement (clause 4‑14.24) and the L.C. — which establishes and supplements the arbitrator’s powers (s. 100.12(f)) — he or she has an equivalent capacity for intervention.  The proceedings would therefore be brought before decision‑makers with similar powers of intervention and similar guarantees of independence and impartiality.  Although the time limit for filing a grievance (30 days) is shorter than the time limit for filing a complaint with the C.R.T. (45 days), this difference does not preclude a finding of overall equivalence between the recourses and the rights they create.  Section 124 A.L.S. does not require the recourses to be perfectly identical; it requires them to be equivalent, which they are.  I would therefore conclude that grievance arbitration is an equivalent recourse in this case because of the way the A.L.S., as a statute of public order, affects the content of the agreement, and on that basis I would find that the arbitrator had jurisdiction.

(2)   Case 32772

[53] I would reach the same conclusion in Mr. Messaoudan’s case.  As we have seen, Mr. Messaoudan was a probationary employee of Quebec’s Ministère du Revenu, and he claims to have been dismissed even though he was credited with two years of uninterrupted service within the meaning of the A.L.S.  Like clause 4‑14.28 in the case of seasonal or casual employees, clause 5‑17.04 of the collective agreement for Quebec government employees provides that grievance arbitration is not available to probationary employees.  Since that clause is inconsistent with the substantive standard in s. 124 A.L.S., it is absolutely null and is therefore deemed unwritten.  With this obstacle out of the way, the arbitrator could consider the merits of the dismissal and take the appropriate remedial action.  Because the recourses were equivalent, the arbitrator had jurisdiction and could hear the grievance.

V.     Conclusion

[54] For these reasons, I would allow the appeals, set aside the judgments of the Quebec Court of Appeal and restore the judgment of the Superior Court, with costs.

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

[55] Deschamps J. (dissenting) — There is no question that Quebec employees, whether they are covered by a collective agreement or an individual contract of employment, are protected against being dismissed without good and sufficient cause if they have at least two years of uninterrupted service in an enterprise.  This protection is provided for not only in a great many collective agreements, but also in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”), which is a provision of public order.  There are only a few exceptions to the rule in s. 124.  The issue in these appeals is not whether the protection exists but in what forum employees must exercise their right.  What must be determined is whether jurisdiction to settle the wrongful dismissal complaints of the employees concerned lies with an arbitrator appointed under a collective agreement that does not give those employees a right to arbitration, or with the Commission des relations du travail (“C.R.T.”).

[56] Cases in which this Court has considered the appropriate forum to adjudicate certain disputes must be distinguished from those in which it has decided whether a standard applies to a party to an agreement.  While it is clear that no decision‑maker may interpret a statute or agreement so as to deprive an employee of the benefit of a mandatory standard or to permit an employer to avoid the application of a rule of public order, it has to be recognized that the choice of the appropriate forum for implementing a legislative standard is not purely a matter of judicial policy.  That decision falls first to the legislature, then to the parties and only lastly to the courts.  In the instant cases, making arbitrators the exclusive forum for all employees covered by a collective agreement is not what either the legislature or the parties intended.  The courts must abide by their choice.  All collective agreements impose restrictions on arbitration, whether they are procedural restrictions, such as the steps of the grievance procedure or time limits, or substantive restrictions like those based on categories of employment (probationary or contract, temporary or casual, etc.).  The appeals heard together by this Court provide a good insight into the variety of restrictions that can exist.  A clear rule is needed before we can upset the delicate balance agreed on by the parties.  I find no such rule in the instant cases.  On the contrary, the legislature has established a specialized tribunal and given it exclusive jurisdiction over complaints by employees who do not have adequate remedial procedures under their collective agreements.

[57] There are four appeals before this Court that raise the same issues.  I discuss two of them in these reasons.  The relevant provisions of the applicable legislation and collective agreement are reproduced in an appendix.  In both these appeals, the employees concerned do not have an adequate remedial procedure because of restrictions on the arbitration procedure.  I conclude that the C.R.T. is the appropriate forum to settle their complaints.  I would dismiss both the appeals with costs.

1.      Facts

1.1    Case 32771

[58] Claude Mireault, a casual employee of the Ministère des Ressources naturelles, de la Faune et des Parcs, was dismissed on the basis of an unsatisfactory performance appraisal.  The collective agreement between the appellant, the Syndicat de la fonction publique du Québec (“union”), and the employer, represented by the respondent, the Attorney General of Quebec, limits the right of casual and seasonal employees to avail themselves of the grievance procedure (clauses 4‑14.21 and 4‑14.28).

1.2     Case 32772

[59] Lahcene Messaoudan, a temporary employee of the Ministère du Revenu, was dismissed during his probationary period.  He was accused of, among other things, preparing tax returns for individuals, consulting the department’s files for purposes unrelated to his work on behalf of persons who were not his clients, and being paid for those services.  Under the collective agreement, a decision by the Deputy Minister to terminate an employee’s employment during the probationary period may not be grieved (clause 5‑17.04).

[60] The union filed a grievance in each of these cases.

2.       Decisions Below

2.1     Decisions of the Grievance Arbitrators

[61] In Mr. Mireault’s case, Arbitrator Maureen Flynn found that s. 124 A.L.S. establishes a labour standard that is incorporated into every collective agreement.  She concluded on that basis that she had jurisdiction to hear the grievance.  On the merits, she found that the employer had not proved what it had to prove.  She allowed the grievance and held that Mr. Mireault had been wrongfully dismissed: [2006] R.J.D.T. 329.  In Mr. Messaoudan’s case, Arbitrator Pierre Laplante determined that, because there were provisions in the collective agreement that were inconsistent with s. 124 A.L.S., he could not find that s. 124 had been implicitly incorporated into the agreement.  He held that, in the case before him, the C.R.T. had exclusive jurisdiction to give effect to the protection, and he declined jurisdiction to hear the grievance: D.T.E. 2006T‑473, SOQUIJ AZ-50370564.

2.2     Judgment of the Superior Court

[62] Fraiberg J., who heard the application for judicial review of those two contradictory decisions, concluded that, in a collective bargaining context, an arbitrator’s jurisdiction is better suited than that of the C.R.T. to the determination of whether a dismissal is wrongful.  He also found that the grievance procedure was equivalent to the procedure set out in s. 124 A.L.S. and that the C.R.T. accordingly had no jurisdiction.  He therefore dismissed the application in Mr. Mireault’s case and allowed the one in Mr. Messaoudan’s case: 2006 QCCS 5230, [2006] R.J.D.T. 1400.

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

[63] On appeal from the judgment of Fraiberg J., the Court of Appeal stressed the normative nature of the rule in s. 124 A.L.S.:  substantively, it is a labour standard; procedurally, it establishes an alternative scheme under which a complaint can be made to the C.R.T. if the agreement does not provide for an equivalent recourse.  After analysing the relevant legislative provisions and the decisions of this Court, the Court of Appeal rejected the implicit incorporation argument.  It concluded that by operation of s. 114 of, and s. 15 of Schedule I to, the Labour Code, R.S.Q., c. C‑27 (“L.C.”), the C.R.T. has exclusive jurisdiction to decide a wrongful dismissal complaint.  The Court of Appeal therefore set aside the Superior Court’s judgment, quashed Arbitrator Flynn’s award and restored that of Arbitrator Laplante: 2008 QCCA 1046 (CanLII) and 2008 QCCA 1054, [2008] R.J.D.T. 1005.

3.     Positions of the Parties

[64] In this Court, the union argues that s. 124 A.L.S. is implicitly incorporated into the collective agreement and that the rule established in that section is of public order.  This incorporation of s. 124 results from the fact that arbitrators have the power to apply all statutory minimum labour standards.  The union adds that arbitration is a dispute resolution mechanism that is not only mandatory but is even of public order, that the monopoly of unions on representation must not be interfered with, that a multiplicity of proceedings must be avoided and that the C.R.T. has only residual jurisdiction.

[65] The employer submits on the basis of an analysis of the A.L.S. that the legislature did not intend that s. 124 be incorporated into every collective agreement.  The employer adds that a finding that the C.R.T. has exclusive jurisdiction as an alternative forum would not affect the monopoly of unions on representation or the fact that employers’ rights are subject to legislative restrictions of public order.

4.    Analysis

[66] There have been many cases in which it has been necessary to identify the appropriate forum for resolving disputes between unionized employees and their employers.  In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185 (“Morin”), at para. 14, the Chief Justice, relying on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, noted that the Court had not adopted a rule that would confer exclusive jurisdiction on grievance arbitrators:  “. . . there is no legal presumption of exclusivity in abstracto.  Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.”  In proposing that the analysis begin with a review of the legislative provisions, the Chief Justice was confirming that the legislature’s purpose is paramount.  This rule had also been applied in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360:  “. . . in determining whether an adjudicative body has jurisdiction to hear a dispute, a decision‑maker must adhere to the intention of the legislature as set out in the legislative scheme, or schemes, governing the parties” (para. 23).

[67] It might be asked which legislative provisions must be analysed first.  In my opinion, the A.L.S. must be the starting point, since the protection claimed by the employees is provided for in that Act.  As well, it is the A.L.S. that refers to the tribunal that has jurisdiction to enforce that protection.  To start the analysis by altering the provisions of the collective agreement would amount to circumventing the provision this Court must interpret.

[68] It is the first paragraph of s. 124 A.L.S. set out below — and the underlined words in particular — that is central to the issue here:

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

(The terms “agreement”, “employee” and “uninterrupted service” are defined in s. 1 A.L.S.)

[69] Under this provision, the Commission des normes du travail (“C.N.T.”) must determine whether there is a “remedial procedure” other than a recourse in damages available to the employee elsewhere in the A.L.S., in another Act or in an agreement.  If there is, it will invite the complainant to avail him or herself of that other procedure.  If there is not, it may, with the agreement of the parties, appoint a person who will endeavour to settle the complaint (s. 125 A.L.S.).  If no settlement is reached, the C.N.T. must refer the complaint to the C.R.T. (s. 126 A.L.S.), which then has exclusive jurisdiction over the matter (s. 114 L.C.).  The words of s. 114 L.C. are clear:

114.     The Commission is responsible for ensuring the diligent and efficient application of the provisions of this Code and exercising the other functions assigned to it under this Code or any other Act.

Except as regards the provisions of sections 111.0.1 to 111.2, sections 111.10 to 111.20 and Chapter IX, the Commission shall hear and dispose, to the exclusion of any court or tribunal, of any complaint for a contravention of this Code, of any proceedings brought pursuant to the provisions of this Code or any other Act and of any application made to the Commission in accordance with this Code or any other Act. Proceedings brought before the Commission pursuant to another Act are listed in Schedule I.

For such purposes, the Commission shall exercise the functions, powers or duties assigned to it by this Code or any other Act.

The relevant parts of Schedule I read as follows:

SCHEDULE I

PROCEEDINGS BROUGHT UNDER OTHER ACTS

In addition to the proceedings brought under this Code, the Commission shall hear and decide proceedings under

                                                                            . . .

(15) sections 86.1, 123.4, 123.9, 123.12 and 126 of the Act respecting labour standards (chapter N‑1.1);

[70] According to the union, because a grievance procedure is provided for in the collective agreement, complaints must be heard by an arbitrator.  More specifically, the union submits that the substantive protection for which the A.L.S. provides and the procedural scheme it establishes are two aspects that can be severed from one another.  The substantive protection is implicitly incorporated into collective agreements, which means that only an arbitrator has jurisdiction.

[71]  The employer counters that the question of the arbitrator’s jurisdiction must be decided before that of the extent of the parties’ obligations.  The C.N.T. or the grievance arbitrator, as the case may be, must decide the question of jurisdiction upon receiving the complaint or grievance.  The exception to the C.R.T.’s exclusive jurisdiction applies where an agreement or statute provides for equivalent protection.  According to the employer, implicit incorporation is inapplicable in these cases.

[72] The protection provided for in s. 124 A.L.S. is not new.  To answer the question before the Court, I will begin by reviewing how that protection has been interpreted for close to 25 years.  I will then analyse other provisions of the A.L.S. and other statutes pursuant to which a forum other than an arbitrator is responsible for applying a labour standard.  After that, I will consider the nature of the dispute.  Finally, I will discuss the Court’s decisions on the implicit incorporation of standards of public order to determine how they relate to the question now before us.

4.1      Interpretation of the Standard Since It Came Into Effect

[73] The A.L.S. was enacted in 1979, and it replaced the Minimum Wage Act, R.S.Q. 1941, c. 164 (later the Minimum Wage Act, R.S.Q., c. S‑1), which had amended the Women’s Minimum Wage Act, R.S.Q. 1925, c. 100.  The A.L.S. has been amended frequently to better respond to employees’ needs or to correct the wording of its provisions in light of how it has been applied.  It is, therefore, a [translation] “legislative work in progress”:  F. Morin, J.‑Y. Brière and D. Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at p. 498.  It is a statute of public order (s. 93 A.L.S.).  It applies to the vast majority of Quebec employees, both those covered by collective agreements and those covered by individual contracts of employment.  The legislative protection against unfair dismissal was actually inspired by the protection found in one form or another in most collective agreements: G. Hébert and G. Trudeau, Les normes minimales du travail au Canada et au Québec: Étude juridique et institutionnelle (1987), at p. 160.

[74] The Quebec courts have already considered the nature of the protection provided for in s. 124 A.L.S.:  Is it procedural only, or does it also establish a substantive standard?  This issue was resolved in Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261 (C.A.).  In that case, the employer argued that since s. 124 is in a division of the A.L.S. dealing with recourses, it creates a special recourse that is available only if certain very specific conditions are met.  The union contended that the section is normative.  LeBel J.A., as he then was, held as follows (at p. 269):

[translation]  It is true that this provision is procedural in form.  It offers an arbitral recourse to employees who believe that they meet the conditions set out in the Act.  However, the creation of this recourse introduces a substantive legal rule that departs from the traditional principles that applied to individual contracts of employment.

[75] It was also necessary to interpret s. 124 A.L.S. in order to identify the appropriate forum for the recourse it created:  Does the grievance procedure provided for in a collective agreement exclude the procedure provided for in the A.L.S.?  As in Moalli, the courts held that the expression “remedial procedure” necessarily includes a substantive aspect.  It is not enough for the agreement to provide for a grievance procedure.  That procedure also has to enable employees to assert their rights adequately.  As Marquis J. stated in Ateliers Roland Gingras inc. v. Martin, [1988] R.J.Q. 523 (Sup. Ct.),

[translation]  the words “except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement” . . . refer to the existence of a recourse applicable to the specific case before the court. [pp. 525-26]

[76] There have been many cases in which the Quebec Court of Appeal has considered whether a procedure was adequate.  Three criteria have been identified for this purpose:

1 -   the procedure must be mandatory;

2 -   the recourse must bear some similarity to the recourse provided for in s. 124 A.L.S.; and

3 -   the authority adjudicating the dispute must have powers that are at least equivalent to those of the forum provided for in the A.L.S.

See, inter alia: Giguère v. Cie Kenworth du Canada, Division de Paccar du Canada Ltée, [1990] R.J.Q. 2485 (C.A.), at p. 2493; Malo v. Côté‑Desbiolles, [1995] R.J.Q. 1686 (C.A.); Joyal v. Hôpital du Christ‑Roi, [1997] R.J.Q. 38 (C.A.); Commission scolaire Chomedey de Laval v. Dubé, [1997] R.J.Q. 1203 (C.A.); Université du Québec à Hull v. Lalonde, 2000 CanLII 11322 (Que. C.A.); Dubé v. Secrétariat de l’Action Catholique de Joliette, 2001 CanLII 12979 (Que. C.A.); see, to the same effect, Beauséjour v. Lefebvre, [1986] R.J.Q. 1407 (Sup. Ct.), at p. 1413, aff’d [1988] R.J.Q. 639 (C.A.); Syndicat du personnel enseignant du Centre d’études collégiales en Charlevoix v. St‑Laurent, 2007 QCCS 1005 (CanLII); and J.‑L. Dubé and N. Di Iorio, Les normes du travail (2nd ed. 1992), at pp. 398‑423.

[77] Where a collective agreement exists, the requirement that the procedure be mandatory is not problematic.  Most of the cases have concerned the similarity of the recourses or the powers of the arbitrator appointed under a collective agreement.  In the instant cases, the employer submits that the recourses must be equivalent.  A comment is in order concerning the degree of equivalence that must exist between the recourse under the collective agreement and the one provided for in the A.L.S.  In decisions on this question, several different expressions have been used to describe this equivalence.  In my opinion, the focus must be on the actual content of the recourses rather than on the terms used in the decisions.  When the legislature extended to non‑unionized employees the protection already available to many unionized employees, its intention was not to eliminate the recourse to the forum provided for in the collective agreement.  In assessing its own jurisdiction, a tribunal must therefore engage in a global analysis that takes the legislature’s objective of avoiding a multiplicity of recourses into account while at the same time providing employees with adequate protection.  If a collective agreement gives an arbitrator the power to hear a dismissal complaint, to assess the proportionality between the sanction imposed on the employee and the allegations against the employee or the purpose of the employer’s decision, and to make the order sought by the employee, the procedure should be found to be adequate.  There is no need for a theoretical comparison that would serve only to bar the recourse to the arbitrator for reasons unrelated to the dispute.  (See Dubé and Di Iorio, at pp. 418 et seq.)

[78] It can be seen from the many amendments to the A.L.S. that the legislature has done nothing to indicate that the courts’ interpretation to the effect that arbitrators do not have exclusive jurisdiction conflicted with its intention.  This is particularly noteworthy given that two of those amendments changed the forum specifically designated in the Act.  Jurisdiction was originally conferred on an arbitrator whose name appeared on a list drawn up by the Minister of Labour (An Act respecting labour standards, S.Q. 1979, c. 45, s. 126).  Following criticism of the amounts employees had to pay for arbitrators’ fees, the legislature passed the Act to amend the Act respecting labour standards and other legislative provisions, S.Q. 1990, c. 73, in which it made the labour commissioner general responsible for applying s. 124 (s. 61).  A subsequent amendment transferred that jurisdiction to the C.R.T. (An Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions, S.Q. 2001, c. 26, s. 144).  These would have been perfect opportunities to indicate that a grievance arbitrator could review adherence to the standard established in s. 124 A.L.S. regardless of whether the collective agreement so provided.  Yet this was not done.

[79] Even more noteworthy is the fact that, whereas the legislature has chosen not to consider the protection against wrongful dismissal provided for in the A.L.S. to be incorporated into collective agreements, it has made this very choice in the case of the protection against harassment (s. 81.20 A.L.S.).  I will come back to this point after discussing how the interpretation suggested by the union affects other legislative provisions.

4.2       Other Legislative Provisions

4.2.1    Mechanism Provided for in Section 126.1 A.L.S.

[80] In Quebec, every collective agreement contains an arbitration procedure for disagreements arising out of the interpretation or application of the agreement.  This flows from the definition of “grievance” in s. 1(f) L.C. and from s. 100 L.C.:

1. . . .

. . .

(f)  “grievance”:  any disagreement respecting the interpretation or application of a collective agreement;

100.     Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.

[81] Given that every grievance must be submitted to arbitration, if the substantive content of s. 124 A.L.S. were incorporated into collective agreements, the C.R.T. would never have jurisdiction to hear a recourse exercised by a unionized employee, since there would always be another remedial procedure that would oust its jurisdiction.  There is nothing in s. 124 A.L.S. or, for that matter, in s. 126.1 A.L.S. to suggest that this is what the legislature intended.

[82] Section 126.1 was enacted in 1997 (An Act to amend the Act respecting labour standards, S.Q. 1997, c. 2, s. 2) and has not been amended significantly since then.  It is linked with the application of s. 124 A.L.S.  It provides that the C.N.T. may represent before the C.R.T. an employee “who does not belong to a group of employees to which certification has been granted under the Labour Code”.  One might ask why the legislature would have included a provision stating that the C.N.T. may represent only non‑unionized employees if the recourse before the C.R.T. was not available to unionized employees.  The necessary implication of the union’s interpretation is that the restriction provided for in s. 126.1 A.L.S. has no effect.

[83] The interpretation pursuant to which s. 126.1 has an effect, namely that unionized employees can file complaints with the C.R.T. in certain cases, is confirmed by the transcript of the National Assembly’s debate on the proposed amendments to the A.L.S.  That transcript shows that it was assumed that unionized employees would not necessarily submit every grievance to an arbitrator appointed under their collective agreement — they would sometimes have to turn to the forum designated in the Act.  At that time, the Act designated the Labour Commissioner General as the forum for recourses exercised under the A.L.S. in respect of dismissals.  The C.N.T. could represent a non‑unionized employee if the recourse was based on ss. 122 and 123 (prohibited practices), but not if s. 124 was relied on.  The purpose of the proposed amendment (now s. 126.1) was to make up for this deficiency while at the same time trying to limit costs for the C.N.T.  The following passage from the National Assembly’s debate shows how the procedure was being interpreted at that time:

[translation]  According to the Labour Commissioner General’s office, representing employees in dismissal cases will have to result in an increased workload. . . .

The bill also amends the Act as regards the Commission des normes.  It will be amended so that the Commission represents, in recourses against dismissals without good and sufficient cause . . . it will be ensured that employees have to contribute.  Employees covered by collective agreements will be defended by their unions; employees eligible for legal aid will be defended by legal aid.  [Emphasis added.]

(National Assembly, Journal des débats, 2nd Sess., 35th Leg., Bill 31, An Act to amend the Act respecting labour standards (Introduction), May 23, 1996, at p. 1325; see also pp. 1332 and 1334.)

[84] The union objects that, if this interpretation were accepted, the result, insofar as a union is not required to represent its members before the C.R.T., would be to create a significant distinction between the two groups of employees that would place unionized employees at a disadvantage.

[85] On the one hand, this argument does not resolve the problems that flow from it in respect of the interpretation of ss. 124 and 126.1 A.L.S.  On the other hand, it disregards the discretion conferred on the C.N.T., which “may” (and not shall) represent a non‑unionized employee before the C.R.T.  Just as unions are not required to represent employees before the C.R.T. — although in practice they do so in many cases — the C.N.T. is under no obligation in this respect.  The word “may” reflects this choice by the legislature.  The legislature’s purpose in enacting s. 126.1 was not to deprive unionized employees of representation, but to give non‑unionized employees the possibility of being represented before the C.R.T. as well.  There is therefore no real distinction between the two groups of employees in this regard.

4.2.2     Sections 102, 122 and 123 A.L.S.

[86] Section 102 A.L.S. provides that employees who believe that one of their rights under the A.L.S. has been violated may file a complaint with the C.N.T.  Unionized employees must prove that they have exhausted their recourses under their collective agreement.  This provision is broad in scope.  Subject to certain exceptions, it applies to all the recourses provided for in the A.L.S.  It illustrates not only the legislature’s intention to avoid a multiplicity of recourses, but also the fact that the jurisdiction conferred on arbitrators by the collective agreement does not necessarily include the power to settle all disputes that may arise concerning the standards established in the A.L.S.

[87] As with s. 124 A.L.S., the cases the courts have heard so far have required a comparison between the recourse provided for in the collective agreement and the one provided for in the A.L.S., and the courts have held that the collective agreement must contain a provision that affords employees adequate protection.  See  Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949 (C.A.); Commission des normes du travail v. Campeau Corp., [1989] R.J.Q. 2108 (C.A.); Commission des normes du travail  v. Hawker Siddeley Canada inc., [1989] R.J.Q. 2123 (C.A.); Commission des normes du travail  v. Domtar Inc., [1989] R.J.Q. 2130 (C.A.); Québec (Commission des normes du travail) v. Cie minière I.O.C. inc., 1995 CanLII 5324 (Que. C.A.); Commission des normes du travail v. Cie de papier de St‑Raymond ltée, [1997] R.J.Q. 366 (C.A.).

[88] Unlike with s. 124 A.L.S., the legislature has not designated an exclusive forum for the application of s. 102 A.L.S.  The recourses to which s. 102 A.L.S. applies are not included in s. 114 or Schedule I L.C.  Therefore, where the grievance procedure is available to an employee, it may be held, in accordance with the Morin approach, that an arbitrator is the appropriate forum for asserting the rights provided for in the collective agreement and those for which the A.L.S. does not designate an exclusive forum.  For example, if the method set out in the collective agreement for calculating overtime or sick leave differs from the one provided for in the A.L.S. and the grievance procedure is available to the employee, it is possible that the arbitrator would have to use the calculation method of the A.L.S. rather than that of the agreement:  see Syndicat des employé(es) de soutien du Cégep André‑Laurendeau v. Lavoie, 2007 QCCS 322 (CanLII); Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Roy, 2007 QCCS 1172 (CanLII).

[89] The union’s interpretation to the effect that all labour standards are incorporated into collective agreements therefore conflicts with the courts’ interpretation of s. 102 A.L.S.  But there is more.  It creates interpretation problems, as, for example, in the application of s. 122 A.L.S.  Section 122 lists a number of practices that are considered improper.  As with the protection provided for in s. 124 A.L.S., the protection established in s. 122 A.L.S. has a substantive aspect and a procedural aspect.  While s. 124 A.L.S. protects employees who have at least two years of uninterrupted service against being wrongfully dismissed, s. 122 A.L.S. protects employees against any sanction arising out of a prohibited practice.  Where the procedural aspect is concerned, s. 123 A.L.S. provides that the complaint must be filed with the C.N.T.; as well, pursuant to s. 123.4 A.L.S., the presumption of s. 17 L.C. applies in the case of an employee on whom a sanction has been imposed.

[90] When applied to s. 122 A.L.S., the union’s interpretation raises two procedural issues.  The first relates to the mandatory nature of the designated forum:  the complaint must be filed with the C.N.T.  The parties are given no choice.  This shows that not all the standards established in the A.L.S. are implicitly incorporated into collective agreements and thus capable of serving as a basis for an arbitrable grievance.  The second procedural issue has to do with the benefit of the presumption.  Since there is a presumption in favour of an employee who goes before the C.R.T., it might be asked whether this procedural protection is incorporated into the collective agreement.

[91] The union’s interpretation would also have a strange impact where the substantive aspect is concerned if it were applied to certain prohibited practices.  An arbitrator would have jurisdiction to determine whether a sanction is related to an inquiry being conducted by the C.N.T. (s. 122, subpara. 1.1 A.L.S.) or to the fact that an employee has given information to the C.N.T. (s. 122, subpara. 2 A.L.S.).  These are situations that involve the C.N.T. itself and have very little to do with the clauses resulting from collective bargaining that an arbitrator is responsible for interpreting and applying.  If the union’s approach does not apply to all the standards established in s. 122, it might be a source of confusion and could result in multiple proceedings to determine the feasibility or appropriateness of recourses in specific cases even though the C.R.T. has been designated in s. 123 A.L.S. as the forum in which the recourses must be exercised.

[92] Where the application of s. 122 A.L.S. is concerned, the courts have opted for an approach favouring the forum designated in the A.L.S., namely the C.R.T.  Neither arbitration under a collective agreement nor the recourse under s. 124 A.L.S. can eliminate the C.R.T.’s jurisdiction where a complaint is based on an allegation of a prohibited practice:  Balthazard‑Généreux v. Collège Montmorency, [1997] T.T. 118; Lecavalier v. Montréal (Ville), [1997] D.T.T.Q. No. 14 (QL); Robitaille v. Société des alcools du Québec, [1997] T.T. 597; Giguère v. Cie Kenworth du Canada.

[93] As we have seen, the courts have chosen to deal with the question of jurisdiction without first incorporating the relevant standard into the collective agreement.  To identify the appropriate forum, they simply verify the content of the collective agreement as it is presented to them.  Where a complaint raises the question whether the forum provided for in the collective agreement is appropriate, that question must be answered by considering the legislative provisions and the provisions of the agreement.  It seems to me that this approach is consistent both with this Court’s decisions on identifying the competent forum and with the provisions of the legislation and the collective agreement.  In addition, it is simple, transparent and capable of protecting employees’ rights just as much as, if not more than, the approach proposed by the union, which, by contrast, opens the door to procedural disputes that are in my view not helpful.

4.2.3      Section 81.20 A.L.S.

[94] Protection against psychological harassment is at the top of the hierarchy of standards provided for in the A.L.S.  Not only the substantive standard but also the applicable time limits and the nature of the remedy are incorporated into collective agreements.  Section 81.18 contains a definition, s. 81.19 establishes a protection, s. 123.7 sets the time limit for filing a complaint and ss. 123.15 and 123.16 explain the nature of the remedy.

[95] However, the last sentence of the first paragraph of s. 81.20 A.L.S. indicates that the legislature has considered the possibility that not all employees are eligible for the grievance procedure. The first paragraph of s. 81.20 A.L.S. reads as follows:

81.20.  The provisions of sections 81.18, 81.19, 123.7, 123.15 and 123.16, with the necessary modifications, are deemed to be an integral part of every collective agreement.  An employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available to employees under the agreement.

This means that, for all employees to whom the grievance procedure applies, only a grievance arbitrator may enforce the protection against harassment:  Calcuttawala v. Conseil du Québec — Unite Here, [2006] R.J.D.T. 1472 (C.R.T.), at para. 8.  Where employees who do not have access to such a procedure are concerned, however, the C.R.T. remains the forum for exercising this right.  As with the application of s. 124 A.L.S., the C.R.T. is designated as the exclusive alternative forum by s. 114 L.C. and Schedule I.

[96] Even more so than in the case of s. 126.1 A.L.S., if it were concluded that all mandatory standards are implicitly incorporated into collective agreements and that arbitrators have jurisdiction to adjudicate complaints based on all those standards, an incoherence in the Act’s provisions would result.  It would have to be concluded that the legislature has enacted another provision that has no effect.

[97] The wording of s. 81.20 A.L.S. clearly shows the distinction drawn by the legislature between the substantive protection — which is available to everyone — and access to a remedial procedure.  Access to a remedial procedure under the collective agreement is still something the parties can negotiate.  They cannot of course agree that an employee will not be protected.  But there is no obligation to make a forum available to all employees under the agreement.  Thus, just as probationary employees who are dismissed on disciplinary grounds are often not entitled to use the grievance procedure, employees who are protected against harassment may have to assert their rights before the C.R.T. because of the terms set out in the collective agreement.  Employees who believe that they have been harassed may, if no recourse is provided for in the collective agreement, file complaints with the C.N.T.  If a complaint is not settled and is referred to the C.R.T., s. 123.13 authorizes the C.N.T. to represent the employee; in such a case, the A.L.S. does not distinguish between unionized and non‑unionized employees.

[98] It is more consistent with the principles of statutory interpretation to construe the words of a provision in their natural sense and to consider that to be the legislature’s choice.  While the courts are responsible for interpreting remedial legislation to ensure that it achieves its purpose, they may not take an approach that results in incoherence.  It is clear from ss. 102, 122 and 81.20 A.L.S. that the legislature’s intention was to enhance the protection afforded to all employees.  However, there is nothing to indicate that the legislature believed the various forms of protection were implicitly incorporated into all collective agreements; quite the contrary.  It established a single forum for the application of s. 122 A.L.S. and designated one in the Act for the application of s. 124 A.L.S. in cases in which the agreement negotiated by the parties does not provide for one.  In this legislative context, it is not open to an arbitrator to rewrite the wording agreed on by the parties or to read in anything whatsoever.

4.2.4     Other Quebec Statutes

[99] Many Quebec statutes dealing with labour relations or other matters provide for exclusive, concurrent, residual or alternative recourses.  Although several of those statutes are mandatory, this in itself does not mean that their substantive provisions are implicitly incorporated into the collective agreements of Quebec employees.  We have seen that s. 124 A.L.S. provides for an alternative forum.  An example of a concurrent forum can be found in s. 32 of the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001, which provides that a unionized employee may elect to use the forum provided for in the collective agreement rather than the one provided for in the Act.  Section 32 reads as follows:

32.  No employer may dismiss, suspend or transfer a worker or practice discrimination or take reprisals against him, or impose any other sanction upon him because he has suffered an employment injury or exercised his rights under this Act.

A worker who believes that he has been the victim of a sanction or action described in the first paragraph may, as he elects, resort to the grievance procedure set down in the collective agreement applicable to him or submit a complaint to the Commission in accordance with section 253.

However, the same statute makes the Commission des lésions professionnelles the exclusive forum with respect to certain other matters.  Section 369 reads as follows:

369.     The board shall, to the exclusion of any other tribunal, make determinations on

(1)       proceedings brought under section 359, 359.1, 450 or 451;

(2)       proceedings brought under section 37.3 or 193 of the Act respecting occupational health and safety (chapter S‑2.1).

Several other examples of exclusive recourses can be found in s. 114 L.C., particularly the one relating to the application of the Pay Equity Act, R.S.Q., c. E‑12.001.

[100]      In short, before concluding that a mandatory provision is incorporated into a collective agreement, the legislative scheme applicable to the provision must be examined, as the Chief Justice stated in Morin.  In the case of s. 124 A.L.S., neither the A.L.S. nor the L.C. provides support for such a conclusion.  Respect for the arbitration procedure does not, as the union contends, lead to the conclusion that the procedure is of public order.  The legislature has given unions a monopoly on representation.  What can be seen from the legislative provisions I discuss above is that the legislature may also designate a forum other than an arbitrator where it considers it appropriate to do so.

4.3    Conclusion on the Analysis of Legislative Provisions

[101]      As we have seen, the A.L.S. is a statute of public order (s. 93 A.L.S.).  In addition, the L.C. (s. 62) provides that “[t]he collective agreement may contain any provision respecting conditions of employment which is not contrary to public order or prohibited by law.”  This means that a collective agreement may not contain standards that are prohibited by the A.L.S. or are inferior to standards established in the A.L.S.  An employer may not dismiss an employee without good and sufficient cause if the employee is credited with at least two years of uninterrupted service within the meaning of the A.L.S.  However, there is no requirement that the parties confer responsibility for the enforcement of this protection on an arbitrator appointed under the collective agreement.  In other words, a collective agreement could not provide that the employer may, at will, dismiss a person who has two years of uninterrupted service.  Any provision to that effect would be found to be null.  But this does not mean that the standard established in the A.L.S. is incorporated into the collective agreement.  Arbitrators are bound by the collective agreement and the L.C., and in particular by s. 100.12(a) L.C., which provides that they may “interpret and apply any Act or regulation to the extent necessary to settle a grievance”.  This jurisdiction presupposes that the grievance is based on the collective agreement.

[102]      My colleague LeBel J. agrees that the standard in s. 124 A.L.S. cannot be incorporated by reading it into the collective agreement.  Instead, he resorts to the practice of “reading out” to conclude that an arbitrator has jurisdiction.  In my opinion, this second approach raises the same problems as the first.  As creative as it may be, its drawbacks are likely to outweigh its benefits.  I therefore prefer an interpretation that gives meaning to the provisions of the legislation and the collective agreement.

[103]      Finally, I note that the provisions conferring jurisdiction on grievance arbitrators and the C.R.T. are found in the same statute, the L.C. (in ss. 100 and 114).  If the procedure applicable to all unionized employees wishing to avail themselves of s. 124 A.L.S. were the one provided for in their collective agreement, it would be reasonable to expect the legislature to say so clearly. That was the effect of the drafting technique used in the Ontario labour relations legislation (s. 48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A) that was considered in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157.  The Quebec legislature did not choose to do this in s. 100.12(a) L.C. and s. 124 A.L.S.  It instead gave the parties the freedom to include this procedure in their agreement, although in so doing it made sure that no employee would be without a recourse.

4.4      Nature of the Dispute

[104]      So far, I have focussed on establishing the legislature’s intention.  The Court also suggested in Morin that the nature of the dispute be considered in order to determine whether it is within the exclusive jurisdiction of the grievance arbitrator.  In the instant cases, that step does not assist in any way with this decision.  Arbitrators have recognized expertise with respect to dismissal complaints.  But this is also true of the C.R.T.  Not only is the C.R.T. the exclusive alternative forum designated in the A.L.S., but an analysis of how it is set up also confirms its expertise.  Robert P. Gagnon describes the C.R.T. as [translation] “a specialized tribunal with civil jurisdiction based on subject matter conferred on it both in the Labour Code itself and in other statutes” (Le droit du travail du Québec (6th ed. 2008), at p. 275).  Gagnon adds that the 2001 reform [translation] “brought individual recourses provided for in some 25 statutes within the sole, exclusive and final jurisdiction of the C.R.T.” (pp. 281-82).  As well, to be appointed a C.R.T. commissioner, a person must have knowledge of the applicable legislation and 10 years’ experience in matters under the C.R.T.’s jurisdiction (s. 137.12 L.C.).  And the C.R.T. has exclusive jurisdiction over recourses exercised with respect to dismissals resulting from unlawful practices (s. 123 A.L.S. and ss. 16 and 114 L.C.); it also hears all recourses exercised under s. 124 A.L.S. by employees, both unionized and non‑unionized, who do not have another recourse of the same nature.  It cannot therefore be denied that the C.R.T. has expertise in reviewing an employer’s decision in order to determine whether the employer’s justification constitutes a cause other than an unlawful practice and whether there is good and sufficient cause for a dismissal. 

4.5     McLeod, Parry Sound and Isidore Garon

[105]      The union submits that there are three cases in which this Court has held that mandatory standards established in Canadian legislation are implicitly incorporated into collective agreements:  McLeod v. Egan, [1975] 1 S.C.R. 517; Parry Sound; and Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27.  But the forum responsible for enforcing the rights in question was not in issue in any of those cases.  Rather, what was in issue was the application of the substantive protection.

[106]      In McLeod, a case that originated in Ontario, an arbitrator had concluded that a management clause in an agreement was equivalent to consent on the employee’s part to work overtime beyond the limit imposed by the Employment Standards Act, 1968, S.O. 1968, c. 35.  The employee’s consent constituted an exception to the protection expressly provided for in that Act.  The arbitrator had therefore interpreted the exception in favour of the employer and not the employee.  He had implicitly incorporated an exception to the standard into the collective agreement.  This Court held that the management clause could not be interpreted as amounting to implicit consent on the employee’s part.  In that decision, the Court also stated the principle that any provision of a collective agreement that purported to give an employer an unqualified right to require an employee to work overtime would be illegal.  That conclusion is perfectly compatible with ss. 93 A.L.S. and 62 L.C.

[107]      In Parry Sound, not only did the Ontario labour relations legislation not impose an exclusive forum, but, unlike s. 100.12(a) L.C., it provided that arbitrators had jurisdiction to interpret and apply “human rights and other employment‑related statutes” (s. 48(12)(j)).  In addition, all employment standards were incorporated into collective agreements (s. 64.5(1) of the Employment Standards Act, R.S.O. 1990, c. E.14).

[108]      In Isidore Garon, a case that originated in Quebec, the issue was whether a standard established in the Civil Code of Québec, S.Q. 1991, c. 64, applied to employees covered by a collective labour relations scheme.  The majority rejected an interpretation to the effect that all mandatory standards were automatically and implicitly incorporated into collective agreements.  The arbitrator’s jurisdiction was described as follows (at para. 61):

Where there is no incompatibility and the provision can be considered to be implicitly included in the collective agreement, an arbitrator will have jurisdiction to decide disputes relating to it.

[109]      In the Messaoudan case, Arbitrator Laplante found that there was an incompatibility between s. 124 A.L.S. and the provisions of the collective agreement denying temporary probationary employees the right to challenge their dismissal in an arbitration proceeding.  The compatibility test is helpful for the purpose of determining whether a unionized employee may claim the benefit of legislative protection.  But that is not the issue before us, as it is common ground that every employee is protected against dismissal without good and sufficient cause.  Unlike in McLeod, Parry Sound and Isidore Garon, the issue in the instant appeals is which forum is responsible for giving effect to that protection.  According to Weber, Regina Police and Morin, this must be determined by interpreting the A.L.S. and considering the nature of the dispute.

5.  Application of the Principles to the Facts of the Two Appeals

[110]      The collective agreement that applies in both the cases at bar contains a provision describing the arbitrator’s jurisdiction.  It is clause 3‑13.05, which reads as follows:

[translation]  3‑13.05 The arbitrator must decide grievances in accordance with the provisions of this collective agreement.  The arbitrator does not have the power to vary, add to, delete from or supplement this agreement.  The arbitrator may not award damages in the case of an administrative dismissal or of disciplinary action.

[111]      An arbitrator hearing an employee’s grievance for wrongful dismissal has broad powers.  He or she can determine whether the decision is appropriate and confirm it or set it aside (clause 4‑14.16).  However, clauses 4‑14.28 and 5‑17.04 of the collective agreement limit access to the grievance procedure.  The restrictions affect the two employees concerned in the instant cases.  Those clauses are not contrary to public order, as they do not deprive employees of the protection provided for in s. 124 A.L.S.  Limiting access to the grievance procedure is not prohibited by either the A.L.S. or the L.C.

[112]      The parties have not generally incorporated the standards established in the A.L.S. into their collective agreement.  However, it is interesting to note in the circumstances of these cases that they have incorporated one external standard — the protection against discrimination, which includes the grounds set out in the Charter of human rights and freedoms, R.S.Q., c. C‑12 — into the agreement (clause 1‑4.14).

[113]      In the instant cases, to find that there was a right to use the grievance procedure, it would be necessary to rewrite the arbitration clause.  But this raises a broader question, namely whether probationary employees and other employees without job security would have a right to file grievances in relation to all employment standards, or only to some of them, and whether the effect of ss. 81.20 and 102 A.L.S. would be altered by the rewriting of the clause.  In the case of s. 81.20 A.L.S., as I mentioned above, the legislature has specified what provisions are incorporated into the collective agreement, but arbitration is available only insofar as the collective agreement so provides.  In the case of s. 102, a complaint may be filed only after the recourses arising out of the collective agreement have been exhausted.  In short, rewriting the clause could have an impact on several other provisions of the collective agreement.  I do not think it is necessary to do that here.  There is no provision in the A.L.S. to the effect that the collective agreement must make the grievance procedure available in respect of all the standards established in that statute.  On the contrary, the A.L.S. establishes a recourse for cases in which the agreement does not provide for one.

[114]      What we are being asked to do here is not simply — as was the case in McLeod — to interpret the employer’s rights in accordance with a standard applicable under a collective bargaining scheme, but rather to supplant the parties in order to give an arbitrator jurisdiction not provided for the collective agreement.

6.     Conclusion

[115]      An analysis of the legislature’s intention shows that s. 124 A.L.S. cannot be incorporated implicitly into collective agreements.  Reading words in is neither required nor even authorized by the A.L.S., the L.C. or the collective agreement.  Reading words out is no more appropriate.  Restrictions on the arbitration procedure are not contrary to public order, since they do not deprive employees of the protection afforded by the standard and recourse provided for in the A.L.S.  To rewrite the collective agreement, it would have to be assumed that the legislature drafted the A.L.S. incoherently.  It would also have to be assumed that the Quebec legislature adopted the model of exclusive arbitral jurisdiction for all disputes relating to the application of mandatory legislative standards.  These assumptions are unfounded.  Parties to a collective agreement can choose to incorporate an adequate protection, and if they do so, the alternative forum provided for in s. 124 A.L.S. will not be available.  However, the parties did not choose to do so in respect of the employees concerned in these appeals.

[116]      The role of the courts is to interpret legislation in a manner consistent with its purpose.  The A.L.S. was enacted to protect employees.  Pursuant to the interpretation adopted in these reasons, there is a simple way to achieve that purpose — by referring to the words used and avoiding artificial disputes.  The A.L.S. has borrowed from the collective bargaining scheme by including a type of protection found in many collective agreements.  There is no justification for holding now that every collective agreement must include that protection.  The exception made for cases in which collective agreements afford adequate protection reflects this historical reality.  There is no defect in the L.C. or in the A.L.S. or collective agreements that needs to be cured by judicial interpretation.  Moreover, as we have seen, the A.L.S. is already a legislative work in progress.  It would be inappropriate to accept an interpretation whose effect would be to create weaknesses in a structure that has been built following lengthy debate.  The legislature is free to step in to provide for new recourses in respect both of s. 124 A.L.S. and of the other standards.  It alone has the authority to do so.

[117]      I would dismiss both appeals with costs.

                                                                    APPENDIX

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

1.    In this Act, unless the context indicates a different meaning,

. . .

(4) “agreement” means an individual contract of employment, a collective agreement within the meaning of paragraph e of section 1 of the Labour Code (chapter C‑27) or any other agreement relating to conditions of employment, including a Government regulation giving effect thereto;

(10) “employee” means a person who works for an employer and who is entitled to a wage; this word also includes a worker who is a party to a contract, under which he or she

i.  undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person;

ii.  undertakes to furnish, for the carrying out of the contract, the material, equipment, raw materials or merchandise chosen by that person and to use them in the manner indicated by him or her; and

iii.  keeps, as remuneration, the amount remaining to him or her from the sum he has received in conformity with the contract, after deducting the expenses entailed in the performance of that contract;

(12)     “uninterrupted service” means the uninterrupted period during which the employee is bound to the employer by a contract of employment, even if the performance of work has been interrupted without cancellation of the contract, and the period during which fixed term contracts succeed one another without an interruption that would, in the circumstances, give cause to conclude that the contract was not renewed.

81.20.  The provisions of sections 81.18, 81.19, 123.7, 123.15 and 123.16, with the necessary modifications, are deemed to be an integral part of every collective agreement.  An employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available to employees under the agreement.

At any time before the case is taken under advisement, a joint application may be made by the parties to such an agreement to the Minister for the appointment of a person to act as a mediator.

The provisions referred to in the first paragraph are deemed to form part of the conditions of employment of every employee appointed under the Public Service Act (chapter F‑3.1.1) who is not governed by a collective agreement.  Such an employee must exercise the applicable recourse before the Commission de la fonction publique according to the rules of procedure established pursuant to that Act.  The Commission de la fonction publique exercises for that purpose the powers provided for in sections 123.15 and 123.16 of this Act.

The third paragraph also applies to the members and officers of bodies.

93.  Subject to any exception allowed by this Act, the labour standards contained in this Act and the regulations are of public order.

In an agreement or decree, any provision that contravenes a labour standard or that is inferior thereto is absolutely null.

102.     Subject to sections 123 and 123.1, an employee who believes that one of his rights under this Act or a regulation has been violated may file a complaint in writing with the Commission.  Such a complaint may also be filed on behalf of an employee who consents thereto in writing by a non‑profit organization dedicated to the defence of employees’ rights.

If an employee is subject to a collective agreement or a decree, the complainant must then prove to the Commission that he has exhausted his recourses arising out of that agreement or that decree, unless the complaint concerns a condition of employment prohibited by section 87.1; in the latter case, the complainant must prove to the Commission that he has not exercised such recourses or that, having exercised them, he discontinued proceedings before a final decision was rendered.

122.     No employer or his agent may dismiss, suspend or transfer an employee, practise discrimination or take reprisals against him, or impose any other sanction upon him

(1)       on the ground that such employee has exercised one of his rights, other than the right contemplated in section 84.1, under this Act or a regulation;

(1.1)    on the ground that an inquiry is being conducted by the Commission in an establishment of the employer;

(2)       on the ground that such employee has given information to the Commission or one of its representatives on the application of the labour standards or that he has given evidence in a proceeding related thereto;

(3)       on the ground that a seizure by garnishment has been or may be effected against such employee;

(3.1)    on the ground that such employee is a debtor of support subject to the Act to facilitate the payment of support (chapter P‑2.2);

(4)       on the ground that such employee is pregnant;

(5)       for the purpose of evading the application of this Act or a regulation;

(6)       on the ground that the employee has refused to work beyond his regular hours of work because his presence was required to fulfil obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse, or because of the state of health of the employee’s spouse, father, mother, brother, sister or one of the employee’s grandparents, even though he had taken the reasonable steps within his power to assume those obligations otherwise.

An employer must of his own initiative transfer a pregnant employee if her conditions of employment are physically dangerous to her or her unborn child.  The employee may refuse the transfer by presenting a medical certificate attesting that her conditions of employment are not dangerous as alleged.

123.     An employee who believes he has been the victim of a practice prohibited by section 122 and who wishes to assert his rights must do so before the Commission des normes du travail within 45 days of the occurrence of the practice complained of.

If the complaint is filed within that time to the Commission des relations du travail, failure to file the complaint with the Commission des normes du travail cannot be invoked against the complainant.

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

If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.

125.     Upon receiving the complaint, the Commission des normes du travail may, with the agreement of the parties, appoint a person who shall endeavour to settle the complaint to the satisfaction of the interested parties.  The second and third paragraphs of section 123.3 apply for the purposes of this section.

The Commission des normes du travail may require from the employer a writing containing the reasons for dismissing the employee.  It must provide a copy of this writing to the employee, on demand.

126.     If no settlement is reached following receipt of the complaint by the Commission des normes du travail, the Commission des normes du travail shall, without delay, refer the complaint to the Commission des relations du travail.

126.1.  The Commission des normes du travail may, in a proceeding under this division, represent an employee who does not belong to a group of employees to which certification has been granted under the Labour Code (chapter C‑27).

Labour Code, R.S.Q., c. C‑27

1.       In this Code, unless the context requires otherwise, the following expressions mean:

                                                                            . . .

(f)   “grievance”:  any disagreement respecting the interpretation or application of a collective agreement;

62.     The collective agreement may contain any provision respecting conditions of employment which is not contrary to public order or prohibited by law.

100.   Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.

The arbitrator appointed by the Minister is selected from the list contemplated in section 77.

Except where provided to the contrary, the provisions of this division prevail over the provisions of any collective agreement in case of incompatibility.

100.12.     In the exercise of his duties the arbitrator may

(a)  interpret and apply any Act or regulation to the extent necessary to settle a grievance;

                                                                            . . .

114.   The Commission is responsible for ensuring the diligent and efficient application of the provisions of this Code and exercising the other functions assigned to it under this Code or any other Act.

Except as regards the provisions of sections 111.0.1 to 111.2, sections 111.10 to 111.20 and Chapter IX, the Commission shall hear and dispose, to the exclusion of any court or tribunal, of any complaint for a contravention of this Code, of any proceedings brought pursuant to the provisions of this Code or any other Act and of any application made to the Commission in accordance with this Code or any other Act. Proceedings brought before the Commission pursuant to another Act are listed in Schedule I.

For such purposes, the Commission shall exercise the functions, powers or duties assigned to it by this Code or any other Act.

SCHEDULE I

In addition to the proceedings brought under this Code, the Commission shall hear and decide proceedings under

                                                                            . . .

(15)  sections 86.1, 123.4, 123.9, 123.12 and 126 of the Act respecting labour standards (chapter N‑1.1);

Employment Standards Act, R.S.O. 1990, c. E.14

64.5 (1) If an employer enters into a collective agreement, the Act is enforceable against the employer with respect to the following matters as if it were part of the collective agreement:

1.    A contravention of or failure to comply with the Act that occurs when the collective agreement is in force.

                                                                            . . .

(2)  An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is not entitled to file or maintain a complaint under the Act.

(3)  Despite subsection (2), the Director may permit an employee to file or maintain a complaint under the Act if the Director considers it appropriate in the circumstances.

(4)  An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is bound by a decision of the trade union with respect to the enforcement of the Act under the collective agreement, including a decision not to seek the enforcement of the Act.

. . .

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A

48. (1)    Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

                                                                            . . .

(12)    An arbitrator or the chair of an arbitration board, as the case may be, has power,

                                                                            . . .

(j)   to interpret and apply human rights and other employment‑related statutes, despite any conflict between those statutes and the terms of the collective agreement.

Collective agreement for government employees between the Government of Quebec and the Syndicat de la fonction publique du Québec, 1998‑2002

[translation]

1‑4.14 The parties agree that every employee has a right to the full and equal recognition and exercise of his or her human rights and freedoms and that, to this end, the employer, the union and their respective representatives must not threaten, coerce, discriminate against or harass any employee on any of the grounds set out in the Charter of human rights and freedoms, on the ground of pregnancy or because of the exercise of a right conferred on the employee by this collective agreement.

The mechanisms provided for in the Charter of human rights and freedoms will be the employee’s only effective recourse where the employee invokes any of the grounds set out in the Charter.  However, that recourse may not limit the evidence that may be submitted to the grievance arbitrator at the hearing into a grievance.

3‑13.05  The arbitrator must decide grievances in accordance with the provisions of this collective agreement.  The arbitrator does not have the power to vary, add to, delete  from or supplement this agreement.  The arbitrator may not award damages in the case of an administrative dismissal or of disciplinary action.

4‑14.16  The employee may, within thirty (30) days after the effective date of his or her demotion or dismissal, initiate the grievance procedure to contest the validity of the reasons given by the Deputy Minister.

Only facts related to the reasons mentioned in the written notice may be alleged in an arbitration proceeding.

The arbitrator may confirm or set aside the decision.

Should the arbitrator confirm the demotion, the arbitrator may, at the complainant’s request, ask the chair of the Conseil du trésor to examine the employee’s qualifications and give an opinion as to the classification that is best suited to those qualifications.

On receiving the opinion of the chair of the Conseil du trésor, the arbitrator may order that the demotion already in effect be replaced with one to the classification indicated in that notice.

4‑14.21  Any disciplinary action may be grieved by the employee on whom it is imposed in accordance with the grievance procedure, on condition that grievances concerning suspension or dismissal are submitted within thirty (30) days after the suspension or dismissal takes effect.

4‑14.28  The provisions of this division apply to casual or seasonal employees in the following manner:

‑         articles 4‑14.01 to 4‑14.06 apply only to seasonal or casual employees hired for periods of one (1) year or more and only for the periods actually worked;

‑         articles 4‑14.07 to 4‑14.20 do not apply to casual or seasonal employees;

‑         articles 4‑14.21 to 4‑14.27 apply only to seasonal or casual employees hired for periods of one (1) year or more.

Despite the foregoing, articles 4‑14.01 to 4‑14.06 and 4‑14.21 to 4‑14.27 apply to casual employees hired for periods of less than one (1) year who have twelve (12) months of service or more.

5‑17.04     A decision by the Deputy Minister to terminate the employment of a temporary employee during or at the end of the probationary period provided for in section 13 of the Public Service Act or in the Directive concernant la classification des emplois de la fonction publique et sa gestion may not be grieved unless the purpose of the decision is to avoid the application of the second paragraph of this article.

However, following that probationary period, the Deputy Minister may lay off a temporary employee only because of a shortage of work, as a result of workforce reduction or under Chapter 6‑0.00.

Appeals allowed with costs, McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting.

Solicitors for the appellant:  Grondin, Poudrier, Bernier, Québec.

Solicitor for the respondent:  Attorney General of Quebec, Montréal.

Solicitors for the intervener Commission des normes du travail:  Poirier, Rivest, Fradette, Montréal.

Solicitors for the intervener Confédération des syndicats nationaux:  Pepin et Roy Avocats, Montréal.