2014 QCCA 368, 2014 QCCA 368

Syndicat des employées et employés professionnels et de bureau, sectionlocale 573 (CTC-FTQ) c. Commission de la construction du Québec 2014 QCCA 368 COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF MONTREAL No.: 500-09-023306-137(500-17-074094-122) DATE: FEBRUARY 25, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. JULIE DUTIL, J.A. MARIE-FRANCE BICH, J.A. CANADIAN OFFICE AND PROFESSIONAL EMPLOYEES UNION, LOCAL 573 (CLC-FTQ)APPELLANT – Applicantv.

COMMISSION DE LA CONSTRUCTION DU QUÉBECandATTORNEY GENERAL OF QUEBECRESPONDENTS – Impleaded partiesandCOMMISSION DES RELATIONS DU TRAVAILIMPLEADED PARTY – RespondentandCANADIAN OFFICE AND PROFESSIONAL EMPLOYEES UNION, LOCAL 611IMPLEADED PARTY – Impleaded partyandFÉDÉRATION DES TRAVAILLEURS ET TRAVAILLEUSES DU QUÉBEC (FTQ)andCONFÉDÉRATION DES SYNDICATS NATIONAUXIMPLEADED PARTIES – Interveners JUDGMENT [1] The appellant appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice StéphaneSansfaçon) (2013 QCCS 15), rendered on January 9, 2013, which dismissed its application for judicial review of a decision of theCommission des relations du travail (Labour Relations Board) that had refused its application for certification of the investigativepersonnel of the Commission de la construction du Québec (Quebec Construction Commission) (2012 QCCRT 448 , 2012QCCRT 0448). [2] For the reasons of Dutil, J.A., with which Dalphond and Bich, JJ.A. agree, THE COURT: [3] DISMISSES the appeal, with costs. PIERRE J. DALPHOND, J.A. JULIE DUTIL, J.A. MARIE-FRANCE BICH, J.A.

Mtre Claude TardifRivest SchmidtMtre Christian BrunelleUniversité Laval

For the appellant Mtre Pierre Legault Mtre Mélanie Morin Gowling Lafleur Henderson For the respondent Commission de la construction du Québec Mtre Marie-Ève Mayer Mtre Michel Déom Legal and Legislative Affairs Division For the respondent Attorney General of Quebec Mtre Jean-François Beaudry Philion, Leblanc, Beaudry, avocats For the impleaded party Fédération des travailleurs et travailleuses du Québec (FTQ) Date of hearing: November 5, 2013 REASONS OF DUTIL, J.A. [ 4 ] The appeal raises the issue of the constitutional validity of

section 85 of the Act Respecting Labour Relations, Vocational Training and Workforce Management in the Construction Industry [1] ( Bill R-20 ). Does this provision infringe freedom of association as protected by

section 2 (

d) of the Canadian Charter of Rights and Freedoms [2] (the Canadian Charter ) and

section 3 of the Charter of human rights and freedoms [3] (the Quebec Charter )? [ 5 ]

Section 85 of Bill R-20 had the effect of preventing the appellant, the Canadian Office and Professional Employees' Union, Local 573 (CLC-FTQ) (COPE-573), from being certified to represent the investigative personnel of the Commission de la construction du Québec ( “Commission”) because of its affiliation with COPE-Quebec [4] and the Fédération des travailleurs et travailleuses du Québec (“FTQ”). BACKGROUND AND PROCEEDINGS [ 6 ] COPE-573 has been the union certified to represent all Commission employees since February 2, 1972.

This certification unit was split, however, on September 1, 2011, after the enactment of the Anti-Corruption Act [5] ( Bill 15 ). There is now one unit for the workers authorized to exercise the powers of inquiry outlined in sections 7, 7.1, 7.3, 81 (e) , 81 (

f) and 81.0.1 of Bill R-20 . It includes approximately 280 of the Commission’s 900 workers. The other unit comprises all other Commission workers. [ 7 ] On that same date, namely September 1, 2011, COPE-573 filed an application for certification with the Commission des relations du travail (Labour Relations Board, the “Board”). The application was contested by the Attorney General of Quebec (AGQ) and counsel for the Commission because COPE-573 did not meet the requirements of

section 85 of Bill R-20 . It could not be affiliated with the FTQ because construction workers’ unions affiliated with the FTQ-Construction are also affiliated with the FTQ. [ 8 ] Therefore, the current dispute revolves around

section 85 of Bill R-20 , which was amended on June 11, 2011, by Bill 15 and again in December of 2011 by the Act to eliminate union placement and improve the operation of the construction industry , [6] and now reads as follows: 85. The employees of the Commission authorized to exercise powers under sections 7, 7.1 and 7.3, subparagraphs e and f of the first paragraph of

section 81 and

section 81.0.1 shall constitute a bargaining unit for the purposes of certification granted under the Labour Code (chapter C-27). The association certified to represent the employees referred to in the first paragraph may not be affiliated with a representative association or an organization to which such an association or any other group of construction employees is affiliated or otherwise linked, nor enter into a service agreement with such an association or organization. [7] [ 9 ] The expression “representative association” is defined in the

section 1 of Bill R-20 , and

section 28 specifies which associations may have their representativeness ascertained by the Board: 28. Only the Centrale des syndicats démocratiques (CSD-CONSTRUCTION), the Confédération des syndicats nationaux (CSN- CONSTRUCTION), the Conseil provincial du Québec des métiers de la construction (International), the Fédération des travailleurs et travailleuses du Québec (FTQ-Construction) and the Syndicat québécois de la construction (SQC) may have their representativeness ascertained by presenting their application for such purpose to the Commission in the first five days of the thirteenth month preceding the expiry date of a collective agreement made under

section 47. [8] [ 10 ] On September 24, 2012, after 15 days of hearings during which considerable evidence was adduced, the Board found that

section 85 of Bill R-20 infringed freedom of association, but that this infringement was justified under

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter .

[ 11 ] On January 9, 2013, the Superior Court, ruled that the Board had erred by determining that there was infringement of freedom of association. In obiter dictum , it added that even if there was infringement, it was justified under

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter . [ 12 ] On February 28, 2013,Clément Gascon J.A. granted leave to appeal this decision. LABOUR RELATIONS BOARD DECISION [ 13 ] The Commissioner rendered a 218-paragraph decision in which he meticulously analyzed the evidence, legislative provisions, and case law concerning freedom of association. [ 14 ] The division of the certification unit was no longer contested before the Board.

Only the constitutional validity of section 85(2) of Bill R-20 remained in dispute. [ 15 ] The Commissioner found that the AGQ and the Commission’s submission whereby affiliation is not a component of the freedom of association of individuals has no basis in reality, even though it may appear to be based on coherent theoretical grounds. [9] He explained that union affiliation is often the main consideration for employees in joining a union. [ 16 ] He referred to the minority opinion of Cory, Wilson and Gonthier, JJ., in Professional Institute of the Public Service of Canada v .

Northwest Territories (Commissioner) [10] ( P.I.P.S.C. ), which stated that freedom of association includes an individual dimension that is of fundamental importance to the integrity of the bargaining process whereby individual employees “may try to form associations to represent them, and may try to change associations which they deem to be inappropriate or ineffective.” [11] Freedom of association includes the freedom to choose to be represented by a national or international union. [12] [ 17 ] According to the Commissioner, [13] there was every indication that, in the present day, a majority of the Supreme Court Justices would agree with what was then the minority opinion of Cory J. in P.I.P.S.

C., given the judgment in Dunmore v . Ontario (Attorney General) [14] (“Dunmore”) , which represented a change of direction in the case law and which has been confirmed in the subsequent judgments Ontario (Attorney General) v . Fraser [15] (Fraser) and Health Services and Support – Facilities Subsector Bargaining Assn. v.

British Columbia [16] ( Health Services ). [ 18 ] The Commissioner also referred to the international agreements [17] to which Canada adheres that recognize affiliation as a component of freedom of association. [18] [ 19 ] He found that section 85(2) of Bill R-20 [19] infringed the right of freedom of association of the employee members of COPE- 573. [ 20 ] After determining that there had been an infringement of freedom of association, the Commissioner conducted a lengthy analysis to determine whether such infringement could be justified.

He found that it could, since the persons affected by the disputed provision had to be able to [ translation ] “carry out their functions effectively and without any undue influence” [20] to achieve the general objective of Bill R-20 , which provided for the formation of a group of [ translation ] “persons specialized in fighting corruption”. [21] Public confidence in UPAC, the permanent anti-corruption team, and the Commission was a pressing and substantial objective. [ 21 ] Concerning the rational connection, the Commissioner was of the opinion that COPE-573’s affiliation with the FTQ posed a [ translation] “genuine problem of conflict of interest, or at least apparent conflict of interest”. [22] In his opinion, [ translation] “ neutrality is a necessity for a third party intervening in labour relations”. [23] He refers here to the appearance of institutional neutrality.. [24] [ 22 ] With regard to minimal impairment, he stated the following: [ translation] [205] As for the “minimal impairment” aspect of the

section 1 analysis, to the extent that the legislature was perfectly justified in requiring the so-called regular personnel of the Commission, who are present on construction sites on a daily basis and are familiar with the work of inspection and verification, to work with UPAC as needed, it is difficult to conceive of a less impairing measure that would allow it to meet its objective. [25] [ 23 ] Lastly, the Commissioner found that [ translation] “the disputed provision passes the proportionality test. [26] It is generally accepted that the freedom of association of persons who intervene in labour relations is limited.

Moreover, it is also acceptable that [ translation] “the freedom of persons whose job it is to work with a special anti-corruption unit be so, especially in a context where the targets of the investigation in which they may be involved could well turn out to be individuals who belong to unions with the same affiliation as their own”. [27] [ 24 ] In conclusion, the Commissioner found that section 85(2) of Bill R-20 infringes on freedom of association, but that this infringement was justified under

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter .

THE SUPERIOR COURT JUDGMENT [ 25 ] The Superior Court judge did not share the Commissioner’s opinion concerning infringement of freedom of association. [ 26 ] First, he dismissed the argument of the AGQ whereby the right of affiliation belongs to the association and not to the individual members. [28] He pointed out that Health Services and Fraser recognize that there is no reason to distinguish between the individual rights of the members of a workers' association and the rights of their association, at least when it comes to any issues arising from the right to collective bargaining, since the right to bargain is derived from its members’ right to associate. [29]

[ 27 ] From the evidence, the judge found that affiliation is likely to have a beneficial influence on the members of local unions that form affiliations with each other and added that those who choose to join COPE-573 do so precisely because this union is affiliated with COPE-Quebec and the FTQ. [ 28 ] He then analyzed the case law to determine which associational activities are protected and considered the evidence to establish whether section 85(2) of Bill R-20 makes meaningful association with a view to achieving workplace goals effectively impossible. [30] His findings can be summed up as follows: • Section 85(2) of Bill R-20 prohibits employees from joining a union affiliated with one of the five representative associations in the construction industry; • Affiliation is itself a component – if not direct, then at least derivative – of the right of employees to associate; • The members of the investigative personnel are free to form an association to agree upon strategies that they believe will be effective with their employer; • They may present their claims to their employers; • They enjoy all of the protections and guarantees offered to the other employees in the province, including the benefit of the certification process set out in the Labour Code and its collective labour relations regime; • Only the right of affiliation is amended, but in a limited manner, since the members preserve their full freedom of affiliation. [ 29 ] The judge therefore found that only the right of affiliation is amended by section 85(2) of Bill R-20 , and in a limited manner.

Since all the critical aspects of an effective bargaining process remain, the limited prohibition against affiliation with one of the five representative associations in the construction industry is an aspect of a reorganization of the bargaining process but remains consistent with the Charters , because it does not compromise the ability of these employees to act with a single voice to achieve common workplace goals. [31] [ 30 ] In addition, the judge acknowledged that international agreements must serve as guides when interpreting domestic law.

Canadian law, however, has developed its own specific character, [ translation] “with the result that these international texts are not read in a vacuum”. [32] The protection granted in these instruments is not absolute, and each country may adapt them to take into account public order or to protect the rights and freedoms of others. [33] He did not find that the limitations in these instruments impose the equivalent of the Oakes test. [ 34] [ 31 ] In his opinion, since the statute does not make meaningful association to achieve all workplace goals impossible, there is no violation of freedom of association as protected by paragraph 2 (

d) of the Canadian Charter and

section 3 of the Quebec Charter . [35] [ 32 ] Despite this conclusion, the judge continued his analysis and found that if there had been a violation of the right of association, it would have been justified under

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter . [ 33 ] Indeed, in his opinion, there is a pressing and substantial objective that authorized the legislature to enact Bill 15 , which amends section 85(2) of Bill R-20 and whose general objective is to fight corruption.

Section 1 of Bill 15 states that its purpose “is to strengthen actions to prevent and to fight corruption in contractual matters within the public sector”. [36] The second

section identifies the wrongdoing targeted, such as corruption, malfeasance, collusion, fraud, influence peddling, misuse of public funds or public property and gross mismanagement of contracts within the public sector. [ 34 ] He described the role and powers of investigative personnel members under

section 4 and following of Bill R-20 as follows: [ translation] [133] The role the investigative personnel members play is vast, and the scope of this role is revealed through a reading of sections 4 and following of Bill R-20. [134]

Section 7 of this statute provides that, in the exercise of its powers, the Commission may, itself or through a person it designates, inquire into any matter within its competence.

Any person thus authorized may, for this purpose, enter, at any reasonable time, any place where construction work is carried on or an employer's establishment, require any information relating to the application of the Act or the regulations and to the application of the Building Act or the regulations with respect to the qualification of contractors and owner- builders, or require the production of any relevant document for examination or reproduction.

In addition, every person involved in any construction work shall take the necessary means to enable the Commission and any person authorized by it for that purpose to exercise the powers referred to above. [135] Moreover, any person authorized by the Commission may request any person who carries out construction work or causes construction work to be carried out to prove that he or she is the holder of the appropriate licence or competency certificate issued under the Act, and that any person whose services that person hires to carry out construction work or who is assigned to construction work is the holder of such competency certificate or licence. [136] Several other specific powers are provided. [137] As noted above, members of the investigative personnel may inquire into any issue under the Commission's jurisdiction.

Section 4 sets out the functions of the Commission. The last paragraph of this provision specifies that the Commission must "work towards the elimination of any unreported work or any work carried out in contravention of this Act, cooperate in efforts to prevent and to fight corruption to the extent required by law and, at the request of the Minister of Revenue, cooperate in the application of the fiscal laws in the construction industry".

[ 35 ] The judge agreed with the AGQ that the primary objective of section 85(2) of Bill R-20 is to put an end to the systemic conflicts of interest that exist in the industry.

In the judge’s opinion, it was clear that the members of the investigative personnel who are required to visit construction sites or employers on a daily basis to do their work should not have to deal with workers who are [ translation] “members of the same union or members of a union affiliated with a federation or other association with which the investigative member's union is itself affiliated”. [37] [ 36 ] The judge referred to two examples that had been adduced as evidence before the Board: [ translation] [148] Two examples of interventions were adduced before the Labour Relations Board.

The first concerned an inspector who was instructed by his union not to intervene in a matter involving union postering on a work site, and the second involved a union representative who asked an inspector for some sensitive information.

While these examples illustrate certain potential conflicts, they are merely glimpses of the many possible conflicts that could arise. [ citations omitted ] [ 37 ] Finally, in addition to the general objective, which is pressing and substantial, the judge included two underlying objectives rendering intervention all the more pressing: the media coverage preceding and surrounding the enactment of Bill 15 and the fact that the auditing personnel would be required to collaborate with UPAC. [ 38 ] Concerning the pressing and substantial objective, the judge found that: [ translation] [158] Corruption undermines our democracy by attacking its very operation.

The objective sought by the legislature is to establish the means to curb and prevent corruption, not merely punish those who take

part in it.

The objective sought is therefore pressing and substantial. [ 39 ] Regarding the rational connection, the judge considered its existence in this case to be obvious since [ translation] “severing all ties is likely to prevent the conflicts described above”. [38] [ 40 ] The judge explained that a certain measure of deference is appropriate where the problem tackled by the legislature is a complex social problem. [39] He found that the creation of a distinct bargaining unit and the prohibition against affiliation with a representative association in the construction industry is possibly the only measure amongst those proposed that is likely to create the necessary distance between the investigative personnel and the supervised. [40] He pointed out that this approach is less impairing than the alternative, which could have been the implementation of a code of ethics, since it applies only to the investigative personnel of the Commission and not its entire staff.

Furthermore, the measure could not have been imposed only on the employees of the independent team, because this solution would not, in his opinion, have fully met the objectives of the Act. [41] [ 41 ] Finally, concerning proportionality between the legislative objectives and the measures provided in the Act, the judge found that the beneficial effects of

section 85 were clearly demonstrated. [ translation] “They are a weapon in the war against corruption, protecting certain individuals who are most likely confronted with it”. [42] Moreover, he is of the opinion that the members of COPE-573 [ translation] “have the same rights as the other workers. They may even affiliate with the association of their choice, with the exception of the five representative associations in the industry in which they have the responsibility of supervision and investigation”. [43] [ 42 ] In conclusion, the judge stated that, assuming for the sake of argument that there was infringement of the freedom of association, it was justified under

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter . STANDARD OF INTERVENTION [ 43 ] On appeal, there is no dispute as to the standard of intervention. The parties recognize, rightly, that the applicable standard is that of correctness. [ 44 ] Like the Superior Court judge, I am of the opinion that deference must nonetheless be accorded to the Board’s findings of fact,, which heard and weighed all of the evidence. ANALYSIS Infringement of freedom of association [ 45 ] I must first determine whether the judge erred by finding, contrary to the Commissioner, that section 85(2) of Bill R-20 does not infringe the freedom of association protected by

section 2 (

d) of the Canadian Charter and

section 3 of the Quebec Charter . [ 46 ] In recent years, the Supreme Court case law on freedom of association has evolved on the issue of the constitutional protection of the activities or functions of an association.

There is a consensus that freedom of association includes “the freedom to form and join associations”. [44] It also now recognizes that freedom of association as a fundamental freedom includes a functional dimension, a procedural right to collective bargaining. [45] It is even the most significant collective activity through which freedom of association is expressed in the labour context. [46] [ 47 ] As COPE-573 argues, freedom of association includes a [ translation] “primary right”, which is the right to form, maintain, and belong to an association, as well as a “derivative right”, which is the right to “collective bargaining”, as the Supreme Court states in Fraser . [47] This right to collective bargaining makes meaningful discussion possible.

The Supreme Court states that the effect of denying these derivative rights is to render the associational process useless and hence to substantially impair the exercise of the freedom

of association guaranteed by

section 2 (

d) of the Canadian Charter . [48] The right to collective bargaining has limited scope, however, since it concerns a process and does not guarantee a certain outcome. [49] [ 48 ] According to COPE-573, the judge’s error results from not taking into account the fundamental difference between the right to form an association (the freedom to form an association) and the right of such association to collective bargaining (functional freedom of association or derivative right).

I share this opinion. [ 49 ] Indeed, the right of association includes that of forming an association based on the choice of affiliating or connecting in a different manner with another association. Both the Commissioner and the Superior Court judge recognize that affiliation is a component of freedom of association. According to the Commissioner: [ translation] [65] The submission to the effect that affiliation is not a component of the freedom of association of individuals is based on theoretical grounds that may seem coherent, certainly, but it has the disadvantage of having no basis in reality.

When tested against the facts, the decision whether or not to affiliate must, in every case, be made by the association, once it has been formed. In the vast majority of cases, it is the workers themselves who, on an individual basis, decide to join a union – or a local – that is already affiliated with a central labour body.

Often, the union’s affiliation is the main consideration for joining, because of the positions taken by the central labour body, because it has proven itself in their employer’s industry, etc . [ emphasis added] [ 50 ] The Superior Court judge emphasized that affiliation is a component, if not direct, then at least derivative, of the right of employees to associate: [ translation] [113] Paragraph 2 of

section 85 of the impugned Act prohibits employees from joining a union affiliated with one of the five representative associations in the construction industry. As we have seen, affiliation is itself a component – if not direct, then at least derivative – of employees’ right to associate . The issue to be resolved here is therefore whether paragraph 2 (

d) protects this right. To do so, we must consider whether the statute makes true association with a view to achieving workplace goals effectively impossible. [ emphasis added] [ 51 ] The Superior Court judge dealt with the concept of affiliation, however, as part of the right to a collective bargaining process.

He reduced the issue to whether prohibiting the free choice of a bargaining agent affiliated with certain central labour bodies – because they are active in the construction industry – substantially impairs the collective bargaining process. [ 52 ] As the Commissioner points out in paragraph 65 of his decision, [50] in the vast majority of cases, it is the workers themselves who, on an individual basis, decide to join a union or a local that is already affiliated with a central labour body.

Furthermore, the fact that the union or the local is affiliated with a central labour body, a federation or a confederation is often the main consideration in a worker’s decision to join such union or local. The decision may be made for different reasons, such as the positions taken by the central labour body, federation or confederation on certain issues, the services it offers or its expertise in the industry in which the worker operates. [ 53 ] A union organization’s decision whether or not to affiliate depends on several factors.

In this regard, the Commissioner accepted the testimony of the expert Michel Coutu, a recognized expert in sociology, and summed up the findings in his report: [ translation] [17] Professor Coutu’s findings read as follows: 1. From the perspective of the history of labour relations, affiliation represents a fundamental component of association for workers. The purpose of affiliation is to form permanent labour organizations, which appeared very quickly once worker associations were able to operate openly instead of clandestinely. 2.

Affiliation responds to both economic and political imperatives: in economic terms, it provides generally indispensable support for collective bargaining.

In economic terms (sic), it represents a political action (in the broad sense of the term), that aims, among other things, to group workers into federations or confederations likely to bring effective pressure to bear on public policy directions. [51] [ 54 ] Affiliation thus satisfies economic imperatives, allowing a union to make use of more extensive resources for negotiating and applying a collective agreement, as well as political imperatives, since the organization increases its ability to apply political pressure in order, among other things, to obtain legislative and regulatory amendments that favour the cause of workers. [52] [ 55 ] The Supreme Court recognizes the legitimacy of the political action of unions in Lavigne v .

Ontario Public Service Employees Union . [53] Furthermore, in Dunmore , it stated that the role of unions is not limited solely to negotiating or implementing a collective agreement: By protecting the freedom to organize, s. 2 (

d) of the Charter recognizes the dynamic and evolving role of the trade union in Canadian society. In addition to permitting the collective expression of employee interests, trade unions contribute to political debate. At the level of national policy, unions advocate on behalf of disadvantaged groups and present views on fair industrial policy. These functions, when viewed globally, affect all levels of society and constitute “an important subsystem in a democratic market-economy system ” (see K.

Sugeno, “Unions as social institutions in democratic market economies” (1994), 133 Int’l Lab. Rev. 511, at p. 519). [54] [ emphasis added ] [ 56 ] In R. v. Advance Cutting & Coring Ltd. , [55] which also concerned Bill R-20 , McLachlin, Major, Bastarache and Binnie, JJ., per Bastarache J., recognize that unions are used by their members beyond the context of the company or the collective agreement: [17] The recognition of the union movement as a fundamental institution is implicit here precisely because it is a participant in the political and social debate at the core of Canadian democracy.

To suggest that the unions in the present case are not associated with any ideological cause is to ignore the history of the union movement itself. Although it has been accepted that freedom of association protects an activity by an association that is permitted by an individual, this does not mean that there is no distinctive function for an association, or that associational analogues to individual rights need be ignored. The collective character of the right to associate is undeniable because collective activity is not equivalent to the addition of individual activities.

It is important, however, that belonging to important social institutions be free; this is how democracy will be enhanced. [ 57 ] The Supreme Court recognizes the important role unions play in Canadian society. They contribute to political and social debate. This contribution very often goes beyond simply representing their members.

Affiliation with a central labour body, federation or confederation is often sought with a view to offering better services and playing a more complete role in society by taking advantage of more extensive resources and making their voices heard more clearly. [ 58 ] The FTQ, intervener on appeal, describes in its factum what its role can be: [ translation] 19.

Beyond promoting the professional interests of its affiliates as well as the social, economic, cultural and political promotion of Quebec workers, the Articles of the FTQ assign to it the following means and ends: defend the principles of trade unionism; work to expand trade unionism so as to benefit all workers through its action; work to create in Quebec a regime of social justice, dignity of the individual and democratic freedom. [ citation omitted ] [ 59 ] Similarly, in his testimony before the Board, Daniel Gamelin, President of COPE-573, explained the role of central labour bodies in society: [ translation] A – Listen, I think that central labour bodies play a large role in our society, and the FTQ is one.

It represents all of its affiliates against, to protect their rights, , to protect their collective agreements, and to ensure that the rights of affiliates are protected. You have a government or employers, and also, and also maintain, how can I put it, social justice, democratic justice, economic justice, and representations that they can make in, for their affiliates and for society in general, OK We subscribe to these general positions . Yes, a government may, through certain laws, attempt to take away the rights of some people. It goes further than that for us, of course, and I just spoke about it.

Basically, it goes a lot further than that for us. We are in the peripublic sector when we negotiate our collective agreement; the treasury board stamps it. We have a… a trailer clause in our collective agreement, Commissioner, which states that our salary increases are pegged to the civil service. Therefore, we do not have to negotiate our salary increases.

And when I say that it goes a lot further than that for us with the FTQ, I mean that the FTQ, or our association with the FTQ, during negotiations, among other things, opens doors for us to certain places , some, let’s say the government, certain places in the government where we can intervene to state our case .

Without this position that we currently have in the peripublic sector, because we negotiate, it’s the government, basically the treasury board, without this position for participation, when we ask the FTQ for it, I think that the bargaining power and means of negotiation that we would have vis-à-vis employers would be a lot weaker. This is nothing new, it has always existed. The administration of the Commission’s senior management has always had access to any and all levels, in fact to the entire government, the people who sit there, easy access to the government.

Therefore, this gives us a chance to intervene, when we raise our hand, because the CCQ opens doors for us. That’s pretty much all its services. I am perhaps overlooking some of the services that the FTQ delivers to us , social services. It opens doors for us, it maintains justice, preserves rights, whether fundamental or other rights. So that is the role that the FTQ can play for us.

And that’s the reason for our affiliation . [56] [ emphasis added] [ 60 ] We therefore find that the right to join a union is tied to the right of affiliation, which is not a derivative right of the right of association: it is part of the freedom to form an association (primary right). Affiliation not only allows us to achieve workplace goals, – for instance, influence public debates and legislation that can affect workers’ rights – but it can also be used for broader social objectives. [ 61 ] Moreover, international law acknowledges that affiliation is an integral part of freedom of association.

It is clearly indicated in several international conventions clearly. [ 62 ] The Universal Declaration of Human Rights ( Declaration) was adopted by the United Nations General Assembly on December 10, 1948, and Canada voted in favour of its adoption. Articles 20, 23 and 29(2) provide as follows:

Article 20 1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 23 …

(4) Everyone has the right to form and to join trade unions for the protection of his interests . …

Article 29 …

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. [57] [ emphasis added ] [ 63 ] On March 23, 1972, Canada subscribed to the Freedom of Association and Protection of the Right to Organise Convention (No. 87). Articles 1 to 8 stipulate:

Article 1 Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.

Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and , subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization .

Article 3 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.

Article 5 Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers .

Article 6 The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organisations .

Article 7 The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.

Article 8 1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land. 2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention. [58] [ emphasis added] [ 64 ] On May 19, 1976, Canada ratified the International Covenant on Civil and Political Rights ( ICCPR ) .

Article 22 reads:

Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests .

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others . This

article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this

article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. [59] [ emphasis added] [ 65 ] On the same date, Canada signed the International Covenant on Economic, Social and Cultural Rights ( ICESCR ).

Article 8 states:

Article 8 1. The States Parties to the present Covenant undertake to ensure: (

a) The right of everyone to form trade unions and join the trade union of his choice , subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others ; (

b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations ; (

c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others ; (

d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. 2. This

article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this

article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. [60] [ citation omitted ] [ emphasis added] [ 66 ] The American Declaration of the Rights and Duties of Man (American Declaration ) was adopted by the Ninth International Conference of American States, held in Bogotá, Colombia, in 1948.

In January 1990, Canada joined the Organization of American States (OAS) by ratifying the OAS Charter.

In May 2003, the Standing Senate Committee on Human Rights of the Parliament of Canada wrote: “By the time Canada joined the OAS, the Inter-American Court of Human Rights had confirmed that the American Declaration was a source of legal obligations for all the member States of the OAS.” [61] Referring to the position of the United States contesting the legally binding character of the American Declaration , the Committee affirmed: However, it would be difficult for Canada to adhere to this position since, as mentioned earlier, it became a member of the OAS after the advisory opinion of the Inter-American Court concerning the legally binding character of the American Declaration . [62] [ 67 ]

Article XXII states the general principle of freedom of association, while

article XXVIII sets out the limits to the rights recognized by the American Declaration :

Article XXII . Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature.

Article XXVIII. The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy. [63] [ 68 ] As the Supreme Court states in Health Services , [64] Canada’s international law commitments and international thought on human rights provide persuasive sources for interpreting the Canadian Charter . If protection is afforded under international agreements, it is reasonable to infer that

section 2(

d) of the Canadian Charter should recognize at least the same level of protection. [65] [ 69 ] In Fraser , the majority repeat what is stated in Dunmore and Health Services concerning the weight to be given to the international conventions signed by Canada: [92] The majority in Health Services discussed both “Canada’s current international law commitments and the current state of international thought on human rights ” (para. 78 (underlining added)). Charter rights must be interpreted in light of Canadian values and Canada’s international and human rights commitments. In Dunmore , Bastarache J. emphasized the relevance of these in interpreting s. 2 (

d) in the context. [66] [ 70 ] In this case, section 85(2) of Bill R-20 directly affects associational freedom, an aspect that is at the core of the protection under

section 2(

d) of the Canadian Charter and

section 3 of the Quebec Charter and that is not a right derivative of the freedom of association, like the right to collective bargaining. It infringes the right of workers to create and maintain associational ties with the association of their choice through affiliation.

[71] I therefore agree with the Commissioner’s conclusion whereby the right of association protected by the Charters includes theright of affiliation. Consequently, section 85(2) of Bill R-20 infringes this right. [72] In my opinion, the Superior Court judge’s error consists in failing to take into account the importance of the distinction betweena right that is integral to the freedom to form an association and a right, such as the right to collective bargaining, that derivative. Thisdistinction becomes even more important in light of the judge’s finding that there was no infringement of

section 2(

d) of the CanadianCharter [translation] “because the statute does not make meaningful association to achieve all workplace goals effectivelyimpossible.”[67] [73] In Health Services, the Supreme Court discusses a “derivative right” and not a [translation] “primary right”, as is the case here.It specifies that the right to collective bargaining is a limited right and states that substantial interference must be demonstrated as sosubstantial that it interferes with the freedom of association: 91 The right to collective bargaining thus conceived is a limited right.

First, as the right is to a process, it does not guarantee acertain substantive or economic outcome. Moreover, the right is to a general process of collective bargaining, not to a particular model oflabour relations, nor to a specific bargaining method. As P. A. Gall notes, it is impossible to predict with certainty that the present modelof labour relations will necessarily prevail in 50 or even 20 years (“Freedom of Association and Trade Unions: A Double-EdgedConstitutional Sword”, in J.M. Weiler and R.M.

Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights andFreedoms (1986), 245, at p. 248).

Finally, and most importantly, the interference, as Dunmore instructs, must be substantial — sosubstantial that it interferes not only with the attainment of the union members’ objectives (which is not protected), but with the veryprocess that enables them to pursue these objectives by engaging in meaningful negotiations with the employer.[68] [74] In Fraser, the Supreme Court also requires a demonstration that the government action interferes so substantially that it is itimpossible to exercise the right of association.

But this impossibility is related to the fact that the right at issue in Health Services andFraser (the right to collective bargaining) is a derivative right: [46] Second, and more fundamentally, the logic of Dunmore and Health Services is at odds with the view that s. 2(

d) protects aparticular kind of collective bargaining. As discussed earlier, what s. 2(

d) protects is the right to associate to achieve collectivegoals. Laws or government action that make it impossible to achieve collective goals have the effect of limiting freedom of association,by making it pointless. It is in this derivative sense that s. 2(

d) protects a right to collective bargaining: see Ontario (Public Safety andSecurity) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 (“CLA”), where the right to access governmentinformation was held to be “a derivative right which may arise where it is a necessary precondition of meaningful expression on thefunctioning of government” (para. 30). However, no particular type of bargaining is protected.

In every case, the question is whether theimpugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals. [47] It follows that Health Services does not support the view of the Ontario Court of Appeal in this case that legislatures areconstitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations imposing astatutory duty to bargain in good faith, statutory recognition of the principles of exclusive majority representation and a statutorymechanism for resolving bargaining impasses and disputes regarding the

interpretation or administration of collective agreements (C.A.reasons, at para. 80). What is protected is associational activity, not a particular process or result. If it is shown that it is impossible tomeaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by governmentaction, a limit on the exercise of the s. 2(

d) right is established, and the onus shifts to the state to justify the limit under s. 1 of theCharter.[69] [75] COPE-573 argues that the burden of proof on individuals seeking positive intervention from the government (as opposed toasking it merely to refrain from acting) so that they may fully exercise their constitutional rights has been increased to this degree by theSupreme Court. [76] I share COPE-573’s opinion that in Fraser, the Supreme Court seems to have extended this requirement to establishimpossibility to situations in which a derivative right, such as the right to collective bargaining, is at the centre of a constitutional dispute.The Supreme Court does not indicate, however, that such a burden of proof now applies when no request is made to impose a positivelegislative duty on a government.

In my view, since section 85(2) of Bill R-20 infringes the freedom to form an association, COPE-573was not required to demonstrate that it was impossible for it to affiliate with organizations not covered by the Act. It needed only toestablish that a fundamental freedom protected by

section 2(

d) of the Canadian Charter and

section 3 of the Quebec Charter had beeninfringed, which is what it did. [77] The question that remains, therefore, is whether or not the infringement of this protected right is justified under

section 1 of theCanadian Charter and

section 9.1 of the Quebec Charter. Justification [78] Both the Commissioner and the Superior Court judge determined that there was justification for the infringement undersection 1 of the Canadian Charter and

section 9.1 of the Quebec Charter. [79] In R. v. Oakes,[70] the Supreme Court set out the test to determine whether Charter violations are reasonable and justifiable in afree and democratic society. In Dunmore, the Court outlines it as follows: 171 The role of s. 1 in the Charter was first fully examined by this Court in Oakes, supra. In R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at p. 768, Dickson C.J. summarized the steps in the analysis: Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democraticsociety.

First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant

overriding a constitutional right. It must bear on a “pressing and substantial concern”. Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.

As with all Charter analysis, a contextual approach is to be followed. [71] Pressing and substantial objective [ 80 ] COPE-573 first notes the fundamental importance of freedom of association in our democracy. [72] It emphasizes that the Quebec government’s restriction or infringement of the right of affiliation is exceptional. The Labour Code provides for a single exception in the case of municipal constables ( s. 4 ). [ 81 ] It points out that the impugned legislative measure is in Bill 15 , which amended Bill R-20.

Section 1 of Bill 15 states that its purpose is “to strengthen actions to prevent and fight corruption in contractual matters within the public sector”. Under this Act, a Commissioner is appointed to ensure, on behalf of the State, the coordination of actions to prevent and to fight corruption in contractual matters within the public sector. Furthermore,

section 48 of Bill 15 amends

section 4 of Bill R-20 to add that the Commission must now “cooperate in efforts to prevent and to fight corruption to the extent required by law”. [ 82 ] According to COPE-573, the pressing and substantial legislative objective with regard to employees of the Commission is to be able to include some of them in the multisectoral team headed by UPAC as a way of strengthening actions to prevent and fight corruption in contracts within the public sector. Only four Commission employees have been assigned to the independent team whose members perform their duties on an exclusive basis and report to the President.

With regard to the other Commission employees, Bill R-20 states that a service agreement must provide measures to ensure the confidentiality of the independent team’s operations and define the cooperation that the Commission staff not assigned to this unit must provide. This duty to cooperate also concerns Commission personnel that do not have investigative powers.

No agreement had been entered into at the time of the hearing before the Board, however. [ 83 ] COPE-573 also claims that a pressing and substantial objective cannot be extended to the measure adopted for an [ translation] “apprehension of assumed conflict of interest” because the Commission’s investigative personnel would be represented by a trade union affiliated with the FTQ and because unions affiliated with the FTQ-Construction are also affiliated with the FTQ.

It states that there is no evidence supporting the theory of a systemic conflict of interest problem. [ 84 ] In my opinion, the general objective of Bill 15 can be defined as the fight against corruption. The legislature, with this goal in mind, wished to strengthen actions to prevent and to fight corruption, malfeasance, collusion, fraud and influence peddling in the construction industry.

The specific objective of section 85(2) of Bill R-20 is, as the Commissioner stated, to permit the Commission’s investigative personnel to carry out their functions effectively and without undue influence. [73] [ 85 ] To achieve this objective, UPAC members must trust that members of the independent team and the Commission’s investigative personnel who may collaborate with the team are acting with integrity and that they respect confidentiality, regardless of whether or not they collaborate with UPAC.

In addition, conflicts of interest as well as apparent conflicts of interest that may arise when the Commission’s investigative personnel inspect a site must be prevented and eliminated. [ 86 ] As the Commission argues, the role of the investigative personnel has expanded over the years. Historically, the inspection department had to: 1. Ensure compliance with the collective agreements negotiated between management and the union; 2. Ensure that the individuals who perform the construction work have the necessary qualifications; 3.

Ensure that the contractors have an appropriate licence issued by the Régie du bâtiment du Québec; 4.

Ensure that the hours worked by employees are duly declared. [ 87 ] At the legislature’s request, the Commission must first tackle intimidation and discrimination in unions and in the construction industry in general and then, in concert with other government organizations, it must help fight against under-the-table work, fraud, tax evasion, collusion and corruption in the construction industry. [ 88 ] The evidence accepted by the Commissioner reveals that investigative personnel enjoy great autonomy in the performance of their duties.

Investigators may be required to act against the interests of any stakeholder in the industry, whether a union or one of its members. Conduct they must report is likely to be associated with illegal or criminal activity. [74] [ 89 ] The Commissioner heard lengthy evidence and analyzed it meticulously. He explained in detail the tasks of the investigative personnel and fully understood the implications of their work. The purpose of Bill R-20 is not simply to eliminate an [ translation] “apprehension of assumed conflicts of interest”.

Evidence has revealed incidents that have occurred and that illustrate the possibility of conflicts of interest. [75] [ 90 ] I think that in this case, the pressing and substantial objective of the Act also allows the legislature to avoid the appearance of a conflict of interest.

The fight against fraud and corruption in the construction industry requires that investigators have total freedom to act and also that they appear to have such freedom. [ 91 ] I disagree, however, with the Commissioner and the Superior Court judge who state that the media coverage and public opinion may be used to justify the violation of a Charter -protected right. The Charters , in fact, are the bulwark against public outcry. In their

review of the lawfulness of an action, the legislature and the courts must not allow a Charter right to be infringed if there is no pressing and substantial objective according to the facts established. Such an objective was demonstrated in the present case, however. Rational connection [ 92 ] COPE-573 claims that the evidence did not show that

section 85 of Bill R-20 is an effective measure to address the concern advanced by the legislature. Moreover, the mere fact that an investigator is represented in his or her labour relations by a union related in some manner to an association that may hypothetically represent a person contemplated in his or her investigation does not on its own ground an inference of a conflict of interest, and even less a [ translation] “systemic” conflict of interest.

In the view of COPE-573, there is no rational connection between the substantial objective and the measure adopted. [ 93 ] With respect, I share the opinion of the Commissioner and the Superior Court judge on this issue. [ 94 ] In R. v. Bryan , [76] the Supreme Court, per Bastarache J., states that “the Attorney General is not required to demonstrate an ’empirical connection’ between the objective and the provision: …”.

Logic and reason combined with the evidence available are sufficient to establish a rational connection. [ 95 ] As the AGQ argues, severing the ties between the association of employees certified to represent the investigative personnel and the associations representing employees in the construction industry has the following advantages: 1. It ensures the independence of the investigative personnel and the absence of conflicts of interest in their regard; 2. It reinforces and maintains the trust of the population, industry players and institutional partners of the Commission; 3.

It allows the independent team to fully play its role within UPAC and ensures its viability and the effective flow of information; 4. It provides a pool of workers capable of contributing to the efforts to prevent and fight against corruption because the investigative personnel may be called to join UPAC; 5. Enables UPAC to benefit from the Commission’s expertise and to help establish permanent ties between them. [ 96 ] In my view, these advantages support the conclusion that there is a rational connection between the enactment of section 85(2) of Bill R-20 and the pressing and substantial legislative objective.

Minimal impairment [ 97 ] COPE-573 argues that the Commissioner and the Superior Court judge committed a fundamental error in the application of the minimal infringement test, thus vitiating their reasoning and requiring the Court’s intervention. [ 98 ] According to COPE-573, alternative solutions were considered by the legislature or suggested by the expert Boisvert, which, when compared with the measures already implemented by the Commission such as the code of ethics, are much less impairing to freedom of association than the selected scenario, without however compromising the legislature’s objective. [ 99 ] In my opinion, the Commissioner and the Superior Court judge did not err in finding that the measure adopted by the legislature met the criteria for minimal impairment. [ 100 ] In fact, the scope of

section 85 of Bill R–20 is limited solely to employees with auditing and inspection powers. The affiliation ban concerns only associations or organizations related to construction employees, given the systemic conflict of interest that could result. The legislature rejected the scenario in which the four members of the independent team would be denied the right to organize. It deemed that the maintenance of a relationship of trust with the Commission does not concern solely the independent team, but rather all persons who exercise the Commission’s auditing and inspection powers..

Based on the evidence adduced before the Board, all such persons enable the Commission in particular to carry out its mission to fight corruption. Furthermore, the investigative personnel may be required to intervene on sites at the request of the independent team. There is also a certain amount of mobility between the investigative personnel and the independent team because of possible employee turnover. [ 101 ] The solution proposed by the legislature is reasonable under the circumstances. In Canada (Attorney General) v .

JTI-Macdonald Corp. , the Supreme Court states “that on complex social issues, the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives: R. v. Edwards Books and Art Ltd. … and Irwin Toy .” [77] [ 102 ] I therefore find that infringement of the freedom to associate is minimal, and that it is reasonable in the circumstances.

Proportionality [ 103 ] It remains to be determined whether there is proportionality between the possible beneficial effects of section 85(2) of Bill R-20 and the prejudice suffered by the employees because their choice of affiliation is limited by the legislature. [ 104 ] Both the Commissioner and the Superior Court judge ruled that the measure enacted did not create prejudice that was disproportionate to the beneficial effects that it procures. [ 105 ] COPE-573 criticizes the Commissioner for not having dealt with the consequences and the prejudicial effects for the employees of seeing their right to be represented by it destroyed because of its organic ties with the FTQ, even though these consequences are major.

According to COPE-573, the legislature’s aim is to prevent the investigative personnel from having ties with several large associations within Quebec. It even targets connections beyond direct affiliation of the certified association with the FTQ. It argues that the amendment in December of 2011that the restriction o f the freedom of association of the investigative personnel was even more

disproportionate. [ 106 ] This latter argument raised by COPE-573 is of no assistance to in this case. The Commissioner had before him COPE-573’s application for the certification of the Commission’s investigative personnel. He simply had to determine whether, under the circumstances in the record submitted, there was unjustified infringement of freedom of association rendering section 85(2) of Bill R-20 inoperable in relation to COPE-573.

He could not declare this provision to be overbroad in its general scope because it is within the jurisdiction of a superior court to do so. [ 107 ] In this context, I am of the opinion that section 85(2) of Bill R-20 meets the proportionality test. The evidence adduced before the Commissioner demonstrates the beneficial effects of this provision. As the AGQ argues, corruption in contractual matters within the public sector and within the construction industry is a serious problem. The legislature was required to act to fight against this scourge for the benefit of Quebec society as a whole.

The construction industry is very important for Quebec’s economy. The Commission, which exercises supervisory functions, must have the trust of stakeholders and be free of any conflict of interest. [ 108 ] As for the employees, they are not deprived of their right to be affiliated with any union. As the Superior Court judge stated, they may affiliate with associations, [ translation] “with the exception of the five representative associations in the industry in which they have the responsibility of supervision and investigation.” [78] [ 109 ] In

summary, there is proportionality between the pressing and substantial objectives of the government and the means adopted in Bill R-20 to achieve them. [ 110 ] I am therefore of the opinion that, while freedom of association is infringed, this infringement is justified under the circumstances. [ 111 ] For these reasons, I would dismiss the appeal, with costs. JULIE DUTIL, J.A.