A process or hearing that is termed “peer-to-peer” or that places an emphasis on its informality does not deprive parties of their fundamental legal rights.

Such is the conclusion that the Superior Court reached in Bezina c. Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), a case argued by Jason S. Novak and Jacques Bélanger.

The facts

Two stunt performers had been hired for a movie to be shot in Nova Scotia from May to July 2008. They did work on the movie, although one of the plaintiffs was fired at the beginning of July while the other finished his contract. After the shoot, both filed a number of complaints and claims, alleging essentially that they had not been treated and paid in accordance with the applicable Independent Production Agreement.

The performers and their union, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), had an acrimonious relationship for a few months. Ultimately, ACTRA obtained some compensation for the plaintiffs; however, it also found the plaintiffs in default for having agreed to receive compensation below the stated minimum fees. Accordingly it informed them that, under its disciplinary process, it was confiscating the amounts it had perceived, as a form of fine.

The plaintiffs, represented by RSS, filed a claim before the Superior Court of Quebec.

The decision

The Court concluded that, although the union emphasized the disciplinary process to be “peer-to-peer talks”, ultimately a review of the process and bylaws led to a different conclusion (para. 223 to 255). In other words, the manner in which the rules were set, the manner in which the hearings were structured, the fact that it was an adversary process  and the importance of the stakes for the members ruled out the possibility that the discipline committee be a mere peer-to-peer tribunal.

The Court’s decision can be summed up with the following excerpt: “In withholding from the Plaintiffs the sums they had secured from Production, [the Defendants] kept or disposed of money ‘prima facie’ belonging to [the Plaintiffs] without them having any say in the matter. The right of ACTRA to represent the Plaintiffs does not entail the right to dispose of their money as it sees fit. The process of, in the same letter, laying the charge, determining the guilt, imposing the penalty and disposing of the fine money is wrong.” [para. 252]

The defendants were ordered to pay to the plaintiffs the amounts that ACTRA had claimed and obtained on their behalf.

What you must conclude from this decision

Whether you are responsible for a union’s or a professional order’s disciplinary committee, or whether you are a member of such union or order, it is essential that you be aware and understand the application of Bezina.

The committee’s obligations should not be based on what the process is called, but rather on what the process entails. This may seem simplistic; however in most cases this analysis requires that a number of factors be taken into consideration. The outcome of this assessment can have a serious impact on the legal rights that an individual might or might not be afforded.

Consequently, the member or individual being charged with some form of wrongdoing would be entitled to certain fundamental rights. Examples of these may include, but are not limited to:

  • the right to a fair and impartial tribunal
  • the right to receive in writing within a reasonable delay the reasons for the charge
  • the right to be represented by a lawyer.

The Superior Court’s judgement in Bezina enlightens unions, professional orders, associations and similar bodies’ to ensure that their internal rules and regulations are consistent and mindful of the principle that no one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure. In the event that they are not, the Court can strike them down entirely.