Noël v. Société d’énergie de la Baie James,
[2001] 2 S.C.R. 207, 2001 SCC 39
Christian Noël Appellant
v.
Société d’énergie de la Baie James Respondent
and
United Steelworkers of America, Local 6833 (FTQ) Mis en cause
and
Bernard Lefebvre Mis
en cause
Indexed as: Noël v. Société d’énergie de la Baie James
Neutral citation: 2001 SCC 39.
File No.: 26914.
2000: October 11; 2001: June 28.
Present: L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie,
Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Judgments and orders – Res judicata – Conditions –
Employee contesting legality of arbitral award – Superior Court dismissing
employee’s application for judicial review on ground he lacked requisite
interest to bring proceeding – Employee then commencing direct action in
nullity to quash arbitral award – Whether principle of res judicata prevents
bringing new proceeding.
Civil procedure – Direct action in nullity –
Interest – Labour relations – Employee dismissed by employer – Arbitrator
dismissing grievance contesting dismissal – Union refusing to bring matter
before Superior Court – Whether employee has requisite interest to bring direct
action in nullity to quash arbitral award – Code of Civil Procedure, R.S.Q.,
c. C-25, arts. 33, 55.
Labour relations – Arbitral award – Direct action
in nullity – Interest – Union’s duty of representation – Employee dismissed by
employer – Arbitrator dismissing grievance contesting dismissal – Union
refusing to bring matter before Superior Court – Whether employee has requisite
interest to bring direct action in nullity to quash arbitral award – Code of
Civil Procedure, R.S.Q., c. C-25, arts. 33, 55.
After being dismissed by his employer, an employee,
represented by his union, sought reinstatement, but his grievance was dismissed
by an arbitrator. Under the collective agreement, the union had the exclusive
authority to represent the employees for the purposes of the grievance and
arbitration procedure; none of its provisions gave an employee the right to
take a grievance to arbitration personally or to be a party to a proceeding
before the arbitrator. Following the arbitration award, the union decided,
despite the employee’s demands, that it would not take the matter further. The
employee then decided to act on his own and filed an application for judicial
review under art. 846 C.C.P. The Superior Court granted the
employer’s motion to dismiss and found that the employee did not have the
requisite interest to bring such proceedings since he was not a party within
the meaning of art. 846. The employee then brought a direct action in
nullity under art. 33 C.C.P. The Superior Court again granted the
employer’s motion to dismiss, on the ground that the employee did not have the
requisite interest. The Court of Appeal, in a majority judgment, affirmed the
judgment.
Held: The appeal should be dismissed.
(1) Res Judicata
The principle of res judicata did not prevent
the employee from bringing a direct action in nullity. For a judgment to
amount to res judicata with respect to a proceeding, it is not enough
that the main legal issue be identical. It must be established that three
things are identical: parties, object and cause. In this case, the parties and
the object are identical. The cause of the action, which is the presumed
illegality of the award, was common to the two proceedings; only the procedural
route differs. However, in order for the res judicata principle to
apply, the first Superior Court judgment would have had to deal with the
substance of the case. That judgment made no determination concerning the
employee’s substantive right. It dealt solely with an important procedural
issue: the interest required for the purposes of art. 846 C.C.P.
Accordingly, that decision does not amount to res judicata, except on
the question of the employee’s status as a party for the purposes of
art. 846 C.C.P.
(2) Interest
The existence of an interest in bringing a judicial
proceeding depends on the existence of a substantive right; it is not enough to
assert that a procedure exists. In applying art. 33 C.C.P., we must
be careful not to assess the procedural interest using only a purely literal
analysis of art. 55 C.C.P. which applies a broad definition of the
legal interest. In this case, the employee’s direct action in nullity alleges
that the arbitrator made a patently unreasonable decision. The employee’s
procedural interest, within the meaning of art. 55, must be interpreted
and assessed in the context of a labour relations scheme that is based on
collective bargaining and the union’s monopoly on representation.
The union’s duty of representation is not limited to
bargaining and the arbitration process. Where a union has an exclusive
representation mandate, the corresponding duty extends to everything that is
done that affects the legal framework of the relationship between the employee and
the employer. However, a union cannot be placed under a duty to challenge each
and every arbitration award at the behest of the employee in question on the
ground of unreasonableness of the decision, even in dismissal cases. The rule
is that the employer and the union are entitled to the stability that results
from s. 101 of the Labour Code, which provides that an “arbitration
award is without appeal, binds the parties and, where such is the case, any
employee concerned”. The arbitration process represents the normal and
exclusive method of resolving the conflicts that arise in the course of
administering collective agreements, including disciplinary action. Judicial
review cannot therefore be seen as a routine way of challenging awards or as a
right of appeal. While judicial review by the superior courts is an important
principle, it cannot allow employees to jeopardize this expectation of
stability in labour relations in a situation where there is union
representation. Allowing an employee to take action against a decision made by
his
or her union, by applying for judicial review where he or she
believes that the arbitration award was unreasonable, would offend the union’s
exclusive right of representation and the legislative intent regarding the
finality of the arbitration process, and would jeopardize the effectiveness and
speed of the arbitration process. Recognition of this kind of right to
challenge an arbitration award would also offend the fundamental principles
governing relations with the employer where there is a right of exclusive
collective representation. In a case where the arbitration process has been
carried out in accordance with the collective agreement, the employer is
entitled to expect that a grievance that has been disposed of by the arbitrator
will, as a rule, be disposed of permanently, and that the arbitration process
will not be exposed to challenges that are launched without any control being exercised
by its union interlocutor.
The concept of interest for the purposes of
art. 33 C.C.P. must therefore be analyzed in that context. An
employee does not have the requisite interest if the union’s decision appears
to fall within the leeway it is allowed with respect to the performance of its
representation mandate. The nature of the labour relations scheme established
by the Labour Code is an impediment to recognizing that an employee has
a sufficient interest to challenge an arbitration award which he or she
contends is unreasonable, on the sole ground that the union refuses to
institute judicial review proceedings. However, in some situations – for
example, collusion between employer and union or violation of the rules of
natural justice – the employee could bring an action in nullity himself or
herself.
In this case, the employee does not have the
requisite interest to bring a direct action in nullity. It can be concluded
from his action that he personally intends to commence judicial review
proceedings based on the unreasonableness of the arbitration award. This falls
within the reasonable exercise of the union’s discretion in the conduct of
collective labour relations with the employer.
Cases Cited
Referred to: Lessard
v. Gare d’autobus de Sherbrooke ltée, J.E. 94-1854;
Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555; Rocois
Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Roberge
v. Bolduc, [1991] 1 S.C.R. 374; MacMillan Bloedel Ltd. v. Simpson,
[1995] 4 S.C.R. 725; Crevier v. Attorney General of Quebec, [1981] 2
S.C.R. 220; Alliance des Professeurs catholiques de Montréal v. Labour
Relations Board of Quebec, [1953] 2 S.C.R. 140; Attorney General of
Quebec v. Farrah, [1978] 2 S.C.R. 638; Séminaire de Chicoutimi v. City
of Chicoutimi, [1973] S.C.R. 681; Immeubles Port Louis Ltée v.
Lafontaine (Village), [1991] 1 S.C.R. 326; François Nolin Ltée v.
Commission des relations de travail du Québec, [1968] S.C.R. 168; Comité
d’appel du bureau provincial de médecine v. Chèvrefils, [1974] C.A. 123; Fraternité
des Policiers de la Communauté urbaine de Montréal v. City of Montreal,
[1980] 1 S.C.R. 740; Fortier v. Thermolec Ltée, [1985] R.D.J. 81; Jeunes
Canadiens pour une civilisation chrétienne v. Fondation du Théâtre du
Nouveau-Monde, [1979] C.A. 491; Canadian Merchant Service Guild v.
Gagnon, [1984] 1 S.C.R. 509; Rayonier Canada (B.C.) Ltd. and
International Woodworkers of America, Local 1-217, [1975] 2 Can. L.R.B.R.
196; Hémond v. Coopérative fédérée du Québec, [1989] 2 S.C.R. 962; McGavin
Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; Becotte v. Syndicat
canadien de la Fonction publique, local 301, [1979] T.T. 231; Haley and
Canadian Airline Employees’ Association (1981), 41 di 311; Centre
hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330; Gendron
v. Municipalité de la Baie-James, [1986] 1 S.C.R. 401; Ajax (Town) v.
CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Canada Safeway Ltd. v.
RWDSU, Local 454, [1998] 1 S.C.R. 1079; CAIMAW v. Paccar of Canada Ltd.,
[1989] 2 S.C.R. 983; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Domtar
Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles,
[1993] 2 S.C.R. 756; Hoogendoorn v. Greening Metal Products and Screening
Equipment Co., [1968] S.C.R. 30.
Statutes and Regulations Cited
Act to
amend the Code of Civil Procedure, the Act respecting the Régie du logement,
the Jurors Act and other legislative provisions,
S.Q. 1996, c. 5, s. 6.
Act to
amend the Code of Civil Procedure, the Civil Code and other legislation, S.Q. 1983, c. 28, s. 34.
Civil Code of Québec, S.Q. 1991,
c. 64, art. 2848.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 33, 55, 165, 834.1, 840, 846, 847.
Code of Civil Procedure, S.Q. 1965, c. 80, art. 834.
Constitution Act, 1867, s. 96 .
.
Labour Code, R.S.Q., c. C-27,
ss. 47.2, 47.3 to 47.5, 53, 67, 68, 69, 100.5, 101.
Authors Cited
Adams,
George W. Canadian Labour Law, 2nd ed. Aurora: Canada Law Book, 2000
(loose-leaf).
Blouin,
Rodrigue, et Fernand Morin. Droit de l’arbitrage de grief, 5e éd.
Cowansville, Qué.: Yvon Blais, 2000.
Brown,
Raymond E. “The ‘Arbitrary’, ‘Discriminatory’ and ‘Bad Faith’ Tests Under the
Duty of Fair Representation in Ontario” (1982), 60 Can. Bar Rev. 412.
Ferland, Denis, et Benoît Emery. Précis
de procédure civile du Québec, vol. 1, 3e éd.
Cowansville, Qué.: Yvon Blais, 1997.
Gagnon, Robert P. Le droit du
travail du Québec: pratiques et théories, 4e éd.
Cowansville, Qué.: Yvon Blais, 1999.
Morin, Fernand, et Jean-Yves
Brière. Le droit de l’emploi au Québec. Montréal: Wilson & Lafleur,
1998.
Royer, Jean-Claude. La preuve
civile, 2e éd. Cowansville, Qué.: Yvon Blais, 1995.
Veilleux, Diane. “Le devoir de
représentation syndicale: Cadre d’analyse des obligations sous‑jacentes”
(1993), 48 Relat. ind. 661.
APPEAL from a judgment of the Quebec Court of Appeal,
[1998] R.J.Q. 2270, [1998] R.J.D.T. 1064, [1998] Q.J. No. 2746 (QL),
affirming a judgment of the Superior Court. Appeal dismissed.
Paule Lafontaine and Paul
Faribault, for the appellant.
Jean Beauregard, for
the respondent.
Laurent Roy and Christiane
Morrisseau, for the mis en cause United Steelworkers of America,
Local 6833 (FTQ).
English version of the judgment of the Court delivered
by
1
LeBel J. — After
being dismissed by his employer, the Société d’énergie de la Baie James
(“SEBJ”), Noël filed a grievance seeking reinstatement. When his grievance was
dismissed, he applied for judicial review of the arbitration award. When he
found that an application for judicial review did not lie under art. 846
of the Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”), he
filed a direct action in nullity under art. 33 C.C.P. The Superior
Court and the Quebec Court of Appeal, in turn, ruled against him and dismissed
his action on the ground that he had no legal interest. In this Court, the
appeal by Noël raises the problem of an employee’s interest in obtaining
judicial review of an arbitration award made under the Labour Code,
R.S.Q., c. C‑27 (“L.C.”), by way of a direct action in
nullity. The issue directly raised by the case is the relationship between the
procedural rules governing interest and the substantive law rules defining the
collective bargaining scheme that applies in Quebec labour law. For reasons
that differ in part from those of the majority of the Quebec Court of Appeal, I
would dismiss the appeal.
I. Facts
2
This case first arose in 1992. At that time, Noël was working for the
SEBJ as a flight dispatcher at the Fontanges airport on James Bay. The
appellant was subject to the terms of a collective agreement between the United
Steelworkers of America, Local 6833 (FTQ) (hereinafter the “union”) and the
respondent, negotiated under the Labour Code. The union had been
certified to represent the members of the bargaining unit to which Noël
belonged.
3
Under the collective agreement, the union had the exclusive authority to
represent the employees for the purposes of the grievance and arbitration
procedure. None of its provisions gave an employee the right to take a
grievance to arbitration personally or to be a party to a proceeding before the
arbitrator.
4
Over the preceding years, Noël had been involved in disputes with his
employer. Although they were resolved, further incidents occurred. Following
a train of events which there is no need to describe, the employer terminated
the appellant’s employment, and the appellant filed eight grievances, including
one relating to his dismissal.
5
The mis en cause, Bernard Lefebvre, who was appointed as the
arbitrator, heard these grievances. Subject to compliance with the rules and
means of proof that apply to arbitration, the parties agreed to allow Noël the
option of stating his case directly to the arbitrator. However, the union
retained control of the arbitration process; it had carriage of the case and
covered the associated costs. Noël testified as a witness and made submissions
to the arbitrator. On February 20, 1995, the arbitration award dismissed
the eight grievances, and accordingly upheld Noël’s dismissal.
6
Although the union had until then supported the appellant and initiated
the arbitration process, it decided, following the arbitration award, despite
Noël’s demands, that it would not take the matter further. It refused to apply
for judicial review of the arbitration award. Noël then decided to act on his
own.
II. Judicial History
7
In June 1995, approximately four months after the arbitration
award, Noël filed an application for judicial review under art. 846 C.C.P.
The employer immediately filed a motion to dismiss citing various grounds, but
primarily the fact that Noël did not have the requisite interest to bring such
proceedings, since Noël was not a party within the meaning of art. 846 C.C.P.
Michel Côté J. of the Superior Court accepted that argument and dismissed the
action on October 25, 1995. Noël did not appeal that decision. A few weeks
later, on November 16, 1995, the appellant filed a direct action in
nullity in the Superior Court. That proceeding challenged the legality of the
arbitration award and sought to have it quashed. The SEBJ again filed a motion
to have the appellant’s action dismissed, citing the principle of res
judicata, the unreasonable delay in bringing the action and the fact that
its former employee did not have the requisite interest.
8
Halperin J. of the Superior Court allowed the motion to dismiss and
dismissed the appellant’s action on January 26, 1996. He believed that he
was bound by the decision of the Quebec Court of Appeal in Lessard v. Gare
d’autobus de Sherbrooke ltée, J.E. 94-1854, and accordingly he held that
the interest that an employee must have in order to bring a direct action in
nullity against an arbitration award on the ground of excess of jurisdiction is
the same as is required for filing an application for judicial review under
art. 846 C.C.P.
9
Noël then appealed to the Quebec Court of Appeal. That court’s decision
on the appeal was divided: [1998] R.J.Q. 2270. Mailhot J.A., for the
majority, found that a party’s interest should be determined on the basis not
of the title of the pleading, but of the relief sought. The legal basis for the
exercise of the superintending and reforming power was the same in proceedings
under both art. 33 and art. 846 C.C.P. The appellant sought a
declaration of the nullity of the arbitration award on the ground of excess of
jurisdiction because it was unreasonable, and thereby to be reinstated in his
employment. Lessard, supra, therefore had to be applied. In the
labour law context, where the rule is exclusive legal representation by the
union, the interest required for bringing a direct action in nullity is the
same as is required by art. 846 C.C.P. for an application for
judicial review. Only a party to the case in the lower tribunal would have
sufficient interest. An employee who was represented by his or her union would
not have that status. Mailhot J.A. excluded from that finding such
hypothetical cases as collusion between employer and union or injustice
amounting to fraud. In such situations, an employee could bring a direct
action in nullity himself or herself.
10
Robert J.A., dissenting, would have allowed the appeal and
recognized the appellant’s interest. He accepted that apart from exceptional
situations that did not exist in that case, the grievance still belongs to the
union, which has carriage of it during the arbitration process, to the
exclusion of the employee. However, a fundamental distinction would have to be
made between an employee’s interest in the arbitration case initiated for the
purpose of applying and interpreting the collective agreement and the interest
that would enable him or her to invoke the superintending and reforming power
of the Superior Court to have the legality of the arbitrator’s decision determined.
11
In the view of Robert J.A., the proceedings provided for in
arts. 846 and 33 C.C.P. are governed by two separate procedural
schemes and raise different legal policy issues. Direct actions in nullity
originate in the case law. Applications for judicial review are creatures of
statute. Accordingly, there are two separate procedural schemes that apply
with respect to interest. A direct action in nullity would require only
sufficient interest within the meaning of art. 55 C.C.P. Any
person who believed that his or her rights had been infringed would have that
interest. The requirement of status as a party in the lower tribunal would
then apply only to an application for judicial review under art. 846 C.C.P.
12
Robert J.A. pointed out that these two procedural routes are optional
and apply in the alternative since the decision of this Court in Vachon v.
Attorney General of Quebec, [1979] 1 S.C.R. 555. A litigant therefore
has the option of selecting the procedural vehicle he or she considers
appropriate. Interest is a relevant factor in making this choice. Recognition
of such an interest would prevail over concern for the stability of arbitration
awards or over the risk of upsetting the general labour relations scheme.
13
In the view of Robert J.A., applying the test in art. 846 to
art. 33 in order to determine a litigant’s interest would unduly limit the
superintending and reforming power vested in the Superior Court by virtue of
the general common law principles. A direct action in nullity under
art. 33 C.C.P. is the route generally taken to invoke the
superintending and reforming power. The reasons for preferring to proceed by
way of judicial review, or evocation as it is often called, is often one of
efficiency, in terms of the procedural conduct of the two proceedings, in that
the application procedure frequently seems simpler and speedier. In addition,
where there is no legislative provision relating to the interest that is
required in order to bring a direct action in nullity, the sufficient interest
standard in art. 55 C.C.P. would apply. Also, any other conclusion
would leave the employee with no recourse, other than an action against his or
her union where it refused to apply for judicial review of the arbitration
award. The specific recourse provided in ss. 47.3 to 47.5 L.C. does not
mean that an employee can obtain a second arbitration once the arbitration has
taken place and the arbitrator has rendered a decision on the merits.
14
Robert J.A. therefore found that the employee had the necessary
interest to bring a direct action in nullity. Because he was adversely
affected by the arbitration award, he had sufficient interest within the
meaning of art. 55, even though he was not a party for the purposes of art. 846
C.C.P. The decision in Lessard, supra, was incompatible
with an accurate understanding of the nature of an application under art. 33
and was contradicted by a strong trend in the decisions of the Superior Court;
it was not binding on the Court of Appeal and should be overturned.
15
Robert J.A. considered it necessary to make a ruling on the other
two arguments raised by the SEBJ in its motion to dismiss. The SEBJ had
argued, first, that the judgment of Côté J. dismissing the application for
judicial review was res judicata. Robert J.A. rejected that
argument because that decision was res judicata only with respect to
lack of interest for judicial review purposes under art. 846 C.C.P.,
and not in relation to the merits.
16
Robert J.A. then addressed the argument that the application was
brought out of time, but made no ruling on that point. He acknowledged that
the delay seemed long to be reasonable, but felt that it would be difficult for
the Court of Appeal to rule in that regard, there being insufficient evidence
on that point. He would therefore have allowed the appeal and referred the
case to the Superior Court to determine whether the delay had been reasonable
and then, if it was, to dispose of the matter on the merits.
III. Relevant
Legislation
17 Code of Civil
Procedure, R.S.Q., c. C-25
33. Excepting the Court of Appeal, the
courts within the jurisdiction of the Parliament of Québec, and bodies politic,
legal persons established in the public interest or for a private interest
within Québec are subject to the superintending and reforming power of the
Superior Court in such manner and form as by law provided, save in matters
declared by law to be of the exclusive competency of such courts or of any one
of the latter, and save in cases where the jurisdiction resulting from this
article is excluded by some provision of a general or special law.
55. Whoever brings an action at law, whether
for the enforcement of a right which is not recognized or is jeopardized or
denied, or otherwise to obtain a pronouncement upon the existence of a legal
situation, must have a sufficient interest therein.
165. The defendant may ask for the dismissal
of the action if:
(1) There is lis pendens or res judicata;
(2) One of the parties is incapable or has not the necessary
capacity;
(3) The plaintiff has clearly no interest in the suit;
(4) The suit is unfounded in law, even if the facts alleged
are true.
846. The Superior Court may, at the demand
of one of the parties, evoke before judgment a case pending before a court
subject to its superintending and reforming power, or revise a judgment already
rendered by such court, in the following cases:
(1) when there is want or excess of jurisdiction;
(2) when the enactment upon which the proceedings
have been based or the judgment rendered is null or of no effect;
(3) when the proceedings are affected by some gross
irregularity, and there is reason to believe that justice has not been, or will
not be done;
(4) when there has been a violation of the law or an
abuse of authority amounting to fraud and of such a nature as to cause a
flagrant injustice.
However, in the cases provided in paragraphs 2, 3
and 4 above, the remedy lies only if, in the particular case, the judgments of
the court seized with a proceeding are not susceptible of appeal.
Labour Code,
R.S.Q., c. C‑27
47.2. A certified association shall not act in bad faith or in
an arbitrary or discriminatory manner or show serious negligence in respect of
employees comprised in a bargaining unit represented by it, whether or not they
are members.
47.3. If an employee who has been the subject of dismissal or
of a disciplinary sanction believes that the certified association is, in that
respect, violating section 47.2, he shall, if he wishes to invoke this
section, submit a written complaint to the Minister within six months. The
Minister shall appoint an investigator who shall endeavour to settle the
dispute to the satisfaction of the interested parties and of the certified
association.
47.4. If no settlement has been reached within thirty days of
the appointment of the investigator or if the association does not carry out
the agreement, the employee shall, if he wishes to invoke section 47.2, apply
to the Court within the fifteen ensuing days to request that his claim be
referred to arbitration.
47.5. If the Court considers that the association has
violated section 47.2, it may authorize the employee to submit his claim to an
arbitrator appointed by the Minister for decision in the manner provided for in
the collective agreement, as in the case of a grievance. Sections 100 to
101.10 apply mutatis mutandis. The association shall pay the employee’s
costs.
The Court may, in addition, make any other order it
considers necessary in the circumstances.
IV. Analysis
A. Unreasonable
Delay
18
The motion to dismiss filed by the SEBJ raised three issues:
unreasonable delay, res judicata and lack of interest. As
Robert J.A. found, it is not possible, given what is in the record, to
consider the issue of unreasonable delay. In the absence of any factual basis,
had this appeal been allowed, the only fair solution for both parties would
have been to refer the case back to the Superior Court on this point for the
evidence that was needed to be introduced in that court.
19
Accordingly, I will not address that question. This leaves the issue of
res judicata and the problem of interest, and I will address them in
order.
B. Res Judicata
20
The SEBJ argues that the principle of res judicata applies. That
principle would operate to prevent a fresh action being brought following the
judgment by Côté J. of the Superior Court, who dismissed the application for
judicial review filed by Noël under art. 846 C.C.P. Quebec civil
procedure defines the concept of res judicata narrowly, as it does the
concept of lis pendens, with which it is closely connected (see
D. Ferland and B. Emery, Précis de procédure civile du Québec (3rd
ed. 1997), vol. 1, at pp. 206-9; J.-C. Royer, La preuve civile (2nd
ed. 1995), at pp. 463-64). For a judgment to amount to res judicata
with respect to a proceeding, it is not enough that the main legal issue be
identical. It must be established that three things are identical: parties,
object and cause (art. 2848 of the Civil Code of Québec, S.Q. 1991,
c. 64). (See Rocois Construction Inc. v. Québec Ready Mix Inc., [1990]
2 S.C.R. 440, at p. 448; Roberge v. Bolduc, [1991] 1 S.C.R.
374, at pp. 404‑27.) In this case, the parties are undoubtedly
identical. The object, a declaration of the nullity of the arbitration award,
also appears to be the same. The cause of the action, which is the presumed
illegality of the award, was common to the two proceedings. Only the
procedural route differs. However, in order for the res judicata
exception to apply, the first judgment would have had to deal with the actual
substance of the case. It did not. The first decision, the Superior Court
judgment delivered by Côté J., made no determination concerning the
appellant’s substantive right. It dealt solely with an important procedural
issue: the interest required for the purposes of art. 846 C.C.P.;
it went no further than that. The Superior Court did not decide whether the
application for judicial review had any merit. Accordingly, the decision of
that court does not amount to res judicata, except on the question of
Noël’s status as a party for the purposes of art. 846 C.C.P. We
must therefore now consider the main issue raised by the appellant, his
interest within the meaning of art. 33 C.C.P.
C. Interest -- Relationship to Substantive Law
1. Parties’ Arguments
21
The debate regarding interest raises the question of the relationship
between civil procedure and substantive law, that is, in this case, the
fundamental institutions of Quebec labour law. In the appellant’s submission,
art. 33 C.C.P. neither defines nor limits interest. The general
rule of sufficient interest in art. 55 C.C.P. then applies. Noël,
who believes his rights to have been violated by the decision of the
arbitrator, Lefebvre, claims to have the requisite interest and denies that the
general principles of labour law can restrict that interest. Such a
restriction would negate the very existence of the superintending and reforming
power of the Superior Court, which is constitutional in nature and is derived
not only from the Code of Civil Procedure, but from the fundamental
general common law principles that apply in Quebec public law.
22
The appellant acknowledges the general rule of the unique nature of
labour law institutions and specifically the union’s exclusive representation
mandate. However, he submits that this power of representation, and the legal
consequences of that power, do not extend beyond the collective agreement
bargaining process and measures taken to administer the agreement, such as the
grievance procedure. Beyond the sphere to which that mandate applies, the
principles of civil procedure governing interest again apply.
23
Noël argues that no external limitation on the provisions of the Code
of Civil Procedure limits the power of the Superior Court in respect of the
application of art. 33 C.C.P., under which, he contends, all
grounds for judicial review, including want of jurisdiction in the strict
sense, breach of the rules of natural justice, collusion between the parties
and the various types of errors subject to review by the Superior Court in
accordance with the “reasonable” or “patently unreasonable” test, may be
argued.
24
The SEBJ, with the union’s support on this point, advocates a completely
different approach, which reflects the approach taken by the Court of Appeal.
It points out that it is important that there be co‑ordination between
labour law and civil procedure, to avoid jeopardizing the operation of the
procedures for representation and for negotiating of working conditions. From
this standpoint, a party’s legal interest is defined in terms of the
fundamental characteristics of a labour relations system, one of the most
important features of which is exclusive representation of the employees by the
union. This function, which is broader than the appellant suggests, would not
be limited to negotiating the collective agreement and to the grievance and
arbitration process. It would extend, for example, to subsequent measures to
enforce or review the arbitration award. The existence of that function
prevents an employee from challenging what the union has negotiated or what is
decided in an arbitration in which the employee was represented by his or her
union.
25
The SEBJ also points out that it is important that stability be the rule
in terms of the results of bargaining and arbitrations involving the union.
The union’s representation mandate imposes obligations on the employer. It is
therefore important that an employer which has properly performed its
obligations to the union not be exposed to the possibility of untimely action
taken by every one of the employees who belong to the bargaining unit seeking
to challenge the solutions reached through the process of collective bargaining
or of administering the labour agreement.
26
The SEBJ also submits that the nature of the proceeding that the
employee chooses to institute is immaterial. The proceedings are fundamentally
identical, whether they are brought under art. 846 or art. 33. The
interest is therefore identical. The nature of the labour relations scheme
defines and limits that interest for purposes of exercising the power of
judicial review, and the interest required is therefore the interest specified
in art. 846, with the exception of situations in which the employee was a
party to the proceedings before the arbitrator as an individual, or extreme
situations such as collusion between employer and union, as recognized by the
Court of Appeal. That argument having been made, we must now consider the
procedural rules governing direct action in nullity and application for
judicial review, in the civil procedure and administrative law of Quebec.
2. Procedural Rules
Governing Applications for Judicial Review
27
Under the constitutional arrangements that prevail in Canada, each
province has a superior court whose members are appointed under s. 96 of
the Constitution Act, 1867 . That court is the cornerstone of the
Canadian judicial system. It has what has been characterized as a “core”
jurisdiction, which cannot be removed from it by the provincial legislatures.
(See MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at
p. 740, Lamer C.J.) Among the essential powers reserved for a
superior court, as a court of general jurisdiction, is the judicial review of
lower tribunals and administrative bodies. While that power may be
circumscribed, it cannot be totally removed from the Superior Court or
transferred to another body. (See Crevier v. Attorney General of Quebec,
[1981] 2 S.C.R. 220, at p. 235; Alliance des Professeurs catholiques de
Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, at
p. 155; Attorney General of Quebec v. Farrah,
[1978] 2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi,
[1973] S.C.R. 681.)
28
Quebec civil procedure provides a structure for bringing proceedings
which ask the Superior Court to exercise its superintending and reforming
power. We are concerned in this case with applications for judicial review
(art. 846 C.C.P.) and direct actions in nullity (art. 33 C.C.P.).
These are of course separate proceedings, but the rules governing the procedure
in each instance have evolved to the point that the similarities between them
have become increasingly pronounced. Both allow for the same form of review.
In Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1
S.C.R. 326, at p. 358, Gonthier J. pointed out the common origin and
objective of these proceedings.
29
These proceedings are now two procedural methods of achieving the same
result. The fact that one is available does not rule out the possibility of
using the other, as this Court held in Vachon, supra. Direct
actions in nullity and applications for judicial review derive from the same
source: the jurisdiction given to the Superior Court to supervise
administrative bodies or lower tribunals. Their objective is also identical.
Only their procedural rules differ, although an increasingly pronounced
convergence between the two may be observed.
3. Evolution of the Procedure
30
The wording of art. 33 has undergone only minor amendments since
the enactment of the 1965 Code of Civil Procedure (S.Q. 1965, c. 80).
Direct actions in nullity follow the procedure for ordinary actions in courts
at first instance. They are introduced by a declaration and then, following
joinder of the action, they are heard on the merits by the Superior Court. The
only significant change to this procedure since 1965 was to eliminate the writ
of summons in 1996, as was done in respect of all proceedings by declaration (An
Act to amend the Code of Civil Procedure, the Act respecting the Régie du
logement, the Jurors Act and other legislative provisions, S.Q. 1996, c. 5,
s. 6). Furthermore, no judicial leave is required in order to institute
the proceeding. The decision to bring a matter before the court lies entirely
with the party.
31
The procedure for judicial review, which is governed by art. 846 C.C.P.,
is one of the extraordinary recourses provided for in Title VI of Book II of
the Code of Civil Procedure. A party introduces it by motion, in
accordance with art. 834. In practice, this means that, unlike
proceedings instituted by declaration, the case will be heard without any
preliminary exchange of pleadings by the parties. As a rule, the readiness
process is speedier.
32
However, the Quebec National Assembly has substantially altered the
procedure that applies to these extraordinary recourses. When the 1965 Code
of Civil Procedure was originally enacted, the procedure was different.
Like the other extraordinary recourses such as quo warranto and mandamus,
“evocation”, as it was called at the time, necessitated a two-stage procedure.
This recourse could be exercised only with the leave of a judge, under
art. 834 C.C.P. The purpose of the initial application was to
obtain leave. If it were granted, a writ of summons was issued and the case
proceeded on the merits. After the first stage, the allegations made in the
application became, so to speak, the allegations in the action itself.
33
In the case of recourses such as quo warranto and mandamus,
the judge to whom the application for leave was made, in the first stage, did
not go beyond a summary of the applicant’s arguments for the purposes of
granting leave. In the case of evocation, based on this Court’s interpretation
of art. 847 C.C.P. in François Nolin Ltée v. Commission
des relations de travail du Québec, [1968] S.C.R. 168, the judge was
required to satisfy himself that the facts alleged in the application, which
were assumed to be proven, justified the exercise of the recourse in law. In
other words, the judge ruled on the law before hearing the case on the facts,
as in the case of motions to dismiss.
34
That interpretation soon caused problems with respect to the exercise of
the recourse. The question arose whether the conclusions of law stated by the
judge who granted leave were binding on the judge who heard the case on the
merits. After considerable debate in the Quebec Court of Appeal (see, inter
alia, Comité d’appel du bureau provincial de médecine v. Chèvrefils,
[1974] C.A. 123), this Court held that the judge who heard a case on the merits
was not bound by the conclusions of law stated by the first judge. The Court
held that the decision rendered in the leave application had only the weight of
an interlocutory judgment, and that it was not res judicata. (See Fraternité
des Policiers de la Communauté urbaine de Montréal v. City of Montreal,
[1980] 1 S.C.R. 740.)
35
To solve these problems, the legislature of Quebec amended the procedure
for exercising the extraordinary recourses. (See An Act to amend the Code of
Civil Procedure, the Civil Code and other legislation, S.Q. 1983, c. 28,
s. 34.) By repealing art. 847 C.C.P., it eliminated the
obligation to obtain leave to issue a writ of summons. The application itself
became the originating pleading to introduce the case on the merits.
36
The judicial review procedure under art. 846 also permits a
suspension of proceedings before the final judgment (art. 834.1 C.C.P.).
The rules for direct actions in nullity did not expressly provide for such a
procedure. However, civil procedure now recognizes the possibility of
suspension as incidental to the main action (Fortier v. Thermolec
Ltée, [1985] R.D.J. 81 (C.A.)). The procedural rules governing
direct actions in nullity and applications for judicial review therefore look
extremely similar, except with respect to the readiness provisions. Merger of
these judicial review proceedings into a single recourse would be a logical
conclusion to this evolutionary process. That reform has not yet occurred and
the issue of interest therefore remains unresolved.
4. Concept of Procedural
Interest
37
A rapid review of the provisions of the Code of Civil Procedure
might suggest that a simple solution to this case can be found in art. 55,
which applies a broad definition of the legal interest that must be
characterized as sufficient when it amounts to a legal, direct, personal,
acquired and existing interest (see Ferland and Emery, supra, at
pp. 89 et seq.; see also Jeunes Canadiens pour une civilisation
chrétienne v. Fondation du Théâtre du Nouveau-Monde, [1979] C.A. 491, at
p. 493). In the appellant’s submission, his rights were violated by the
arbitration award. His interest in having it quashed is personal, acquired and
existing. If we refer only to the wording of art. 55 C.C.P., this
is a recognized legal interest.
38
However, the concept of procedural interest refers to the substantive
right. We must then be careful not to assess it, in applying art. 33,
using only a purely literal analysis of art. 55. The existence of an
interest in bringing a judicial proceeding depends on the existence of a
substantive right. It is not enough to assert that a procedure exists. A
right enforceable by the courts must be asserted. This understanding of the
concept of interest thus calls for consideration of the substantive law on
which the cause of action is based. This is the nub of the case at bar.
5. Right Asserted by the Appellant
39
The appellant’s action is simply worded and alleges that the arbitrator
made a patently unreasonable decision. It states that the mis en cause
union refused to bring judicial review proceedings and seeks to have the
arbitration award quashed. The motion contains no allegations, other than the
unreasonableness of the arbitration award, to justify quashing the award. It
does not allege improper performance of the union’s representation mandate; it
alleges merely that the union refused to challenge the legality of the
arbitrator’s decision. It does not allege collusion between employer and union
or bad faith on the part of the union. The motion is narrowly framed as one
for judicial review of an arbitration award on the grounds of the
“unreasonableness of the decision”, to use the technical language of this
branch of administrative law.
40
The award that is challenged was made under the provisions of the Quebec
Labour Code and the collective agreement that applies to the parties.
It is therefore situated in the broader framework of the entire relationship
between the union and the employer in respect of which it is certified and with
which it has entered into collective agreements.
6. Principle of Exclusive
Representation under Quebec Labour Law
41
One of the fundamental principles we find in Quebec labour law, and one
which it has in common with federal law and the law of the other provinces, is
the monopoly that the union is granted over representation. This principle
applies in respect of a defined group of employees or bargaining unit, in
relation to a specific employer or company, at the end of a procedure of
certification by an administrative tribunal or agency. Once certification is
granted, it imposes significant obligations on the employer, imposing on it a
duty to recognize the certified union and bargain with it in good faith with
the aim of concluding a collective agreement (s. 53 L.C.). Once
the collective agreement is concluded, it is binding on both the employees and
the employer (ss. 67 and 68 L.C.). For the purposes of
administering the collective agreement, the certified association exercises all
the recourses of the employees whom it represents without being required to
prove that the interested party has assigned his or her claim (s. 69 L.C.).
(With respect to these mechanisms, see, for example: F. Morin and
J.-Y. Brière, Le droit de l’emploi au Québec (1998), at
pp. 867-70; R. P. Gagnon, Le droit du travail du
Québec: pratiques et théories (4th ed. 1999), at p. 362.)
42
The collective agreement is implemented, first and foremost, between the
union and the employer. Certification, followed by the collective agreement,
takes away the employer’s right to negotiate directly with its employees.
Because of its exclusive representation function, the presence of the union
erects a screen between the employer and the employees. The employer loses the
option of negotiating different conditions of employment with individual
employees. In Canadian Merchant Service Guild v. Gagnon, [1984] 1
S.C.R. 509, at p. 519, Chouinard J., who wrote the reasons of this
Court, quoted the following passage from the decision of the British Columbia
Labour Relations Board in Rayonier Canada (B.C.) Ltd. and International
Woodworkers of America, Local 1-217, [1975] 2 Can. L.R.B.R. 196, at
pp. 200-201, regarding the situation created by certification:
Once a majority of the employees in an appropriate bargaining unit have
decided they want to engage in collective bargaining and have selected a
union as their representative, this union becomes the exclusive bargaining
agent for all the employees in that unit, irrespective of their individual
views. The union is granted the legal authority to negotiate and administer a
collective agreement setting terms and conditions of employment for the unit
. . . . This legal position expresses the rationale of the
Labour Code as a whole that the bargaining power of each individual employee
must be combined with that of all the others to provide a sufficient
countervailing force to the employer so as to secure the best overall bargain
for the group. [Emphasis added.]
43
Some years later, in Hémond v. Coopérative fédérée du Québec,
[1989] 2 S.C.R. 962, at p. 975, Gonthier J. again pointed out the change in
labour relations within a company brought about by certification of the union.
A collective framework supersedes the traditional contractual process, which is
based on individual relations between the employer and its employees.
Gonthier J. then cited this passage from this Court’s decision in McGavin
Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718, at p. 725:
The common law as it applies to individual employment contracts is no
longer relevant to employer‑employee relations governed by a collective
agreement which, as the one involved here, deals with discharge, termination of
employment, severance pay and a host of other matters that have been negotiated
between union and company as the principal parties thereto.
44
The impact of this system on the employer is sometimes overlooked.
Although the scheme imposes obligations on the employer relating to the
employees and the union, it offers employers, in return, the prospect of
temporary peace in their companies. An employer can expect that the problems
negotiated and resolved with the union will remain resolved and will not be
reopened in an untimely manner on the initiative of a group of employees, or
even a single employee. This means that, for the life of a collective
agreement approved by the bargaining unit, the employer gains the right to
stability and compliance with the conditions of employment in the company and
to have the work performed continuously and properly. However reluctant the
members of a dissenting or minority group of employees may be, they will be
bound by the collective agreement and will have to abide by it.
45
In administering collective agreements, the same rule will apply to the
processing and disposition of grievances. Administering the collective
agreement is one of the union’s essential roles, and in this it acts as the
employer’s mandatory interlocutor. If the representation function is performed
properly in this respect, the employer is entitled to compliance with the
solutions agreed on. Collective agreements may of course recognize the right
of employees to file grievances and take them to certain levels, even to
arbitration, or to participate directly in grievances as parties. That is not
the case here. With that exception, the rule is that the grievance and
arbitration process is controlled by the union, to which that control belongs
(R. Blouin and F. Morin, Droit de l’arbitrage de grief (5th
ed. 2000), at pp. 178-81). The union’s power to control the process
includes the power to settle cases or bring cases to a conclusion in the course
of the arbitration process, or to work out a solution with the employer,
subject to compliance with the parameters of the legal duty of representation.
7. Scope of Duty of
Representation
46
While the Labour Code gives the union exclusive power of
representation, that Code, like the ordinary law of civil liability, imposes a
duty on it to perform its representative function properly. As we will see,
this means that the duty does not cease once the negotiation and arbitration
process is over. As labour law has evolved, the scope of that duty has
expanded.
47
The Quebec Labour Code has partially codified the duty of
representation. It is defined in the following terms in s. 47.2 L.C.:
47.2. A certified association shall not act in bad faith or in
an arbitrary or discriminatory manner or show serious negligence in respect of
employees comprised in a bargaining unit represented by it, whether or not they
are members.
48
This duty prohibits four types of conduct: bad faith, discrimination,
arbitrary conduct and serious negligence. The conduct that is demanded applies
both at the collective bargaining stage and in administering the collective
agreement (see Gagnon, supra, at p. 308). First, s. 47.2
prohibits acting in bad faith, which presumes intent to harm or malicious,
fraudulent, spiteful or hostile conduct (see Becotte v. Syndicat canadien de
la Fonction publique, local 301, [1979] T.T. 231, at p. 235; and Rayonier,
supra, at p. 201). In practice, this element alone would be difficult
to prove (see G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)),
at pp. 13‑15 to 13‑18; R. E. Brown “The ‘Arbitrary’,
‘Discriminatory’ and ‘Bad Faith’ Tests Under the Duty of Fair Representation in
Ontario” (1982), 60 Can. Bar Rev. 412, at pp. 453-54).
49
The law also prohibits discriminatory conduct. This includes any
attempt to put an individual or group at a disadvantage where this is not
justified by the labour relations situation in the company. For example, an
association could not refuse to process an employee’s grievance, or conduct it
differently, on the ground that the employee was not a member of the
association, or for any other reason unrelated to labour relations with the
employer (see D. Veilleux, “Le devoir de représentation
syndicale: Cadre d’analyse des obligations sous-jacentes” (1993), 48
Relat. ind. 661, at pp. 681-82; Adams, supra, at pp. 13‑18
to 13‑20.1).
50
The concepts of arbitrary conduct and serious negligence, which are
closely related, refer to the quality of the union representation. The
inclusion of arbitrary conduct means that even where there is no intent to
harm, the union may not process an employee’s complaint in a superficial or careless
manner. It must investigate the complaint, review the relevant facts or seek
whatever advice may be necessary; however, the employee is not entitled to the
most thorough investigation possible. The association’s resources, as well as
the interests of the unit as a whole, should also be taken into account. The
association thus has considerable discretion as to the type and extent of the
efforts it will undertake in a specific case. (See Adams, supra, at
pp. 13‑20.1 to 13‑20.6.)
51
The fourth element in s. 47.2 L.C. is serious negligence. A
gross error in processing a grievance may be regarded as serious negligence
despite the absence of intent to harm. However, mere incompetence in
processing the case will not breach the duty of representation, since
s. 47.2 does not impose perfection as the standard in defining the duty of
diligence assumed by the union. In assessing the union’s conduct, regard must
be had to the resources available, the experience and training of the union
representatives, who are usually not lawyers, and the priorities connected with
the functioning of the bargaining unit (see Gagnon, supra, at
pp. 310-13; Veilleux, supra, at pp. 683-87; Adams, supra,
at p. 13‑37).
52
Bad faith and discrimination both involve oppressive conduct on the part
of the union. The analysis therefore focuses on the reasons for the union’s
action. In the case of the third or fourth element, what is involved is acts
which, while not motivated by malicious intent, exceed the limits of discretion
reasonably exercised. The implementation of each decision by the union in
processing grievances and administering the collective agreement therefore
calls for a flexible analysis which will take a number of factors into account.
53
The importance of the grievance to the employee is one of these factors.
There is no doubt that abandoning or losing a discharge grievance will have
more serious effects for the employee than a dispute over vacation dates or
overtime payment arrangements. The union’s duty will be more onerous in cases
of that nature. For example, in Haley and Canadian Airline Employees’
Association (1981), 41 di 311, at p. 316, the Canada Labour Relations Board
pointed out that discharge grievances would call for closer scrutiny of the
duty of fair representation, although employees enjoy no absolute right to have
the grievance procedure initiated or carried to its conclusion in this type of
case. (On this point, see Canadian Merchant Service Guild, supra,
at p. 527; Centre hospitalier Régina Ltée v. Labour Court, [1990] 1
S.C.R. 1330, at p. 1352, per L’Heureux-Dubé J.)
54
In a situation of that type, the chances of the grievance succeeding
will also be carefully weighed. Speedy abandonment of an apparently serious,
if not valid, discharge grievance after only summary processing may suggest, prima
facie, that there has been a breach of the duty of representation. Once
again, there is still some leeway. Abandonment of some grievances that would
normally be valid is sometimes necessary in the interests of the bargaining
unit as a whole, as L’Heureux-Dubé J., writing for this Court,
acknowledged in Centre hospitalier Régina, supra, at
pp. 1349-50.
55
The concurrent interests of other employees in the bargaining unit is an
important factor in assessing the union’s conduct. This element reflects the
collective nature of labour relations, which include the administration of the
collective agreement. The interests of the unit as a whole may justify conduct
on the part of the union that is otherwise detrimental to certain specific
employees. A union may decide to make concessions or to develop a policy for
the administration of the agreement in order not to adversely affect other
employees, or to maintain good relations with the employer with a view to
future negotiations. (See Canadian Merchant Service Guild, supra,
at p. 527; Rayonier, supra, at p. 204.)
8. Judicial Review and Duty of
Representation
56
The basic sanctions that apply where the duty of representation has been
breached are set out in the Labour Code, in respect of certain types of
decisions. Others fall under the law of civil liability. The Labour Code
provides remedies in ss. 47.3 et seq. for cases in which a union
fails to take a discharge grievance or disciplinary sanctions to arbitration.
In a case of the nature, the Labour Court may direct arbitration in the manner
provided for in the collective agreement. That process cannot be invoked
here. It does not apply where there has been an arbitration as provided in the
collective agreement. (See Gendron v. Municipalité de la Baie-James,
[1986] 1 S.C.R. 401.)
57
However, the duty of representation is not limited to bargaining and the
arbitration process. Where the union has an exclusive representation mandate,
the corresponding duty extends to everything that is done that affects the
legal framework of the relationship between the employee and the employer
within the company. This Court has clearly recognized that a union could be in
breach of its duty of representation by failing to bring an action in nullity
against an arbitration award. As the following comments by
L’Heureux-Dubé J. in Centre hospitalier Régina, supra, at
p. 1347, suggest, the release of the arbitration award neither terminates
nor circumscribes that duty:
In this connection I should say at the outset that a
union’s duty of fair representation does not cease in relation to a grievance
proceeding once the grievance has gone to arbitration. It may continue even
after the arbitrator’s final decision . . . subject to Gendron v.
Municipalité de la Baie‑James, supra, which held that in such
a case the s. 47.5 L.C. procedure could not be applied.
58
After the arbitration award is made, the union still has the exclusive
right to represent the employees. As a corollary, the decision to challenge
the legality of an arbitration award is still governed by the principles
relating to proper performance of the duty of good faith and by the same
prohibitions on acting in bad faith, in a discriminatory manner or without
giving the case the appropriate consideration.
59
The union may believe that at this stage, by taking the grievance to
arbitration, it has applied the procedure that is routinely followed in a case
of its nature. It does not have a duty to obtain a result for the employee.
An unfavourable arbitration award does not create a presumption of improper
performance of the duty of representation.
60
How can it be determined whether the union’s failure to challenge an
arbitration award is a breach of the duty of fair representation? In a case
like that, the actual nature of the arguments that would be made in a judicial
review application to challenge the legality of an arbitration award and asking
the Superior Court to exercise its superintending power will have to be
examined. This brings us back to the general principles governing judicial
review. The grounds on which the validity of an arbitration award could be
questioned and the power of the Superior Court to review the award invoked will
vary. The inferior tribunal may have been improperly constituted, in a manner
contrary to the law. It may also have acted without jurisdiction within the
strict meaning of that expression, if the subject matter was not within its
authority, having been assigned to another body. The arbitration board may
also have committed an error that could be characterized as “patently
unreasonable”, and in accordance with the decisions of this Court over a period
of more than 20 years, this would mean that the legality of the award
could be reviewed.
61
We know that there have been significant conflicts in the case law
regarding review of the reasonableness of an arbitration award. Even in the
cases decided by this Court, discussion of the reasonableness of certain lower
court decisions sometimes leads to analyses that are diametrically opposed. There
have been significant dissenting opinions regarding the application of the
standards of reasonableness to specific cases. (See, for example, Ajax
(Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Canada
Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; CAIMAW v.
Paccar of Canada Ltd., [1989] 2 S.C.R. 983.)
62
Given the day-to-day reality of managing collective agreements, the
interpretation of arbitration awards, and the abundance of litigation in this
area, a union cannot be placed under a duty to challenge each and every
arbitration award at the behest of the employee in question on the ground of
unreasonableness of the decision, even in dismissal cases. The rule is that
the employer and the union are entitled to the stability that results from
s. 101 L.C., which provides: “The arbitration award is
without appeal, binds the parties and, where such is the case, any employee
concerned. . .”. Judicial review must therefore not be seen as a
routine way of challenging awards or as a right of appeal. Accordingly, even
in discipline and dismissal cases, the normal process provided by the Act ends
with arbitration. That process represents the normal and exclusive method of
resolving the conflicts that arise in the course of administering collective
agreements, including disciplinary action. In fact, this Court gave strong
support for the principle of exclusivity and finality in Weber v. Ontario
Hydro, [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per
McLachlin J. That approach is also intended to discourage challenges that are
collateral to disputes which, as a general rule, will be definitively disposed
of under the procedure for administering collective agreements. While judicial
review by the superior courts is an important principle, it cannot allow
employees to jeopardize this expectation of stability in labour relations in a
situation where there is union representation. Allowing an employee to take
action against a decision made by his or her union, by applying for judicial
review where he or she believes that the arbitration award was unreasonable,
would offend the union’s exclusive right of representation and the legislative
intent regarding the finality of the arbitration process, and would jeopardize
the effectiveness and speed of the arbitration process.
63
Recognition of this kind of right to challenge an arbitration award
would necessarily offend the fundamental principles governing relations with
the employer where there is a right of exclusive collective representation. In
a case where the arbitration process has been carried out, in accordance with
the collective agreement, the employer is entitled to expect that a grievance
that has been disposed of by the arbitrator will, as a rule, be disposed of
permanently, and that the arbitration process will not be exposed to challenges
that are launched without any control being exercised by its union
interlocutor. As a general rule, the proper performance by the employer of the
duty to negotiate and apply collective agreements must carry with it an
assurance of stability in terms of the conditions of employment in its company.
9. Concept of Interest and
Performance of Duty of Representation
64
The concept of interest for the purposes of art. 33 C.C.P.
must be analyzed in the context described above. An employee does not have the
requisite interest if the union’s decision appears to fall within the leeway it
is allowed with respect to the performance of its representation mandate. The
nature of the labour relations scheme established by the Labour Code is
an impediment to recognizing that an employee has a sufficient interest to
challenge an arbitration award which he or she contends is unreasonable, on the
sole ground that the union refuses to institute judicial review proceedings.
That would negate the exclusive nature of the union’s representation mandate,
and would be problematic not only for the union, but also in respect of an
employer that has performed its legal obligations by negotiating a collective
agreement and administering that agreement in a manner that has been found by
the arbitrator to be proper. It would be difficult to reconcile the principle
of stability in labour relations and industrial peace that underlie the
organization of the representation and collective bargaining scheme in the Labour
Code with the procedural system proposed by the appellant. That system
would allow the union’s decisions in matters that are central to its function
and to the reasonable leeway it is allowed under its duty of representation to
be challenged by any employee who might decide to bring a direct action in
nullity, asserting that his or her rights had been breached.
65
The question of unduly limiting the Superior Court’s power of review
does not arise in this case. While review of the legality of actions by public
authorities is a central element of the Superior Court’s jurisdiction, the
legitimacy of defining certain limits to which that function must be subject is
recognized in administrative and constitutional law. That function is not
absolute. Provided they do not abolish it, legislatures may circumscribe and
limit it, and may do so specifically by express legislative policy, for example
by enacting privative clauses (see Crevier, supra; see also Domtar
Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles),
[1993] 2 S.C.R. 756, at p. 800).
66
The principle of the rule of law does not require that all decisions of
a lower court or administrative tribunal necessarily be subject to microscopic
judicial review. Indeed, the fact that review is often limited to
jurisdictional errors provides clear confirmation that it is legitimate to
limit this superintending power. Those limits may affect the interest that is
required in order for a party to have standing.
67
Imposing this limit on interest is also consistent with the very nature
of the power of judicial review, in one form or another, under art. 840 C.C.P.
or art. 33 C.C.P., as this Court pointed out in Immeubles Port
Louis, supra. Discretion is inherent in the concept of judicial
review itself. The exercise of that discretion must therefore take into
account the demands of the legal policy that is apparent on examining the
labour relations scheme that is in effect in Quebec. While that discretion is
an invaluable tool for remedying serious injustices, it cannot generally
recognize as valid a method of judicial challenge that would jeopardize the
expectations of stability and finality that are an inherent result of the legal
mandate of representation that is given to the union.
68
In judicial review of arbitration decisions, the need to respect the
collective framework of the labour relations system, the roles of the players
in that system and the employer’s reasonable expectations will justify these
kinds of restrictions on the concept of interest and on the interpretation of
that concept and the manner in which it is applied by the Superior Court.
Those limitations will not, of course, rule out any possibility of action under
art. 33. The Court of Appeal referred to situations such as collusion
between employer and union, fraud or bad faith. We might also think of cases
in which the arbitration tribunal was not constituted in accordance with the
law. As well, a case might be brought before an arbitrator that falls within
the jurisdiction of another body such as a human rights tribunal or a workers’
compensation board, or an arbitrator might be asked to determine a matter that
the parties had decided to exclude from the collective agreement. In such
cases, those legal policy issues would not come into play, and the employee
could legitimately argue the fundamental nullity of the entire process that had
been followed, to his or her detriment. A direct action in nullity would then
provide the employee with an appropriate remedy.
69
As well, some violations of the audi alteram partem rule, such as
situations in which the employee had been systematically prevented from
presenting a point of view that might have differed from the union’s, could
legitimately be raised using that procedure. An employee cannot be left
without a remedy. However, it should be noted, on this point, that the Labour
Code already requires that the arbitrator give the interested employee
notice of the arbitration (s. 100.5 L.C.). In addition, the courts
have recognized the employee’s right to separate representation where the
employee’s interests conflict with the union’s (Hoogendoorn v. Greening
Metal Products and Screening Equipment Co., [1968] S.C.R. 30). Ultimately,
however, where the subject matter of the challenge that it is proposed to bring
in the courts is the very essence of the primary function of union
representation — the interpretation or application of the collective agreement
— the decision is for the union to make and it cannot be challenged, regardless
of the procedural method adopted, except by way of a complaint made under
s. 47.3 L.C. or by a proceeding based on the general principle of
civil liability, as discussed earlier. In this instance, the procedure
followed cannot redefine the content of the substantive law and the underlying
legal policy.
70
In this case, as was indicated earlier, the direct action in nullity
alleges only that the decision was unreasonable. It does not contend that the
fundamental rules of natural justice were violated, nor does it claim that the
tribunal acted without jurisdiction and that its process was vitiated by
absolute nullity. All that can be concluded from Noël’s action is that he
personally intends to commence judicial review proceedings based on the
unreasonableness of the arbitration award. This falls within the reasonable
exercise of the union’s discretion in the conduct of collective labour
relations with the employer. The employee’s procedural interest, within the
meaning of art. 55 C.C.P., must therefore be interpreted and
assessed in the context of a labour relations scheme that is based on
collective bargaining and the union’s monopoly on representation. Accordingly,
the majority of the Court of Appeal did not err in finding that Noël did not
have the requisite interest to bring a direct action in nullity in the
circumstances.
71
For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Eidinger & Associés, Montréal.
Solicitors for the respondent: Lavery, de Billy, Montréal.
Solicitors for the mis en cause United Steelworkers of America,
Local 6833 (FTQ): Trudel, Nadeau, Lesage, Larivière & Associés, Montréal.