2010 QCCA 2270, 2010 QCCA 2270

Unofficial English Translation Syndicat des salariés de béton St-Hubert — CSN c. Béton St-Hubert inc. 2010 QCCA 2270 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No. : 500-09-019588-094 (500-17-043686-081) DATE: December 9, 2010 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. SYNDICAT DES SALARIÉS DE BÉTON ST-HUBERT-CSN APPELLANT – plaintiff v. BÉTON ST-HUBERT INC.

RESPONDENT – impleaded party and JACQUES DORÉ, as grievances arbitrator IMPLEADED PART – defendant R ULING [ 1 ] THE COURT ; – On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Paul Chaput), rendered on March 18, 2009, that rejected the appellant’s application for judicial review of the interlocutory award of the impleaded arbitrator; [ 2 ] Having examined the file, heard the parties and on the whole deliberated; [ 3 ] For the reasons of Bouchard J.A., with which Brossard and Léger JJ.A. agree; [ 4 ] ALLOWS the appeal; [ 5 ] REVERSES the judgment of the Superior Court; [ 6 ] GRANTS the appellant’s application for judicial review; [ 7 ] SETS ASIDE the arbitral award rendered on May 21, 2008, by the impleaded party; [ 8 ] With costs. ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A.

JEAN BOUCHARD, J.A. Mtre Isabelle Lacas Pépin & Roy For the appellant Mtre Richard Gaudreault and Mtre Geneviève Beaudin Heenan, Blaikie For the respondent

Date of hearing: October 29, 2010 REASONS OF BOUCHARD, J.A. [ 9 ] The appellant, the Syndicat des salariés de Béton St-Hubert-CSN (the Union), appeals from a judgment of the Superior Court, District of Montreal, rendered on March 18, 2009, by the Honourable Mr.

Justice Paul Chaput. [ 10 ] The judge rejected the Union’s application for judicial review and upheld the interlocutory award of the impleaded arbitrator, who, at the request of the respondent, Béton St-Hubert inc. (the Employer), ordered that the employee involved in the grievance be excluded from the hearing in order to protect the identity of certain witnesses who feared for their physical integrity as a result of threats that the employee allegedly made to them.

The facts [ 11 ] On May 15, 2006, the Employer’s management met with one of its employees, R.F., to discuss his attitude at work, which left much to be desired. He had allegedly made defamatory comments about certain members of management and had also threatened work colleagues. [ 12 ] The following May 17, the Employer gave M.F. a disciplinary notice suspending him for three days, a suspension that he served 11 months later for medical reasons. [ 13 ] When he returned to work, M.F. posted his disciplinary notice on a bulletin board accessible to the company’s employees.

He added the following comments to it: [ translation ] Three complaints about intimidation and physical threats were reported to D.L., the names of the drivers will come out during arbitration, to be continued. [ 14 ] On April 11, 2007, the Employer again met with M.F. He was aggressive and stated: [ translation ] “When I get the names, I’ll know what to do with them.” [ 15 ] On April 17, 2007, the Employer dismissed M.F., who filed a grievance.

It should be noted that he had also filed a grievance when he was suspended. [ 16 ] At the start of the hearing on these two grievances, the Employer submitted to the arbitrator a preliminary application for [ translation ] “an in camera session, confidentiality and non-disclosure”.

Concretely, the Employer asked that M.F. be excluded when his work colleagues testified and that their identity be kept confidential, subject to the possibility that their testimony be transcribed by a stenographer and given to M.F., albeit with those passages that would make it possible to identify the witnesses deleted. [ 17 ] The Employer produced five affidavits from these employees, who feared for their safety because M.F. had allegedly said that: (1) he owned a 45-calibre weapon; (2) he had learned to kill with his bare hands; (3) he had a chip in his shoulder that enabled the Canadian security service to locate him at any time to assign him missions; and (4) he had murdered a senior executive from Guatemala and his family.

I also note that M.F. has pleaded guilty to charges of assault. [ 18 ] The Employer therefore argued that if the orders requested by it were not carried out, its witnesses would refuse to testify, so great was their fear of M.F.

In this regard and without wanting to minimize this fear unduly, I must point out that only one deponent attests to the truth of paragraph 22 of the Employer’s application, according to which: [ translation ] There is no doubt, given the degree of fear and terror that the said witnesses are subject to, that this Tribunal will not be able to obtain from them their true version of the facts, and will not be able to determine the truth; [ 19 ] Regardless, the arbitrator concluded that M.F. appeared to be threatening.

Even though he was aware that the award he was prepared to render had to respect the rules of natural justice, he issued the following orders: [ translation ] [53] ORDERS that the names of the employees who will be heard as witnesses for the management party in this matter be kept confidential; [54] ORDERS that counsel for management and the Union representative be sworn to secrecy regarding information that has been or will be disclosed to them concerning the identity of the witnesses; [55] ORDERS that any person having knowledge of a document, including an affidavit, or any other information concerning the witnesses, also be sworn to secrecy; [56] ORDERS that the hearings at which the witnesses will be heard take place in camera and that only counsel for management and the Union’s representative or counsel be authorized to attend;

[57] ORDERS that, except to the extent provided herein, any information concerning the hearings be kept confidential; [58] ORDERS that the notices to appear at these hearings and the place where they will take place be kept secret by all the parties; [59] ORDERS , if the Union party so desires, that a legal stenographer be responsible for taking down the testimony of such persons and then submitting the notes to the two representatives of the parties, who will delete from them information likely to reveal the names of the witnesses whose identity must remain confidential, the undersigned reserving the power to intervene to resolve any dispute in this regard if necessary; [60] ORDERS that the version so expurgated and agreed on between the parties or, failing that, determined by the undersigned be the only official evidence of the testimony.

The expurgated version will not be confidential. [61] ORDERS that the stenographic fees be shared equally between the parties; and [62] RESERVES his jurisdiction to resolve any other difficulty concerning this matter; [ 20 ] The Union immediately appealed, seeking judicial review of the award. [ translation ] “Given the rights at stake” and the fact that [ translation ] “the parties have made it a substantive dispute”, the judge agreed to address the merits of the matter even though it involved an interlocutory award.

He then reviewed the arbitral award by applying the reasonableness standard and, weighing the beneficial and prejudicial effects of the orders rendered, concluded in the following terms that they were reasonable: [ translation ] [51] In view of his order, the arbitrator was obliged, within the meaning of the words of Iacobucci J., to weigh the beneficial effects of the order and its prejudicial effects, including the restriction on the public nature of the hearing. [52] The Court is of the view that, by allowing F. access to the transcript of the testimony, with any identifying references deleted, the arbitrator ensured such weighing.

The identity of the witnesses is protected – and their safety is thereby assured – and F. can familiarize himself with all the evidence that will be adduced in respect of the two grievances concerning him and, on reading the transcript, will be able to inform counsel for the Union of the evidence that should be challenged and contradicted, as the case may be, on cross examination. [53] In the circumstances, there is no need to revise the arbitrator’s decision.

Issues [ 21 ] This appeal essentially raises two questions, namely: 1) the standard of review applicable to the review of an arbitral award raising the matter of a breach of the rules of natural justice; and 2) whether the trial judge erred in law by deciding not to intervene. [ 22 ] Even if the parties did not raise this matter on appeal, a few words must also be said about the interlocutory nature of the arbitral award and the advisability of immediately appealing to seek judicial review of such an award.

Prematurity of the action [ 23 ] Recourse to judicial review of an interlocutory decision of an administrative tribunal is exceptional.

Apart from instances of palpable lack of jurisdiction, [ translation ] “when there is the prospect of a long trial that does not justify the clear and uncontestable groundlessness of the law” or when the decision maker orders a thing or renders a decision that it will not be possible to correct at the time of his judgment upon the merits, such an action is not allowed. [1] [ 24 ] Because this case involves an arbitral award that affects the process and the good functioning of the hearing concerning the two grievances filed by the Union, it goes without saying that the arbitrator ordered something that he will not be able to correct when he renders his award upon the merits.

Moreover, because I am of the view that the arbitrator, in so doing, violated the audi alteram partem rule and that such a breach palpably affected his jurisdiction – I shall return to this matter –, the trial judge was correct to allow the Union’s action and not to reject it in a preliminary manner. The standard of review [ 25 ] On at least two occasions during the past year, our Court has had the opportunity to reiterate that the standard of review applicable to a breach of the rules of natural justice is that of correctness. The rulings in question are Syndicat des producteurs de bois de la Gaspésie v.

Damabois, division Cap-Chat inc . [2] and Murphy v.

Chambre de la sécurité financière . [3] [ 26 ] It follows that the trial judge was mistaken in considering the arbitrator’s award from the standpoint of reasonableness, which assumes a certain level of deference that is inappropriate when, as in this case, it is the correctness standard that applies. [ 27 ] Concerning the latter standard, here is how Bastarache and LeBel JJ. suggested we apply it: [4] …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. [ 28 ] With this analytical framework in mind, I now propose to examine whether the trial judge was right not to intervene so as to set aside the arbitrator’s award.

Analysis [29] I believe it is appropriate to reconsider the scope of the orders rendered by the arbitrator for they are fraught withconsequences and imply that: - the hearing before him will be held, for the most part, in the absence of the dismissed employee, who will not even be allowed toknow where and when it will take place; - the employee’s representative or counsel will be sworn to secrecy regarding the information learned at the hearing if it can be used toidentify the Employer’s witnesses, which will necessarily limit the representative’s or counsel’s communication with his client. [30] In brief, it is understood that what is important for the Employer is that the names of the witnesses who fear for their safetynot be disclosed to M.F. so that it can, without hindrance, defend itself in the grievances filed by him and have its witnesses heardwithout their answers being limited by fear or intimidation. [31] The objective sought by the Employer is undoubtedly understandable.

In acceding to its requests, however, the arbitrator wentmuch too far in my view and breached the audi alteram partem rule in an unacceptable manner. My explanation follows. [32] The relevant provisions of the Labour Code[5] are as follows: 100.4. Arbitration sittings shall be public, but the arbitrator may, of his own initiative or at the request of one of the parties, order themheld in camera. 100.5. The arbitrator must give the interested certified association, the employer and employee an opportunity to be heard. 100.6.

Upon application of any of the parties or of his own initiative, the arbitrator may summon a witness to testify to what he knows,to file a document or to do both unless he is of opinion that the application for summons is frivolous on the face of it. The writ ofsummons must be served at least five clear days before appearance. A person so summoned who refuses to appear, to testify or to file the required documents may be compelled to do so as if he had beensummoned according to the Code of Civil Procedure (chapter C-25). … 100.12. In the exercise of his duties the arbitrator may … (

g) render any other decision, including a provisional order, intended to protect the rights of the parties. [33] Even if authors[6] generally recognize that arbitrators have vast discretionary power in respect of procedure andadministration of evidence, the full exercise of their jurisdiction does not allow them to breach the rules of natural justice. Writing for theSupreme Court, Lamer C.J., reiterated this in Université du Québec à Trois-Rivières v.

Larocque:[7] It is true that the error of an administrative tribunal in determining the relevance of evidence is an error of law, and that in general thedecisions of administrative tribunals which enjoy the protection of a complete privative clause are beyond judicial review for mere errorsof law. That is not true, however, in cases where, as occurred here in the submission of the respondent, the arbitrator’s decision on the relevanceof evidence had the effect of breaching the rules of natural justice.

A breach of the rules of natural justice is regarded in itself as anexcess of jurisdiction and consequently there is no doubt that such a breach opens the way for judicial review.... [34] For his part, LeBel J. made similar comments in Isidore Garon ltée v.Tremblay:[8] The procedure and rules of evidence that apply to grievance arbitration are set out in very general terms in ss. 100 to 102 L.C. Subject to a few restrictions, arbitrators have the authority under s. 100.2, para. 1 L.C. to determine the rules of procedure and evidencethat will apply.

Section 100, para. 3 L.C. states that, except where provided to the contrary, the rules in the L.C. relating to grievancearbitration prevail over any incompatible provisions of any collective agreement.

Arbitrators are also subject to the standards imposed bythe charters, the provisions of public order in the C.C.Q. and the rules of natural justice. [35] It is therefore a matter of determining whether the arbitrator breached the rules of natural justice in rendering his award. [36] Our Court has already had the opportunity to answer a similar question in a matter in which a grievances arbitrator hadexcluded a dismissed employee during the testimony of an expert psychologist asked to determine whether he was able to performcertain functions involving young people who used a reception centre.

The ruling in question is Syndicat national des travailleurs ettravailleuses du centre d’accueil La Cité des prairies v. Bélanger,[9] in which Vallerand J.A. wrote:[10] [translation] I think there is no need to insist on the fundamental right of any litigant whosoever to be present throughout a trial concerning a matterthat will seriously affect his fate. That is one of the first rules of natural justice (Kane v.

Bd. of Governors of U.B.C., (SCC), [1980] 1 S.C.R. at 1105). [37] But the Employer argued that only the Union and the Employer were the true parties to the grievance arbitration, such that therules of natural justice should not apply with the same rigour concerning the grievor. To the extent that the Union representative is

present, the grievor could therefore be excluded from the hearing. [ 38 ] Once again, the case law, this time from the New Brunswick Court of Appeal, makes it possible to disregard this argument by the Employer. Robertson J.A., in Town of Grand Bay-Westfield v. The Canadian Union of Public Employees, Local 2404 , [11] pointed out with reason that even if a grievor is technically not a party to an arbitration proceeding, he is the one who will be most affected by the arbitrator’s decision.

The arbitrator therefore is obliged to respect the rules of natural justice concerning him. [12] [ 39 ] For my part, I would add the following to the words of Robertson J.A. When a grievance is subject to arbitration, the union’s interest is most often merged with that of the dismissed employee. Thus the grounds that the union intends to assert are completely bound up with those of the employee it represents.

The orders rendered by the arbitrator will not allow the Union to perform its duty fully, because it will be limited in its communications with the employee, which will have to be constantly censored to respect the arbitrator’s orders concerning the anonymity of the Employer’s witnesses. [ 40 ] That consequence is unacceptable to the extent that, according to the Supreme Court, a high standard of justice is required when the right to continue in one’s employment is at stake, [13] which certainly cannot be the case if the dismissed employee cannot know the identity of the witnesses for the opposing party. [ 41 ] Let us assume that an employee who has signed an affidavit holds a personal grudge against a grievor and wants him to be dismissed.

Under cover of the arbitral award rendered, he will be able to tell the Employer, with complete impunity, all manner of lies that are prejudicial to the grievor. Even if the grievor’s representative or counsel is present during the testimony given by such employee, he will not be able to check the credibility and truth of such testimony with the grievor, who must be kept ignorant of the witness’s identity.

What is worse, excerpts from the witness’s testimony can even be removed from the transcript if they are likely to reveal his name. [ 42 ] At paragraph 52 of his judgment, [14] the trial judge nevertheless expresses the opinion that the arbitral award constitutes an exercise in weighing that makes it possible to reconcile the opposed interests present because the grievor [ translation ] “can know all the evidence that will be adduced in respect of the two grievances concerning him”.

With respect, he is mistaken. [ 43 ] A genuine adversarial debate involves the power to answer, correct, or contradict any relevant statement that is prejudicial to one’s views or arguments, [15] which includes, as I have just stated, the right to test the credibility of witnesses and the truth of their allegations.

In this case, the Union will be deprived of this right if the dismissed employee whom it represents may not know the identity of the Employer’s witnesses. [ 44 ] Moreover, the main interested party, not having the opportunity to know who denounced him, will not be able to marshal all of the factual elements in support of his views, not knowing who is referred to in the stenographic notes. [ 45 ] It is true that the Supreme Court states that the duty to comply with the rules of natural justice is variable and its content is to be decided in the specific context of each case. [16] Relying on this diktat, the Employer argued that in this case the arbitrator had no other way to protect its witnesses and to enable it adduce its evidence without the witnesses feeling intimidated. [ 46 ] I disagree.

As stated, the arbitrator went too far in his efforts to accommodate the Employer. The grievor is entitled to know the evidence gathered against him in order to defend himself adequately. The ability of a party to rebut his adversary’s allegations fully and completely is included in the right to be heard.

Thus, although testimony can be given under specific conditions – here I am thinking of testimony given without the physical presence of the complainant, but transmitted to him live by closed-circuit television –, such conditions must never prevent the complainant from being present at his hearing and knowing the identity of the witnesses called against him and the content of their testimony. [ 47 ] It is contrary to common sense to think that a dismissed employee, after having been denounced by his work colleagues, should be ignorant of their identity throughout the arbitration process.

The loss of his job is far too serious a matter considering the solution chosen by the arbitrator to be deemed to meet a high standard of justice. If a person seriously believes that he runs a risk by testifying, he should inform the police or lay an information before a justice of the peace under the relevant provisions of the Criminal Code . [ 48 ] I admit that this solution for witnesses called to testify is not ideal.

Given the dramatic consequences that a dismissal may represent for an individual and his family, however, it is the price to pay for a high standard of justice that respects the rules of natural justice. [ 49 ] For these reasons, I would allow the appeal, reverse the trial judgment, grant the appellant’s application for judicial review and set aside the interlocutory arbitral award rendered by the impleaded party. JEAN BOUCHARD, J.A.