2012 QCCA 441, 2012 QCCA 441

Association du personnel de soutien du Collège A c. Collège d'enseignement général et professionnel A 2012 QCCA 441 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020642-104 (500-17-037967-075) (500-17-045671-081) DATE: MARCH 21, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ANDRÉ FORGET, J.A. FRANCE THIBAULT, J.A. ASSOCIATION DU PERSONNEL DE SOUTIEN DU COLLÈGE A APPELLANT – Impleaded Party v. COLLÈGE D'ENSEIGNEMENT GÉNÉRAL ET PROFESSIONNEL A RESPONDENT – Petitioner – Impleaded Party and F. N.

RESPONDENT – Impleaded Party – Petitioner and MAUREEN FLYNN, ès qualités d'arbitre de griefs IMPLEADED PARTY – Respondent RECTIFIED JUDGMENT [ 1 ] CONSIDERING that a clerical error occurred in paragraph [3] of the conclusion of the judgment rendered on March 7, 2012; [ 2 ] CONSIDERING that we should rectify that error; [ 3 ] THE COURT rectifies the conclusion in paragraph [3] as follows: [3] ALLOWS the appeal, each party paying its own costs; NICOLE DUVAL HESLER, C.J.Q. ANDRÉ FORGET, J.A. FRANCE THIBAULT, J.A. Mtre Chantal Poirier MATTEAU POIRIER AVOCATS INC.

For appellant Mtre Marie-Christine Tremblay ELLEFSEN, BERGERON,TREMBLAY For respondent Collège d'enseignement général et professionnel A Mtre Jonathan Leblanc

ROY ÉVANGÉLISTE For respondent F. N. Date of hearing: February 2, 2012 Association du personnel de soutien du Collège A c. Collège d'enseignement général et professionnel A 2012 QCCA 441 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020642-104 (500-17-037967-075) (500-17-045671-081) DATE: MARCH 7, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ANDRÉ FORGET, J.A. FRANCE THIBAULT, J.A. ASSOCIATION DU PERSONNEL DE SOUTIEN DU COLLÈGE A APPELLANT – Impleaded Party v. COLLÈGE D’ENSEIGNEMENT GÉNÉRAL ET PROFESSIONNEL A RESPONDENT – Petitioner – Impleaded Party and F.N.

RESPONDENT – Impleaded Party – Petitioner and MAUREEN FLYNN, ès qualités d'arbitre de griefs IMPLEADED PARTY – Respondent JUDGMENT [1] The Court, on appeal from a judgment of the Superior Court rendered on April, 9 2010, by the Honourable Jeannine M.

Rousseau, District of Montreal, which granted respondents' motions for judicial review, quashed the arbitrator's decisions and dismissed appellant's grievance; [2] For the reasons of Chief Justice Nicole Duval Hesler with which Justices André Forget and France Thibault concur; [3] ALLOWS the appeal, with costs; [ 4 ] SETS ASIDE the judgment of the Superior Court dated April 9, 2010; [ 5 ] ORDERS the return of the file to the arbitrator for completion of the grievance process. NICOLE DUVAL HESLER, C.J.Q. ANDRÉ FORGET, J.A. FRANCE THIBAULT, J.A.

Mtre Chantal Poirier MATTEAU POIRIER AVOCATS INC. For appellant Mtre Marie-Christine Tremblay ELLEFSEN, BERGERON,TREMBLAY For respondent COLLÈGE D’ENSEIGNEMENT GÉNÉRAL ET PROFESSIONNEL A Mtre Jonathan Leblanc ROY ÉVANGÉLISTE For respondent F.N.

Date of hearing: February 2, 2012 REASONS OF DUVAL HESLER, C.J.Q. [ 6 ] A laboratory technician employed by respondent A College filed a complaint of psychological harassment by a teacher at the College (respondent N.) under the A College Human Rights Policy and Complaint Resolution Procedures , which are part and parcel of the College's administrative policies and procedures. [ 7 ] The complaint was filed on October 24, 2005, well within the grievance period of 90 days contemplated in the collective agreement, as the last harassment event complained of had allegedly occurred on September 28 of that year. [ 8 ] The complaint was submitted to an internal Human Rights Hearing Panel which filed its recommendations on February 17, 2006. [ 9 ] A grievance was filed by the appellant in regards to the complainant's allegations of psychological harassment on March 30, 2006. [ 10 ] Arbitrator Maureen Flynn was designated to hear the grievance. [ 11 ] On November 28, 2006, she granted the teacher respondent, N., a limited right of intervention. [ 12 ] It was agreed by the parties that the arbitrator would first rule on the existence or non-existence of harassment in the complainant's work environment, and reserve jurisdiction on the employer's liability, if any, as well as on remedies . [ 13 ] Respondents then raised the issue of prescription, which was rejected in the arbitrator's decision of June 12, 2007, in which she also determined that there had, indeed, been harassment towards the complainant by the teacher. [1] [ 14 ] At that stage, respondents were apprised of the specific orders that would be requested from the arbitrator. [ 15 ] Their next response was to challenge the arbitrator's jurisdiction to grant such orders. [ 16 ] A hearing was held on that sole issue and, on April 24, 2008, the challenge to her jurisdiction was dismissed by the arbitrator. [2] [ 17 ] On October 2, 2008, she further condemned A College to the payment of lost wages and moral damages.

There remained only the issue of what specific orders could be made against each respondent, the college and the teacher. [ 18 ] This latest decision was the object of two motions for judicial review , one by the employer, respondent A College, and one by respondent N., the teacher accused of harassment.

The College and respondent N. share positions, except on the issue of the limits to respondent N.'s rights as intervener. [ 19 ] The Superior Court granted judicial review. [3] It concluded: 1) that the grievance was prescribed, not having been lodged within 90 days of the last harassing gesture; 2) that the arbitrator had infringed the rules of natural justice by including in her reasons citations from the scientific literature on psychological harassment in the absence of expert testimony regarding same; 3) that the rights of respondent N. to a full and fair hearing had been denied because of the limits placed on his cross-examination of the complainant by the arbitrator. [ 20 ] Such are the three issues raised by the appeal.

I propose to deal with them in reverse order. First, however, I find it important to stress that each of these issues lies well within the jurisdiction of the arbitrator. The standard of review that applies here is therefore that of reasonableness. [4] [ 21 ] I find it useful, at this stage, to reproduce part of the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) [5] dealing with the manner in which reasonableness is to be assessed:

[15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" ( Dunsmuir , at para. 48 ).

This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion ( Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn , [1975] 1 SéCéRé 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 1. The rights of respondent N. as intervener . [ 22 ] A return to basics seems indicated.

Respondent N. is not a party to the grievance process. The union and the employer are the parties to it. The arbitrator afforded N. ample opportunity to justify and/or explain the events described by complainant. It is the employer who has an obligation to provide a harassment free work environment. [6] If it fails to do so, an arbitrator will decide what is to be done about it. [7] The arbitrator must act fairly by listening to the testimony of all concerned [8] and, in this case, did so.

She even granted respondent N. a right to cross-examine the complainant on those topics where his position was not endorsed by his union or by the employer, or diverged from their position. There is certainly nothing unfair in such a decision. [ 23 ] Inasmuch as respondent N. is expressing concerns about what orders of the arbitrator might eventually be directed against him personally, the concern is premature.

It is a well known precept of administrative law that judicial review is only available once all other recourses have been exhausted. [9] In addition, it is doubtful that any orders of the arbitrator may indeed be directed against respondent N. personally, for it is up to the employer to see to it that all its employees behave in a respectful manner towards co-workers.

All relevant orders should therefore, barring exceptional circumstances that do not seem to arise here, be directed against the employer and not against an employee. [ 24 ] More specifically, respondent N.'s rights to a fair hearing were in no way jeopardized in the matter at hand, and he was not a party. Not being a party, he cannot be directly targeted by orders issued by the arbitrator. Many grievances are settled between the union and the employer without the consent of the complainant or that of another employee who may have participated in the events.

It seems to me that this rule should be applied whether or not harassment is the object of the grievance. [ 25 ] There was thus no cause to conclude, as did the Superior Court judge, that respondent N.'s rights to a fair hearing had somehow been infringed. 2.

The reference to scientific literature by the arbitrator [ 26 ] The judge of the Superior Court noted that the arbitrator had interpreted the legal definition of psychological harassment as comprising four elements and quoted the following extracts from the arbitrator's award: [76] Since June 1 st 2004, each employee has the right to a work environment free from psychological harassment.

Inspired by the decisions and the writings on the subject, the legislator adopted the following definition: 81. 18 (interpretation) For the purposes of this Act, "psychological harassment" means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee. (Vexatious behaviour) A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment. [77] As defined, psychological harassment contains four elements.

Firstly it is a vexatious behaviour in the form of hostile or unwanted conduct, verbal comments, actions or gestures. Such conduct, verbal comments, actions or gestures must be repeated unless it meets the requirement of a single vexatious behaviour.

The vexatious behaviour must affect the employee's dignity or psychological or physical integrity and lastly results in an harmful work environment. [ 27 ] As noted by the judge of the Superior Court, the arbitrator then went on to describe each of four elements that constitute psychological harassment. [ 28 ] What the judge took exception to is not so much the analysis per se as the use, by the arbitrator, of external sources in carrying out that analysis (par. 79 et seq. of the judgment a quo). [ 29 ] The judge of the Superior Court singled out paragraph 121 of the arbitrator's award, which reads as follows: [121] It is important to keep in mind that such assessment of Mr.

N.'s statements is done in light of all the other incidents and that at the hearing, the complainant had been hurt by the intervener. In this context, as described by experienced authors on the subject , any comment made at that point in time of a psychological harassment situation, that imply that the victim has some kind of psychological problem is an aggression.

It affects the dignity of the victim. (Emphasis added) [ 30 ] The Superior Court judge found that the arbitrator could not use for her purposes the writings of authors who had not been heard as witnesses and could not, therefore, be cross-examined on their qualifications nor, indeed, on their opinions. She concluded that the rules of natural justice had been infringed.

[ 31 ] In my respectful opinion, they had not and I diverge from the judge below on that finding. [ 32 ] Indeed, the respondents do not contend that the "experienced authors" alluded to by the arbitrator contradict the applicable case law relied upon by her, nor that the quotes were used to contradict expert testimony. The present matter is therefore markedly different from the Pfizer case. [10] [ 33 ] As observed by author Patrice Garant, whose view on this issue I share: La question de la consultation par le tribunal des dictionnaires usuels et des manuels courants n'a rien d'irrégulier.

Certains soutiennent que s'il s'agit de manuels ou de publications à caractère scientifique ou technique, dans le domaine de la médecine, du génie, de la chimie par exemple, il ne s'agirait pas nécessairement d'une classe d'information dont le tribunal peut prendre connaissance d'office. Il faut, à notre avis, bien distinguer la situation où la consultation de ces ouvrages sert à comprendre une preuve d'expert ou si elle sert à la réfuter.

Dans ce dernier cas, le tribunal devrait être prudent et en aviser les parties, quitte à rouvrir l'enquête s'il y a lieu. [11] [ 34 ] It bears mentioning as well that psychological harassment is a fairly common human experience, and one that arbitrators encounter frequently. Specialized tribunals are entitled to some leeway in such matters and the arbitrator did not violate the rules of natural justice by importing into her award notions that are already known and applied regularly in the area of labour law. [ 35 ] In my opinion, this second ground of appeal is therefore well founded. 3.

The alleged prescription of the grievance [ 36 ] In the time frame of concern, [12] the parties to a case of harassment, at A College, were encouraged to try and settle their differences, and it was implied that they would not jeopardize their right to file a grievance if they initially chose a less litigious course.

One might well surmise, therefore, that when the parties agreed to subject themselves to the mediation process, there was an implied renunciation to the time lapse of a grievance because the parties first opted to go through the process put in place by the employer precisely for dealing with situations of harassment.

It is to be noted that the Labour Standards Act provides that all of its provisions dealing with harassment are automatically incorporated into all existing collective bargaining agreements. [13] [ 37 ] Be that as it may, respondent A College's position at the hearing of the appeal was clearly that absent an express renunciation to delays in the case at hand, the grievance is time barred, even though the complaint was submitted within 90 days of the last event complained of under its Human Rights Policy and Complaint Resolution Procedures and even though the grievance was lodged within 90 days of the Recommendations of the Internal Committee constituted under that policy. [14] [ 38 ] Whether or not there was an implicit renunciation to delays by any of the parties, however, does not have to be determined in the circumstances at hand. [ 39 ] Indeed, at paragraph 122 of her award, the arbitrator made the following finding of fact, which it was well within her jurisdiction to make.

She decided that respondent N. had shown contempt for the dignity of the complainant even during the hearing in front of the Internal Committee: […] the statement of Mr.

N. made on January 30 2006 constitutes the last offensive incidence and the grievance filed by the complainant on March 30 2006 is timely. [ 40 ] Timeliness issues are subject to judicial review on a reasonable standard, as timelines questions do not fall into a category of questions to which the correctness standard continues to apply. [15] The standard of review being reasonableness, there was no ground for the Superior Court to intervene on the issue of prescription of the grievance. [ 41 ] For these reasons, I propose setting aside the judgment of the Superior Court and returning the file to the arbitrator for completion of the arbitration process. [ 42 ] I feel compelled to add the following comments. [ 43 ] In this case, deciding issues one at a time during the arbitration process did not serve the interest of the parties, nor indeed of the process or of justice.

In my view, such step by step treatment only made it more difficult to satisfy the ultimate purpose of labour law, which is to deal with grievances fairly and expeditiously.

In the matter at hand, it amounted to making the grievance process unnecessarily more complex, opening the door to applications for judicial review and appeals along the way, which means that, several years after the events complained of, we are still at the stage of referring the matter back to the first decider for the completion of the grievance process. [ 44 ] In view of these circumstances, I am of the view that each party should bear its own costs in the present appeal. NICOLE DUVAL HESLER, C.J.Q.