SUPREME COURT OF CANADA

Citation: Syndicat des professeurs du Cégep de Ste-Foy v. Quebec (Attorney General), 2010 SCC 29, [2010] 2 S.C.R. 123

Date: 20100729

Docket: 32773

Between:

Syndicat des professeurs du Cégep de Ste-Foy and

Fédération des enseignantes et enseignants de Cégep

Appellants

and

Attorney General of Quebec and

Cégep de Ste-Foy

Respondents

‑ and ‑

Confédération des syndicats nationaux

Interveners

Official English Translation

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment:

(paras. 1 to 3)

Concurring Reasons:

(paras. 4 to 15)

LeBel J. (Fish, Abella, Charron and Cromwell JJ. concurring)

Deschamps J. (McLachlin C.J. and Binnie and Rothstein JJ. concurring)

Syndicat des professeurs du Cégep de Ste‑Foy v. Quebec (Attorney General), 2010 SCC 29, [2010] 2 S.C.R. 123

Syndicat des professeurs du Cégep de Ste‑Foy and

Fédération des enseignantes et enseignants de Cégep Appellants

v.

Attorney General of Quebec and

Cégep de Ste‑Foy Respondents

and

Confédération des syndicats nationaux Intervener

Indexed as: Syndicat des professeurs du Cégep de Ste‑Foy v. Quebec (Attorney General)

2010 SCC 29

File No.: 32773.

2009: October 20; 2010: July 29.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for quebec

Labour relations — Wrongful dismissal — Recourse — Jurisdiction of arbitrator or Commission des relations du travail — Act respecting labour standards establishing recourse before Commission des relations du travail in case of dismissal without good and sufficient cause, except where equivalent remedial procedure provided for elsewhere in legislation or in agreement — Grievance filed in which it was alleged that withdrawal of employee’s employment priority constituted dismissal without good and sufficient cause — Whether labour standard prohibiting wrongful dismissal implicitly incorporated into collective agreement — Whether arbitrator or Commission has jurisdiction over complaint — Act respecting labour standards, R.S.Q., c. N‑1.1, s. 124.

The union filed a grievance against the Cégep’s decision to withdraw employment priority from a teacher, alleging that there was no reasonable basis for the decision within the meaning of clause 5‑1.09 of the collective agreement. At the arbitration hearing, however, the union asked the arbitrator to find that clause 5‑1.09 was inapplicable on the ground that the withdrawal of employment priority constituted dismissal and that the applicable legal requirement, as provided for in s. 124 of the Act respecting labour standards (“A.L.S.”), was accordingly that there be a good and sufficient cause. The arbitrator found that there had been a reasonable basis, within the meaning of clause 5‑1.09 of the collective agreement, for the withdrawal of employment priority. She declared that she did not have jurisdiction to apply s. 124 A.L.S. The Superior Court upheld the arbitrator’s decision and dismissed the motion for judicial review. The Court of Appeal also held that s. 124 A.L.S. is not implicitly incorporated into the collective agreement and dismissed the union’s appeal.

Held: The appeal should be dismissed.

Per LeBel, Fish, Abella, Charron and Cromwell JJ.: For the reasons given in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, the argument that the standard established in s. 124 A.L.S. is incorporated into the collective agreement cannot be accepted. If the clause in issue is viewed in the context of the agreement as a whole, it cannot be found to be contrary to public order. It concerns a specific type of termination of the employment relationship, and it would be best to interpret and apply this clause without engaging prematurely in a theoretical debate about whether it is equivalent to the standard established in s. 124.

Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: As is explained in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), a collective agreement can contain a provision that adequately protects employees with two years of uninterrupted service from being dismissed without good and sufficient cause. Where that is the case, the arbitrator will apply the provisions of the collective agreement, and what is involved is not implicit incorporation of the legislative standard, since the protection is already provided for in the agreement. Where an agreement does not contain a provision that protects employees adequately, the Commission des relations du travail is the exclusive forum for hearing complaints presented by employees who allege that they have been dismissed without good and sufficient cause.

In this appeal, the parties have focussed on the question whether s. 124 A.L.S. is implicitly incorporated into the collective agreement. The union does not dispute the arbitrator’s conclusion that the standard provided for in clause 5‑1.09 for reviewing the employer’s decision is not the same as the standard established in s. 124 A.L.S. And the employer supports that conclusion. Since the parties have focussed more on the theoretical question than on the application of clause 5‑1.09 of the collective agreement, it is not appropriate to discuss the wording of that clause. In future cases, however, the clauses of the collective agreement should be reviewed by flexibly applying the criteria adopted by the courts for determining whether the arbitrator has jurisdiction rather than the Commission des relations du travail and the procedure of s. 124 is therefore inapplicable. These criteria are that (1) the procedure must be mandatory, (2) the recourse must bear some similarity to the recourse provided for in s. 124, and (3) the authority adjudicating the dispute must have powers that are at least equivalent to those of the forum provided for in the A.L.S.

Cases Cited

By LeBel J.

Applied: Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61.

By Deschamps J.

Applied: Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61; referred to: Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières v. Université du Québec à Trois‑Rivières, 2010 SCC 30, [2010] 2 S.C.R. 132; Québec (Procureur général) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1054, [2008] R.J.D.T. 1005.

Statutes and Regulations Cited

Act respecting labour standards, R.S.Q., c. N‑1.1, ss. 93, 124.

Labour Code, R.S.Q., c. C‑27, ss. 62, 114, Sch. I.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1057, [2008] J.Q. no 4940 (QL), 2008 CarswellQue 4906, affirming a decision of Lesage J., 2007 QCCS 1191, [2007] J.Q. no 2232 (QL), 2007 CarswellQue 2167, dismissing an application for judicial review of an arbitrator’s decision. Appeal dismissed.

Claudine Morin and Marie‑Claude Morin, for the appellants.

Michel Déom, for the respondent the Attorney General of Quebec.

Nancy Bergeron, for the respondent Cégep de Ste‑Foy.

Gérard Notebaert and Isabelle Lacas, for the intervener.

English version of the judgment of LeBel, Fish, Abella, Charron and Cromwell JJ. delivered by

1LeBel J. — In this case, the appellants raise the fact that, as provided for in clause 5‑1.09 of the collective agreement between the Fédération des enseignantes et enseignants de Cégep FEC (CEQ) and the Comité patronal de négociation des collèges (CPNC), certain classes of teachers are precluded from grieving decisions not to grant them employment priority. That clause is one of a complex set of provisions relating to job security in Quebec’s college education sector.

2As I explain in my reasons in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, I cannot accept the argument that the standard established in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1, is incorporated into the collective agreement. If the clause in issue is viewed in the context of the agreement as a whole, it cannot be found to be contrary to public order. The clause concerns a specific type of termination of the employment relationship. It would be best to interpret and apply this provision without engaging prematurely in a theoretical debate about whether it is equivalent to the standard established in s. 124.

3For these reasons, I would dismiss the appeal without costs.

English version of the reasons of McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. delivered by

4Deschamps J. — This appeal raises the same issue as Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61 (“S.F.P.Q.”), and Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières v. Université du Québec à Trois‑Rivières, 2010 SCC 30, [2010] 2 S.C.R. 132. The Court must determine whether s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”), is incorporated into the collective agreement and can therefore be applied by a grievance arbitrator. The first paragraph of s. 124 reads as follows:

124. An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

5The applicable principles are explained in S.F.P.Q., in which I conclude that although s. 124 is a provision of public order, this does not mean that only an arbitrator has jurisdiction to enforce the protection against dismissal without good and sufficient cause in a collective bargaining context. Where no adequate procedure is provided for in the collective agreement, the legislature has conferred exclusive jurisdiction to hear complaints against such dismissals on the Commission des relations du travail (“C.R.T.”).

6The provisions of the collective agreement between the parties to this appeal differ from those that apply in S.F.P.Q.

1. Facts

7The relevant facts are as follows. In December 2001, the respondent employer, the Cégep de Ste‑Foy, withdrew employment priority from Alain Prévost, a teacher. The appellant Syndicat des professeurs du Cégep de Ste‑Foy (“union”) grieved that decision, relying on a clause of the collective agreement pursuant to which a teacher who has held a full‑time position for two years or has at least three years of seniority may contest the withdrawal of employment priority by the employer before an arbitrator on the ground that there was no reasonable basis for the employer’s decision. Clause 5‑1.09 of the agreement reads as follows:

[translation] A decision not to grant a non‑permanent teacher the employment priority provided for in clauses 5‑4.17, 8‑6.03 and 8‑7.01 may be grieved only if the teacher has held a full‑time position at the college for two (2) years or has accumulated three (3) or more years of seniority at the college for the purposes of the provisions relating to job security; in such a case, the college must prove that there was a reasonable basis for its decision. [Emphasis added.]

At the arbitration hearing, however, the union asked the arbitrator to find that clause 5‑1.09 was inapplicable in light of s. 62 of the Labour Code, R.S.Q., c. C‑27, and ss. 93 and 124 A.L.S. According to the union, since the withdrawal of employment priority constituted dismissal, the applicable legal requirement, as provided for in s. 124 A.L.S., was that there be a good and sufficient cause.

8The employer argued that the withdrawal of employment priority did not constitute dismissal. It disputed the argument that clause 5‑1.09 was contrary to public order, since the recourse in s. 124 A.L.S. continued to be available. In its view, clause 5‑1.09 was not a recourse equivalent to the one in s. 124, and the arbitrator did not have jurisdiction to apply s. 124. The employer argued that only the C.R.T. had jurisdiction to apply s. 124 in this case.

2. Decisions Below

2.1 Decision of the Grievance Arbitrator

9After hearing the parties, Arbitrator Francine Beaulieu found that there had been a reasonable basis, within the meaning of clause 5‑1.09 of the collective agreement, for the withdrawal of employment priority. She then considered whether she had jurisdiction to apply s. 124 A.L.S. She found that, in reality, the withdrawal of employment priority could be equated with dismissal. She held that she had the power to consider any Act to the extent necessary to settle a grievance, but she concluded that she did not have jurisdiction to apply s. 124 A.L.S. because the collective agreement provided for no [translation] “other remedial procedure entitling an employee to have the withdrawal of his or her employment priority reviewed on the basis of a labour standard similar to the standard of good and sufficient cause established in [s. 124 A.L.S.]”. According to the arbitrator, “to decide otherwise would be to contradict the legislature’s choice to confer exclusive jurisdiction on the [C.R.T.] in such matters”.

2.2 Judgment of the Superior Court

10Lesage J. dismissed the motion for judicial review: 2007 QCCS 1191. Although he found that clause 5‑1.09 of the collective agreement had nothing to do with the dismissal of a teacher but instead governed the withdrawal of employment priority, he took note of the arbitrator’s finding that, [translation] “in reality”, the withdrawal of employment priority amounted to dismissal (para. 21). Lesage J. held that the arbitrator had correctly decided that she lacked jurisdiction to apply the standard established in s. 124 A.L.S. because no equivalent procedure was provided for in the collective agreement. He therefore concluded that pursuant to s. 114 of and Schedule I to the Labour Code, the C.R.T. had exclusive jurisdiction to decide the complaint.

2.3 Decision of the Court of Appeal (Baudouin, Morin and Rochon JJ.A.)

11For the reasons it gave in Québec (Procureur général) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1054, [2008] R.J.D.T. 1005, the Court of Appeal dismissed the appeal: 2008 QCCA 1057.

3. Positions of the Parties

12In this Court, the parties reiterate the arguments raised in S.F.P.Q. The employer also argues that the withdrawal of employment priority does not have the effect of terminating employment, and that the mechanism provided for in clause 5‑1.09 is not an appropriate procedure for presenting a complaint of dismissal without good and sufficient cause.

4. Analysis

13In S.F.P.Q., I explain that a collective agreement can contain a provision that adequately protects employees with two years of uninterrupted service from being dismissed without good and sufficient cause. Where that is the case, the arbitrator will apply the provisions of the collective agreement. What is involved in such a case is not implicit incorporation of the legislative standard, since the protection is already provided for in the agreement. Where an agreement does not contain a provision that protects employees adequately, the C.R.T. is the exclusive forum for hearing complaints presented by employees who allege that they have been dismissed without good and sufficient cause.

14In this appeal, the parties have focussed on the question whether s. 124 A.L.S. is implicitly incorporated into the collective agreement. The union does not dispute the arbitrator’s conclusion that the standard provided for in clause 5‑1.09 for reviewing the employer’s decision is not the same as the standard established in s. 124 A.L.S. The employer vigorously supports that conclusion. Since the parties have focussed more on the theoretical question than on the application of clause 5‑1.09 of the collective agreement, it is not appropriate in this case to discuss the wording of that clause. However, in future cases, the clauses of the collective agreement should be reviewed by flexibly applying the criteria adopted by the courts for determining whether the arbitrator or the C.R.T. has jurisdiction. Those criteria are as follows:

1 ‑ the procedure must be mandatory;

2 ‑ the recourse must bear some similarity to the recourse provided for in s. 124 A.L.S.; and

3 ‑ the authority adjudicating the dispute must have powers that are at least equivalent to those of the forum provided for in the A.L.S.

As I explain in S.F.P.Q. (at paras. 76‑77), the first criterion, that the procedure be mandatory, will rarely be problematic. The second criterion should be applied in a way that favours the arbitration procedure. What is required is not perfect equivalence, as that would entail a multiplicity of recourses and could lead to conclusions that are difficult to reconcile. As for the third criterion, what must be done is to review the remedy sought by the employee and determine whether the arbitrator has the power to award it. In short, in comparing the procedures, it is necessary to take account of the legislature’s intention to avoid a multiplicity of recourses while at the same time ensuring that the employee is afforded the full protection of the standard.

15For these reasons and for the reasons delivered today in S.F.P.Q., I would dismiss this appeal with costs.