Attorney General of Quebec Appellant v. Ronald Guérin, 2017 SCC 42

SUPREME COURT OF CANADA Citation: Quebec ( Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 Appeal heard: January 11, 2017 Judgment rendered: July 27, 2017 Docket: 36775 Between: Attorney General of Quebec Appellant and Ronald Guérin Respondent - and - Conseil d’arbitrage, Fédération des médecins spécialistes du Québec and Régie de l’assurance maladie du Québec Interveners Official English Translation: Reasons of Wagner and Gascon JJ. and reasons of Côté J. Coram: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Joint Reasons for Judgment: (paras. 1 to 64) Wagner and Gascon JJ. (McLachlin C.J. and Karakatsanis J. concurring) Joint Reasons Concurring in the Result: (paras. 65 to 82) Brown and Rowe JJ. Dissenting Reasons: (paras. 83 to 112) Côté J.

Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 Attorney General of Quebec Appellant v. Ronald Guérin Respondent and Conseil d’arbitrage, Fédération des médecins spécialistes du Québec and Régie de l’assurance maladie du Québec Interveners Indexed as: Quebec (Attorney General) v. Guérin 2017 SCC 42 File No.: 36775. 2017: January 11; 2017: July 27. Present: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for quebec Administrative law — Judicial review — Standard of review — Arbitration — Statutory provision stating that dispute resulting from

interpretation and application of agreement entered into under Health Insurance Act to be submitted to council of arbitration — Arbitrator dismissing dispute submitted by medical specialist — Standard of review applicable to arbitrator’s decision that there is no arbitrable dispute and that specialist did not have standing — Whether dispute raises true question of jurisdiction in relation to arbitrator — Health Insurance Act, CQLR, c. A-29, ss. 19 , 54 .

Health law — Health insurance — Medical specialists — Specialized collective bargaining scheme — Arbitration — Nature of dispute — Standing — Agreement providing for recognition and designation of medical imaging laboratories that are eligible to receive digitization fee — Medical specialist contesting refusal to declare certain laboratories eligible for fee — Whether specialist’s proceeding is arbitrable dispute — Whether specialist has standing to submit dispute — Health Insurance Act, CQLR, c. A-29, ss. 19 , 54 .

The Health Insurance Act (“Act”) provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism that resulted, in this case, in the Accord-cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la

Loi sur l’assurance maladie (“Framework Agreement”). The Fédération and the Ministère de la Santé et des Services sociaux (collectively, “negotiating parties”) created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocole concernant la radiologie diagnostique (“Protocol”), one of the schedules to the Framework Agreement.

Section 54 of the Act provides that a “dispute resulting from the

interpretation or application of [the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction”. A distinction is made in the Framework Agreement between a “dispute with respect to fees” raised by a physician and a “collective dispute” raised by the Fédération. G, a radiologist who is a member of the Fédération, applied to the negotiating parties for a declaration that certain clinics were eligible for the digitization fee. His application was denied. G contested that decision by submitting a dispute to the council of arbitration.

The arbitrator, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have standing to submit the dispute. The motion judge granted G’s motion for judicial review, finding that the arbitrator’s decision was unreasonable. The majority of the Court of Appeal upheld the motion judge’s decision. Held (Côté J. dissenting): The appeal should be allowed and the award of the council of arbitration restored.

Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.: The arbitrator’s conclusions were reasonable. The reasonableness standard necessarily applies, because the arbitrator was called upon to interpret and apply his enabling statute, the Framework Agreement and the Protocol, which are at the core of his mandate and expertise. The issues in this case do not raise a true question of jurisdiction in relation to the council of arbitration.

On the one hand, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applying his or her enabling legislation and related documents, whether a matter is arbitrable. Applying the reasonableness standard to such a question undermines neither the rule of law nor the other constitutional bases of judicial review. In contrast, the effect of applying the correctness standard would be to undermine the presumption in favour of the reasonableness standard that has been consistently recognized and endorsed by the Court in numerous cases.

On the other hand, the question of G’s standing, too, relates to the arbitrator’s

interpretation of his enabling legislation and of the Framework Agreement and does not cast doubt on his authority to make the inquiry submitted to him. Finally, the rule of law does not require the application of the correctness standard here. The fact that a question might give rise to conflicting

interpretations does not on its own support a conclusion that that standard applies. The arbitrator’s decision that the application did not raise an arbitrable dispute is reasonable. The determination of whether the dispute is arbitrable cannot be limited to s. 54 of the Act and must take the relevant terms of the Protocol into account. According to

the arbitrator’s

interpretation of the Protocol, the negotiating parties had reserved for themselves the authority to decide whether to recognize a laboratory, and had in so doing excluded that decision from the arbitration process. But the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application, as he was asking the arbitrator to rule on that question in place of the negotiating parties.

It was reasonable for the arbitrator to conclude that if he were to rule on the dispute, the effect would be to alter the negotiated content of the Protocol by stripping the negotiating parties of their exclusive discretion under the Protocol. It was also reasonable for the arbitrator to conclude that G did not have standing because, under the Framework Agreement and the Act, only the Fédération can submit such a dispute to a council of arbitration.

The Act gives the Fédération a monopoly of representation in respect of its members both for the negotiation and for the application of the Framework Agreement except in the case of a dispute with respect to fees, and this case did not involve such a dispute.

Section 54 does not entitle G to have recourse directly to arbitration. The main purpose of this

section is to establish the exclusive nature of the tribunal’s jurisdiction, not to define standing or determine who may submit a dispute. The context of the Act as a whole also confirms this

interpretation. The statutory provisions that set out specific situations in which a health professional may have recourse to arbitration would serve no useful purpose if s. 54 nonetheless entitled him or her to submit every possible type of dispute. Such an

interpretation would also result in an untenable increase in numbers of arbitration cases. Thousands of medical specialists and other health professionals, as well as health institutions and even third parties such as contractors or patients, could have recourse to arbitration. It is impossible to imagine that to have been the legislature’s intention as regards the purpose and scope of s. 54. A physician who feels aggrieved has a remedy in the general law of civil liability.

If G can establish that the Fédération’s conduct involved bad faith, discrimination, arbitrary conduct or serious negligence, he will be entitled to bring an action against it in court and to be compensated for the resulting harm. Per Brown and Rowe JJ.: The issue of the arbitrator’s capacity to hear G’s matter raised a question of jurisdiction, not of arbitrability, reviewable on the standard of correctness. The mere fact that a question of jurisdiction has not been discerned since Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, or that the jurisprudence on such questions has been inconsistent, does not mean that they have ceased to exist. In this case, the arbitrator saw his capacity to hear G’s matter as a question of jurisdiction, as did the courts below. While an issue is not arbitrable before a tribunal that has no jurisdiction to hear it, arbitrability is distinct from jurisdiction and standing. Mischaracterizing questions of jurisdiction as questions of arbitrability risks undermining the coherence of the analytical structure in administrative law.

The arbitrator erred in concluding that he did not have jurisdiction to hear the matter.

Section 54 of the Act gives the council of arbitration exclusive jurisdiction to hear “dispute[s] resulting from the

interpretation or application of an agreement”. A dispute concerning how the agreement between the Fédération and the Minister operated with respect to G’s facility was such a dispute. While the arbitrator’s decision on the question of G’s standing is reviewable for reasonableness and was reasonable, questions of standing can be jurisdictional. A court determining the standard of review to be applied to an administrative tribunal’s decision on a question of standing must examine the text of the statutory grant of power.

Standing can be a jurisdictional question where a tribunal is confined by the terms of its grant to hear only from a certain class of persons. In this case, the passive text of s. 54 , the statutory grant of power, indicates that the jurisdiction of councils of arbitration is not confined to hearing matters brought from certain classes of persons. Furthermore, there is no floodgate concern that would militate against granting standing.

The more persons who are placed in the difficult position in which G finds himself, the more compelling the basis for allowing him and others to have their disputes heard by an impartial decision-maker. Per Côté J. (dissenting): The determination of whether it was open to the arbitrator to hear the case raises a true question of jurisdiction, to which the standard of correctness applies, and the arbitrator erred in concluding that he did not have jurisdiction to hear G’s dispute. The arbitrator also erred in concluding that G did not have standing.

This question is one of jurisdiction, because the arbitrator cannot hear any dispute submitted by a medical specialist, except one with respect to fees. Even if the reasonableness standard is applied, the arbitrator’s decision is not defensible in respect either of the facts or of the law. The arbitrator’s conclusion is unreasonable insofar as it is based on a mischaracterization of the nature of the dispute and a misinterpretation of s. 54 of the Act .

In this case, the arbitrator concluded that the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application and that G was asking that the rules negotiated by the parties to the Framework Agreement be modified. But that is a mischaracterization of the nature of the dispute that completely disregards the notice of dispute that instituted the proceeding. On the contrary, G’s challenge was related to how the Fédération and the Régie de l’assurance maladie du Québec had interpreted and applied the conditions for recognition.

Section 54 of the Act is drafted in broad, clear language. The arbitrator interpreted it narrowly on the basis of the language of the Framework Agreement, thereby disregarding the fundamental principle of the hierarchy of rules, according to which the scope of the Framework Agreement must depend on that of the Act, not the reverse. Moreover, the right provided for in s. 54 of the Act must be construed broadly and liberally.

When the negotiating parties decide on and designate general radiology laboratories for the purposes of the digitization fee, they are interpreting and applying the agreement within the meaning of s. 54. A dispute submitted to the arbitrator thus results from a difference of opinion between the medical specialists and the negotiating parties. The Fédération’s monopoly of representation does not extend that far.

Principles of Quebec labour law, such as that of the monopoly of representation granted to a union, should not be imported into the collective bargaining scheme provided for in the Act unless the Act expressly provides for this. Lastly, the courts would not have been an appropriate forum for G, as his allegations correspond to none of the types of conduct on the basis of which he might bring an action against the Fédération. Cases Cited By Wagner and Gascon JJ.

Considered: Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009]3 S.C.R. 309; Pérès v. Québec (Commission de la fonction publique), ; referred to: Dunsmuir v. New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61,[2011] 3 S.C.R. 654; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,[2012] 2 S.C.R. 283; Mouvement laïque québécois v.

Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Commission scolaire de Laval v.Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29; Nor-Man Regional Health Authority Inc. v.Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Canadian Union of Public Employees, Local963 v. New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227; Edmonton (City) v. Edmonton East (Capilano)Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015]3 S.C.R. 615; ATCO Gas and Pipelines Ltd. v.

Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Nolan v. Kerry(Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Canon Canada Inc. v. Sylvestre, 2012 QCCS 1422; Parry Sound (District) SocialServices Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Ontario Refrigeration and Air ConditioningContractors Assn. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United Statesand Canada Local 787, 2016 ONCA 460, 131 O.R. (3d) 665, leave to appeal refused, No. 37179, March 10, 2017, [2017] Bull.S.C.C. 431; McLean v.

British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Tervita Corp. v. Canada(Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015SCC 47, [2015] 3 S.C.R. 300; Canadian Merchant Service Guild v. Teamsters, Local Union 847, 2012 FCA 210, 433 N.R. 200; Wilsonv. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160;Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756;Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Noël v. Société d’énergie de la Baie James, 2001 SCC 39,[2001] 2 S.C.R. 207; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Syndicat des techniciens ettechniciennes du cinéma et vidéo du Québec v. Mancone, (QC CA), [2002] R.J.Q. 2905; Centre hospitalier RéginaLtée v. Labour Court, (SCC), [1990] 1 S.C.R. 1330. By Brown and Rowe JJ. Applied: Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309;considered: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654;referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. By Côté J. (dissenting) Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309; Dunsmuirv. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010SCC 28, [2010] 2 S.C.R. 61; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207. Statutes and Regulations Cited Act respecting the Régie de l’assurance maladie du Québec, CQLR, c. R-5, s. 2.

Health Insurance Act, CQLR, c. A-29, ss. 19, 21, 22.0.1, 22.2, 54, 104.1.

Interpretation Act, CQLR, c. I-16, s. 41. Labour Code, CQLR, c. C-27, ss. 47.5, 69. Public Service Act, CQLR, c. F-3.1.1. Authors Cited Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada.Toronto: Thomson Reuters, 2013 (loose-leaf updated April 2017, release 1). Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed.Toronto: Carswell, 2011. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 6e éd. Cowansville, Que.: Yvon Blais,2010. Petit Robert: dictionnaire alphabétique et analogique de la langue française, nouvelle éd. Paris: Le Robert, 2012, “différend”. Reid, Hubert, avec la collaboration de Simon Reid. Dictionnaire de droit québécois et canadien avec table des abréviations et lexique anglais-français, 4e éd.

Montréal: Wilson & Lafleur, 2010, “différend”. APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Savard and Schrager JJ.A.), 2015 QCCA 1726, [2015] AZ-51223767, [2015] J.Q. no 10976 (QL), 2015 CarswellQue 9920 (WL Can.), affirming a decision of Grenier J., 2013 QCCS 6950, [2013] AZ-51046703, [2013] J.Q. no 19116 (QL), 2013 CarswellQue 14437 (WL Can.), allowing the application for judicial review of a decision of the council of arbitration, no 12-DS-499, January 29, 2013. Appeal allowed, Côté J. dissenting. Patrice Claude and Isabelle Brunet, for the appellant.

René Piotte , Stéphanie Lalande and Pierre-Alexandre Boucher for the respondent. Francis Meloche and Sylvain Bellavance , for the intervener Fédération des médecins spécialistes du Québec. No one appeared for the interveners Conseil d’arbitrage and Régie de l’assurance maladie du Québec. English version of the judgment of McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. delivered by Wagner and Gascon JJ. — I.

Overview [ 1 ] This appeal concerns the reasonableness of an arbitration award made in the context of a specialized collective bargaining scheme, namely the scheme for medical specialists and the government of Quebec under the Health Insurance Act , CQLR, c. A-29 (“Act”). More specifically, the award dealt with the very concept of a dispute and with standing to submit such a dispute to a council of arbitration under the Act and the Accord-cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la

Loi sur l’assurance maladie (“Framework Agreement”). [ 2 ] The Protocole concernant la radiologie diagnostique (“Protocol”) is one of a large number of schedules that were negotiated under the Framework Agreement. It sets out the conditions for payment of a digitization fee, as well as what a medical imaging laboratory must do, and what criteria it must satisfy, to become eligible for that fee. The respondent, Dr. Ronald Guérin, is a radiologist.

He wishes to contest by way of arbitration a joint decision of the Ministère de la Santé et des Services sociaux (“Ministère”) and the Fédération des médecins spécialistes du Québec (“Fédération”) (collectively, “negotiating parties”) to refuse to declare that the laboratories he represents are eligible to receive that fee for the years 2009 through 2011. [ 3 ] The council of arbitration decided that Dr. Guérin’s objection could not give rise to an arbitrable dispute under the Act and the Framework Agreement and that, in any event, only the Fédération would have had standing to submit such a dispute.

Further to a motion for judicial review, the Superior Court and the majority of the Court of Appeal both found that the council’s decision was unreasonable, concluding that it was open to Dr. Guérin under the Act to submit his dispute to the council of arbitration. The dissenting judge would have upheld the council’s decision, finding that its analysis was justified having regard to the Act and the Framework Agreement. [ 4 ] We would allow the appeal and restore the council of arbitration’s award. It was reasonable for the council to conclude that, under the Framework Agreement, the Protocol and the Act, Dr.

Guérin’s proceeding did not raise an arbitrable dispute, because the Fédération and the Ministère had reserved for themselves the full discretion to designate the medical imaging laboratories that would be eligible to receive the digitization fee. It was also reasonable for the council to conclude that, in any event, Dr. Guérin did not have standing to submit such a dispute for arbitration, as it was a collective dispute that the Framework Agreement lawfully reserved for the Fédération.

Moreover, contrary to what the majority of the Court of Appeal stated, physicians who feel aggrieved are not without recourse: there is a general law principle that permits them to sue the organization that represents them if it has breached its duty of fair representation. II. Background A. Legislative Framework [1] [ 5 ] The Act establishes a government-funded universal health care system. It provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism.

To this end, the Ministère may, “[f]or the purposes of this Act . . . enter into an agreement with the representative organizations of any class of health professionals” ( s. 19 of the Act). Such an agreement “shall bind all professionals in the field of health who are members of the body which made the agreement” ( s. 21 ). The agreement in question corresponds in the instant case to the Framework Agreement, a quite complex document containing almost 45 schedules that has been amended over 50 times since being concluded.

It is the Fédération, which the Ministère has since 1970 recognized as the only organization representing medical specialists in Quebec, that is responsible for the negotiation and application of this agreement (Framework Agreement,

schedule 1, s. 3.1). [ 6 ] The Act provides that “[a] dispute resulting from the

interpretation or application of an agreement [like the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction” (s. 54). In this respect, the Framework Agreement sets out an arbitration procedure, providing that [ translation ] “[a] dispute shall be filed by a medical specialist or by the Fédération in accordance with [the procedure]” (Framework Agreement,

schedule 1, s. 20.1). A distinction is made in this procedure between a “dispute with respect to fees”, that is, one raised by a physician in relation to a claim for fees or to his or her service agreement with a health institution, and a “collective dispute” raised by the Fédération to resolve any other disagreement related to the application of the Framework Agreement (Framework Agreement,

schedule 1, ss. 20.2 and 20.5). [ 7 ] On June 1, 2009, the Fédération and the Ministère created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocol (s. 4.1).

Rather than drawing up a list of eligible laboratories from the outset and incorporating it into the Protocol, the parties decided to adopt a flexible recognition mechanism that would enable them to adapt to the progressive development of medical imaging laboratories in Quebec. [ 8 ] For a laboratory to be recognized, it must satisfy the conditions set out in the Protocol, and a physician must submit an application to the negotiating parties (ss. 4.2 and 4.3 of the Protocol). One of the requirements is that the modernized equipment be and remain the property of radiologists (s. 4.2(iv) of the Protocol).

The application is first reviewed by a joint committee of representatives of the negotiating parties, which recommends that the laboratory either be or not be recognized (s. 4.4 of the Protocol).

Further to that recommendation, the negotiating parties decide on and designate the laboratories that will be recognized for the purposesof the digitization fee (s. 4.5 of the Protocol). Finally, the Régie de l’assurance maladie du Québec (“RAMQ”) implements that decision(s. 4.6 of the Protocol).

Once a laboratory has been recognized, the physician may bill for the fee. [9] In September 2009, further to an arrangement entered into with the Ministère, the Fédération informed radiologiststhat they could on an exceptional basis have their laboratories recognized retroactively to June 1, 2009 if they submitted an application tothat effect by November 1, 2009. [10] In October 2010, the negotiating parties amended the Protocol once again to clarify the conditions concerning theownership of radiology equipment.

This amendment applied as of June 1, 2009, that is, as of the day the fee first came into effect(Amendment 54 to the Framework Agreement, s. 2.3). B. Factual Context [11] Dr. Guérin is a radiologist and a member of the Fédération. In this case, he is acting as a medical specialist and themedical director of a radiology clinic, and as the representative of 35 radiologists practising in other clinics belonging to the samecompany. [12] In October 2009, Dr. Guérin applied to the negotiating parties for a declaration that the clinics in question wereeligible for the digitization fee.

His application was denied, however, on the basis that, because of the structure of the company, thelaboratory equipment was not directly or indirectly owned by radiologists. Dr. Guérin disagreed with this

interpretation of the“ownership test”, but he nonetheless tried to comply with it by making some changes to the company’s structure. He and his colleaguesthus altered the structure of their corporation’s share capital and adopted a new shareholder agreement. This led the negotiating parties toinform Dr. Guérin in July 2011 that they would be recognizing the laboratories effective retroactively to June 21, 2011, the day of thejoint committee’s recommendation. [13] Although Dr.

Guérin was happy that the laboratories were being recognized, he felt that this recognition should beretroactive to the day the fee was created or, at the very least, to April 8, 2010, the date when the structure of the laboratories wasmodified. A request to that effect was denied. [14] This impasse led him to submit a dispute to the council of arbitration set up under s. 54 of the Act.

The Fédérationand the Ministère opposed him jointly in this proceeding, arguing as a preliminary matter that a decision regarding the recognition of alaboratory by the negotiating parties for the purposes of the digitization fee cannot give rise to an arbitrable dispute. They alsomaintained that only the Fédération, and not a physician, could submit such a dispute. III. Judicial History A. Arbitration Award (Mtre. Marc Gravel), No. 12-DS-499, January 29, 2013 [15] Arbitrator Gravel, who was appointed to perform the functions of the council of arbitration on his own, found thathe lacked jurisdiction to grant Dr.

Guérin the first of the conclusions being sought and to recognize the laboratories for the purposes ofthe digitization fee. In the arbitrator’s opinion, the Framework Agreement did not give him the authority to make such a decision in placeof the negotiating parties.

Given that recognition is an [translation] “inevitable and necessary prerequisite” to a claim for the digitizationfee, a physician cannot submit a dispute with respect to fees without first having obtained this recognition (arbitration award, at para. 33,reproduced in A.R., at p. 25). [16] The arbitrator also concluded that the Fédération has a monopoly of representation in respect of its members. In hisview, it is up to the Fédération and the Ministère to negotiate the recognition of laboratories.

A physician has no role to play in thosenegotiations and cannot challenge their outcome by way of arbitration absent clear language to that effect. It was therefore not open toDr. Guérin to [translation] “ask a council of arbitration . . . to modify in respect of him the rules that the parties to the FrameworkAgreement, and they alone, negotiated” (para. 57). B. Quebec Superior Court (Grenier J.), 2013 QCCS 6950 [17] The motion judge granted Dr. Guérin’s motion for judicial review.

Applying the standard of reasonableness, sheconcluded that the arbitrator’s decision was unreasonable because it did not fall within a “range of possible, acceptable outcomes whichare defensible in respect of the facts and law” (para. 26 , quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, at para. 47). [18] In the motion judge’s opinion, the only issue was whether the council of arbitration had jurisdiction to consider thedispute.

She asserted in this respect that the arbitrator had [translation] “erred as regards the subject of the case before him and as regardsthe scope of his jurisdiction” (para. 18). Because, in her view, the case turned mainly on whether Dr. Guérin had standing, she focusedher analysis essentially on the

interpretation of s. 54 of the Act, rather than on that of the provisions of the Protocol the arbitrator haddiscussed. [19] The motion judge maintained that what Dr. Guérin had asked the arbitrator to do was not to recognize thelaboratories, but to correct the

interpretation and application of the conditions of the Protocol and to declare that the laboratories hadsatisfied those conditions as of 2009. Thus, only the

interpretation and application of the Protocol — and not its substance — were atissue. [20] The motion judge concluded that s. 54 of the Act, which was drafted in broad terms, entitles a physician to contestdecisions of the negotiating parties by way of arbitration. The negotiating parties cannot restrict a physician’s access to arbitration, ass. 54 of the Act authorizes them only to decide on the composition of a council of arbitration and to appoint arbitrators. The standarddictionary definition of “dispute” should apply, which means that a dispute may be submitted in respect of any difference of opinion,

including the one at issue in this case. C. Quebec Court of Appeal, 2015 QCCA 1726

(1) Majority Reasons of Duval Hesler C.J.Q. and Schrager J.A. [ 21 ] The majority of the Court of Appeal upheld Grenier J.’s decision. They began by noting that the parties were not questioning the applicability of the reasonableness standard. In the majority’s opinion, however, the arbitrator’s decision to the effect that he lacked jurisdiction to rule on the issue before him and that Dr. Guérin did not have standing to submit the dispute was unreasonable. [ 22 ] Like the motion judge, the majority of the Court of Appeal devoted most of their reasons to the question of standing.

They concluded that a physician is entirely free to have recourse to arbitration in order to resolve an issue relating to the

interpretation of the Framework Agreement or to its application to his or her particular situation.

Section 54 of the Act is clear, and it provides that a dispute concerning the

interpretation or application of an agreement entered into under the Act can be submitted to arbitration. The Framework Agreement unduly limits the scope of s. 54 by reserving for the Fédération recourse to arbitration for any dispute other than those that physicians are expressly authorized to submit to arbitration. In addition, the language of the provisions that set out the arbitration procedure is non-exhaustive. [ 23 ] Finally, the majority of the Court of Appeal rejected any analogy to the scheme of the Labour Code , CQLR, c.

C-27, in part because of the absence in the Act of a recourse analogous to the one provided for in s. 47.5 of the Code for failure to represent. Dr. Guérin was therefore without any recourse to contest an

interpretation of the Framework Agreement that was prejudicial to him.

(2) Dissenting Reasons of Savard J.A. [ 24 ] The dissenting judge would have allowed the appeal, as she considered the arbitrator’s decision to be reasonable. [ 25 ] She noted that the arbitrator had found that the dispute concerned the recognition of laboratories, a final decision for which the negotiating parties were responsible and that he lacked jurisdiction to review. That is why he had not inquired into whether the mechanism for recognizing laboratories is compatible with the arbitration process provided for in the Act and the Framework Agreement. [ 26 ] The dissenting judge observed that for the majority, and for the motion judge, the dispute instead concerned the

interpretation of one of the criteria that had to be satisfied in order to obtain the recognition being sought, not the mechanism for deciding whether that recognition should be granted.

But what had to be asked in applying the reasonableness standard was whether the arbitrator’s analysis concerning the subject matter of the dispute fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law. [ 27 ] In the dissenting judge’s view, it had been reasonable for the arbitrator to conclude that the decision to designate a laboratory is one that falls to the negotiating parties and that cannot be contested before a council of arbitration. The agreement between those parties is binding on Dr.

Guérin and his fellow physicians, and it is not open to them to contest such a designation. [ 28 ] Finally, the dissenting judge concluded that s. 54 of the Act does not preclude the negotiating parties from settling their disputes otherwise than by way of arbitration. The provisions of the Framework Agreement that reserve the possibility of submitting disputes to arbitration for the Fédération except in the case of a dispute with respect to fees are not contrary to s. 54 of the Act and are compatible with the Fédération’s monopoly of representation, which resembles the monopoly existing in labour law. IV.

Issues [ 29 ] This being a case of judicial review, it will be necessary first to identify the applicable standard of review before turning to the merits to determine whether Dr. Guérin’s proceeding is a dispute within the meaning of the Act and, if so, whether it was open to Dr. Guérin himself to submit it to the council of arbitration. V. Analysis A. Applicable Standard of Review Is Reasonableness [ 30 ] The courts below were unanimous in concluding that the applicable standard of review was reasonableness (motion judge’s reasons, at para. 26; C.A. reasons, at paras. 21, 45-46 and 71).

Indeed, the parties agreed on this point in the Court of Appeal. In this Court, although Dr. Guérin acknowledged that the current law supports the application of that standard, he asserted that the standard of correctness should nonetheless apply (R.F., at paras. 15-17; transcript, at pp. 58-59 and 80-81). [ 31 ] The courts below were right to apply the reasonableness standard.

Reasonableness necessarily applies, because the council of arbitration was called upon to interpret and apply its enabling statute, the Framework Agreement and the Protocol, which are at the core of its mandate and expertise (notice of dispute (reproduced at para. 2 of the arbitration award), in the recitals and at paras. 1-3; Dunsmuir , at para. 54 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at para. 39 ; Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 , [2012] 2 S.C.R. 283, at para. 11 ; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3, at para. 46 ; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval , 2016 SCC 8 , [2016] 1 S.C.R. 29, at para. 32 ). [ 32 ] The two arguments on which Dr. Guérin relies in asserting that the correctness standard should apply are without merit.

First, as both the motion judge (at para. 26) and all the judges of the Court of Appeal (at paras. 21 and 85) recognized, it is wrong to argue that this appeal raises a true question of jurisdiction in relation to the council of arbitration ( Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 S.C.R. 616, at para. 35 ). As this Court has noted in

the past, courts should “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may bedoubtfully so” (Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., (SCC), [1979] 2S.C.R. 227, at p. 233, quoted in Dunsmuir, at para. 35).

In a similar vein, this Court has frequently stressed that, if they exist, “[t]ruequestions of jurisdiction are narrow and will be exceptional” (Alberta Teachers, at para. 39; see also at para. 34; Edmonton (City) v.Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 26; Canadian Broadcasting Corp. v.SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission),2015 SCC 45, [2015] 3 S.C.R. 219, at para. 27).

Such questions must be understood “in the narrow sense of whether or not the tribunalhad the authority to make the inquiry” (Dunsmuir, at para. 59; see also Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678,at para. 34; Canon Canada Inc. v. Sylvestre, 2012 QCCS 1422, at para. 29 ). [33] It is clear, on the one hand, that the council of arbitration had jurisdiction to interpret and apply agreements enteredinto under the Act, such as the Framework Agreement and its schedules, including the Protocol. It therefore had the authority to makethe inquiry and to determine whether Dr.

Guérin’s proceeding raised an arbitrable dispute under the Act and the Framework Agreement.Indeed, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applyinghis or her enabling legislation and related documents, whether a matter is arbitrable (Parry Sound (District) Social ServicesAdministration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 16).

The fact that an arbitrator can dismiss aproceeding on the basis that it does not constitute an arbitrable dispute does not necessarily lead on its own to the conclusion that theproceeding raises a true question of jurisdiction (see, e.g., Ontario Refrigeration and Air Conditioning Contractors Assn. v. UnitedAssociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787, 2016ONCA 460, 131 O.R. (3d) 665, at para. 55, leave to appeal refused, No. 37179, March 10, 2017, [2017] Bull.

S.C.C. 431). [34] When an arbitrator interprets his or her enabling legislation to determine whether a dispute is arbitrable, applying thereasonableness standard undermines neither the rule of law nor the other constitutional bases of judicial review.

In contrast, the effect ofapplying the correctness standard by erroneously characterizing such a question as a true question of jurisdiction would be to underminethe presumption in favour of the reasonableness standard that has been consistently recognized and endorsed by this Court in numerouscases since Alberta Teachers (para. 39; see, e.g., Rogers, at para. 11; McLean v. British Columbia (Securities Commission), 2013 SCC67, [2013] 3 S.C.R. 895, at para. 21; SODRAC 2003, at para. 35; Tervita Corp. v.

Canada (Commissioner of Competition), 2015 SCC 3,[2015] 1 S.C.R. 161, at para. 35; ATCO Gas and Pipelines, at para. 28; Wilson v. British Columbia (Superintendent of Motor Vehicles),2015 SCC 47, [2015] 3 S.C.R. 300, at para. 17; Saguenay, at para. 46; Commission scolaire de Laval, at para. 32; Capilano, at para. 22). [35] On the other hand, the other issue, concerning Dr. Guérin’s standing in this case, is not really a true question ofjurisdiction either. It is true that this Court applied the correctness standard in Northrop Grumman Overseas Services Corp. v.

Canada(Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309, in which it found that “[t]he issue [was] jurisdictional” in that it went to whetherthe Canadian International Trade Tribunal could hear a complaint initiated by a non-Canadian supplier under the Agreement on InternalTrade, (1995) 129 Can. Gaz. I, 1323 (para. 10).

Nonetheless, as the Court subsequently explained in Alberta Teachers, its holding inNorthrop that the question was subject to “review on a correctness standard . . . was based on an established pre-Dunsmuir jurisprudenceapplying a correctness standard to this type of decision, not on the Court finding a true question of jurisdiction” (para. 33 (emphasisadded)). This

interpretation, which was endorsed by a majority of this Court, is also authoritative. [36] Moreover, Brown and Evans observe that a number of courts have held that standing was not a true question ofjurisdiction, even where the relevant enabling legislation addressed it (D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie,Judicial Review of Administrative Action in Canada (loose-leaf), heading 14:4331, footnote 369, citing Canadian Merchant ServiceGuild v. Teamsters, Local Union 847, 2012 FCA 210, 433 N.R. 200, at para. 19). In the instant case, too, the question of Dr. Guérin’sstanding relates to the council of arbitration’s

interpretation of its enabling legislation and of the Framework Agreement. This questiondoes not cast doubt on “the [council of arbitration’s] authority to make the inquiry” submitted to it (Dunsmuir, at para. 59; see alsoNolan, at para. 34) but is, rather, intended to determine who — Dr. Guérin or the Fédération — can submit it. That is far from the narrowand limited scope this Court has attributed to true questions of jurisdiction. [37] Finally, contrary to what Dr. Guérin is now arguing in this Court, this is not a case in which the rule of law requiresthe application of the correctness standard. The fact that a question of law might give rise to conflicting

interpretations does not on itsown support a conclusion that the correctness standard applies (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R.770, at para. 17). Also, Dr. Guérin cites no award in which an arbitrator adopted an

interpretation contrary to that of the arbitrator in theinstant case. Thus, even if conflicting lines of authority could lead to the application of the correctness standard, which is itself notalways the case (Atomic Energy, at para. 17; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 38-39; see alsoDomtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, atpp. 784-801), that is, in any event, not the situation in the case at bar. B. Absence of an Arbitrable Dispute [38] Dr.

Guérin has applied for a review of the negotiating parties’ decision not to recognize the laboratories he representsfor purposes of the payment of the digitization fee from 2009 to 2011. The council of arbitration concluded that it did not have theauthority to grant his application, because the application did not raise an arbitrable dispute under the Act and the FrameworkAgreement. In our opinion, that decision was reasonable.

(1) Subject Matter [39] Any decision-maker required to resolve a dispute must first define the subject matter or essential character of thedispute (Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, at para. 52). In the case at bar, the arbitrator concludedthat the subject matter of Dr. Guérin’s proceeding was a declaration recognizing the laboratories for the period at issue in the application. [40] In reaching this conclusion, the arbitrator did not confine himself to Dr. Guérin’s description of the issue in his noticeof dispute, that is, that the dispute [translation] “concerns the

interpretation and application of

section 4.[2](iv) of the Protocol” (notice ofdispute, at para. 1). He also considered the conclusions being sought, and in particular the request for a declaration “that the medical

imaging laboratories [represented by Dr. Guérin] should be recognized . . . as of June 1, 2009” and that the physicians working there were “therefore entitled to the digitization fee” as of that date (notice of dispute, conclusions). The arbitrator found on this basis that what Dr. Guérin actually wanted him to do was to rule on the recognition of the laboratories in place of the negotiating parties. Given that the subject matter of the dispute thus related to the

interpretation of the recognition mechanism established by the Protocol, the arbitrator did not need to analyze the provisions of the Framework Agreement and the Act with respect to the arbitration process, or the provisions of the Protocol setting out the eligibility criteria for the digitization fee.

He instead focused on the provisions of the Framework Agreement and the Protocol that confer the authority to determine eligibility for the fee on the negotiating parties. [ 41 ] In considering the motion for judicial review, the Superior Court and the Court of Appeal were limited to determining whether the arbitration award was reasonable, including in relation to the subject matter of the dispute. As the dissenting judge in the Court of Appeal indicated, the motion judge and the majority of the Court of Appeal were in error in instead reformulating the subject matter to find that the dispute related to the

interpretation and application of the conditions for eligibility for recognition and to Dr. Guérin’s standing (motion judge’s reasons, at paras. 19-20; C.A. reasons, at paras. 38-39). By altering the issue in this way, they failed to show the council of arbitration the deference they owed it.

(2) Only the Negotiating Parties Have the Authority to Recognize Laboratories [ 42 ] The arbitrator concluded that he did not have jurisdiction to rule on whether the laboratories should be recognized. According to his

interpretation of the Protocol, the negotiating parties had reserved for themselves the authority to decide whether to recognize a laboratory, and had in so doing excluded that decision from the arbitration process. In his opinion, if he were to rule on the dispute, he would in effect be substituting his own opinion for that of the negotiating parties and circumventing the decision-making mechanism they had negotiated. In short, the arbitrator held that the proceeding did not raise an arbitrable dispute. [ 43 ] The arbitrator’s decision in this regard is reasonable.

As it indicates, the negotiating parties have in the Protocol clearly reserved for themselves the right and full discretion to decide whether to recognize a laboratory. Not only did the negotiating parties argue together in favour of this

interpretation in both courts below, but it is fully justified having regard to the words of the Protocol. The Protocol provides that the role of the joint committee is limited to making recommendations, which means that the committee’s opinion is not necessarily binding on the negotiating parties: [ translation ] 4.4 There shall be established a joint committee composed of equal numbers of representatives of the Fédération and the Ministère de la Santé et des Services sociaux to which shall be referred any applications for recognition submitted under

section 4.3 for the purposes of the digitization fee.

After analyzing an application, the joint committee shall make a recommendation to the negotiating parties. [Emphasis added.] Moreover, s. 4.5 of the Protocol provides unambiguously that the final decision, that of deciding on and designating laboratories, belongs to the negotiating parties and no one else, and it places no limits on the factors that might guide their decision: [ translation ] 4.5 Further to the joint committee’s recommendations, the negotiating parties shall decide on and designate the general radiology laboratories that will be recognized for the purposes of the digitization fee together with the applicable sectors of radiological activity. [Emphasis added.] [ 44 ] Dr.

Guérin’s arguments are insufficient to justify a conclusion that the arbitrator’s

interpretation of the Protocol was unreasonable. His position presupposes that, even though the Ministère and the Fédération had [ translation ] “reserved for themselves the authority to interpret and apply the provisions of the Protocol”, “a correct

interpretation of the provisions establishing the applicable rules would have led to their being applied such that” the laboratories he represents were recognized as of June 1, 2009 (notice of dispute, at paras. 3 and 14). The arbitrator did not address this argument directly, but we note that although the Protocol does require that laboratories meet all the criteria under s. 4.2 in order to be recognized, the recognition of a laboratory is also subject to a decision by the negotiating parties, which are not required to apply those criteria mechanically. [ 45 ] Furthermore, Dr.

Guérin does not, nor did he do so before the council of arbitration, contest the validity of the decision-making mechanism provided for in the Protocol, but had he done so, it is our opinion that this argument would also fail. It was open to the Ministère and the Fédération, under s. 19 of the Act , to reserve this decision for themselves and to establish the appropriate mechanism by means of the Framework Agreement. No one is disputing that the negotiating parties had the authority to create a digitization fee by amending their Framework Agreement as they did.

And they also had the authority to decide on the procedure for obtaining the new fee. Thus, the agreement between the parties could, for example, have included a list of recognized laboratories without setting out other criteria or providing for a recognition mechanism.

The parties instead decided — with the approval of the Conseil du trésor, and as it was open to them to do — to create a different mechanism that would enable them to adapt to the flexibility of their agreement and the evolving situation of medical imaging laboratories in Quebec. [ 46 ] This, moreover, is why this type of decision-making mechanism is not uncommon in the public health system.

The appellant, the Attorney General of Quebec, noted in this Court, although this comparative argument had not been made before the council of arbitration, that agreements concluded under the Act often establish several fee classes and sometimes confer on the negotiating parties, either directly or through a parity committee, the task of reaching an agreement and specifying which institutions or professionals will be able to obtain the fees having regard to needs and changing circumstances.

Likewise, it is not uncommon for such agreements to provide that the negotiating parties may put an end to any dispute, even an individual dispute, by way of an agreement (A.F., at paras. 44 and 57; see, for example, s. 24.04 of the Entente relative à l’assurance maladie et à l’assurance hospitalisation entre le ministre de la Santé et des Services sociaux et la Fédération des médecins omnipraticiens du Québec , A.R., at p. 222; s. 24.04 of the Entente relative à l’assurance maladie entre le ministre de la Santé et des Services sociaux du Québec et l’Association des chirurgiens

dentistes du Québec , A.R., at p. 232; s. 17.04 of the Entente relative à l’assurance maladie entre le ministre de la Santé et des Services sociaux et l’Association professionnelle des optométristes du Québec , A.R., at p. 240; s. 7.05 of the Entente relative à l’assurance maladie entre l’Association québécoise des pharmaciens propriétaires et le ministre de la Santé et des Services sociaux , A.R., at p. 246; transcript, at pp. 42-44). [ 47 ] It was therefore reasonable for the arbitrator to conclude that if he were to rule on the dispute, the effect would be to alter the negotiated content of the Protocol by stripping the negotiating parties of their exclusive discretion under the Protocol and reducing the recognition of laboratories to nothing more than the application of the criteria set out in s. 4.2, which cannot be the case.

In other words, even if the arbitrator had decided to correct the

interpretation of the conditions of s. 4.2(iv) of the Protocol and their application to the laboratories represented by Dr. Guérin, it would have been impossible for him to grant recognition in place of the negotiating parties. [ 48 ] In this regard, it cannot of course, with all due respect, be argued that the arbitrator’s decision on this question was “incorrect” solely because Dr. Guérin’s proceeding concerns “[a] dispute resulting from the

interpretation or application of an agreement” within the meaning of s. 54 of the Act . The determination of whether the dispute is arbitrable cannot be limited to that

section alone. Even though Dr. Guérin’s dispute results from the

interpretation and application of the Framework Agreement, the terms of the Protocol — according to which it is the negotiating parties that are to decide on and designate the laboratories that will be recognized for the purposes of the digitization fee (s. 4.5) — cannot be disregarded. [ 49 ] In light of the principles from Dunsmuir , it is therefore our opinion that the arbitrator’s solution falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir , at para. 47 ).

We believe on this point that the motion judge and the majority of the Court of Appeal did not ask themselves the right question before concluding that the arbitration award was unreasonable. C. Dr. Guérin Does Not Have Standing [ 50 ] In light of this conclusion, it is not strictly necessary to address the second issue, that of standing. Indeed, this was not a determinative aspect of the arbitration award. On the other hand, it was essentially on this issue that the Superior Court and the majority of the Court of Appeal based their conclusion that the decision was unreasonable.

With respect, we are of the opinion that it was in any event reasonable for the arbitrator to conclude that Dr. Guérin did not have standing because, under the Framework Agreement and the Act, only the Fédération can submit such a dispute to a council of arbitration.

(1) Only the Fédération Has Standing to Submit This Dispute to Arbitration [ 51 ] On this point, the arbitrator noted that the Act gives the Fédération a monopoly of representation that permits it to negotiate the terms of the Protocol and to bind all its members, who cannot then contest the outcome of the negotiation by way of arbitration. In his view, this means that Dr. Guérin did not have standing to submit his dispute.

We are of the opinion that the arbitrator’s decision on this point, albeit brief, and although it in some respects confused this issue with that of whether the dispute was arbitrable, was also reasonable. [ 52 ] As the arbitrator mentioned, medical specialists are bound by the provisions of the Framework Agreement, which the negotiating parties entered into legally ( ss. 19 and 21 of the Act ; Framework Agreement,

schedule 1, s. 3.1). Nothing precludes that agreement from delimiting the recourse to arbitration provided for in the Act. The only limits in this respect are those of the provisions of the Act that specifically indicate situations in which a health professional may submit a notice of dispute directly to a council of arbitration: where the RAMQ has refused a payment or required the reimbursement of an amount, or in the case of a disagreement related to a professional services contract with a health institution ( ss. 22.0.1 and 22.2 of the Act).

The negotiating parties reiterated these two situations in their arbitration procedure, but for other disagreements related to the application of the Framework Agreement, they provided, as it was open to them to do, that only the Fédération may submit a collective dispute (Framework Agreement,

schedule 1, ss. 20.2 to 20.5). [ 53 ] Under the Framework Agreement, therefore, the Fédération is [ translation ] “the only organization representing medical specialists” both for the negotiation and for the application of any agreement entered into under s. 19 of the Act (Framework Agreement,

schedule 1, s. 3.1). The Fédération thus exercises all recourses of the members it represents, with the exception of those that are expressly reserved for medical specialists by the Act or the Framework Agreement ( Noël v. Société d’énergie de la Baie James , 2001 SCC 39 , [2001] 2 S.C.R. 207, at para. 41 ). In short, except in the case of a dispute with respect to fees, medical specialists are always represented by the Fédération in arbitration proceedings. [ 54 ] In the case at bar, as the arbitrator rightly noted, there can be no dispute with respect to fees that would entitle Dr.

Guérin to have recourse to arbitration under the Framework Agreement and the Act. The digitization fee cannot be claimed before the laboratories have been recognized, since it is that recognition that gives rise to an entitlement to the fee. Nor is there a collective dispute between the negotiating parties, as they are in agreement on the designation of the laboratories. So there is nothing under either the Framework Agreement or the Act that entitles the physician to submit a notice of dispute of this nature directly to the council of arbitration. [ 55 ] Dr.

Guérin asserts that, despite the provisions of the Framework Agreement, s. 54 of the Act entitles him to have recourse directly to arbitration, without having the Fédération act as an intermediary, for any dispute resulting from the application or

interpretation of the agreement. This argument was endorsed by the Superior Court and the majority of the Court of Appeal, and their decisions focused on it. Although the arbitrator did not discuss the

interpretation of s. 54, it is our opinion that the main purpose of this section, which was drafted in broad language, is to establish the exclusive nature of the tribunal’s jurisdiction, not to define standing or determine who may submit a dispute. Not only is the

section totally silent as regards the standing issue, but the context of the Act as a whole also confirms this

interpretation. The legislature provided for specific situations in which a health professional may have recourse to arbitration (ss. 22.0.1 and 22.2 of the Act). But the provisions in question would serve no useful purpose if s. 54 nonetheless entitled health professionals to submit every possible type of dispute. To interpret s. 54 without taking those sections into account would be

inconsistent with the modern principle of statutory

interpretation, according to which “it is impossible to determine the meaning of wordsin the absence of context” (P.-A. Côté, with the collaboration of S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada(4th ed. 2011), at p. 46; see also Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Consequently, even if s. 54 is of public order pursuant to s. 104.1 of theAct, it does not constitute a basis for circumventing the provisions of the Framework Agreement that limit the cases in which recoursecan be had to arbitration. [56] The arbitrator’s conclusion on this question is supported by Pérès v. Québec (Commission de la fonction publique), (Que. Sup.

Ct.), a case that was similar to the one at bar. In Pérès, several employees of the federal public servicehad been transferred to the provincial public service. A parity committee made up of union and management representatives had beencreated to determine each employee’s classification on the basis of job levels of the provincial public service (paras. 17-19). Thecommittee had rendered a unanimous decision, and some employees then wanted to appeal that decision to the Commission de lafonction publique (paras. 22-24).

The Commission declined jurisdiction, holding that it could not intervene in the negotiating processthat had been incorporated into the collective agreement in accordance with the Public Service Act, CQLR, c. F-3.1.1 (paras. 27-28). TheSuperior Court upheld that decision, holding that the individuals represented by their union were bound by the agreement and itsclassification process and could not circumvent them by way of a complaint to the Commission (paras. 37-38).

In other words,[translation] “[t]his classification agreement [was] binding on [the individuals in question] in the same way that a new collectiveagreement would [have been] binding on them” (para. 40). The situation in Pérès resembled the one in the instant case. Because thenegotiating parties agreed on the designation of the laboratories in accordance with the Framework Agreement and the Act, it is notpossible for the physician to appeal that decision to a council of arbitration.

The decision is binding on the physician in the same way thatthe Framework Agreement entered into by the parties is binding on him. [57] Lastly, the arbitrator stated, although perhaps ambiguously, that Dr. Guérin [translation] “cannot be allowed to ask acouncil of arbitration . . . to modify in respect to him the rules that the parties to the Framework Agreement, and they alone, negotiated”(para. 57). In our opinion, contrary to what both the Superior Court and the majority of the Court of Appeal maintained, and Dr. Guérinnow argues, what the arbitrator meant by this was not that Dr.

Guérin was attempting to modify the conditions set out in s. 4.2 of theProtocol. Moreover, that is not what Dr. Guérin was doing. What we understand from para. 57 is that the arbitrator was merely pointingout that if the council of arbitration were to review a decision with respect to recognition that had been negotiated jointly by the parties, itwould be altering the substance of the rules the parties had validly established. From this perspective, he was right to say that Dr. Guérinwas in fact trying to change the rules of the Framework Agreement.

To conclude that the arbitrator erred in his characterization of theissue or by asking the wrong question is to read too much into the words of the arbitration award.

(2) The Effect of Accepting Dr. Guérin’s Position Would Be an Untenable Increase in Numbers of Arbitration Cases [58] Not only is Dr. Guérin’s position not justified having regard to the Framework Agreement and the Act, but we alsofeel that accepting it would lead to consequences that the parties neither anticipated nor intended. Although the arbitrator did not discussthis in his decision, we note that if, as Dr. Guérin suggests, s. 54 of the Act were interpreted so as to authorize any physician affected by adecision resulting from the

interpretation or the application of the Framework Agreement or any similar agreement to contest thatdecision before a council of arbitration individually, nothing would preclude another person affected by a similar decision from availinghimself or herself of the same remedy, too. Thus, the thousands of medical specialists and other health professionals to whom the schemeof the Act applies could then have recourse to the arbitration mechanism. [59] Furthermore, health institutions, and even third parties such as contractors or patients, could also have recourse toarbitration if a decision resulting from the

interpretation or application of an agreement affected them directly. This would result in anuntenable increase in numbers of arbitration cases under s. 54 of the Act. We cannot imagine that to have been the legislature’s intentionas regards the purpose and scope of that section. D. A Physician Who Feels Aggrieved Has a General Law Remedy [60] Finally, contrary to what the majority of the Court of Appeal asserted (at para. 35 of their reasons), Dr. Guérin is notwithout recourse.

The courts would have jurisdiction if he were to allege that the Fédération had not properly discharged its duty ofrepresentation. [61] In the general law of civil liability, an association that has, as the Fédération does, an exclusive power ofrepresentation also has “a duty . . . to perform its representative function properly” (Noël, at para. 46; Syndicat des techniciens ettechniciennes du cinéma et vidéo du Québec v. Mancone, (QC CA), [2002] R.J.Q. 2905 (C.A.)).

This duty ofrepresentation “prohibits four types of conduct: bad faith, discrimination, arbitrary conduct and serious negligence” (Noël, atparas. 47-48; Centre hospitalier Régina Ltée v. Labour Court, (SCC), [1990] 1 S.C.R. 1330, at pp. 1344-47). Itoriginates in the general law, not just in the Labour Code, as the majority of the Court of Appeal seem to have said (para. 35). IfDr. Guérin can establish that the Fédération engaged in one of these types of conduct in its dealings with him, he will be entitled to bringan action against it in court and to be compensated for the resulting harm. VI.

Conclusion [62] In short, given that the negotiating parties chose to reserve for themselves the full discretion to decide on anddesignate the laboratories that will be eligible to receive the digitization fee, the arbitrator’s decision that this dispute was not one thatcould be submitted to arbitration under the Act was reasonable. [63] It was also reasonable for the arbitrator to conclude that Dr. Guérin did not have standing to submit the notice ofdispute to the council of arbitration. His decision was justified having regard to the Fédération’s monopoly of representation.

It was alsojustified by the fact that no provision of either the Framework Agreement or the Act entitles a medical specialist to submit a disputedirectly to a council of arbitration other than where the RAMQ has refused a payment or in a case involving a professional servicescontract with a health institution.

[64] The courts below accordingly erred in intervening to overturn the arbitration award. We would allow the appeal andrestore the decision of the council of arbitration, with costs to the appellant in all courts. The following are the reasons delivered by [65] Brown and Rowe JJ. — We have read the reasons of our colleagues, Wagner and Gascon JJ. While we agree in theresult, we see the matters of the council of arbitration’s jurisdiction and of Dr. Guérin’s standing before the council differently. [66] In brief, we are of the view that the issue of the capacity of the arbitrator to hear Dr.

Guérin’s matter raised aquestion of jurisdiction, not of arbitrability. Applying the standard of correctness, we find that the arbitrator erred in concluding that hedid not have jurisdiction to hear the matter. As to the matter of Dr. Guérin’s standing, we agree with our colleagues Wagner and GasconJJ. that the arbitrator’s decision on this point is reviewable for reasonableness and that it was reasonable, but we approach theidentification of the appropriate standard of review from a different starting point.

In our view, standing questions become jurisdictionalwhere the tribunal is confined by the terms of its statutory grant of authority to hear only from a certain class of complainants. Becausethis was not the case here, reasonableness review is appropriate. [67] We also agree with our colleagues that, as this Court said in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190, at para. 59, questions of jurisdiction or vires refer to “the narrow sense of whether or not the tribunal had the authority tomake the inquiry”.

Identifying questions of jurisdiction is therefore, on this Court’s jurisprudence, a straightforward matter: they arise“where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”(Dunsmuir, at para. 59). [68] We acknowledge that the Court has also observed, in obiter dicta, that “[s]ince Dunsmuir, [it] has not identified asingle true question of jurisdiction” or “seen such a situation” (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33-34).

The reason for this may be that an administrative tribunal’s jurisdiction(decisions on which are reviewable for correctness) is established and confined by its enabling (“home”) statute (the

interpretation ofwhich is presumptively reviewable for reasonableness). While, as we make clear below, we do not in these reasons presume to cut thisGordian knot, we maintain that the mere fact that this Court has not discerned a question of jurisdiction since Dunsmuir does not meanthat such questions have ceased to exist, nor that we should be blind to one when it clearly manifests itself.

Indeed, the consequences offailing to identify a jurisdictional question as such are serious: “as a matter of either constitutional law or legislative intent, a tribunalmust be correct on certain issues in the sense that the courts and not the tribunal have the last word on what is ‘correct’” (AlbertaTeachers’ Association, at para. 94, per Cromwell J., concurring). This “core principl[e]” of judicial review was laid down by the Court inDunsmuir: Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined.

A decisionmaker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision makertransgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or thejurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to thebody in relation to the subject matter.

This is done within the context of the courts’ constitutional duty to ensure that public authorities donot overreach their lawful powers . . . . [para. 29] [69] Here, the arbitrator saw his capacity to hear Dr. Guérin’s matter as raising precisely that — a question of jurisdiction(arbitration award, at paras. 31 and 34, reproduced in A.R., at p. 25) — as did Grenier J. at the Superior Court (2013 QCCS 6950, atparas. 17-19 ), the majority at the Court of Appeal (2015 QCCA 1726, at paras. 27 and 42 ) and the dissenting judge atthe Court of Appeal (para. 85).

It is difficult to see the question otherwise, as it involved, in the language of Dunsmuir, “the tribunal . . .explicitly determin[ing] whether its statutory grant of power g[ave] it the authority to decide a particular matter” (para. 59). [70] Our colleagues Wagner and Gascon JJ., however, say that jurisdiction was not at issue here; rather, they view thematter as one of arbitrability. It is true that an issue is not arbitrable before a tribunal that has no jurisdiction to hear it. That said,arbitrability is distinct from jurisdiction and standing. Jurisdiction is about who has competence to decide what issues.

Standing is aboutwho can participate in the proceedings. Arbitrability, however, is akin to justiciability, in that it goes to whether the issue is capable ofbeing considered legally and determined by the application of legal principles and techniques (by, in this case, the arbitrator). In ourrespectful view, the majority risks undermining the coherence of the analytical structure in administrative law by mischaracterizingquestions of jurisdiction and standing as questions of arbitrability. The question of whether the arbitrator had the authority to decide onDr.

Guérin’s matter was, as we say and as this Court’s own jurisprudence demonstrates, clearly jurisdictional. [71] It follows that the arbitrator had to answer this question correctly (Dunsmuir, at para. 59; D. J. M. Brown and J. M.Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topics 14:4331 and 14:4521).And, in our view, in declining to hear Dr. Guérin’s matter, he did not. By s. 54 of the Health Insurance Act, CQLR, c. A-29, the QuebecNational Assembly gave the council of arbitration exclusive jurisdiction to hear “dispute[s] resulting from the

interpretation orapplication of an agreement”. The matter raised by Dr. Guérin — specifically, a dispute concerning how the agreement between theFédération des médecins spécialistes du Québec (“Fédération”) and the Minister of Health and Social Services (“Minister”) operated withrespect to his facility — was clearly a “dispute resulting from the

interpretation or application of an agreement”. [72] But who can bring such a dispute to arbitration? Were this dispute between the Minister and the Fédération, eitherwould have standing to do so. Does, however, Dr. Guérin have standing to bring a “dispute resulting from the

interpretation orapplication of an agreement” to arbitration? Our colleagues Wagner and Gascon JJ. say that the arbitrator’s decision that Dr. Guérin didnot have standing is reviewable for reasonableness, and that it was reasonable. We agree. Their reasons, however, in our respectful view,elide two important points: first, questions of standing can be jurisdictional (in which case decisions thereon are reviewable forcorrectness); and second, this being so, further explanation of why the arbitrator’s decision on standing was reviewable forreasonableness is called for. [73] The first point is straightforward. Standing is often described as raising a question of jurisdiction:

Administrative adjudicators must comply with the terms of their statutory grants of authority. On occasion, it may be necessary for a tribunal to determine explicitly whether or not the grant authorizes it to decide a particular matter.

When this situation arises, as where there are two intersecting administrative schemes, or there is a question of an applicant’s standing to institute proceedings, whether or not a claim is statute-barred, the resulting decision will usually be subject to review by the courts on the “correctness” standard of review. [Footnotes omitted; underlining added.] (Brown and Evans, at topic 14:4331) [ 74 ] Similarly, in Northrop Grumman Overseas Services Corp. v. Canada (Attorney General) , 2009 SCC 50 , [2009] 3 S.C.R. 309, at para. 10 , this Court described a question of standing as “jurisdictional”.

Our colleagues Wagner and Gascon JJ., citing Alberta Teachers’ Association , at para. 33, say that the Court’s conclusion in Northrop Grumman was the product of “pre- Dunsmuir jurisprudence applying a correctness standard to this type of decision, not on the Court finding a true question of jurisdiction” (para. 35). With great respect, this explanation is simply not grounded in a tenable reading of Northrop Grumman .

While the Court did indeed look in that case to pre- Dunsmuir jurisprudence, its conclusion that the matter raised a question of jurisdiction was expressed with exclusive reference to the nature of the question posed: “The issue on this appeal is jurisdictional in that it goes to whether the [Canadian International Trade Tribunal] can hear a complaint initiated by a non-Canadian supplier under the [ Agreement on Internal Trade ] .

Accordingly, the standard of review is correctness” (para. 10 (emphasis added)). [ 75 ] We also acknowledge that, as our colleagues observe, by referring to a decision of the Federal Court of Appeal, the case law cited by the authors Brown and Evans in support of their statement that questions of standing are jurisdictional is inconsistent.

This is unsurprising, as the jurisprudence is indeed inconsistent, having injected confusion even into the definition of a question of jurisdiction itself. (Contrast Dunsmuir , at para. 59 (“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”) with Alberta Teachers’ Association , at para. 42 (“I am unable to provide a definition of what might constitute a true question of jurisdiction”).) [ 76 ] But again, none of this means that questions of jurisdiction have ceased to exist.

While our colleagues do not suggest otherwise, their reasons do not explain precisely why the question of Dr. Guérin’s standing is not jurisdictional — or, more precisely, why the presumption, stated by the majority in Alberta Teachers’ Association , that this is not a question of jurisdiction but rather a question of statutory

interpretation, was not rebutted. Nor do they explain what would have been required to rebut it. Of course, this is precisely the difficulty which Cromwell J. identified in his concurring reasons in Alberta Teachers’ Association : My colleague suggests that true questions of jurisdiction or vires arise so rarely when a tribunal is interpreting its home statute that it may be asked whether “the category of true questions of jurisdiction exists” and further that “the

interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory

interpretation subject to deference on judicial review” (para. 34). There is no indication of how, if at all, this presumption could be rebutted. I have two difficulties with this position. The first difficulty concerns elevating to a virtually irrefutable presumption the general guideline that a tribunal’s

interpretation of its “home” statute will not often raise a jurisdictional question. This goes well beyond saying that “[d]eference will usually result” with respect to such questions (as in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at para. 54 ) or that “courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when

interpretation of that statute raises a broad question of the tribunal’s authority” (as in Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678, at para. 34 ). . . . Creating a presumption without providing guidance on how one could tell whether it has been rebutted does not, in my respectful view, provide any assistance to reviewing courts. The second difficulty concerns the s

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