Ipsofactoj.com: International Cases  Part 9 Case 6 [SCC]
SUPREME COURT OF CANADA
- vs -
28 JUNE 2001
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.
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) ("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.
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.
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.
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.
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
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.
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.
Noël then appealed to the Quebec Court of Appeal. That court's decision on the appeal was divided:  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.
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.
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.
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  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.
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 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.
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.
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.
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 LEGISLATIONS
Code of Civil Procedure, R.S.Q., c. C-25
Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature 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.
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.
The defendant may ask for the dismissal of the action if :
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:
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
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.
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 must within six months, if he wishes to avail himself of this section, either
Where the Minister receives a complaint under section 47.3, he shall appoint an investigator who shall endeavour to settle the complaint to the satisfaction of the employee and the certified association.
If no settlement has been reached within 30 days of the appointment of the investigator or if the association does not carry out the agreement, the employee must within the following 15 days, if he still wishes to avail himself of section 47.2, submit to the Court or mail to the address of the Court a written application for an order directing that his claim be referred to arbitration.
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.
A. Unreasonable Delay
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.
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
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 Michel 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 C.C.Q.). (See Rocois Construction v. Québec Ready Mix Inc.  2 S.C.R. 440, at p. 448; Roberge v. Bolduc  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
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 constitutionally 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.
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.
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.
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.
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.
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
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  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  2 S.C.R. 220, at p. 235; Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec  2 S.C.R. 140, at p. 155; Attorney General of Quebec v. Farrah  2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi  S.C.R. 681.)
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)  1 S.C.R. 326, at p. 358, Gonthier J. pointed out the common origin and objective of these proceedings.
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
The wording of art. 33 has undergone only minor amendments since the enactment of the 1965 Code of Civil Procedure (S.Q. 1965, ch. 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.
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.
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.
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  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.
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,  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 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,  1 S.C.R. 740.)
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 of a writ of summons. The application itself became the originating pleading to introduce the case on the merits.
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  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 this issue of interest therefore remains unresolved.
4. Concept of Procedural Interest
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  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.
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
The appellant's action is simply worded and alleges that the arbitrator made a patently unreasonable decision. It states that the mise 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.
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
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 (1999), at p. 362.)
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  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,  2 Can. L.R.B.R. 196, p. 200, 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.
Some years later, in Hémond v. Coopérative fédérée du Québec  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  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.
The impact of this system on the employer are 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 that negotiated and resolved with the union will remain resolved and will not be reopened in an untimely manner on the initiative of a group of employees, or even a single employee. This means that, for the life of a collective agreement approved by the bargaining unit, the employer gains the right to stability and compliance with the conditions of employment in the company and to have the work performed continuously and properly. However reluctant the members of a dissenting or minority group of employees may be, they will be bound by the collective agreement and will have to abide by it.
In administering collective agreements, the same rule will apply to the processing and disposition of grievances. Administering the collective agreement is one of the union's essential roles, and in this it acts as the employer's mandatory interlocutor. If the representation function is performed properly in this respect, the employer is entitled to compliance with the solutions agreed on. 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 principle 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
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.
The Quebec Labour Code has partially codified the duty of representation. It is defined in the following terms in s. 47.2 L.C.:
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 the bargaining unit represented by it, whether or not they are members.
This duty prohibits four types of conduct: bad faith, discrimination, arbitrary conduct and serious negligence. The conduct that is demanded applies both 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  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.)
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).
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.)
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.)
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.
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 Airlines 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  1 S.C.R. 1330, at p. 1352, per L'Heureux-Dubé J.)
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 Ltée, supra, at pp. 1349-50.
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. 424.)
8. Judicial Review and the Duty of Representation
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  1 S.C.R. 401.)
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 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.
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.
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.
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.
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 (City) v. CAW, Local 222  1 S.C.R. 538, 2000 CSC 23; Canada Safeway Ltd. v. RWDSU, Local 454  1 S.C.R. 1079; CAIMAW v. Paccar of Canada Ltd.  2 S.C.R. 983.)
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,  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.
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
The concept of interest for the purposes of art. 33 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.
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),  2 S.C.R. 756, at p. 800.)
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.
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.
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.
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 & Screening Equipment  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.
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.
For these reasons, I would dismiss the appeal with costs.
Lessard v. Gare d'autobus de Sherbrooke ltée, J.E. 94-1854; Vachon v. Attorney General of Quebec,  1 S.C.R. 555; Rocois Construction Inc. v. Québec Ready Mix Inc.,  2 S.C.R. 440; Roberge v. Bolduc,  1 S.C.R. 374; MacMillan Bloedel Ltd. v. Simpson,  4 S.C.R. 725; Crevier v. Attorney General of Quebec,  2 S.C.R. 220; Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec,  2 S.C.R. 140; Attorney General of Quebec v. Farrah,  2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi,  S.C.R. 681; Immeubles Port Louis Ltée v. Lafontaine (Village),  1 S.C.R. 326; François Nolin Ltée v. Commission des relations de travail du Québec,  S.C.R. 168; Comité d'appel du bureau provincial de médecine v. Chèvrefils,  C.A. 123; Fraternité des Policiers de la Communauté urbaine de Montréal v. City of Montreal,  1 S.C.R. 740; Fortier v. Thermolec Ltée,  R.D.J. 81; Jeunes canadiens pour une civilisation chrétienne v. Fondation du théâtre du Nouveau-Monde,  C.A. 491; Canadian Merchant Service Guild v. Gagnon,  1 S.C.R. 509; Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217,  2 Can. L.R.B.R. 196; Hémond v. Coopérative fédérée du Québec,  2 S.C.R. 962; McGavin Toastmaster Ltd. v. Ainscough,  1 S.C.R. 718; Becotte v. Syndicat canadien de la Fonction publique, local 301,  T.T. 231; Haley and Canadian Airlines Employees' Association (1981), 41 di 311; Centre hospitalier Régina Ltée v. Labour Court,  1 S.C.R. 1330; Gendron v. Municipalité de la Baie-James,  1 S.C.R. 401; Ajax (City) v. CAW, Local 222,  1 S.C.R. 538, 2000 SCC 23; Canada Safeway Ltd. v. RWDSU, Local 454,  1 S.C.R. 1079; CAIMAW v. Paccar of Canada Ltd.,  2 S.C.R. 983; Weber v. Ontario Hydro,  2 S.C.R. 929; Domtar Inv. v. Quebec (Commission d'appel en matière de lésions professionnelles,  2 S.C.R. 756; Hoogendoorn v. Greening Metal Products and Screening Equipment Co.,  S.C.R. 30.
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.
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.
Authors and other references
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
Paule Lafontaine and Paul Faribault, for the appellant (instructed by Eidinger & Associés, Montréal)
Jean Beauregard, for the respondent (instructed by Lavery, de Billy, Montréal)
Laurent Roy and Christiane Morrisseau, for the mis en cause the United Steelworkers of America, Local 6833 (FTQ) (instructed by Trudel, Nadeau, Lesage, Larivière & Associés, Montréal)
all rights reserved