Quebec (Attorney General) v. Guérin, 2017 SCC 42 – Administrative law – Judicial review – Standard of review
On appeal from a judgment of the Quebec Court of Appeal (2015 QCCA 1726) affirming a decision of Grenier J. (2013 QCCS 6950).
The Health Insurance Act (“Act”) provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism that resulted, in this case, in the Accord‑cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance maladie (“Framework Agreement”). The Fédération and the Ministère de la Santé et des Services sociaux (collectively, “negotiating parties”) created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocole concernant la radiologie diagnostique (“Protocol”), one of the schedules to the Framework Agreement. Section 54 of the Act provides that a “dispute resulting from the interpretation or application of [the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction”. A distinction is made in the Framework Agreement between a [translation] “dispute with respect to fees” raised by a physician and a “collective dispute” raised by the Fédération.
G, a radiologist who is a member of the Fédération, applied to the negotiating parties for a declaration that certain clinics were eligible for the digitization fee. His application was denied. G contested that decision by submitting a dispute to the council of arbitration. The arbitrator, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have standing to submit the dispute. The motion judge granted G’s motion for judicial review, finding that the arbitrator’s decision was unreasonable. The majority of the Court of Appeal upheld the motion judge’s decision.
Held (6-1): The appeal should be allowed and the award of the council of arbitration restored.
Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.:
The arbitrator’s conclusions were reasonable. The reasonableness standard necessarily applies, because the arbitrator was called upon to interpret and apply his enabling statute, the Framework Agreement and the Protocol, which are at the core of his mandate and expertise. The issues in this case do not raise a true question of jurisdiction in relation to the council of arbitration. On the one hand, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applying his or her enabling legislation and related documents, whether a matter is arbitrable. Applying the reasonableness standard to such a question undermines neither the rule of law nor the other constitutional bases of judicial review. In contrast, the effect of applying the correctness standard would be to undermine the presumption in favour of the reasonableness standard that has been consistently recognized and endorsed by the Court in numerous cases. On the other hand, the question of G’s standing, too, relates to the arbitrator’s interpretation of his enabling legislation and of the Framework Agreement and does not cast doubt on his authority to make the inquiry submitted to him. Finally, the rule of law does not require the application of the correctness standard here. The fact that a question might give rise to conflicting interpretations does not on its own support a conclusion that that standard applies.
The arbitrator’s decision that the application did not raise an arbitrable dispute is reasonable. The determination of whether the dispute is arbitrable cannot be limited to s. 54 of the Act and must take the relevant terms of the Protocol into account. According to the arbitrator’s interpretation of the Protocol, the negotiating parties had reserved for themselves the authority to decide whether to recognize a laboratory, and had in so doing excluded that decision from the arbitration process. But the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application, as he was asking the arbitrator to rule on that question in place of the negotiating parties. It was reasonable for the arbitrator to conclude that if he were to rule on the dispute, the effect would be to alter the negotiated content of the Protocol by stripping the negotiating parties of their exclusive discretion under the Protocol.
It was also reasonable for the arbitrator to conclude that G did not have standing because, under the Framework Agreement and the Act, only the Fédération can submit such a dispute to a council of arbitration. The Act gives the Fédération a monopoly of representation in respect of its members both for the negotiation and for the application of the Framework Agreement except in the case of a dispute with respect to fees, and this case did not involve such a dispute. Section 54 does not entitle G to have recourse directly to arbitration. The main purpose of this section is to establish the exclusive nature of the tribunal’s jurisdiction, not to define standing or determine who may submit a dispute. The context of the Act as a whole also confirms this interpretation. The statutory provisions that set out specific situations in which a health professional may have recourse to arbitration would serve no useful purpose if s. 54 nonetheless entitled him or her to submit every possible type of dispute. Such an interpretation would also result in an untenable increase in numbers of arbitration cases. Thousands of medical specialists and other health professionals, as well as health institutions and even third parties such as contractors or patients, could have recourse to arbitration. It is impossible to imagine that to have been the legislature’s intention as regards the purpose and scope of s. 54.
A physician who feels aggrieved has a remedy in the general law of civil liability. If G can establish that the Fédération’s conduct involved bad faith, discrimination, arbitrary conduct or serious negligence, he will be entitled to bring an action against it in court and to be compensated for the resulting harm.
Per Brown and Rowe JJ.:
The issue of the arbitrator’s capacity to hear G’s matter raised a question of jurisdiction, not of arbitrability, reviewable on the standard of correctness. The mere fact that a question of jurisdiction has not been discerned since Dunsmuir v. New Brunswick,  1 S.C.R. 190, or that the jurisprudence on such questions has been inconsistent, does not mean that they have ceased to exist. In this case, the arbitrator saw his capacity to hear G’s matter as a question of jurisdiction, as did the courts below. While an issue is not arbitrable before a tribunal that has no jurisdiction to hear it, arbitrability is distinct from jurisdiction and standing. Mischaracterizing questions of jurisdiction as questions of arbitrability risks undermining the coherence of the analytical structure in administrative law. The arbitrator erred in concluding that he did not have jurisdiction to hear the matter. Section 54 of the Act gives the council of arbitration exclusive jurisdiction to hear “dispute[s] resulting from the interpretation or application of an agreement”. A dispute concerning how the agreement between the Fédération and the Minister operated with respect to G’s facility was such a dispute.
While the arbitrator’s decision on the question of G’s standing is reviewable for reasonableness and was reasonable, questions of standing can be jurisdictional. A court determining the standard of review to be applied to an administrative tribunal’s decision on a question of standing must examine the text of the statutory grant of power. Standing can be a jurisdictional question where a tribunal is confined by the terms of its grant to hear only from a certain class of persons. In this case, the passive text of s. 54, the statutory grant of power, indicates that the jurisdiction of councils of arbitration is not confined to hearing matters brought from certain classes of persons. Furthermore, there is no floodgate concern that would militate against granting standing. The more persons who are placed in the difficult position in which G finds himself, the more compelling the basis for allowing him and others to have their disputes heard by an impartial decision‑maker.
Per Côté J. (dissenting):
The determination of whether it was open to the arbitrator to hear the case raises a true question of jurisdiction, to which the standard of correctness applies, and the arbitrator erred in concluding that he did not have jurisdiction to hear G’s dispute.
The arbitrator also erred in concluding that G did not have standing. This question is one of jurisdiction, because the arbitrator cannot hear any dispute submitted by a medical specialist, except one with respect to fees. Even if the reasonableness standard is applied, the arbitrator’s decision is not defensible in respect either of the facts or of the law. The arbitrator’s conclusion is unreasonable insofar as it is based on a mischaracterization of the nature of the dispute and a misinterpretation of s. 54 of the Act.
In this case, the arbitrator concluded that the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application and that G was asking that the rules negotiated by the parties to the Framework Agreement be modified. But that is a mischaracterization of the nature of the dispute that completely disregards the notice of dispute that instituted the proceeding. On the contrary, G’s challenge was related to how the Fédération and the Régie de l’assurance maladie du Québec had interpreted and applied the conditions for recognition.
Section 54 of the Act is drafted in broad, clear language. The arbitrator interpreted it narrowly on the basis of the language of the Framework Agreement, thereby disregarding the fundamental principle of the hierarchy of rules, according to which the scope of the Framework Agreement must depend on that of the Act, not the reverse. Moreover, the right provided for in s. 54 of the Act must be construed broadly and liberally. When the negotiating parties decide on and designate general radiology laboratories for the purposes of the digitization fee, they are interpreting and applying the agreement within the meaning of s. 54. A dispute submitted to the arbitrator thus results from a difference of opinion between the medical specialists and the negotiating parties. The Fédération’s monopoly of representation does not extend that far. Principles of Quebec labour law, such as that of the monopoly of representation granted to a union, should not be imported into the collective bargaining scheme provided for in the Act unless the Act expressly provides for this.
Lastly, the courts would not have been an appropriate forum for G, as his allegations correspond to none of the types of conduct on the basis of which he might bring an action against the Fédération.
Reasons for judgment: Wagner and Gascon JJ. (McLachlin C.J. and Karakatsanis J. concurring)
Joint Reasons Concurring in the result: Brown and Rowe JJ.
Dissenting Reasons: Côté J.
Neutral Citation: 2017 SCC 42
Docket Number: 36775
Matthew Estabrooks Associate
D. Lynne Watt Partner
Jeff Beedell Partner
Guy Régimbald Partner
Graham S. Ragan Partner
Brian A. Crane, QC Partner
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