A recent Supreme Court of Canada decision clarifies the standard of review applicable to arbitrators’ decisions. It also provides guidance on whether an employee of a public body has a right to examine members of the employer’s decision-making authority on the motives for the employee’s dismissal following an in cameradiscussion.
The case is Commission scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, and the facts are as follows: an in camera meeting of the executive committee of the Commission scolaire de Laval (the “Board”) was held to determine whether a teacher with a criminal record should be terminated. A unanimous written resolution confirmed that the teacher would be terminated. The union grieved the termination alleging, among other things, that the procedure for dismissing an employee in the collective agreement had not been followed.
During the hearing, the Board objected to its committee members, who were present at the in camera meeting, testifying and argued that the written resolution, which included the offences the teacher had been convicted of, spoke for itself. The Arbitrator rejected the Board’s objection, holding that testimony of the committee members was relevant in determining whether the collective agreement, which requires that disciplinary decisions are made “through deliberations”, had been complied with.
This decision was appealed and the majority of the Court held that evidentiary issues, including whether examination of the Board’s executive committee should be permitted, must be reviewed on a reasonableness standard and that arbitrators have exclusive jurisdiction over such issues.
Although the Court noted that public law immunities may protect decisions made by a public body when it carries out acts of a public nature, the Court clarified that such immunities do not apply to a public employer that decides to discipline an employee, even if an in camera meeting is ordered, as such action is governed by contract and employment law. It noted that employees have the right to contest any disciplinary action taken against them and may raise any relevant evidence in doing so, including examining the employer’s representatives on the reasons for the action and the decision-making process that lead to it.
In ruling that it was “reasonable” for the Arbitrator to allow the examination of the Board’s executive committee to determine whether its deliberation was thorough, the Court emphasized that deference must be shown to arbitrators.
Finally, the Court concluded that the questions that may be asked of the Board’s committee members should not be limited in advance as assessing the relevancy of such evidence also falls within the exclusive jurisdiction of the arbitrator.
Although the minority of the Court agreed that the appeal should be dismissed, it rejected the reasonableness standard of review, arguing that the correctness standard should be applied in the circumstances. As a result, some uncertainty remains with respect to the appropriate standard of review and it remains to be seen how this decision will be applied in future decisions.