2011 QCCA 119, 2011 QCCA 119

Unofficial English Translation Desfossés c. Société de transport de Sherbooke 2011 QCCA 119 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019455-096 (450-17-002524-073) DATE: JANUARY 26, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. PIERRE J. DALPHOND, J.A. YVES-MARIE MORISSETTE, J.A. RICHARD DESFOSSÉS JOCELYN LAROCHE GHISLAIN LEROUX RÉJEAN POULIN APPELLANTS – Impleaded parties v.

SOCIÉTÉ DE TRANSPORT DE SHERBOOKE RESPONDENT - Applicant and COMMISSION DES RELATIONS DU TRAVAIL IMPLEADED PARTY - Respondent JUDGMENT [ 1 ] THE COURT ; - On the appeal from a judgment rendered on February 18, 2009, and varied on February 24, 2009, by the Superior Court, District of Saint-François (the Honourable Gaétan Dumas), which granted the application for judicial review and dismissed the appellants’ complaints; [ 2 ] For the reasons of Dalphond J.A., with which Pelletier and Morissette JJ.A. agree: [ 3 ] ALLOWS the appeal with costs; [ 4 ] SETS ASIDE the judgment of the Superior Court and, rendering the judgment that should have been rendered: DISMISSES the application for judicial review with costs.

FRANÇOIS PELLETIER, J.A. PIERRE J. DALPHOND, J.A. YVES-MARIE MORISSETTE, J.A. Mtre Jacques Lamoureux Lamoureux, Morin, Lamoureux For the respondent Mtre Hugo Champoux Delorme Lebel Bureau Savoie s.e.n.c.

For the respondent Hearing date: November 24, 2010 REASONS OF DALPHOND, J.A. [ 5 ] Was the decision of the Commission des relations du travail (CRT) concluding that disciplinary action had been taken against the appellants because of union activities unreasonable? In my opinion, it was not and, consequently, the Superior Court judge erred in setting it aside. BACKGROUND [ 6 ] The appellants were, at all relevant times, the four leaders of the union representing the 120 bus drivers employed by the respondent, the Société de transport de Sherbrooke (STS).

In 2004, the STS decided to develop a new transportation plan. To obtain the cooperation of its employees, it formed a joint advisory committee composed of three employer representatives and three union delegates. In March 2006, at a meeting of this committee, the STS informed the employees that its new plan would come into force on June 19, 2006, i.e., the least busy time of the summer, an ideal time for a break-in period. It should be pointed out that the routes, which had been in a loop, were now linear, which meant that the buses now went back and forth on the same route.

In addition, a new station was added to the network, at the Sherbrooke Cegep. The bus drivers were immediately concerned about the impact these changes would have on them: break or wait times at the end of a route, training, and travel to their change-off point. [ 7 ] Unfortunately, as is too often the case, inadequate communication and distrust combined to create a tense atmosphere.

On May 14, a special meeting of the union members adopted, almost unanimously, the following resolution: [TRANSLATION] Considering the employer's lack of respect and consideration for the bus drivers, that the signing of the bid [1] be boycotted until such time as training or information is given and the employer provides a shuttle for all change-off points in the network. [ 8 ] Union members also gave the union the mandate to denounce [TRANSLATION] “the attitude of the STS towards its drivers and transit users and the fact that the drivers are not responsible for the new transportation plan”.

In the days that followed, the media reported the dispute under the headline [TRANSLATION] “Battle lines drawn at the STS”. On May 27, the president of the STS asked the drivers, through the media, to tone it down and suggested that their attitude could compromise the implementation of the new transportation plan. On May 28, another special meeting of the union members rejected the STS plan.

In early June, articles published in the La Tribune newspaper reported the union’s dissatisfaction. [ 9 ] On June 14, the board of directors of the STS held a public meeting where merchants, transit users, and bus drivers raised many concerns about the new transportation plan. On June 16, a union leaflet was inserted in a Publisac and distributed in the Sherbrooke area, giving rise to the present dispute.

In the leaflet, the union expressed its disagreement with the new plan and raised a number of concerns, including some mentioned by the participants at the June 14 meeting. [ 10 ] On June 19, the plan came into force. It got off to a chaotic start because of road repair work affecting many of the new routes and a violent rainstorm.

Nevertheless, in the days that followed, STS management congratulated itself on its new plan, while some union members impeded optimal functioning of the routes (reduced speed, lateness, etc.); two of the appellants were identified as participants in these practices, but were not sanctioned for this, nor were any of the other drivers who were identified. [ 11 ] In July and August of 2006, the appellants were suspended without pay for four weeks for having [TRANSLATION] “allowed and tolerated the publication and distribution in a ‘Publisac’, on Friday, June 16, 2006, throughout the Sherbrooke area, of a leaflet that clearly intended to attack the credibility and reputation of the STS and its officers as well as the new transportation plan ... .

This tendentious leaflet contains half-truths that seek to frighten transit users and turn them against your employer”. They were also criticized for having allowed or tolerated the posting on the union bulletin board of four documents considered to be calls for insubordination. [ 12 ] This disciplinary action gave rise to complaints filed with the CRT under

section 16 of the Labour Code , R.S.Q., c. C-27, in which the appellants allege that they were subjected to reprisals or sanctions because of the performance of union activities, which is prohibited under

section 15 of the Labour Code . The present appeal concerns the reasonability of the labour commissioner's decision rendered pursuant to sections 15 to 17 of the Labour Code , which read as follows: 15. Where an employer or a person acting for an employer or an employers' association dismisses, suspends or transfers an employee, practises discrimination or takes reprisals against him or imposes any other sanction upon him because the employee exercises a right arising from this Code, the Commission may (

a) order the employer or a person acting for an employer or an employers' association to reinstate such employee in his employment, within eight days of the service of the decision, with all his rights and privileges, and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to dismissal, suspension or transfer.

That indemnity is due in respect of the whole period comprised between the time of dismissal, suspension or transfer and that of the carrying out of the order, or the default of the employee to resume his employment after having been duly recalled by his employer. If the employee has worked elsewhere during the above mentioned period, the salary which he so earned shall be deducted from such indemnity; (

b) order the employer or the person acting for an employer or an employers' association to cancel the sanction or to cease practising discrimination or taking reprisals against the employee and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to the sanction, discrimination or reprisals. 16. The employees who believe that they have been the victim of a sanction or action referred to in

section 15 must, if they wish to avail themselves of the provisions of that section, file a complaint at one of the offices of the Commission within thirty days of the sanction or action. 17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.

DECISION OF THE COMMISSIONER [ 13 ] At the conclusion of a hearing that lasted three days spread over the years 2006 and 2007, where many witnesses were heard and many exhibits filed, Commissioner Pierre Cloutier rendered a 17-page decision on November 12, 2007, upholding the complaints ( 2007 QCCRT 556 ). In his decision, he took more than ten pages to summarize the evidence and the arguments of the parties. He then stated that the presumption of disciplinary action because of union activities (

section 17 ) had been established to his satisfaction and that, consequently, it was incumbent on the employer to prove that it had placed sanctions for another good and sufficient reason and not because of anti-unionism.

He emphasized that this meant that the employer had to convince him that the reason invoked was real and serious and not a pretext, in a context where only the members of the union executive were the subject of disciplinary action. [ 14 ] After reiterating that the employer had invoked a breach of duty of loyalty for having allowed and tolerated the publication and distribution of a leaflet and certain postings on the employee's bulletin board, he wrote: [TRANSLATION] [56] Before examining these grounds for suspension, it should be pointed out that all employees have a duty of loyalty towards their employer.

Union representatives are not exempt from this duty. They do, however, enjoy relative immunity that shelters them from any sanction when they act within their mandate as union representatives. They are subject to sanction when they commit illegal acts, such as urging employees not to comply with the Code or the collective agreement or participating in such breaches or committing acts harmful to the employer outside the performance of their duties.

In light of these principles, we shall now examine the two faults or breaches invoked by the STS against the complainants. [Emphasis added.] He then examined the first alleged breach, that of having allowed a defamatory leaflet, where he summarized as follows his understanding of the circumstances surrounding the writing and distribution of the leaflet: [TRANSLATION] [57] At a union meeting, the members voiced that they wanted the union to make known the drivers’ fears. Suggestions were made, including that of writing a leaflet. The union executive committee agreed with this proposal.

A committee made up of SCFP representatives was formed. Union advisor Lizette Dubé made arrangements with the Publisac distributor to distribute it. Two members of the union executive saw the final version, in addition to Lizette Dubé, as did a few members. [58] The complainants neither wrote nor signed the leaflet, nor did they distribute it. Apart from the fact that they provided ideas to the SCFP advisor, they did not play a more important or determinative role with regard to the leaflet than the other drivers.

There is no evidence that they urged anyone to commit an illegal act or that they participated in the commission of such

an act. We find only the SCFP acronym on the front of the leaflet in which the shortcomings of the new transportation plan are criticized. Moreover, what the STS criticizes the complainants for is having “ allowed and tolerated ” the publication of the leaflet. They are the only ones to have been the subject of disciplinary action. The question, then, is to determine whether as union officers, they had a greater duty towards the employer. …

[64] In the case at bar, the Commission can only conclude that the complainants were suspended because in the eyes of the STS, they performed their union officer role improperly, as appears from the terms used by the STS, “ allowed and tolerated ”, in its suspension letter. However, the STS could not suspend the complainants for this reason.

It may have an action against the union, but it could not suspend the members of the union executive committee on this ground. [Emphasis added.] In other words, the employer may have an action for damages against the union if it considers the leaflet defamatory, but it certainly cannot suspend the members of its executive for having allowed its dissemination. [ 15 ] As for the posting on the union bulletin board, the commissioner noted an absence of evidence as to who did the posting and observed that it essentially consisted of two articles from a local newspaper and one communication from management, to which an unknown person added a few comments.

He wrote: [TRANSLATION] [65] The collective agreement provides that a bulletin board be placed at the disposal of the union for communications concerning union activities. The idea of posting the notices that the STS complains of came from the union executive committee. The evidence does not reveal who wrote them.

Moreover, the STS does not fault the complainants for having written them, but for having “ allowed and tolerated ” them to be posted. [66] As for the leaflet, the Commission can only conclude that what the STS essentially blames the complainants for is having performed their union officer role improperly, i.e., having failed to act as censors. In fact, it is the union that the STS is indirectly attacking by sanctioning the complainants. [67] But there is more.

The evidence does not support the STS claim that the posted notices incited the drivers to acts of insubordination and non-compliance in respect of the president and the director general. [Emphasis added.] [ 16 ] On the whole, the commissioner concluded that the appellants were suspended because in the eyes of the employer, they performed their union officer role improperly, which cannot constitute a good and sufficient reason according to the case law: [TRANSLATION] [72] Of course, the STS may have rightly felt betrayed by the drivers and the union after allowing them to participate in the joint advisory committee, but the Commission can only conclude, considering the evidence, that what it wanted was to punish the union or break it by suspending the complainants, which cannot constitute another good and sufficient reason. [Emphasis added.] [ 17 ] Dissatisfied, the STS filed an application for judicial review in which it directed many criticisms at the commissioner for his assessment of the evidence.

It attached a transcript of all the testimony, as well as a copy of the exhibits filed. JUDGMENT OF THE SUPERIOR COURT [ 18 ] In a judgment about 40 pages long, rendered on February 18, 2009, and varied on February 24, 2009 ( 2009 QCCS 600 ), Dumas J. of the Superior Court did a complete review of the evidence to determine if the many STS allegations of crucial omissions in the assessment of the evidence were well founded, which would make the CRT decision unreasonable. He rejected them for the most

part in these terms: [TRANSLATION] [52] The plaintiff summarizes in 111 paragraphs the errors allegedly made by the commissioner in his 72-paragraph decision. [53] In trying to prove its point, the plaintiff almost accomplishes the opposite. [54] What the plaintiff seems to forget is that each time it points out an error that it considers material, the opposing party and, consequently, the court, before rendering its decision, must examine the evidence to verify if the criticism is well founded. [ 19 ] Nevertheless, he focused on two criticisms, one concerning the extent of the appellants’ participation in writing and distributing the leaflet, and the other concerning the use of the union bulletin board.

After reviewing the evidence, he ended up saying that the second criticism was unfounded. For the purposes of the appeal, then, the only relevant issue is the assessment of the evidence regarding the appellants' participation in the leaflet.

According to the Superior Court judge, the commissioner did not err in considering that the appellants had received a mandate from the union members to denounce the attitude of the STS, but that did not end the exercise: [TRANSLATION] [66] It is in paragraph 58 of his decision that the commissioner made a palpable and unreasonable error that affects his reasoning in the rest of the judgment. It is not accurate that the complainants neither wrote nor distributed the leaflet.

When the commissioner states that they did not play a more important or determinative role with regard to the leaflet than the other drivers, he disregards large parts of the proof made before him.

[67] Of course, union members asked the union to denounce the attitude of the STS towards its drivers. Of course, the union's role is to defend its drivers, but that is not what the union officers did. [68] In deciding that the complainants neither wrote nor distributed the leaflet, the commissioner circumvented the key issue before him. Did the union officers, acting as they did, have immunity against possible disciplinary action by the employer? It is false to claim that the complainants did not play a more material role with regard to the leaflet than the other drivers.

They are the only drivers to have participated in writing and distributing this leaflet.

Of course, they did not distribute the leaflet door to door, but they hired the Publisac company to do so. [69] The question asked by the commissioner is therefore erroneous: “The question, then, is to determine whether as union officers, they had a greater duty towards the employer”. [70] The commissioner asked this question after pointing out that they were the only ones to have been the subject of disciplinary action. [71] Obviously, they are the only ones to have been the subject of disciplinary action because they are the only ones to have participated in writing and distributing the leaflet. [72] Of course, union officers do not have a greater duty towards the employer. [73] Counsel for the impleaded party admitted, at the hearing, that if a mere employee had written and distributed the leaflet in dispute; he would have had problems. [74] Do union officers, acting alone, have immunity for acts that may be considered reprehensible for a mere employee? [75] The commissioner could have decided that a union officer has relative immunity for the acts he committed.

The court reviewing the case would then have had to decide whether or not the commissioner’s decision, which falls under his special jurisdiction, was reasonable. But such is not the case here. [76] The commissioner, in deciding that the complainants neither wrote nor distributed the leaflet, circumvented any question of the union officers’ immunity. [77] The only evidence available to the commissioner, however, confirmed that the impleaded parties are at the source of the leaflet.

They authorized it and participated in writing it before authorizing its distribution. [Emphasis added.] [ 20 ] Moving on to a detailed review of the evidence, the judge concluded that the leaflet was defamatory and contained falsehoods (paragraphs 100 and 101). As the appellants approved or allowed the leaflet, they committed, in the judge's opinion, an illegal act (paragraph 86), as would have another employee who wrote such a leaflet (paragraphs 73 and 157). They were thus disloyal to their employer. The only thing that could save them, then, would be immunity due to their union function.

The judge then proceeded to thoroughly analyze this question. He wrote: [TRANSLATION] [142] In fact, we may wonder according to which principle the four complainants may openly criticize the employer's management without breaching their duty of loyalty to the employer. [143] In the same article, Brunelle and Samson write: [TRANSLATION] “ 2.1.1.2 Programs and practices For various reasons, an employee may disagree with the programs put in place at his employer’s place of business or the practices followed there. His capacity to dispute them, however, is severely limited.

For example, an arbitrator upheld a disciplinary notice given to an emergency room employee who voiced a negative opinion on the rehabilitation program implemented by the hospital’s management. Another arbitrator deemed appropriate a university's decision to reprimand employees who had criticized the open-door policy of the periodicals reading room.

More recently, grievance arbitrators upheld suspensions imposed in one case on an employee of a local community services centre who bragged that he had publicly criticized an assessment form and, in another case, on a professor who expressed to students his dissatisfaction with the procedure for approving course outlines and grade reviews.

It should be mentioned that a union representative's immunity enables him to more easily criticize a program without exposing himself to disciplinary action, provided, however, that his comments relate to the policies, interests and concerns of the union as such.” [Citations omitted.] [144] In the present case, the comments made by the complainants in no way relate to the employees' concerns. [145] Even assuming that an employee can criticize his employer, the form of criticism is important in assessing the immunity granted to union representatives and employees exercising freedom of expression.

On this subject, Brunelle and Samson write:

[TRANSLATION] 2.2.1 The target audience The existence of a breach of the duty of loyalty and its possible seriousness depend on the person to whom the criticisms were expressed. Of course, criticism or denunciation of one's employer in the media reaches the widest audience.

It is particularly prejudicial when the prosperity of the company that employs the whistleblower essentially depends on the public’s trust. … A mere employee who, outside the purview of the union, distributes leaflets whose purpose is to criticize the employer will be viewed with a much less favourable eye by the courts. … In our opinion, the courts should be more tolerant of employees whose criticisms are expressed within the company to the persons who are best placed to assess whether they are well founded or exaggerated.

A comment that an employee chooses to make to a client of the employer is also, in a way, a “public” comment that may be liable to sanction when its purpose is to criticize the employer. … Similarly, an arbitration tribunal upheld the suspensions and subsequent dismissal of employees who had criticized their work conditions to clients and to the public.

According to the arbitrator, by making unfounded complaints while the collective agreement was still in force, the employees had lacked judgment in the use of their freedom of expression. … An equally draconian sanction was imposed on an employee who, during a discussion with one of the company's clients, called the employee training program put in place by the employer “crap”. [Citations omitted.] [146] In the present case, the complainants chose to cause a leaflet to be distributed to STS clients that undermined its new transportation plan.

Considerable sums were invested by the STS in this new transportation plan. [147] A little further on, the authors, discussing the duty of an employee publicly criticizing his employer to present all the facts, conclude that concealing facts favourable to the employer can be considered so serious that it may cause union representatives to lose their immunity. [148] On the criteria for assessing an employee's criticisms, the authors mention the purpose sought, stating: [TRANSLATION] 2.3.1 The purpose To determine if an employee's denunciation or criticism of his employer constitutes a breach of the duty of loyalty, we must first examine the employee's purpose.

This examination enables us “to determine if it is a disinterested act on the part of the whistleblowing employee or if the employee has specific, personal motives”. To be deemed reasonable, the employee’s actions must be in good faith. They may be motivated, for example, by a wish to communicate information to the public that it has a right to know. However, according to case law, employees who act out of pure vengeance to harm their employer, out of personal interest alone or in reaction to their employer's refusal to consider their demands or suggestions, a priori breach their duty of loyalty.

Similarly, any criticism made in bad faith will deprive union representatives of the benefit of immunity they are usually afforded. [Citations omitted.] [149] In the case at bar, it is clear that the leaflet was distributed only to put undue pressure on the employer and to harm it. The complainants seem to have acted out of pure vengeance because the bus drivers had not obtained their shuttle. [150] Of course, it is a matter of assessing the facts which, normally, should have been left to the commissioner.

But, as already mentioned, the commissioner did not assess these facts because he decided that the complainants had not written the leaflet. [151] Regarding the criterion of prior recourse to internal remedies, it is in the record that the criticisms in the leaflet were not discussed internally. However, the complainants were members of a joint committee where these issues could have been raised. For example, it was entered into evidence that the suggestions made by the union-appointed committee members had been accepted.

For those that had not been accepted, the committee members were fully satisfied with the explanations given, so the only issues in dispute concerned the shuttle service for the drivers and training. [152] Authors Brunelle and Samson write: [TRANSLATION] It should be mentioned that the performance of union duties does not exempt an employee from first expressing his criticisms internally, for example, at the negotiating table or during periodic management meetings with the employer, in the event such a procedure exists. [Citations omitted.] [153] On the question of the truthfulness of the criticisms, the authors write: [TRANSLATION] 2.3.3.1 Truthfulness To determine if an employee is abusing his freedom of expression by publicly denouncing or criticizing his employer's actions, case law focuses only on whether or not the allegations are true. [ translation ] “An employee who deliberately disseminates false information about

his employer is obviously guilty of serious misconduct” that can give rise to a severe disciplinary action. … Note that the case law does not require only that an employee abstain from deliberately stating falsehoods, but also that he carefully verify the accuracy of the information he is using to criticize his employer.

By neglecting to do the necessary verifications, the whistleblower is committing a breach of the duty of loyalty that attaches to someone who makes deliberately false allegations. [Citations omitted.] [154] A little further on, the authors write: [TRANSLATION] This said, in the present state of the law, a union representative who deliberately tells falsehoods or who is not concerned about the truthfulness of what he says has no immunity.

Note that while the dissemination of false information concerning an employer is generally considered wrongful, this does not mean, conversely, that criticism based on verifiable facts is necessarily in keeping with an employee's duty of loyalty. (Emphasis added.

Citations omitted.) [155] In addition to the false information contained in the leaflet, it is admitted by Jocelyn Laroche that the complaints should have been addressed not to STS management but rather to the customer service department. [Emphasis added.] [ 21 ] On the whole, the judge concluded that the employer showed another good and sufficient reason for the sanctions, i.e., the dissemination of a defamatory leaflet unrelated to the work conditions, and that the suspensions were justified.

ANALYSIS [ 22 ] In the context of sections 15 to 17 of the Labour Code , the commissioner had to rule on the reasons for the disciplinary action, the suspensions in this case. The employees concerned could then have benefited from the significant advantage offered by the legal presumption ( Plourde v. Wal-Mart of Canada Inc. , [2009] 3 S.C.R. 465, 2009 SCC 54 ) according to which they were suspended because they exercised their legal right to act as union representatives. [ 23 ] The commissioner hearing the complaints was satisfied that the presumption under

section 17 applied. As Binnie J., writing for the majority, observed in Wal-Mart , at paragraph 48, “[t]he presumption arises easily”; in fact, the respondent does not dispute it. It was therefore up to the respondent to show another reason justifying the sanctions and rebutting the presumption that the disciplinary action had been motivated by the desire to punish the appellants because of their role as union representatives.

However, as the commissioner pointed out, this other reason is described as follows in the employer's letter imposing the sanction: [TRANSLATION] “ having allowed and tolerated the publication and distribution in a ‘Publisac’, on Friday, June 16, 2006, throughout the Sherbrooke area, of a leaflet that clearly intended to attack the credibility and reputation of the STS and its officers as well as the new transportation plan ... .

This tendentious leaflet contains half-truths that seek to frighten transit users and turn them against your employer”. (Emphasis added.) It was therefore not unreasonable for the commissioner to conclude that the reason invoked was, on its face, the appellants' conduct as union officers. [ 24 ] Similarly, from the overall evidence, the commissioner accepted the fact that the union officers were the only persons sanctioned, when slowdowns and acts of insubordination were committed by many identified union members, including only two of the appellants, without their being sanctioned.

This was in line with the presumption, which is difficult to refute ( Wal-Mart , paragraph 48) and not with what the employer had to prove to rebut it. [ 25 ] In addition, both the commissioner and the judge, after an exhaustive review of the evidence, concluded that the appellants could not be blamed for the posting, i.e., the second reason invoked by the employer.

This could only militate against the employer by showing the weakness of its decision to suspend for this reason, while pointing up again that the employer punished the appellants because of the manner in which they had performed their duties. [ 26 ] Lastly, it must be borne in mind that “any taint of anti-union animus will be fatal to the employer’s defence in a ‘mixed motive’ decision”, even if the employer had another good and sufficient reason ( Wal-Mart , paragraphs 48 and 49).

In the case at bar, the publication of a defamatory leaflet would not suffice to justify the sanctions if the evidence showed that the employer also sought to punish the union officers.

The commissioner wrote in paragraph 72: [TRANSLATION] “the Commission can only conclude, considering the evidence, that what it wanted was to punish the union or break it by suspending the complainants, which cannot constitute another good and sufficient reason”. [ 27 ] In these circumstances, the commissioner's conclusion that the complaints were well founded was supported by the evidence and was one of the reasonably possible outcomes. He did not then have to consider the content of the leaflet, which became a pretext, and even less so the extent of immunity.

In other words, once he had concluded that the employer's decision was based, in whole or in part, on anti-unionism, the exercise was done. [ 28 ] The judicial review judge should not have intervened. [ 29 ] Similarly, while the judge was right to set aside the commissioner's decision on the ground that he had failed to consider a crucial issue, nothing authorized him to then examine the evidence and conclude that the leaflet was false, analyze the labour law to

determine the extent of the union officers’ immunity, and ultimately uphold the disciplinary sanctions imposed. If a judicial review judge is convinced that a commissioner's decision is unreasonable because of failure to consider an issue, he must set aside or annul the decision and then return the file to the CRT for redetermination. It is to this specialized decision-maker that the legislature entrusted the role of applying sections 15 to 17 of the Labour Code , assessing the evidence, and ruling on the validity of the sanctions imposed.

Nothing justified a Superior Court judge assuming this role for himself. [ 30 ] Incidentally, counsel for the employer was unable to show a single falsehood in the leaflet. Instead, he attacks the style, the union’s exaggerations and opinions. In the suspension notice, the employer states that the leaflet contains half-truths. It is therefore difficult to see in the leaflet any defamation or other illegal act in respect of the STS, a public corporation financed in part by taxpayers and one whose actions may be commented upon and criticized by the public.

It is also undeniable that the new transportation plan had repercussions on the drivers’ work conditions and that the union officers committed acts to preserve the previous conditions or to improve upon them. Thus, the union officers could commit any legal act to present their position without fear of reprisals from the STS; in short, the union could function without hindrance from the employer (

section 12 of the Labour Code ). As Professor Robert P. Gagnon writes in Le droit du travail du Québec , 6 th ed., (Cowansville, Quebec: Yvon Blais, 2008) at 337: [TRANSLATION] “the employees' association must thus be able to establish, organize, and administer itself without hindrance or interference from the employer, under the sole control and according to the sole wishes of the employees whose interests it is supposed to defend”. DISPOSITION [ 31 ] For these reasons, I would allow the appeal with costs, set aside the judgment of the Superior Court and, rendering the judgment that should have been rendered, dismiss the application for judicial review with costs. PIERRE J. DALPHOND, J.A.