2020 QCCA 729, 2020 QCCA 729

Teamsters Canada Rail Conference c. Canadian Pacific Railway Company 2020 QCCA 729 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028913-200 (500-17-100920-175) DATE: June 4, 2020 BEFORE THE HONOURABLE MANON SAVARD, J.A. TEAMSTERS CANADA RAIL CONFERENCE Applicant – impleaded party v.

CANADIAN PACIFIC RAILWAY COMPANY Respondent – plaintiff and MAUREEN FLYNN, IN HER CAPACITY AS ARBITRATOR Impleaded party – defendant JUDGMENT [ 1 ] The applicant, Teamsters Canada Rail Conference (the “Union”), asks for leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Christian Immer), rendered on March 17, 2020, that granted in part the application for judicial review filed by the respondent, Canadian Pacific Railway Company (the “Employer”) and quashed the arbitral award rendered by the impleaded party, in her capacity as arbitrator of the Canadian Railway Office of Arbitration & Dispute Resolution (CROA).

The judge also returned the matter to the CROA so that a new arbitrator could be appointed to reconsider the grievances filed by the Union “with the benefit of the Court’s reasons”. * * * [ 2 ] The dispute relates to two grievances filed in 2014 by the Union in relation to the practice of operating trains on the Lacolle subdivision (i.e. the 27-mile railway line from the Montreal terminal through Napierville, Quebec, across the Canada/U.S. border to Rouses Point, New York). More specifically, the grievances contested the Employer’s assignment of work to US train crews.

The Union, argued that this work belongs to its bargaining unit, and sought compensation therefor as well as the issuance of a cease and desist order preventing US train crews from performing the work in question. [ 3 ] The Employer contested these grievances and submitted that US train crews had historically operated trains on the Lacolle subdivision and that the Union had never enjoyed a sole entitlement to all operations on said subdivision. In support of its position, the Employer relied on what was identified as the IDR agreements (interdivisional run agreements).

In short, for the Employer, the Union had failed to establish a violation of the collective agreement. [ 4 ] On September 11, 2017, in accordance with the procedure established by the CROA, both parties filed before the arbitrator their ex parte statement of issue for each grievance, their written submissions, along with their respective books of documents. The arbitration briefs were supplemented with additional information provided by the parties’ witnesses. [ 5 ] The arbitrator issued her award on October 5, 2017 and allowed the grievances.

Her reasons are summarized in paragraphs 17 to 20 of the judgment that the Union is seeking leave to appeal. Suffice it to say at this stage of the proceedings that the arbitrator rejected the Employer’s defence concerning the IDR agreements on the basis that it had not demonstrated that the IDRs were “still binding” and she stated that the parties had subsequently negotiated other “collective agreements and local agreements” covering the same topics. [ 6 ] The Employer filed an application for judicial review, which was granted in part by the judge, as mentioned above.

The parties had agreed that, at the stage of the hearing in Superior Court, the only ground for review would be the arbitrator’s conclusion on the IDR agreements (para. 22 of the judgment). [ 7 ] As suggested by the parties, the judge concluded that the proper standard of review in the case at hand was reasonableness and limited his analysis to determining whether the award was “reasonable in concluding that [the Employer] did not show that the IDRs were in effect and binding” (para. 30 of the judgment). [ 8 ] The judge refused to “[…] consider that the succinct character of the reasons [of the arbitrator on this sole issue] render[ed] the

decision unreasonable per se ” (para. 40). However, despite the “great deference it [had to] show to the Arbitrators [ sic ] finding of facts”, he concluded that the arbitration award displayed various flaws that “[…] set against the backdrop of the very succinct reasons, render[ed] the decision unreasonable” (para. 41). He considered that the award: (

a) was not based on the evidence; (

b) did not take into account the parties’ submissions; and (

c) contained an internal inconsistency. The judge therefore quashed the award and returned the file to a different CROA arbitrator. * * * [ 9 ] The Union argues that the judge erred by “ousting the notion of implicit reasoning from the analysis”, contrary to the “entirely new standard of review set out by the Supreme Court in Vavilov ”. The judge is also said to have erred by not exercising deference and by identifying an “internal incoherence” in the award’s reasoning. Lastly, the judge erred by sending the file to a different arbitrator without providing any reasons for doing so.

Those are “key issues at the very heart of the Vavilov standard” that require that leave to appeal be granted. * * * [ 10 ] The Union’s motion for leave to appeal is governed by subparagraph 5 of the second paragraph of

article 30 C.C.P. Pursuant to the third paragraph of

article 30 C.C.P. , leave will only be granted if the applicant shows that “the matter at issue is one that should be submitted to the court / la question en jeu en est une qui doit être soumise à la cour”. This is the case, in particular, if the matter involves a question of principle or a new issue or an issue of law that has given rise to conflicting jurisprudence. * * * [ 11 ] I am of the view that leave to appeal should be denied.

The Union has raised no issue that merits the attention of the Court. [ 12 ] In the present case, the parties agree that the judge correctly identified the applicable standard, namely, reasonableness. This issue is therefore not disputed. Rather, the Union argues that the judge misapplied the principles enunciated by the Supreme Court in Vavilov [1] with respect to the application of the reasonableness standard.

In particular, it refers to paragraph 83 of Vavilov which, in its view constitutes “a significant shift in the manner in which the standard of reasonableness ought to be applied through a coalescent analysis of both result and reasons, with the latter as the departure point”. However, according to the Union, the Supreme Court in Vavilov did not change the manner in which the reasons provided by the decision under review must be approached by the reviewing court.

But the judge failed to follow the guidance set out therein. [ 13 ] While it is true that the Supreme Court judgments rendered in Vavilov, Bell [2] and Canada Post Corporation [3] on December 19 and 20, 2019 provide an exhaustive review of the principles applicable to judicial review of administrative decisions, particularly as regards the proper application of reasonableness standard, it need not be concluded that the Supreme Court entirely altered the rules applicable to such matters.

Our approach must be nuanced, and we should not fall into the trap of reconsidering each and every aspect of the framework of judicial review. As the majority of the Supreme Court wrote, “[t]he revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. […]” [4] . [ 14 ] In my view, the instant case does not raise any issues that merit this Court’s consideration, with only a few months separating us from the judgments in Vavilov, Bell and Canada Post Corporation . [ 15 ] The Union argues that the Supreme Court in Vavilov expressly reaffirmed its earlier teachings set in Newfoundland Nurses [5] on appraising the quality of reasons provided in the decision under review.

If that is the case, the Union does not intend to raise any new issue as these teachings have already been discussed by the Court on various occasions [6] . Furthermore, contrary to the Union’s allegations, the judge did not oust the notion of implicit reasoning from the analysis of an arbitral award. Rather, he determined that he was not in a position to understand the basis for the arbitrator’s conclusion regarding the IDRs.

For the judge, such a weakness affects the cohesiveness of the arbitral award, particularly given that this issue was at the heart of the Employer’s submissions (paras. 64 and 69 of the judgment).

Be that as it may, the judge added that, even if he had accepted the Union’s arguments regarding the arbitrator’s implicit reasoning, he would not have been able to conclude that the decision was reasonable, and he explained why (paras. 70 et seq. ). [ 16 ] If the appeal were to be authorized, it would deal strictly with the application of the known principles of judicial review, all of which the Supreme Court already considered in its recent trilogy.

Even if the judgment at first instance were to contain an error as the Union argues, something on which I do not have to take a position here, this would be insufficient to justify granting leave ( Gaz Metro inc. c. Langlois , 2006 QCCA 424 , para. 6 (judge alone)), particularly since I do not see a blatant injustice in the instant case. The dispute will resume before another arbitrator. [ 17 ] The Union, however, is right to say that the judge should have justified his decision to refer the grievances to another arbitrator within the CROA.

Nevertheless, this deficiency, in and of itself, does not justify granting leave. First, the rules in such matters are known and well-settled [7] . Second, the judge’s decision can be explained by the parties’ submissions at the hearing before him to the effect that the impleaded arbitrator was no longer on the list of CROA’s arbitrators. Lastly, the Union has not shown that it suffered any harm due to the judge’s decision to return the grievances to another CROA arbitrator. It bears reminding that the grievances were heard by the impleaded arbitrator in September 2017, that is, almost three years ago.

There is every reason to believe that, in any event, the parties would have had to restart the debate due simply to the passage of time. FOR THE AFOREMENTIONED REASONS, the undersigned: [ 18 ] DISMISSES the application for leave to appeal, with legal costs against the applicant.

MANON SAVARD, J.A. Mtre Sylvain Beauchamp MELANÇON, MARCEAU, GRENIER & SCIORTINO For the Applicant Mtre Corrado De Stefano BORDEN LADNER GERVAIS For the Respondent Date of hearing: May 13, 2020