2011 QCCA 768, 2011 QCCA 768

Syndicat des communications de Radio-Canada c. Société Radio-Canada 2011 QCCA 768 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-018647-081 (500-17-032165-063) DATE: April 8, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. JACQUES A. LÉGER, J. A. JACQUES VIENS, J.A. (AD HOC) SYNDICAT DES COMMUNICATIONS DE RADIO-CANADA APPELLANT – Impleaded party of the second

part v. THE CANADIAN BROADCASTING CORPORATION RESPONDENT – Applicant and DENIS NADEAU, in his capacity as adjudicator IMPLEADED PARTY – Respondent and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 675 IMPLEADED PARTY – Impleaded party of the first part JUDGMENT [ 1 ] THE COURT: On the appeal by the appellant Syndicat des communications de Radio-Canada (SCRC) from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Jeannine M.

Rousseau), rendered on April 11, 2008, which granted the application for judicial review brought by the respondent the Canadian Broadcasting Corporation ("CBC") and quashed the arbitral award [1] which itself upheld a grievance made by the impleaded party Canadian Union of Public Employees ("CUPE"). [2] [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] On May 27, 2009, when the appellant obtained leave to appeal, the respondent CBC brought a motion to dismiss, which was referred to the panel hearing the appeal: [ translation ] [3] Today, at the beginning of the hearing, the respondent brought a motion to dismiss based on the fact that there was an agreement and therefore a settlement between the Canadian Union of Public Employees, impleaded party of the first

part in Superior Court and main party rather than an "interested" party to the grievance proceeding that gave rise to the judicial review. The applicant therefore has neither the interest nor the capacity to bring an appeal, even if leave could have been granted. [4] ...

I refer the motion to dismiss brought by the respondent, the Canadian Broadcasting Corporation, to the panel that will hear the appeal. [3] [ 4 ] In fact, CUPE's motion for leave to appeal, which was to be heard that same day, was struck from the roll because a settlement had been reached a few days earlier between the CBC on the one hand, and the respondent CUPE and the other unions as a group, except for the appellant SCRC, on the other. [ 5 ] The CBC relies on the declaration of the settlement reached on May 22, 2009, in support of its motion to dismiss.

According to the respondent, the appellant no longer has sufficient legal interest to continue the appeal since the grievance that gave rise to the dispute, which was not initiated by the appellant but by CUPE, has been settled. Background [ 6 ] The unionized and non-unionized employees of the CBC have been contributing to the same pension plan since 1961. This defined benefit pension plan, to which both the employees and the employer contribute, is administered by a board of seven trustees, most of whom are members of CBC management.

[ 7 ] Every collective agreement between the CBC and its different unions includes a

schedule concerning a Consultative Committee on Staff Benefits (CCSB). In fact, it is the

interpretation of the CCSB's powers as set out in

Schedule C of

Section A of the CUPE collective agreement that is at issue. [ 8 ] In the fall of 1999, the CBC and the unions were informed that the actuarial valuation of the pension plan as on December 31 would indicate a significant surplus. The CBC began consultations.

The issue was also considered by the CCSB. [ 9 ] The actuarial valuations filed in the spring of 2000 indicated that, on December 31, 1999, the CBC's pension fund had a surplus of approximately $616 million. [ 10 ] In April of 2000, the Employee Benefits Advisory Committee (CCSB), constituted by members of the various unions and presided by a representative of the CBC, was asked to give its opinion on how this surplus should be used.

It unanimously adopted the following resolution: [ translation ] Therefore, it is proposed that an amount of $280 million of the Fund's surplus be placed in a reserve, which will guarantee employer contributions for the next ten years without, however, placing the Plan in peril, and In addition, it is proposed that the balance of the $336 million be used to benefit the contributing members, whether they be in service, retired, or entitled to a deferred pension as at January 1, 2000, pursuant to a formula approved by the CCSB, which can be summed up as follows: That the surplus be divided between the participants, prorated on the basis of total contributions, plus interest, on behalf of all the employees until December 31, 1999, and on the basis of the sum of all contributions, plus interest, made on behalf of all retirees and all employees entitled to a deferred pension until the date of termination of services. [4] [ 11 ] On June 19, 2000, the CBC board of directors adopted a resolution determining the distribution of the surplus between the employees and the employer.

The discussions that followed did not lead to an agreement, and on September 5 and 6, 2000, the CCSB adopted another resolution: [ translation ] Insofar as the CCSB and the Canadian Broadcasting Corporation have failed in their negotiations to determine fair and reasonable payment of the Pension Fund surplus to active and retired employees, the CCSB now officially requests that the Canadian Broadcasting Corporation pay its active employees and retirees the amount of $202 million. This payment is in addition to the $134 million already allocated for disbursement.

This additional payment is to be made on the basis of the formula used for the payment of the $134 million. [5] [ 12 ] Faced with the CBC's refusal to implement the CCSB's resolution, each union filed a grievance worded in a similar manner. In particular, on November 3, 2000, CUPE filed the following grievance: [ translation ] CUPE contests the decision of the employer, the Canadian Broadcasting Corporation, not to apply the proposals adopted by the CCSB committee on September 6, 2000 (copies attached), pursuant to the powers conferred on the said committee and described in

Schedule C of the collective agreement currently in force. Claim : We seek the application of and compliance with the proposals duly adopted and reproduced in the attached Schedule. [6] [ 13 ] On March 27, 2003, the adjudicator, Denis Nadeau, rendered an interim decision granting the status of interested party to the other unions and associations of active or retired employees and to the appellant union SCRC in particular. [7] [ 14 ] Subsequently, in his arbitral award of June 23, 2006, the adjudicator upheld the grievance and decided that the CCSB's proposal seeking an additional distribution of $202 million to the contributors did not incur additional spending within the meaning of

Schedule C of the collective agreement and that, therefore, the CBC should have complied. [ 15 ] According to the trial judge, [ translation ] "the adjudicator's reasoning [regarding the powers of the CCSB] led to absurdity [for the employer], i.e., waiving a right while simultaneously reserving it”. [8] In short, the judge found that the adjudicator erred in his reading of the provisions of the Broadcasting Act , thereby vitiating the arbitral award.

She found that it was therefore not necessary to rule on whether the CCSB's disputed proposal would incur additional expenses because, in any event, the CBC was not obliged to comply. The motion to dismiss [ 16 ] The appellant claims that, as impleaded party in first instance and intervener before the adjudicator, he has the capacity, within the meaning of

article 492 CCP , to appeal the judgment rendered by the Superior Court. In his view, the adjudicator recognized the significant effect that the outcome of the dispute could have on the SCRC by allowing it to intervene in the proceedings on the grievance filed by CUPE. [ translation ] Given these various aspects, it appears clear to me that the [ translation ] "outcome of the present arbitration" may have [ translation ] "a

significant effect" on the third-party unions.

While it is true that they are not legally bound by the arbitral award rendered (I shall returnto this point shortly) and that CUPE's grievance will be binding on that bargaining agent only, the fact remains that, if this grievance isupheld in its entirety and the contested decision by the employer is set aside, it is highly plausible that the application of this award and,in particular, the wording of the orders and the determination of the quantum will raise very delicate legal questions in which the third-party unions, because they represent active and retired members who are members of the same retirement fund, will have a significantinterest.

In my view, denying the [translation] "significant effect" that the outcome of this arbitration could have on the third-partyunions seems, at this stage, to contradict the very essence of the claims at the heart of the dispute and the unique aspects of theretirement fund and the joint process of the CCSB.[9] [17] While recognizing that the appellant was [translation] "party to the trial in first instance" and that it therefore has the[translation] "capacity to appeal" from the judgment rendered by the Superior Court, the respondent argues that, since a settlement hasbeen reached in its dispute with CUPE, the basis for a meaningful legal debate in appeal disappeared with the settlement and thewithdrawal of the grievance. [18] The respondent is correct.

When the adjudicator granted the appellant and the other interested third-party unions leave tointervene in the grievance filed by CUPE, he stated clearly that the debate regarding this grievance would not directly affect either therights of the appellant or those of the respondent in the parallel grievances: [translation] The message of the Supreme Court of Canada [in Canadian Union of Public Employees v.

Canadian Broadcasting Corp., (SCC), [1992] 2 SCR 7] seems to be clear: a court or an arbitration tribunal cannot, in principle, confer on an adjudicator the powerto rule in a single award on the grievances filed by several unions. This rule is not absolute, however, since, as the Court states, theparties may agree to confer on an adjudicator the power to dispose of a problem that affects all of them. But such consent must flow fromthe interested parties, not from the tribunal.

From these comments, I draw the following: the fact that the third-party unions have the interest required to intervene does not confer onme any jurisdiction over their own grievances. The arbitral award that will be rendered on the merits of the grievance under consideration(S1) will not be legally binding on the third-party unions, even if its outcome might have "a significant effect" on them. See, to the sameeffect, La Société d'électrolyse et de chimie Alcan Ltée v.

La Fédération des syndicats du secteur de l'aluminium, 953 (13 November1995) at 22 (CA); Mississauga Hospital, supra at 376; Toronto (City) and Toronto Civic Employees Union, supra at 214.

In the same vein, it is very clear to me that a union may not unilaterally decide that it will be bound by the arbitral award that I willrender and demand that its undertaking also have the effect of binding the employer. ...[10] [Emphasis in original.] [19] Indeed, as the adjudicator pointed out, the potential interest of the intervening parties, including the appellant, was related to theapplication of the arbitral award if the grievance was upheld.

The settlement between the respondent and all of the interveners except theappellant precludes such a scenario, however, because the grievance – in which only CUPE, the impleaded party of the first part, had aninterest – was withdrawn after the settlement and no longer exists. [20] In private law matters, as in the present case, the interest of an intervener coincides with that of anyone bringing an action at law(article 55 CCP).

In the circumstances of this case, does the appellant still have a sufficient interest, that is to say, an interest that is legal,direct and personal, present and actual? [21] Bernier, J.A., writing for this Court, stated the following with respect to the notion of sufficient interest: [translation] The Court may proprio motu raise sufficient interest as an element that is essential to the formation of a judicial claim. This is providedin

article 462 CCP, which reads as follows: 462. No action will be dismissed merely because it is intended to obtain a declaratory judgment; but the court may, if it is of opinionthat the interest of the plaintiff is insufficient, or that a judgment will not put an end to the uncertainty or controversy which gave rise tothe action, refuse to render judgment. The Code of Civil Procedure does not define the notion of sufficient interest; it is a question of substantive law, not of procedure.

Absentan exception provision, in private law matters we must refer to civil law provisions, as interpreted in binding decisions by the courts ofQuebec. ... The interest is the benefit the plaintiff will receive from the action it brings if the action has merit. ...[11] [22] Obviously, a judgment of the Court allowing the arguments of the appellant union and setting aside the judgment of theSuperior Court would not make the arbitral award enforceable.

Only the grievance filed by CUPE, which was settled, was decided by theadjudicator Denis Nadeau. [23] The respondent is correct to argue that the scope of the arbitral award the adjudicator could have made in the grievance beforehim was limited to the impact of the decision of the respondent the CBC on the rights of CUPE members and that, given the settlementbetween the parties, there simply was no longer a dispute between CUPE and the CBC.

The adjudicator cannot render an order in favourof the appellant without exceeding his jurisdiction, which is clearly defined in the reasons for the interlocutory award of March 27, 2003.

[ 24 ] Moreover, even if the Court were to accept the appellant's claims and allow its appeal, the appellant would derive no benefit therefrom within the legal meaning of the term.

If the appeal was heard and allowed, of course, the Court's opinion regarding the merits of the arbitral award could be argued before the adjudicator hearing the appellant's grievance and, perhaps, encourage the parties to settle the conflict that still lies between them. [ 25 ] On the other hand, it should not be presumed that the decision that another adjudicator renders on the merits, based on evidence and legal arguments that may differ from those raised in this case, would have the same reasons and nuances as those in the decision of adjudicator Nadeau.

To this, it should be added that the courts of original general jurisdiction must determine the standard of review applicable to the various aspects of such a decision before being convinced that an intervention in the form of a judicial review is in order. In short, the above does not confer on the appellant a legal interest sufficient to justify this appeal. [ 26 ] Therefore, the respondent's motion to dismiss should be allowed and the appeal dismissed. FOR THESE REASONS: [ 27 ] ALLOWS the motion to dismiss brought by the respondent; [ 28 ] DISMISSES the appeal, with costs. LOUIS ROCHETTE, J.A. JACQUES A.

LÉGER, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Mario Évangéliste Pépin & Roy, avocats For the appellant Mtre Frédéric Massé Heenan Blaikie, L.L.P., SRL For the respondent Mtre Pierre Grenier Melançon, Marceau, Grenier and Sciortino For the impleaded party Canadian Union of Public Employees Date of hearing: February 16, 2011