Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 (Labour relations — Dismissal — Arbitration)

On appeal from the Court of Appeal for Quebec. In June 2009, B was summoned to attend a special meeting of the executive committee of the Commission scolaire de Laval (“Board”), his employer. The committee had to determine whether B’s judicial record was relevant to his functions as a teacher and, if it was, decide whether to resiliate his employment contract. After hearing B in a partially in camera meeting (from which the public was excluded), the executive committee ordered a totally in camera meeting (from which the teacher and his union representative were excluded) in order to deliberate. Upon completion of these two in camera meetings, the committee, sitting in public once again, proceeded to adopt a resolution that terminated B’s employment contract.

The Syndicat de l’enseignement de la région de Laval (“Union”) filed a grievance with respect to B’s dismissal, alleging, inter alia, that the procedure for dismissal provided for in the collective agreement had not been followed. The collective agreement stipulated that the employment relationship could be terminated “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose”. In the course of the inquiry into the grievance, the Union summoned as its first witnesses three members of the executive committee who had been present for the in camera deliberations of June 2009. The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera. The Board also submitted that the principle that motives are “unknowable” that had been stated in Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, precludes the examination of the members of any collective body on the motives that underlie a decision made by way of a written resolution. The arbitrator dismissed these objections and allowed the examination of the executive committee’s members.

The Superior Court, hearing a motion for judicial review of the arbitrator’s interlocutory decision, applied the standard of correctness and granted the motion, barring any testimony by members of the executive committee except as regards the formal process that led to their decision that was announced at a public meeting. The majority of the Court of Appeal, also applying the standard of correctness, restored the arbitrator’s decision and allowed the examination of the executive committee’s members, subject to the usual limits of what is relevant.

Held (7-0): The appeal should be dismissed.

Per McLachlin C.J. and Abella, Karakatsanis and Gascon JJ.:

The standard applicable to the arbitrator’s interlocutory decision is reasonableness. Whether the examination of the members of the Board’s executive committee should be allowed is ultimately an evidentiary issue. The arbitrator has exclusive jurisdiction over such matters, and he allowed the examination of the executive committee’s members on the basis that their testimony would be helpful to him in determining whether the collective agreement and the legislation had been complied with. This conclusion flowed from his interpretation of the collective agreement between the parties and of the Education Act. The presumption that when an administrative tribunal interprets or applies its home statute, the standard of review applicable to its decision is reasonableness therefore applies in this case. This presumption is reinforced by the fact that the usual standard for judicial review of decisions of grievance arbitrators is reasonableness.

The issues in this case are not included in the narrow class of issues for which the standard is correctness. That standard can apply to questions of law that are of central importance to the legal system as a whole and are outside the decision maker’s area of expertise. Questions of this nature are rare and tend to be limited to situations that are detrimental to consistency in the country’s fundamental legal order. In this case, in light of the arbitrator’s broad jurisdiction over evidence and procedure, there is no question of law of central importance that is outside his area of expertise. The questions of evidence and procedure that arise here with respect to the principle that motives are “unknowable” and to deliberative secrecy in the context of an employer’s collective decision‑making authority are not outside the arbitrator’s area of expertise. Nor does the application of that principle and of deliberative secrecy to a fact situation characteristic of a dismissal amount to a question that is detrimental to consistency in the country’s fundamental legal order. Once this is established, maintaining that the concepts at issue do not fall solely within the arbitrator’s expertise in the area or jurisdiction over the matter, or that one of them is a general principle that applies to other legal fields, is not enough to justify dispensing with the deferential standard that is required in such a case.

In light of the information available to him at the time of the summonses, and of the content of the collective agreement and the applicable legislation, the arbitrator allowed the examination of the members of the Board’s executive committee in the grievance proceeding before him. It is this decision that is at issue in the judicial review proceedings, and it was reasonable. Neither the argument that the motives are “unknowable” nor that of deliberative secrecy counters this conclusion.

The principle that the motives of a legislative body are “unknowable” and deliberative secrecy do not apply to a public employer, the Board in this case, that decides to take disciplinary action against an employee, even if an in camera meeting is ordered. Any employee, whether in the public or the private sector, has a right to contest disciplinary action taken against him or her and can, in doing so, raise any relevant evidence. For this, the employee may examine the employer’s representatives on the reasons for the action and on the decision‑making process that led to it.

It is wrong to say that Clearwater established a rule of relevance that applies to every collective decision made by a decision‑making body by means of an official document regardless of the nature of the decision or of the body making it. Rather, the “unknowable” motives in question are those that led a legislative body to adopt provisions of a legislative nature, that is, to carry out acts of a public nature. In this case, the executive committee’s decision was made in a completely different context. Even though the Board is a legal person established in the public interest, it was acting as an employer when it decided to dismiss teacher B by way of a resolution of its executive committee. That decision had an effect on the employment contract between B and the Board and was made in the context of a process provided for in the collective agreement between the parties. It was not a decision of a legislative, regulatory, policy or discretionary nature. Rather, it was made in the specific context of a contractual relationship. A rule of relevance based on the public nature of an impugned decision therefore does not apply here. It was reasonable for the arbitrator to rule that he needed to know what had taken place in camera in order to determine whether the executive committee’s deliberations had been thorough. His decision on this point was consistent with those of several grievance arbitrators who had in the past allowed the examination of school board officials regarding in camera deliberations in disciplinary matters. Given the recognized jurisdiction of arbitrators over evidence and procedure, deference must be shown.

As for deliberative secrecy, it was reasonable for the arbitrator to reject this argument, too. When the executive committee decided to dismiss B after deliberating in camera, it was not performing an adjudicative function and was not acting as a quasi‑judicial decision maker. Rather, it was acting as an employer dismissing an employee. Its decision was therefore one of a private nature that falls under employment law, not one of a public nature to which the constitutional principles of judicial independence and separation of powers would apply. As a result, the discussions held by the committee’s members in camera are not shielded by deliberative secrecy.

Finally, limits should not be placed in advance on the questions that may be asked of the executive committee’s members. Assessing the relevance of evidence falls within the exclusive jurisdiction of the arbitrator. It is not open to a reviewing court to speculate about the types of questions that could be relevant before the examination has even begun. It will be up to the arbitrator to decide what is relevant on the basis of the questions that are eventually asked and to determine which of them really further the resolution of the case. If a court must intervene, it will do so after the arbitrator has ruled on a given point.

Per Wagner, Côté and Brown JJ.:

There is disagreement with the majority as regards the applicable standard of judicial review. There are times when a question concerning an area over which the arbitrator generally has full authority is of such a nature as to affect the administration of justice as a whole and relates to principles in respect of which the arbitrator has no particular expertise in that they are not specific to the arbitrator’s specialized role. Where the question relates not simply to the rules of evidence in general, but to the scope of such basic rules as those relating to the immunities from disclosure and deliberative secrecy, a court reviewing an arbitrator’s decision in this regard must be able to go further than merely inquiring into the reasonableness of the decision. Where necessary, it must also be able, absent clear instructions to the contrary, to substitute its own view for that of the arbitrator if the arbitrator’s decision is incorrect.

The applicable standard of review cannot depend on how a court will ultimately answer the question, as that could make it even more difficult to predict what the result of the analysis will be. Instead, what is important is the nature of the question being raised. In this case, despite the existence of a privative clause and even though the appeal arises in the context of the hearing of the evidence, over which the arbitrator has full authority, the questions that have been raised are general questions of law that, by their nature, are of central importance to the administration of justice as a whole and in respect of which the arbitrator has no particular expertise. Such questions require uniform and consistent answers, which means that both the majority and the dissenting judges of the Court of Appeal, like the Superior Court judge, were right to hold that the applicable standard of review in this case is correctness. However, the result is the same regardless of which standard applies.

Reasons for judgment: Gascon J. (McLachlin C.J. and Abella and Karakatsanis JJ. concurring)

Partially Concurring Reasons: Côté J. (Wagner and Brown JJ. concurring)

Neutral Citation: 2016 SCC 8

Docket Number: 35898

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15788/index.do