2012 QCCA 1524, 2012 QCCA 1524

Unofficial English Translation Alliance québécoise des techniciens de l’image et du son (AQTIS) c. Association des producteurs de théâtre privé du Québec (APTP) 2012 QCCA 1524 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No. 500-09-020336-103 (500-17-043817-082) DATE: August 30, 2012 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. PIERRE J. DALPHOND, J.A. JACQUES A. LÉGER, J.A. ALLIANCE QUÉBÉCOISE DES TECHNICIENS DE L'IMAGE ET DU SON (AQTIS) APPELLANT – Impleaded party v.

ASSOCIATION DES PRODUCTEURS DE THÉÂTRE PRIVÉ DU QUÉBEC (APTP) THÉÂTRES ASSOCIÉS INC. (TAI) ASSOCIATION DES COMPAGNIES DE THÉÂTRE (ACT) THÉÂTRES UNIS ENFANCE JEUNESSE (TUEJ) ASSOCIATION QUÉBECOISE DE L'INDUSTRIE DU DISQUE, DU SPECTACLE ET DE LA VIDÉO DU QUÉBEC (ADISQ) RESPONDENTS – Petitioners and ASSOCIATION DES PRODUCTEURS CONJOINTS (APC) PROFESSIONAL ASSOCIATION OF CANADIAN THEATRES (PACT) RESPONDENTS – Interveners and COMMISSION DES RELATIONS DE TRAVAIL IMPLEADED PARTY – Respondent and ASSOCIATION DES PROFESSIONNELS DES ARTS DE LA SCÈNE DU QUÉBEC (APASQ-CSN) IMPLEADED PARTY – Impleaded party and ASSOCIATION DES PRODUCTEURS DE FILMS ET DE TÉLÉVISION DU QUÉBEC INTERVENER JUDGMENT [ 1 ] THE COURT: On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Michel Déziel) rendered on December 15, 2009, which granted a motion for judicial review and set aside a May 16, 2008, decision of the Commission de reconnaissance des associations d'artistes et des associations de producteurs; [ 2 ] For the reasons of Morin, J.A., with which Dalphond and Léger, JJ.A. agree: [ 3 ] ALLOWS the appeal; [ 4 ] OVERTURNS the Superior Court judgment; [ 5 ] DISMISSES the motion for judicial review and the interventions for conservatory purposes; [ 6 ] CONDEMNS the following to pay to the AQTIS costs other than those relative to the books of authorities, which were filed

late in appeal: (

a) in the Superior Court, solidarily, the APTP, the TAI, the ACT, the TUEJ, the ADISQ, the APC and PACT; (

b) in appeal, solidarily, the TAI, the ACT, the TUEJ, the ADISQ, the APC, PACT and the APFTQ; [ 7 ] REFERS the file back to the Commission des relations de travail for a ruling on the representativeness of the APASQ-CSN in the negotiating sector defined by the decision of May 16, 2008. BENOÎT MORIN, J.A. PIERRE J. DALPHOND, J.A. JACQUES A. LÉGER, J.A.

Mtre Daniel Payette Cabinet Payette For the appellant Mtre Lyne Robichaud Legault, Joly, Thiffault For the respondents Mtre Jean-Claude Turcotte Loranger, Marcoux For the respondent Professional Association of Canadian Theatres (PACT) Mtre Émilie Bouchard Commission des relations de travail For the impleaded party Commission des relations de travail Mtre Normand Tamaro Manella, Gauthier, Tamaro For the impleaded party Association des professionnels des arts de la scène du Québec (APASQ- CSN) Mtre Sylvain Lepage Cain Lamarre Casgrain Wells For the intervener Date of hearing: December 6, 2011 REASONS OF MORIN, J.A. [ 8 ] The appellant, Alliance québécoise des techniciens de l'image et du son (AQTIS), appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Michel Déziel), rendered on December 15, 2009, which granted a motion for judicial review and set aside a May 16, 2008, decision of the Commission de reconnaissance des associations d'artistes et des associations de producteurs (the Commission). [ 9 ] The appeal bears primarily on the

interpretation of the Act respecting the professional status and conditions of engagement of performing, recording and film artists (the Act), [1] and specifically on whether the Act excludes from its application employees within the meaning of the Labour Code . [2] In particular, the scope of the Court's decision in Guilde des musiciennes et musiciens du Québec v . 9009-0531 Québec inc. (Cabane à sucre Chez Dany ) [3] must be determined. I. FACTS AND PROCEEDINGS [ 10 ] The appellant, the AQTIS, is an artists' association under the Act.

It grew out of the amalgamation of the Association des professionnel-les de la vidéo du Québec (APVQ) and the Syndicat des techniciens du cinéma et de la vidéo du Québec (STCVQ), both

of which were recognized under the Act. The AQTIS represents over 3500 artists and artisans working as independent contractors and casual employees. [ 11 ] The respondents that were petitioners before the Superior Court represent producers. The Association des producteurs de théâtre privé du Québec (APTP) was created to represent summer theatre producers and private theatre producers operating as commercial undertakings. The Théâtres associés inc. (TAI) is an association of producers that represents French-language institutional theatres in Quebec and Ottawa.

The Association des compagnies de théâtre (ACT) represents producers of not-for-profit theatrical performances for French-speaking adults. The Théâtres Unis Enfance Jeunesse (TUEJ) represents professional theatre producers that create and perform shows for young audiences.

The Association québécoise de l'industrie du disque, du spectacle et de la vidéo (the ADISQ) is an association of producers and related businesses (for example, record companies, managers, public relations professionals, promoters) whose members work in the recording industry and on the stage, including in music, variety entertainment and video. [ 12 ] The respondents that intervened before the Superior Court are associations of producers. The Association des producteurs conjoints (APC) brings together producers working in the recording of commercial advertisements in Quebec.

The Professional Association of Canadian Theatres (PACT) represents English-language theatres in Canada, including approximately ten in Quebec. [ 13 ] The intervener in the appeal, the Association des producteurs de films et de télévision du Québec (APFTQ), brings together producers working in the fields of cinema and television. It represents most of the independent film and television producers in Quebec. [ 14 ] The impleaded party both in appeal and before the Superior Court, the Association des professionnels des arts de la scène du Québec (APASQ-CSN), is an artists' association.

It was initially recognized by the Commission under the Act in 1993 to represent artists in the following negotiating sector: [4] [ translation ] All set, costume, lighting and sound designers in the following areas of artistic endeavour: the stage, including the theatre, the opera, music, dance and variety entertainment.

Where a natural person is used for such an endeavour, however, and where, as part of that endeavour, the natural person is otherwise an employee within the meaning of the Labour Code , regardless of whether he or she is covered by a collective labour agreement or contract, the person is excluded from the negotiating sector concerned by this application for recognition. [ 15 ] The exclusion of a person used for an artistic endeavour respecting which the person is otherwise an employee within the meaning of the Labour Code was part of the definition of the negotiating sector because of an agreement entered into with the International Alliance of Theatrical Stage Employees (IATSE), a North American employees' union.

A similar agreement was entered into by the IATSE and the APVQ, and, as a result, the recognition granted to the APVQ for the videography sector included a similar exclusion. [5] [ 16 ] On July 24, 2003, the APASQ-CSN submitted a second application for recognition under the Act, for the purpose of representing artists in the following sector: [ translation ] All accessory, puppet, make-up and hairstyle designers, as well as stage managers and assistant stage directors in the following areas of artistic endeavour: the stage, including the theatre, the opera, music, dance and variety entertainment.

Where a natural person is used for such an endeavour, however, and where, as part of that endeavour, the natural person is otherwise an employee within the meaning of the Labour Code , regardless of whether he or she is covered by a collective labour agreement or contract, the person is excluded from the negotiating sector concerned by this application for recognition. [ 17 ] On September 6, 2003, a public notice indicating the filing of the application for recognition was published in La Presse and The Gazette , in accordance with

section 16 of the Act. [6] [ 18 ] The following can be read in that notice, which contains the definition of the negotiating sector referred to in paragraph 9 above: [ translation ] … Artists, artists' associations and any producer or association of producers wishing to address the Commission on the question of defining the negotiating sector must do so in writing NO LATER THAN SEPTEMBER 26, 2003; the written document must state the reasons for their address.

Any artists' association wishing to submit a competing application for recognition for the same negotiating sector, in whole or in part, must submit its application for recognition NO LATER THAN SEPTEMBER 26, 2003. Any address and any competing application for recognition must be sent in writing to the Commission, at 425, boulevard de Maisonneuve ouest, bureau 750, Montréal, Québec H3A 3G5. [ 19 ] In September of 2003, the APTP, the ACT, the TAI, the TUEJ and the ADISQ intervened in the case, in accordance with

section 17 of the Act. [7] [ 20 ] In December of 2003, the APVQ asked to be relieved from its default to address the Commission within the time limit in

section

17. That request was dismissed by the Commission on January 22, 2004. Subsequently, the APVQ filed an application for judicial review, which was granted by the Superior Court on April 15, 2004. Thus, the APVQ was relieved from its default. [ 21 ] On May 13, 2005, the AQTIS succeeded to the rights and obligations of the STCVQ and the APVQ. [ 22 ] As pointed out by the trial judge in paragraph 11 of his judgment, the APASQ-CSN concluded various collective agreements during that period in the field of performing arts: (

a) on January 21, 2004, with the TUEJ, in regard to set, costume, lighting and sound designers (Exhibit P-9); (

b) on May 13, 2004, with the ACT, in regard to set, costume, lighting and sound designers (Exhibit P-5); (

c) on June 28, 2006, with the ADISQ, respecting deductions of union dues applicable to set, costume, lighting and sound designers, pending a collective agreement to be concluded with the ADISQ respecting the production of stage performances took effect (Exhibit P- 6); (

d) on an undetermined date in 2008 with the APTP, in regard to set, costume, lighting and sound designers (Exhibit P-7); (

e) on March 20, 2008, with the TAI, in regard to set, costume, lighting and sound designers (Exhibit P-8). [ 23 ] On December 15, 2006, during a pre-trial conference, the Commission drew the parties' attention to the wording of the APASQ-CSN's proposal respecting the negotiating sector, especially with regard to the exclusion of employees within the meaning of the Labour Code . [8] Mtre Jean Corriveau, who presided the conference, implied that he questioned whether the exclusion should be maintained. [ 24 ] On March 12, 2007, the APASQ-CSN submitted a motion to remove stage managers and assistant stage directors from its application.

The negotiating sector was henceforward defined as follows: [9] [ translation ] All accessory designers, make-up designers, hairstyle designers and puppet designers in the following areas of artistic endeavour: the stage, including the theatre, the opera, dance and variety entertainment.

Where a natural person is used for such an endeavour, however, and where, as part of that endeavour, the natural person is otherwise an employee within the meaning of the Labour Code , regardless of whether he or she is covered by a collective labour agreement or contract, the person is excluded from the negotiating sector concerned by this application for recognition. [ 25 ] At a hearing held before the Commission on March 14, 2007, the parties filed two agreements concluded in conjunction with the APASQ-CSN's application for recognition: (

a) an agreement between the APASQ-CSN and the ADISQ (Exhibit P-14); (

b) an agreement between the APASQ-CSN and the APTP, the TAI and the TUEJ (Exhibit P-15). [ 26 ] It should be pointed out that agreements P-5 through P-9, P-14 and P-15 still contain the exclusion of employees within the meaning of the Labour Code , as does the motion of March 12, 2007. [ 27 ] At the hearing of March 14, 2007, the chairman of the Commission, Mtre Jean Corriveau, reiterated his questions regarding the exclusion. The attorney representing the APASQ-CSN indicated that his client stood by the wording of its March 12, 2007, motion with respect to the definition of the negotiating sector. II.

JUDGMENTS A. Decision o the Commission [ 28 ] On May 16, 2008, the Commission ruled on the APASQ-CSN's second application for recognition, submitted on July 24, 2003. [ 29 ] The Commission was of the opinion that the occupations of accessory, hairstyle, make-up and puppet designers were artistic occupations and, consequently, that individuals who held those occupations acted as creators within the meaning of

section 2 of the Act. Given the areas of artistic endeavour and the occupations contemplated, the Commission found that the proposed sector was appropriate. [10] [ 30 ] The Commission also believed, however, that the creation of a class of artists on the basis of a definition outside the Act that excluded employees from the negotiating sector was inconsistent with the Act and its intent. The exclusion thus introduced a distinction between artists, which was contrary to public order. [11] [ 31 ] The Commission found the exclusion to be superfluous as well. Indeed, the Act becomes moot in respect of any artist contemplated by a certification granted under the Labour Code . The restriction in

section 5 of the Act must, however, be interpreted narrowly: [12]

This Act does not apply to a person whose services are retained for an occupation contemplated by a certification granted under the Labour Code (chapter C-27) or a decree passed under the Act respecting collective agreement decrees (chapter D-2). [ 32 ] In conclusion, the Commission acknowledged agreements P-14 and P-15 and an agreement concluded on November 28, 2006, between the AQTIS and the APASQ-CSN, and defined the negotiating sector as follows: [ translation ] All accessory, make-up, hairstyle and puppet designers in the following areas of artistic endeavour: the stage, including the theatre, the opera, dance and variety entertainment.

Thus, the Commission removed the exclusion of employees within the meaning of the Labour Code from the definition of the negotiating sector. [ 33 ] As reasoned by the Commission, an employee within the meaning of the Labour Code could in some cases also be an artist within the meaning of the Act. [ 34 ] On June 25, 2008, the APTP, the ACT, the ADISQ, the TAI and the TUEJ filed a motion for judicial review under

article 846 C.C.P. [ 35 ] On August 18, 2008 and January 9, 2009, the APC and PACT filed interventions for conservatory purposes. [ 36 ] On July 1, 2009, the Commission des relations de travail (CRT) succeeded the Commission. [13] B.

Judgment appealed from [ 37 ] On December 15, 2009, Déziel J. of the Superior Court decided to apply the reasonableness standard in ruling on the motion for judicial review, except with respect to the petitioners' contentions, regarding which he felt the Commission had ruled ultra petita and failed to observe the audi alteram partem rule, and to which he applied the correctness standard. [14] [ 38 ] According to Déziel J., the Commission had always ruled that the Act did not contemplate employees until it rendered a contrary decision on December 17, 2004, in Cabane à sucre Chez Dany . [15] He felt that the Commission had erred on May 16, 2008, when it reiterated its arguments in that case, since the December 17, 2004 decision had been overturned by the Superior Court, a decision itself later upheld by the Court of Appeal.

He affirmed that employees were excluded from the application of the Act because they are subject to a relationship of subordination, while artists work on their own account. He believed that the Commission's decision on that point was patently unreasonable, warranting his intervention. [16] [ 39 ] According to Déziel J., there was no common interest between employed artists and artists who work on their own account.

He also felt that the Commission's conclusions were contradictory, because the Commission recognized three collective agreements that excluded employees, but ruled that the exclusion was contrary to the Act. [17] [ 40 ] In his view, the Commission ruled ultra petita when it struck out the exclusion in the proposed negotiating sector. [18] Furthermore, he was of the opinion that the Commission, knowing the decision it would render, disregarded the audi alteram partem rule by not publishing a new public notice prior to ruling on the matter. [19] [ 41 ] Consequently, the judge granted the motion for judicial review, set aside the Commission's decision with respect to the conclusions pertaining to the definition of the negotiating sector, and defined the sector as the APASQ-CSN had in its March 12, 2007 amended application for recognition. [ 42 ] On January 14, 2010, the AQTIS filed a motion for leave to appeal from the judgment. [ 43 ] The motion was granted by Morissette, J.A. on February 8, 2010.

In his opinion, the matter of the exclusion of employees from the Act was not decided by this Court in Cabane à sucre Chez Dany . [20] He noted that there were diverging opinions between the Superior Court and certain decisions of the Commission on the issue. In his view, ultra petita and audi alteram partem have merit as grounds for intervention only if the issue is resolved in the manner indicated by the trial judge. III. ISSUES 1 – Did the judge err with respect to the criteria for judicial review? 2 – Did the judge err in his

interpretation of the Act and its application to employees to whom a certification does not apply? 3 – Did the judge err by ruling that the Commission could not automatically remove the exclusion of employees from the definition of the negotiating sector? 4 – Did the judge err with respect to the audi alteram partem rule? IV. CONTENTIONS OF THE PARTIES A. Appellant (AQTIS) [ 44 ] The appellant cited paragraph 85 of the trial judgment, in which the judge stated:

[ translation ] [85] Employees are excluded from the application of the Act. Employees are subject to a relationship of subordination, contrary to a person "who practises an art on his own account", as set forth in

section 2 of the Act. [ 45 ] According to the appellant, the judge erred by basing himself on

section 2 of the Act to find that employees are excluded from the application of the Act, because he failed to examine the purpose of the Act or the context in which it was enacted. In the appellant's view, the legislator sought to create an ongoing regime for collective professional relations in accordance with the Labour Code or the Act, so that no artist would be excluded from the application of either of those statutes. Thus, the intention was for the Act to apply to certain classes of employees so that they would not find themselves in a legal vacuum.

The appellant submitted that, in that context, the judge erroneously interpreted the decision in Cabane à sucre Chez Dany , particularly relative to the application of

section 6 of the Act. [ 46 ] Furthermore, according to the appellant, the judge should not have set aside a specialized administrative tribunal's decision that was protected by a full privative clause and was not unreasonable. The ultra petita rule did not apply in the case of the Commission's decision because it was

an act by a public authority bearing on a matter of public interest, not merely a decision with respect to a private dispute between parties with opposing interests.

Consequently, the appellant states that the Superior Court should not have added to the definition of the negotiating sector an element that was superfluous or contrary to public order. [ 47 ] Lastly, the appellant believes that the judge wrongly criticized the Commission for not publishing a new public notice before rendering its decision because the Commission did not extend the application for recognition by deleting an element that was superfluous or contrary to public order.

Thus, according to the appellant, the Commission did not violate the audi alteram partem rule. [ 48 ] The appellant would like the Court to overturn the Superior Court judgment, dismiss the motion for judicial review, and return the file to the CRT, which succeeded the Commission, for a ruling on the representativeness of the artists' association in the negotiating sector defined in the May 16, 2008 decision. B. Respondents TAI, ACT, TUEJ, ADISQ and APC [ 49 ] The respondents would like the Superior Court judgment to be upheld.

They believe that the judge correctly interpreted the Act: It does not apply to employees within the meaning of the Labour Code but to artists practising their art on their own account, that is, self- employed workers. [ 50 ] In their view, the Commission's decision calls into question the stability of judgments and of collective agreements negotiated since the passage of the Act, as well as the coherence and imperviousness of the legislation on minimum conditions of employment. [ 51 ] They also point out that the APC did not have the opportunity to be heard by the Commission because a new notice was not published.

C. Respondent PACT [ 52 ] PACT argues that the Act must be interpreted in light of its purpose and the legislator's intention. In its opinion, the judge did not err in his

interpretation of the Act or of the decision in Cabane à sucre Chez Dany by ruling that employees are excluded from the application of the Act. In its view, exclusion from the definition is not contrary to public order. [ 53 ] PACT sees a contradiction in the Commission's decision: While declaring that the exclusion in the definition of the negotiating sector was superfluous, the Commission recognized the agreements between the parties.

For PACT, the exclusion is not superfluous, because it clarifies the situation for producers. [ 54 ] Lastly, PACT argues that the Commission violated the audi alteram partem rule in deciding to amend the definition of the negotiating sector without allowing PACT to address the Commission in that regard. According to PACT, a new notice mentioning the removal of the exclusion should have been published. Had it been published, PACT would have addressed the Commission. PACT believes that the judge was right to review the Commission's decision and would therefore like the Superior Court judgment to be upheld. D.

Impleaded party APASQ-CSN [ 55 ] According to impleaded party APASQ-CSN, whose application for recognition gave rise to this dispute, the legislator would have provided for the Act's exclusion of employees had that been its intention. Moreover, in its view, the Court of Appeal did not exclude all employees from the scope of the Act in Cabane à sucre Chez Dany .

The impleaded party argues that, on the contrary, the Court acknowledged that, under certain conditions, employees could be covered by the Act. [ 56 ] The impleaded party concurs with the conclusions of the appellant, the AQTIS, but adds that it would like to be awarded costs whatever the outcome of the dispute. E. Intervener (APFTQ) [ 57 ] The intervener argues that the Superior Court judgment is well founded.

In its view, the judge was correct to rule that employees are excluded from the application of the Act by taking into account the history of the Act and correctly interpreting the provisions of the Act and those of related statutes. The intervener is of the opinion that the appellant's

interpretation of the Act runs counter to the principles of the coherence of statutes and the systematic

interpretation of related statutes. The legislator sought to introduce two separate, coherent labour relations regimes—one for independent contractors and the other for employees. [ 58 ] The intervener also believes that the judge correctly interpreted Cabane à sucre Chez Dany and properly applied the rules of judicial review.

V. ANALYSIS 1 – Did the judge err with respect to the criteria for judicial review? [ 59 ] It is appropriate to proceed as the Superior Court judge did and analyze the standard of review applicable to the

interpretation of the Act first, before moving on to the standard applicable to the submissions regarding ultra petita and audi alteram partem . A. On interpreting the Act [ 60 ] To determine the applicable standard of review, it must first be ascertained whether the degree of deference to be accorded to a category of questions has been established in the case law. [21] In Cabane à sucre Chez Dany , which concerned the

interpretation of

section 6 of the Act, Dussault, J.A., on behalf of the Court, selected the patent unreasonableness standard, based on his analysis of four factors: - The presence of a privative clause: The Act contains a full privative clause (ss. 66 and 68). - The expertise of the administrative body relative to that of the reviewing court: The Commission has real expertise that courts of law do not have. - The purpose of the Act or the specific provision: The Act is concerned with the protection of artists who are not protected by union certification or who are not covered by a collective agreement decree.

Section 6 concerns a specific area relative to the reason for the Act —the determination of an artist's professional status. - The nature of the question: It is a mixed question of fact and law whether the conditions giving rise to the application of the presumption in

section 6 of the Act are established. [22] [ 61 ] The above judgment was rendered on February 21, 2008, shortly before the Supreme Court decision in Dunsmuir v . New Brunswick . According to the latter, the patent unreasonableness standard now corresponds to the reasonableness standard. [23] [ 62 ] The issue before the Commission in the present case is a little different from that in Cabane à sucre Chez Dany . The issue in that case was whether a particular enterprise was a producer within the meaning of the Act.

The case before us concerns an application for recognition aimed at ascertaining whether the people contemplated by the negotiating sector are artists within the meaning of the Act and, if so, defining the appropriate negotiating sector. To that end, the Commission ruled on the

interpretation of the term "artist" in the Act in comparison to the term "employee" in the Labour Code . [ 63 ] That said, Cabane à sucre Chez Dany is nevertheless a case similar to the one before us. The trial judge was therefore correct to base himself on that case to determine the applicable standard of review.

Consequently, the case law tells us that a high degree of deference must be accorded to the Commission's decision. [ 64 ] The application of that standard is reinforced by the factors set forth in Dunsmuir : [55] A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: • A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. • A distinct and special administrative regime in which the decision maker has special expertise (labour relations for instance). • The nature of the question of law.

A question of law that is of "central importance to the legal system … and outside the …. specialized area of expertise" of the administrative decision maker will always attract a correctness standard ( Toronto (City) v. C.U.P.E. , at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. [ 65 ] As Dussault J.A. wrote, the Act contains a privative clause and the Commission has special expertise in the labour relations regime instituted by the Act.

This is a question of law, namely, whether employees under the Labour Code are excluded from the application of the Act, but it is not a question of central importance to the justice system or outside the Commission's specialized area of expertise. [ 66 ] The judge therefore rightly determined that the reasonableness standard applied to the central issue.

In Dunsmuir , the Supreme Court defines the standard as follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions .

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law . [Emphasis added.] B.

On the submissions concerning ultra petita and audi alteram partem [ 67 ] The prohibition against a court's ruling ultra petita does not always apply in administrative law, as can be seen from the

summary of the Federal Court of Appeal's decision in Canadian Private Copying Collective v . Canadian Storage Media Alliance : The Board set the rate on the embedded memory beyond that sought by the CPCC. The ultra petita principle is generally understood to mean that a court will not make a ruling beyond what is requested by the parties.

However, the legislator is free to remove and often does remove administrative tribunals from the constraints of ultra petita , as administrative tribunals are generally created to advance interests that can go beyond the immediate interests of the parties who appear before them . In the present case, subsections 83(8) and (9) of the Act show that the Board retains the discretion to establish a tariff that is "fair and equitable", and to set "such terms and conditions related to those levies as the Board considers appropriate".

Thus, the ultra petita principle did not prevent the Board from deviating as it did from the proposed tariff, and the Board did not err when it said that no unfairness would result from the increase which it authorized. [24] [Emphasis added.] [ 68 ] Rather than asking whether the Commission ruled ultra petita , it is appropriate to ask whether the Commission could reasonably have concluded that, in order to comply with the Act, it had to change the negotiating sector by striking out the exclusion proposed therein. [ 69 ] While the Supreme Court ruled in Dunsmuir that the correctness standard must be applied to jurisdictional issues, it defines these issues narrowly: "'Jurisdiction' is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.

In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter". [25] Thus, the question here is not one of jurisdiction but rather of the Commission's

interpretation of its enabling statute. It is appropriate to apply the reasonableness standard to it, for the reasons given in the previous

section on the

interpretation of the Act. [ 70 ] As for audi alteram partem , it is a rule of natural justice that means [ translation ] "that an individual whose rights are affected is entitled to be heard to present his or her grounds, defence or point of view". [26] The case law has established that it calls for the application of the correctness standard. [27] [ 71 ] In Dunsmuir , the Supreme Court describes this standard as follows: [50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law.

This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct . [Emphasis added.] [ 72 ] The judge erred in

part in establishing the applicable standards, that is, in his consideration of the matter of ultra petita . It must now be determined whether the appropriate standards in the circumstances were indeed applied. 2 – Did the judge err in his

interpretation of the Act and its application to employees to whom a certification does not apply? [ 73 ] To determine whether the Commission's decision is reasonable, we must consider its justification, transparency and intellegibility. The solution adopted must also fall within a range of possible outcomes. [28] In that sense, it is not enough to examine the conclusions of the decision; the reasons underpinning the decision also require our attention. A.

Presentation of the legislative framework [ 74 ] Professors Verge, Trudeau and Vallée offer this description of the Act: [ translation ] Enacted in 1987, the Act respecting the professional status and conditions of engagement of performing, recording and film artists allows for the recognition of the association having obtained the support of the majority of artists in a particular negotiating sector for the purposes of representation and the negotiation of a collective agreement with producers or with recognized or non-recognized associations of producers.

The Act obliges producers and associations of producers to negotiate in good faith a collective agreement with recognized artists' associations. [29] [ 75 ] Whereas the Labour Code does not allow for a multi-employer unit, [30] the Act permits an artists' association to negotiate with several producers or associations of producers. [ 76 ] Two other statutes govern labour relations with respect to artists: the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters , [31] enacted in 1988, and the Status of the Artist Act , [32] enacted in 1992.

B. Provisions of the Act [ 77 ] First, it should be noted that the Commission's analysis of the issue of interest to the Court is not very detailed or exceptionally intelligible. It is nevertheless possible to follow the Commission's reasoning and to determine whether its position is reasonable. [ 78 ] The Act defines an artist to whom it applies as a person working on his or her own account: 1.

This Act applies to artists and to producers who retain their professional services in the following fields of artistic endeavour: the stage, including the theatre, the opera, music, dance and variety entertainment, multimedia, the making of films, the recording of discs and other modes of sound recording, dubbing, and the recording of commercial advertisements .

2. In this Act, unless the context indicates a different meaning, "artist" means any natural person who practises an art on his own account and who offers his services for remuneration, as a creator or performer in any field of artistic endeavour referred to in

section 1 . [Emphasis added.] At first glance, this definition appears to create an incompatibility between the status of artist and that of employee within the meaning of the Labour Code , which presupposes a relationship of subordination between the person and his or her employer. That notion is defined in paragraph 1 (

l) of the Labour Code and summarized as follows by Robert P. Gagnon: [ translation ] "Thus, an employee is necessarily a natural person who, for remuneration, works for another person, to which the employee is subordinate". [33] [ 79 ] The Act does not refer, however, to the notion of employee within the meaning of the Labour Code . The Commission was therefore justified in stating that a notion outside of the Act cannot be imported with a view to interpreting the Act and excluding a particular class of artists from its application. [ 80 ] That said, the Act refers to the Labour Code , stating in

section 5 that a person contemplated by a certification granted under the Labour Code is excluded from the application of the Act: 5. This Act does not apply to a person whose services are retained for an occupation contemplated by a certification granted under the Labour Code (chapter C-27) or a decree passed under the Act respecting collective agreement decrees (chapter D-2 ) . [ 81 ] Under that

section , the only possible basis for the exclusion of certain classes of artists a certification granted under the Labour Code or a decree under the Act respecting collective agreement decrees , not an artist's status of employee within the meaning of the Labour Code .

Consequently, it was reasonable for the Commission to decide that the provision should be interpreted as worded, without broadening the scope of the wording. [ 82 ] On this point, the Act differs from the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters , which provides that an employee within the meaning of the Labour Code is excluded from its application, regardless of whether a certification applies to the employee: 5.

This Act does not apply to an artist whose services are retained by a promoter to work as an employee within the meaning of the Labour Code (chapter C-27). It is not illogical to think that the legislator would have provided for such an exclusion in the Act had that been its intention, even though the purpose of the two statutes is not exactly the same. Need it be repeated that these two statutes, as indicated by their titles, bear on the professional status of various artists and were passed on December 17, 1987, and December 23, 1988, respectively?

It is hard to believe that, within a period of one year, the legislator would have drafted two provisions determining the people to whom each of the statutes did not apply had the differences between the provisions not been intended. [ 83 ] Furthermore,

section 6 of the Act establishes an irrebuttable presumption that may reasonably be thought to allow employees within the meaning of the Labour Code to be covered by the Act in certain cases: 6. For the purposes of this Act, an artist who regularly binds himself to one or several producers by way of engagement contracts pertaining to specified performances is deemed to practise an art on his own account . Further to that provision, persons who regularly bind themselves to producers by way of (innominate) contracts for specified performances can be deemed to be self-employed, thus artists under the Act. The following opinion of the Commission concerning

section 6 is not unreasonable: [ translation ] [49] …That provision, which is to the effect that, under certain conditions, an artist may be "deemed to work on his or her own account", does not create a class of artists; rather, it palliates the difficulty some artists reportedly have in obtaining the status of artist and the rights conferred by the Act, because of the regularity of their engagements. [ 84 ]

Section 6 establishes a presumption that persons who meet the conditions therein work on their own account, but the presumption has an impact solely on the application of the Act, as indicated by the provision.

Thus, just because an artist is deemed to practise an art on his or her own account, pursuant to the Act, does not mean that the artist is unable to prove that he or she is an employee, hence subject to a relationship of subordination, for the purpose of the application of other legislative provisions. [ 85 ] Consequently, even though the Commission's decision is not exceptionally clear, it was one of the possible outcomes given the very provisions of the Act. Can the same be said from the standpoint of the history of the Act? C.

History of the Act [ 86 ] The Act was enacted to remedy, at least in part, the socioeconomic problems faced by artists. In a brief submitted to Cabinet on January 31, 1986, the Minister of Cultural Affairs identified three problems inherent in the status of artist: [ translation ] 1 – the hybrid and variable nature of the status; 2 – the imbalance or the non-fit between the contribution of artists to social, economic and cultural development, and their financial reward and social recognition; 3 – the gap between the socioeconomic status of artists compared with that of other classes of producers or workers. [34]

[ 87 ] The hybrid situation of artists, considered to be self-employed workers or employees often having multiple employers, was such that the legislation was out of step. [35] [ 88 ] The purpose of the Act is apparent in speeches by Minister of Cultural Affairs and Deputy Premier Lise Bacon during National Assembly debates: [ translation ] The legal vacuum now filled by the bill had made artists an exception in the area of labour relations, as labour statutes recognized the right of association and the right to collective bargaining for employees only.

In the sectors contemplated by the bill, artists who are creators or performers often work simultaneously in several fields and for different producers. For example, an actor might sign a contract relative to an advertisement and another might sign a contract for a role in film or television, while working in a theatre production. Being of limited duration, these varied contracts with different employers result in the artists being more readily equated with self-employed workers than with employees .

In addition, the freedom required for the very practice of an art accentuates the autonomous nature of the profession. . . . The option selected essentially consists in conferring self-employed worker status on artists in the sectors contemplated and in setting up a regime specific to that status for negotiating collective agreements. . . . A look at the provisions of the bill tells us that professional status stems from the individual relationships between artists and the State.

For the purposes of the proposed regime, the bill establishes a presumption that stage, recording and film creators and performers act on their own account if they have engagements with several producers or contracts of a set duration requiring separate performances for the same producer. This characterization of the contractual relationships generally excludes artists from the labour relations regime applied to employees . . . .

For the purposes of setting up a labour relations regime in keeping with the contractual relationships between artists and producers, we have made provisions legally recognizing that artists are deemed to exercise their art on their own account if one or several producers retain their professional services for specified performances. This presumption clearly establishes that the relationships between the two parties do not create relationships of subordination. Consequently, collective agreements are not subject to the usual labour relations legislation or standard bargaining rules.

Thus, we have defined a specific regime under which artists have rights and obligations analogous to those of other classes of salaried workers. These fundamental rights are the right of association and the right to negotiate conditions of engagement. [36] [Emphasis added.] [ 89 ] These speeches were reproduced by the Superior Court judge. He inferred therefrom that the objective of the Act was to exclude employees from the Act's scope, as self-employed worker status was to be recognized only for artists working on their own account.

It is true that, at first glance, the intention seems to be to exclude artists from the application of the Labour Code and, consequently, to prevent the overlap of the two statuses. [ 90 ] The minister's comments, however, do not explicitly exclude employees within the meaning of the Labour Code from the application of the Act; rather, the minister acknowledged the professional and legal reality of artists, who are generally more readily equated with self-employed workers, which does not preclude the possibility of considering them, in certain cases, to be employees within the meaning of the Labour Code .

Although she said that the presumption that artists act on their own account "generally" excludes them from the labour relations regime applicable to employees, it may be inferred that this is not always so and that it is possible to hold both the status of artist within the meaning of the Act and the status of employee within the meaning of the Labour Code . [ 91 ] That is even more apparent on reading the Minister's comments regarding

section 5 of the Act: [ translation ] [This section] aims to exclude from the scope of the Act the labour relations sectors subject to the Labour Code under a certification or to the Act respecting collective agreement decrees under a decree. It is this provision that enables artists to continue to be covered by the general law regime if they so wish and an artists' association to remain free to apply for a certification or a decree.

Once an association obtains either of these, the activities or occupations contemplated no longer come under the scope of this Act. [37] Thus, artists who are employees but who are not contemplated by a certification or subject to a decree passed under the Act respecting collective agreement decrees are not excluded from the scope of the Act, which thus constitutes in practice the general law regime applicable to these artists. [ 92 ] Given that the Act seeks to remedy in part the socioeconomic difficulties faced by artists, it is logical for the Act to be interpreted broadly. [38] To decide that artists who can be considered employees under the Labour Code can never be contemplated by the Act is tantamount to denying those who are not covered by a certification or a collective agreement decree the possibility of having favourable conditions negotiated with producers. [ 93 ] The Commission's

interpretation being reasonable, I am of the opinion that the judge should not have reviewed its decision on that basis. D. The case law

i. Cabane à sucre Chez Dany [ 94 ] The trial judge reviewed the Commission's decision because he felt that it ran counter to Cabane à sucre Chez Dany . I believe the judge misinterpreted that decision. [ 95 ] That case involved ascertaining whether Cabane à sucre Chez Dany was a producer and, therefore, whether it was obliged to negotiate with the Guilde des musiciens du Québec. The sugar shack had some fifteen employees, including an accordionist who had been employed there for three years and was remunerated. He had to be available seven days a week during the high season.

He received employment-insurance benefits during the low season, but remained available and played his instrument occasionally. To ascertain whether the sugar shack was a producer, it was necessary to first decide whether the accordionist was an artist within the meaning of the Act. [ 96 ] According to the decision rendered on December 17, 2004, by the Commission, presided by Mtre Jean Corriveau, it is not a person's being an employee but, rather, the existence of a certification or decree that determines whether the person is a priori excluded from the application of the Act.

Thus, if services are retained for an occupation already contemplated by a certification or decree, the Act does not apply. Conversely, it could apply to artists who regularly bind themselves, within the meaning of

section 6, without a certification or decree. The Commission ruled that the sugar shack retained the services of an artist within the meaning of the Act and was therefore a producer within the meaning of the Act. [39] The reasons are similar to those of the Commission in the present case. [ 97 ] On March 27, 2006, Claude Larouche, J. of the Superior Court reviewed that decision on the ground that the presumption in

section 6 of the Act could not be applied to create an outcome inconsistent with the evidence, according to which the accordionist was an employee of the petitioner, not a worker on his own account. In the judge's view, the sugar shack was not a producer within the meaning of

section 6. The decision of the trial judge in this case is along the same lines: an employee cannot be an artist within the meaning of the Act. [40] [ 98 ] On February 21, 2008, the Court rendered a judgment upholding the decision of Larouche, J. In the reasons, Dussault, J.A., agreed with the trial judge's finding. The accordionist did not regularly bind himself to the sugar shack by means of contracts bearing on specific performances, because the evidence did not indicate that he maintained the option of challenging the engagement every year.

The parties had entered into a contract with an indeterminate term. [41] [ 99 ] Dussault, J.A. determined the ratio decidendi of the trial judgment as follows: [ translation ] [54] A careful reading of the judgment shows, however, that that is not its ratio decidendi . In my opinion, that is found in paragraphs [144], [146], [155] and [166] of the judgment, quoted above in paragraphs [20] and [21].

Taken together and as a whole, these paragraphs of the judgment clearly articulate the legal reasoning of the judge, who ultimately criticized the Commission for [ translation ] "disregarding" the facts established before it, which, in his view, showed that the accordionist did not regularly bind himself to the respondent "by way of contracts pertaining to specified performances", whereas, for the Commission, their consideration constituted [ translation ] "a prerequisite to the application of the presumption in

section 6" (para. [166], supra ). [ 100 ] Thus, the Court stated that the ratio decidendi was found in several paragraphs, including the one in which the judge wrote that, according to the evidence, the accordionist was an employee of the petitioner and, consequently, could not be an artist within the meaning of the Act because he did not work on his own account. The Court made no mention of this, however, in its

summary of the judge's reasoning.

The Court did not rule on the general question of whether an artist within the meaning of the Act could also be an employee within the meaning of the Labour Code , restricting its analysis to whether the accordionist regularly bound himself to the sugar shack by way of contracts pertaining to specified performances. [ 101 ] That is, in fact, what Morissette, J.A. wrote in his judgment authorizing leave to appeal, when he discussed the judge's position that employees were excluded from the application of the Act (para. 85 of the trial judgment) and that the Commission's decision contravened the Court of Appeal judgment in Cabane à sucre Chez Dany (para. 90 of the judgment): [ translation ] [1] The matter discussed by the trial judge in paragraphs 62 and following of his reasons, and decided by him in paragraph 85, a matter on which he expressed, in paragraph 90 of the reasons, his disagreement with the Commission's position in favour of recognition of artists' associations and associations of producers, is one which, in my opinion, remains open further to the Court of Appeal's 2008 decision in Guilde des musiciennes et musiciens du Québec v . 9009-0531 Québec inc. (Cabane à sucre Chez Dany) , 2008 QCCA 331 . . . .

It should be pointed out that Morissette, J.A. was on the panel that rendered the judgment in Cabane à sucre Chez Dany . [ 102 ] In fact, the Commission's conclusion regarding that judgment in its May 16, 2008decision was as follows: [ translation ] [48] The APASQ argues that, as a result of the legal uncertainty surrounding Cabane à sucre Chez Dany , in which the Commission had to interpret sections 5 and 6 of the Act, it reproduced the wording that has been contained in its act of recognition since July 1993 with respect to set, costume, lighting and sound designers.

It is worded prudently so as to preclude a decision that can be challenged in the current state of the law. [49] According to the Commission, the APASQ should be reassured in that respect, since, following its submissions, the Court of Appeal, in reviewing the Commission's decision, did not in any way challenge the existence of a presumption in

section 6, but instead noted the insufficient evidence in support of it . That provision, which is to the effect that, under certain conditions, an artist may be

"deemed to work on his or her own account", does not create a class of artists; rather, it palliates the difficulty some artists reportedly have in obtaining the status of artist and the rights conferred by the Act, because of the regularity of their engagements. [Emphasis added.] I am of the opinion that the Commission's

interpretation of Cabane à sucre Chez Dany was reasonable and that, consequently, the Superior Court judge should not have reviewed the decision on that basis. ii. Decisions of the Commission and the Superior Court [ 103 ] There is a controversy in the case law on this matter. [42] [ 104 ] First, the viewpoints of the Commission and the Superior Court diverge, and the divergence was not decided by the Court, as we have just seen. [ 105 ] Second, the trial judge wrote that, prior to its decision in Cabane à sucre Chez Dany , the Commission had always acknowledged that the Act does not contemplate employees.

The decisions he cited in support of his position— Guilde des musiciens du Québec v. Café Sarajevo , [43] Guilde des musiciens du Québec v. Hippodrome de Montréal inc. , [44] and 9071-7570 Québec inc. v. Guilde des musiciens du Québec [45] —were all rendered in cases presided by the same administrative decision maker, Mtre Jean Corriveau, who in fact rendered the decision in Cabane à sucre Chez Dany and is one of the Commission members in the present case. [ 106 ] It will be recalled, however, that administrative decision makers are not bound by the stare decisis [46] rule.

Moreover, the Commission is entitled to change its mind. [ 107 ] In addition, the Supreme Court teaches us in Domtar Inc. v . Quebec (Commission d'appel en matière de lésions professionnelles) that, if a decision is reasonable, the existence of a controversy over the

interpretation of a legislative text does not give rise to judicial review by the reviewing court: In my opinion, questions as to the advisability of resolving a jurisprudential conflict avoid the main issue, namely, who is in the best position to rule on the impugned decision. Substituting one's opinion for that of an administrative tribunal in order to develop one's own

interpretation of a legislative provision eliminates its decision-making autonomy and special expertise . Since such intervention occurs in circumstances where the legislature has determined that the administrative tribunal is the one in the best position to rule on the disputed decision, it risks, at the same time, thwarting the original intention of the legislature. Any inquiry into decision-making inconsistency where there is no patently unreasonable error thus diverts courts of law from the fundamental question which the legislature has in any case already answered . . . .

This process has led to the development of the patently unreasonable error test. If Canadian administrative law has been able to evolve to the point of recognizing that administrative tribunals have the authority to err within their area of expertise, I think that, by the same token, a lack of unanimity is the price to pay for the decision-making freedom and independence given to the members of these tribunals. Recognizing the existence of a conflict in decisions as an independent basis for judicial review would, in my opinion, constitute a serious undermining of those principles .

This appears to me to be especially true as the administrative tribunals, like the legislature, have the power to resolve such conflicts themselves.

The solution required by conflicting decisions among administrative tribunals thus remains a policy choice which, in the final analysis, should not be made by the courts . [47] [Emphasis added.] [ 108 ] Given that, in my view, the decision of the Commission is reasonable, it was not up to the Superior Court to decide the matter, any more than it is up to the Court of Appeal to do so. 3- Did the judge err in ruling that the Commission could not automatically remove the exclusion of employees from the definition of the negotiating sector? [ 109 ] On the basis of the correctness standard, the Superior Court judge ruled that, by automatically removing the exclusion of employees contained in the definition of the negotiating sector, the Commission ruled ultra petita . [ 110 ] For the reasons mentioned earlier, I believe that the judge should have applied the reasonableness standard to ascertain whether the Commission could act as it did.

It strikes me as preferable not to use the term " ultra petita " in this context and to refer instead to the Commission's powers in defining the negotiating sector. [ 111 ] Consequently, it is appropriate to point out that, in accordance with sections 57 and 58 of the Act, it is up to the Commission to define negotiating sectors, decide whether a person is comprised in a particular sector, and rule on matters relating to recognition: 57. The Commission, upon application, may define negotiating sectors and, where applicable, fields of activity in respect of which recognition may be granted. 58.

The Commission, of its own initiative , upon receiving an application for recognition, and at any time on the motion of an interested person, may decide whether a person is comprised in a negotiating sector or, where applicable, a field of activity or decide any other matter relating to recognition, including the status of artist or producer within the meaning of this Act. [Emphasis added.] Thus, the Commission is not bound by the negotiating sector proposed in the application for recognition. [48] [ 112 ] In defining a negotiating sector, the Commission must first ask itself whether the persons contemplated by the sector are artists within the meaning of the Act. [49] That said, a notion outside the Act cannot be imported into it in order to define who is an artist and

influence the application of the Act when its provisions—for example, sections 1, 2, 5 and 6—do not refer to the notion. [113] Subsequently, the Commission must take into particular account the common interest of artists and the history of relations inrespect of the negotiation of group agreements: 59.

For the purposes of sections 57 and 58, the Commission shall take into particular account the common interest of the artists or, as thecase may be, the producers concerned and the history of their relations in respect of the negotiation of group agreements. [114] For the trial judge, it was clear that artists working on their own account and employed artists do not form a community ofinterest,[50] but he did not explain that affirmation.

Yet employed artists who are without a certification within the meaning of theLabour Code may nevertheless form a community of interest with independent artists who are not included in a recognition, becauseneither group has agreements stipulating their working conditions. [115] Moreover, the judge wrongly distinguished between these artists, since employed artists can be deemed to exercise an art ontheir own account, pursuant to

section 6 of the Act. That very fact indicates that, for the legislator, they can have a common interestrelative to, for example, their socioeconomic condition. [116] As concerns the collective agreements, the Commission acknowledged them although they contained the definition of thenegotiating sector that excluded employees within the meaning of the Labour Code. The judge saw a contradiction in that.

I do not agree.In several decisions, the Commission has allowed the filing of agreements between the parties and acknowledged the agreements, so thatthe parties could refer to them with respect to the intended scope of the negotiating sector defined by the Commission.[51] Even thoughthat practice is not desirable, as decided by the CRT in its decision mentioned in footnote 49, it does not point to a contradiction on thepart of the Commission. [117] The legislator's use of the word "particular" in

section 59 indicates that the elements mentioned are not the only ones that can beconsidered by the Commission. For example, the Commission must examine the clarity of the proposed definition. The CRT, whichsucceeded the Commission, also believed that it was its responsibility to ensure the negotiating sector was clearly defined: [translation] [46] Lastly, the accepted wording of the negotiating sector must be clear. As stated by the Commission in Syndicat démocratique desemployés de garage Saguenay-Lac-Saint-Jean (CSD) v.

Maison Mitsubishi (2009 QCCRT 214 , 2009 QCCRT 0214), wordingthat gives rise [translation] "in future to ambiguity and disputes" would be "inconsistent with the necessary objectives of industrialpeace". [47] Clarity is necessary especially in the case of a recognition granted under the Act: the recognition applies to artists in a sector for allor part of the province of Quebec (section 16 of the Act) who work on their own account within the meaning of the Act, regardless ofwhether they belong to the recognized association.

To find out about their duties and obligations, artists must be able to find out whethera recognition applies to them. The same is true for producers who retain their services.[52] [118] The concern about clarity enabled the Commission to remove a superfluous passage, namely, that in which an employee withinthe meaning of the Labour Code, covered by a collective agreement, was not included in the negotiating sector. According to paragraph1(

d) of the Labour Code, a collective agreement is "an agreement in writing respecting conditions of employment made between one ormore certified associations and one or more employers or employers' associations". Consequently, a certification applies to an employeecovered by a collective agreement, and, under

section 5 of the Act, the Act does not apply to the employee. [119] Furthermore, the trial judge felt that

section 59 did not enable the Commission to extend the negotiating sector.[53] First, itshould be noted that there is an inconsistency in the judge's remarks. If the judge's

interpretation of the Act that it excludes employeesfrom its application is accepted, there is no point in re-incorporating the exclusion initially contained in the definition of the negotiatingsector.

Conversely, if the reasonableness of the Commission's decision is accepted, it is up to the Commission to ensure that theproposed definition complies with the Act and does not run counter to public order, even if the negotiating sector is extended as a result.Section 59 of the Act definitely allows the Commission to define the appropriate negotiating sector. [120] It may seem unfair, however, to ask an association to represent a group of persons when neither the association nor the personshave so consented.

At the hearing of March 14, 2007, before the Commission, counsel for the impleaded party, the APASQ-CSN,indicated that, out of caution, the APASQ-CSN did not wish to change the wording in its application for recognition because theCommission's decision in Cabane à sucre Chez Dany was being contested, but also by choice, because it wanted to represent self-employed workers only.[54] In appeal, however, the APASQ-CSN did a 180-degree turn, declaring that henceforward it endorsed the conclusions sought by theAQTIS.

Thus, it appeared to agree to represent any employees in the negotiating sector defined by the Commission. [121] Consequently, the judge should not have reviewed the Commission's decision in that regard to re-incorporate the exclusion thathad initially been proposed. 4 – Did the judge err with respect to the audi alteram partem rule? [122] In applying the correctness standard, the trial judge decided that the Commission had violated the audi alteram partem rulebecause it did not publish a new notice despite knowing that it was going to strike out the exclusion contained in the definition of thenegotiating sector. [123] Under the Act, the Commission must publish a notice in at least two daily newspapers when an application for recognition isfiled.

The purpose of the notice is to enable artists, artists' associations, producers and associations of producers to address theCommission on the question of defining the negotiating sector, as provided in sections 16 and 17 of the Act:

16. Where the Commission is called upon to rule on an application for recognition, it may take any measure it considers necessary to ascertain whether the membership of the association accounts for the majority of artists in the sector concerned. The Commission may, for instance, hold a referendum . The Commission shall publish, in at least two daily newspapers having general circulation in Québec, a notice of the filing of an application for recognition .

The Commission shall similarly publish a notice indicating that it intends to ascertain the representativeness of the association and indicating what measures it has decided to take for that purpose. The Commission must state, in the notice, the closing date for filing an application for recognition for the sector or part of the sector concerned, and for addressing the Commission under

section 17 . Where an application for recognition relates to a negotiating sector defined for only part of the territory of Québec, a notice provided for in the second paragraph may be given once in a daily newspaper having general circulation in Québec and once in a daily newspaper having circulation in the part of the territory included under the recognition . 17.

Where an application for recognition is being considered, the artists, the artists' associations and any producer or association of producers may address the Commission on the question of defining the negotiating sector . [Emphasis added.] [ 124 ] The notice was in fact published in two dailies, La Presse and The Gazette , on September 6, 2003; it indicated September 26, 2003, as the deadline for addressing the Commission. [55] On the basis of the definition proposed by the APASQ-CSN and published in the notice, the APC and PACT did not address the Commission.

PACT alleged that it would have had it known that the debate before the Commission bore on the exclusion of employees, an exclusion that the Commission intended to remove. The APC alleged only that its right to be heard had thus been violated. [ 125 ] I do not think that a new notice should have been published. The associations had the opportunity to address the Commission following the publication of the notice in the dailies but chose not to do so.

To accept their contention would be tantamount to saying that the Commission must publish a new notice every time it considers changing the proposed wording of a negotiating sector when its role is in fact to define the negotiating sector. That would go against the principle I referred to earlier whereby the Commission is not bound by the negotiating sector proposed in an application for recognition. [ 126 ] Hence, the Commission did not violate the audi alteram partem rule. The judge erred in ruling to the contrary. VI.

CONCLUSION [ 127 ] I would therefore allow the appeal, overturn the trial judgment, and dismiss the motion for judicial review and the interventions for conservatory purposes. [ 128 ] Furthermore, I would condemn the following to pay to the AQTIS costs other than those relative to the books of authorities, which were filed late in appeal: (

a) in the Superior Court, solidarily, the APTP, the TAI, the ACT, the TUEJ, the ADISQ, the APC and PACT; (

b) in appeal, solidarily, the TAI, the ACT, the TUEJ, ADISQ, the APC, PACT and the APFTQ; [ 129 ] Consequently, I would refer the file back to the Commission des relations de travail, which succeeded the Commission de reconnaissance des associations d'artistes et des associations de producteurs, for a ruling on the representativeness of the APASQ-CSN in the negotiating sector defined by the decision of May 16, 2008. BENOÎT MORIN J.A.