2015 QCCA 1904, 2015 QCCA 1904

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section locale 174 c. Cascades Groupe Papiers fins inc , division Rolland 2015 QCCA 1904 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-024278-145 (700-17-010092-137) DATE: November 18, 2015 CORAM: THE HONOURABLE GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. UNIFOR, LOCAL 174 SERGE AUBIN APPELLANTS – Impleaded parties v.

CASCADES FINE PAPERS GROUP INC., ROLLAND DIVISION RESPONDENT - Applicant FRANCINE BEAULIEU, in her capacity as grievance arbitrator Impleaded party - Respondent JUDGMENT [ 1 ] The appellants appeal from a judgment of the Superior Court, District of Terrebonne (the Honourable Mr.

Justice Pierre Journet), rendered on February 6, 2014, which held as follows: [56] FOR THESE REASONS , the Court: [57] ALLOWS the application for judicial review; [58] SETS ASIDE arbitral award R-1 rendered by respondent arbitrator Francine Beaulieu on June 19, 2013, allowing in part grievance No. 2010-08 filed by the Communications, Energy and Paperworkers Union of Canada (C.E.P), Local 174, against employer Cascades Fine Paper Group Inc., Rolland Division; [59] DISMISSES grievance No. 2010-08 filed by the Communications, Energy and Paperworkers Union of Canada (C.E.P), Local 174, against employer Cascades Fine Paper Group Inc., Rolland Division; [60] THE WHOLE with costs. [ 2 ] For the reasons of Mainville J.A., with which Gagnon and Vauclair JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the judgment rendered on February 6, 2014, by the Superior Court in case No. 700-17-010092-137; [ 5 ] RESTORES impleaded party arbitrator Francine Beaulieu’s award of June 19, 2013; [ 6 ] AWARDS costs in favour of the appellants, both in first instance and in appeal.

GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A.

ROBERT M. MAINVILLE, J.A. Mtre Richard Bertrand Trudel Nadeau For the appellants Mtre Paul Venne Mtre Alexandre Lacasse Dufresne Hébert Comeau Inc. For the respondent Date of hearing: October 26, 2015 REASONS OF MAINVILLE, J.A. [ 7 ] The appellants, Serge Aubin and his union, appeal from a judgment of the Superior Court (the Honourable Mr.

Justice Pierre Journet) rendered on February 6, 2014, which allowed an application for judicial review filed by the respondent employer Cascades Fine Papers Group Inc., Rolland Division (“Cascades” or the “employer”) against an arbitration award (Mtre Francine Beaulieu) (the “arbitrator”) dated June 19, 2013.

Background [ 8 ] Aubin is a forklift operator who, at the time of his dismissal, had been employed by Cascades for nearly 35 years. [ 9 ] On the morning of June 3, 2010, while driving a forklift in the performance of his duties, Aubin attracted the attention of supervisory staff when he drove into a column of the warehouse in which he worked. He agreed to a sobriety test, which showed that his blood alcohol content was twice the legal driving limit. This was a violation of the employer’s regulations as well as of basic safety rules. [ 10 ] On June 11, 2010, the employer gave Aubin a dismissal letter.

Given his many years of service, however, the employer’s representatives informed him that he could be reinstated in his position if he acknowledged his alcohol problem and took the necessary steps to resolve it. Aubin accepted the offer, which contained the following conditions: [1] (

a) acknowledge his alcohol problem; (

b) consult the employee assistance program; (

c) follow the recommendations of the employee assistance program; and (

d) follow up with the employer. [ 11 ] Psychologist Jean Fréchette, who initially assessed Aubin under the employee assistance program, considered that outpatient rehabilitation would be appropriate in his case. [2] Be that as it may, on June 25, 2010, Aubin accepted financial assistance from his employer for a 21-day inpatient rehabilitation program at Pavillon Pierre-Péladeau. [ 12 ] The inpatient rehabilitation began on June 27, 2010; Aubin left the program on June 29, however, because he had no desire to continue with the treatment and preferred the outpatient rehabilitation offered at Centre André-Boudreau. [ 13 ] On July 15, 2010, Aubin began outpatient rehabilitation at Centre André-Boudreau.

The treatment continued for approximately one year. [ 14 ] On July 20, 2010, the employer dismissed Aubin, handing him the following letter: [3] [ translation ] This past June 11, we met with you and your union representatives to proceed with your dismissal. Because you are a valued employee with many years of service, we told you during this meeting that we would reconsider our decision if you acknowledged your problem and followed a structured rehabilitation program. We proposed a multi-step process, explaining that you had to successfully complete each step to keep your job.

At the time, you agreed to this process. We gave you all the necessary information, including the employee assistance program, and asked you to follow up with Human Resources advisor Joyce Paquette. We explained how important it was for you to seriously commit to following the action plan you would be given to resolve your problem once and for all. This required you to commit to the plan, to be diligent and to adopt an attitude that would lead to success. However, we find that you have been slow to follow through on the requirements in the agreement (following up with Joyce, consulting a physician, etc.).

On June 23, an EAP representative proposed an action plan and prescribed an inpatient rehabilitation program. At that point, you called Joyce to tell her you didn’t have the money for this treatment and that you preferred to wait for an appointment at Pavillon André Boudreau, a public centre where treatment is free. The centre gave you a first appointment on July 14 but could not promise that you would immediately receive treatment.

We told you that you had to follow the plan recommended by the EAP and we agreed to give you an advance to cover the cost of the treatment so that you could begin your rehabilitation immediately and ultimately get your job back. After much hesitation, you agreed, and began your treatment on June 27 only to leave on June 29, whereas the program was due to last until July 18. The next day, you contacted only your union to tell them your version of the facts. Perplexed by your early departure, we asked the EAP for a report on the situation.

On July 5, we received a report from the EAP stating that you still believe you were simply unlucky to have been caught and that you agreed to this procedure because your employer gave you no choice. The program head concluded by stating that you do not acknowledge your drinking problem and that you have little interest in resolving it. Because of this, it is impossible to take on your case unless you make a serious commitment. We gave you one last chance to save your job. We provided you with specialized resources and financial support to help with your rehabilitation, but to no avail.

As such, we find that you have failed to follow through with the process to which you agreed and we have no choice but to dismiss you as per the terms of the letter of June 11. You will shortly receive the documents associated with your dismissal along with any amounts that may be owing to you. [ 15 ] That same day, a grievance was filed to contest what was viewed as a wrongful dismissal and to demand that Aubin be reinstated in his position and that his lost wages be paid to him. Arbitration award [ 16 ] The arbitrator undertook a lengthy analysis of the evidence adduced to ultimately conclude that (

a) Aubin committed gross misconduct by coming to work inebriated and (

b) did not respect the agreement he had reached with his employer to undergo inpatient rehabilitation to resolve his drinking problem. [ 17 ] Still, in the arbitrator’s view, dismissal was a disproportionate punishment in this case given that outpatient rehabilitation was an option, and the employer acted prematurely in dismissing Aubin without giving him the chance to show his willingness to change his behaviour by undergoing such rehabilitation. [ 18 ] On this subject, the arbitrator stated the following: [ translation ] [222] With all due respect for the contrary opinion, I believe dismissal is a disproportionate punishment in these circumstances.

I am well aware that the employer gave the complainant a chance and that he did not honour all of his commitments and failed to respect the agreement, but the evidence shows not only that outpatient rehabilitation was the first option but also that the complainant was sufficiently motivated to follow this treatment for a year.

Although these facts are subsequent to the employer’s decision of July 20, 2010, the fact remains that they are relevant to assessing the employee’s motivation. [223] Furthermore, given the effort the complainant was making to find outpatient treatment, given the assessment of Jean Fréchette, and given the fact that the employer was ready to give the complainant a chance, the employer should have gone one step further and allowed him to attend an outpatient rehabilitation program even after he left Pavillon Pierre-Péladeau.

The employer could always later decide on the sanction to apply if the complainant ended up not following any treatment.

It would also have been appropriate for the employer to find out what the care team at Pavillon Pierre-Péladeau thought of the complainant’s decision to leave treatment and whether they believed he would participate in an outpatient rehabilitation program. … [226] In the present case, the Tribunal acknowledges that coming to work inebriated, as the complainant did, constitutes a grave fault, but, as arbitrator Morency stated, before resorting to the ultimate punishment of dismissal, all necessary means had to be taken to ensure the complainant’s rehabilitation.

The employer should have allowed the grievor to attend an outpatient rehabilitation program and could have checked whether the treatment was effective before imposing the most severe punishment possible. [227] In short, dismissal is too severe a sanction for failure to comply with an agreement. I am not saying that reporting to work inebriated, particularly for a forklift operator, does not constitute gross misconduct; quite the contrary.

In the present case, we have an employer that, despite having made a decision with severe consequences such as a dismissal, decided to give its employee another chance; it should therefore have continued in this direction and allowed him to seek treatment in a manner other than inpatient rehabilitation. [ 19 ] The arbitrator therefore decided to impose a six-month suspension in lieu of dismissal. Superior Court judgment [ 20 ] The Superior Court set aside the arbitration award and dismissed the dismissal grievance. [ 21 ] The judge maintained that he applied the reasonableness standard of review .

A careful reading of his reasons, however, shows that he applied the correctness standard of review by stating that most of the alleged errors were jurisdictional. [ 22 ] The judge thus held that the arbitrator exceeded her jurisdiction by [ translation ] “completely disregarding the complainant’s prior disciplinary record.” [4] [ 23 ] According to the trial judge, the arbitrator also exceeded her jurisdiction by failing to apply the “last chance agreement” reached with the employer.

The judge expressed the opinion that [translation] “the law concerning last chance agreements is that the arbitrator’s sole jurisdiction is to check whether the dismissal actually resulted from failure to comply with any of the conditions of the last chance agreement.” [5] [ 24 ] Still according to the trial judge, the arbitrator also exceeded her jurisdiction by taking into account the fact that Aubin entered an outpatient rehabilitation program. In the judge’s view, [ translation ] “The rehabilitation in this case was irrelevant subsequent-event evidence.” [6]

[ 25 ] The trial judge found that the arbitrator also committed an unreasonable error by finding that the dismissal was a disproportionate measure under the circumstances.

According to the judge, [ translation ] “the only acceptable outcome” was dismissal of the grievance [7] since the mere fact of having committed gross misconduct automatically leads to dismissal: [ translation ] “The notions of grave fault and gross misconduct are synonymous with dismissal in labour law.” [8] In addition, in the judge’s view, dismissal is [ translation ] “automatic” [9] in cases involving violation of a “last chance agreement.” [ 26 ] Lastly, the trial judge found that the arbitrator committed an unreasonable error by misinterpreting the law concerning gross misconduct in that the employer is [ translation ] “not required to observe the principle of progressive discipline or exhaust all means to ensure rehabilitation” in such circumstances. [10] According to the judge, the exception to the principle of the gradation of sanctions in cases involving gross fault [ translation ] “should have inevitably … led [the arbitrator] to dismiss the grievance, regardless of whether the means to ensure rehabilitation had been exhausted.” [11] [ 27 ] In the opinion of the judge, given that Aubin committed gross misconduct and failed to comply with the conditions of his agreement, no conclusion other than dismissal of the grievance was possible.

The judge therefore concluded it would be unnecessary in the circumstances to refer the matter back to another arbitrator as [ translation ] “the only thing remaining is to confirm the decision [of the employer] to dismiss Aubin.” [12] In the judge’s estimation, this was the only possible outcome of the grievance. Standard of review [ 28 ] The Court must determine whether the trial judge chose the correct standard of review and whether he applied it correctly. [13] [ 29 ] In the present case, the Superior Court judge concluded that the reasonableness standard of review was applicable.

This is indeed the correct standard for reviewing an arbitrator’s award concerning a dismissal grievance. As stated above, however, the judge actually reviewed the arbitration award on the correctness standard of review by describing several of the alleged errors in the arbitration award raised by the employer as excesses of jurisdiction. It is therefore appropriate to repeat the analysis based on the reasonableness standard of review. [ 30 ] The reasonableness standard of review is flexible and its application varies with the context. As noted by McLachlin C.J. in Catalyst Paper Corp. v.

North Cowichan (District) , [14] the reasonableness of the administrative decision must be assessed in the context of the particular type of decision-making involved and all relevant factors. It is essentially a contextual inquiry because reasonableness is a single standard that takes its colour from the context. [15] The fundamental question, therefore, is the scope of decision-making power conferred on the decision-maker by the governing legislation. [ 31 ] On this subject, the Labour Code [16] confers wide powers of intervention on the arbitrator in disciplinary matters. Paragraph 100.12 (

f) of the Code states as follows: 100.12. In the exercise of his duties the arbitrator may: … (

f) in disciplinary matters, confirm, amend or set aside the decision of the employer and, if such is the case, substitute therefor the decision he deems fair and reasonable, taking into account the circumstances concerning the matter… [ 32 ] Disciplinary matters are at the core of an arbitrator’s jurisdiction. Deference should therefore be shown to the arbitrator’s decision.

When reviewing an arbitrator’s decision on a disciplinary matter, the arbitration award must be viewed and analyzed as a whole in view of the result to determine whether the award is one of the possible outcomes. [17] [ 33 ] In Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), Abella J. notes that the notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of a decision because a reviewing court must first seek to supplement them before it seeks to subvert them. [18] Abella J. also notes that the analysis should not be split into two parts, one for the reasons and a separate one for the result. [19] [ 34 ] These are the principles that must therefore guide the analysis.

Progressive discipline and gross misconduct [ 35 ] In keeping with the employer’s position, the Superior Court judge accepted as grounds for review the fact that the arbitrator failed to take into account Aubin’s prior disciplinary record and failed to consider the doctrine of progressive discipline. [ 36 ] In addition, because the arbitrator concluded that Aubin had committed gross misconduct by reporting to work inebriated on June 3, 2010, the judge believed the arbitrator had no other choice but to confirm his dismissal. [ 37 ] However, the arbitrator did explicitly address the disciplinary record in paragraphs 151, 159 and 188 of her decision.

She was therefore well aware of Aubin’s disciplinary record but implicitly decided that this record was insufficient cause for dismissal. [ 38 ] The arbitrator also addressed gross misconduct in her decision in paragraphs 225 and 226 and concluded that, despite the grave fault committed by Aubin, in this case the employer still should have exhausted all means to ensure his rehabilitation before resorting to dismissal. [ 39 ] The arbitrator’s implicit and explicit reasoning appears to be consistent with the provisions of the applicable collective agreement and more specifically with

Article 20.01 thereof, which deals with disciplinary measures. The arbitrator in fact cited this provision in support of her decision. [20] These provisions provide a framework for the doctrines of gross misconduct and progressive discipline.

[ 40 ] Paragraphs 20.01(

C) and (

D) of the collective agreement stipulate that a [ translation ] “grave fault” could lead to suspension but not necessarily to dismissal, expressly contradicting the conclusions of the Superior Court judge. Paragraph 20.01(

E) of the collective agreement also states that in the case of [ translation ] “flagrant violation” of company rules, dismissal is possible if it is [ translation ] “the only measure to ensure the preservation of order and good conduct.” These articles thus provide a framework for the doctrines of “gross misconduct” and “progressive discipline”. [ 41 ] In this regard, it is useful to reproduce paragraphs 20.01(C), (

D) and (

E) and paragraph 21.11(

B) of the collective agreement: [ translation ] 20.01 Within five (5) business days following a violation of company rules, the parties agree that the supervisor and/or person in charge of the sector will verbally report the facts to the employee in the presence of his or her union representative. Within ten (10) business days following such verbal notification, the parties concerned agree to meet to analyze the facts and the measures to be taken, if any. Depending on the seriousness and frequency of the violation of company regulations, the following measures may be taken: … (

C) Suspension without pay for a period of one (1) to three (3) days, depending on the seriousness of the violation and the record of the employee at fault. This sanction is applied in cases of a first grave fault or continuous and repeated minor violations and when, in the opinion of the supervisor and/or person in charge of the sector concerned, order and good conduct can be restored without resorting to harsher measures. (

D) Suspension without pay for a period of one (1) to fifteen (15) days, depending on the seriousness of the violation and the prior record of the employee concerned. This sanction is applied in cases of grave fault or continuous and repeated minor violations and where the employee has not clearly shown a desire to change and where, in the opinion of the supervisor and/or the person in charge of the sector concerned, order and good conduct can be restored without resorting to dismissal. A disciplinary measure must be imposed and begin within fourteen (14) working days following the end of the investigation of the infraction. (

E) An employee may be dismissed in all cases of flagrant and wilful violation of company regulations when dismissal is the only appropriate measure to ensure order and good conduct. This measure may be applied in cases of persistent recidivism where an employee has continuous and repeated minor violations on his or her record. … 21.11 … (

B) In the case of dismissal or suspension, the company’s decision may be confirmed outright, amended or completely reversed, in which case the company must immediately reinstate the dismissed or suspended employee to his or her position as classified and pay his or her salary for the regular time lost at the appropriate pay scale. [ 42 ] A contextual approach is required when implementing any one of these provisions. As such, the overall context surrounding the employer–employee relationship must be factored in when applying the doctrine of gross misconduct or progressive discipline.

In this case, the fact that the employee had nearly 35 years of service is an important, if not decisive, factor in applying these doctrines. [ 43 ] Thus, despite Aubin’s prior disciplinary record and despite his gross misconduct, the employer decided, in light of all the circumstances, including his many years of service, that the appropriate measure in this case was not to dismiss him but rather to give him the opportunity to undergo treatment for his drinking problem.

It is difficult to fault the arbitrator for taking the same approach as the employer, which approach is entirely justified in these circumstances given the nature of the problem at issue and the employee’s many years of service. [ 44 ] In this context, the criticism levelled at the arbitrator is not justified. Indeed, if in the view of the employer, Aubin’s prior disciplinary record alone did not justify his dismissal, how can the arbitrator be reproached for drawing the same conclusion?

Furthermore, if in the employer’s opinion, dismissal was not [ translation ] “the only measure to ensure order and good conduct” where the gross misconduct committed by Aubin on June 3, 2010 was concerned, why should the arbitrator be reproached for following the same reasoning? [ 45 ] According to the Superior Court judge, the consequence of Aubin’s prior disciplinary record and gross misconduct could only be his dismissal.

Not only is this contrary to the provisions of the applicable collective agreement, however, but it also contradicts the employer’s approach to the problem posed by Aubin’s case. [ 46 ] In these circumstances, the arbitrator could reasonably conclude that neither the disciplinary record nor Aubin’s gross misconduct justified his dismissal. By drawing these conclusions, the arbitrator acted within her jurisdiction, as set out in paragraph 100.12 (

f) of the Labour Code and paragraph 21.11(

B) of the collective agreement. The “last chance” agreement [ 47 ] Aubin’s dismissal was not solely the result of his disciplinary record and gross misconduct but also of his refusal to follow the inpatient rehabilitation to which he had agreed with his employer. It is this last factor which, when added to the others, led to his dismissal by the employer. [ 48 ] The employer argued that due to the violation of the agreement, the arbitrator’s sole jurisdiction was to confirm Aubin’s dismissal. The Superior Court judge agreed with the employer on this point since he concluded that the arbitrator’s sole jurisdiction was

to determine whether the dismissal resulted from failure to comply with any of the conditions of the agreement. This approach cannot beadopted in this case. [49] The “last chance” agreement is a type of arrangement intended to avoid dismissal and, as the case may be, any ensuinggrievance or legal proceeding, by allowing the employee to keep or be reinstated in his job under certain conditions.

One of thecharacteristics of this type of agreement is to establish in advance the sanction that would apply if a condition of the agreement wereviolated, i.e. (most often) immediate dismissal.[21] [50] The “last chance” agreement, however, can only neutralize the arbitrator’s reinstatement and substitution power conferred byparagraph 100.12(

f) of the Labour Code if it expressly contains a provision waiving the grievance and arbitration procedure. If no suchexpress provision exists, the arbitrator’s reinstatement and substitution power remains intact.[22] This is confirmed in Aliments Delisleltée v. Descoteaux,[23] where Dussault J.A. writes (Fish and Robert JJ. A. agreeing): [translation] Still, reading the terms of the aforementioned agreement, I do not believe its signatories expressly waived their right to contest by way ofa grievance the appropriateness of any potential dismissal due to Lamonde’s absenteeism problem.

Consequently, even byacknowledging, in light of our Court’s decision in Association de l’enseignement du Nouveau-Québec [ (QC CA),[1995] R.D.J. 28], supra, that the arbitrator should have considered himself bound by the agreement despite it not being filed inaccordance with the terms and conditions of

section 72 of the Labour Code, the fact remains that he still should have interpreted thisagreement within his jurisdiction to determine whether it contained, as the appellant claims, such a waiver to contest the sanction. … As we see in that case [Audette v.

Lauzon, (QC CA), [1995] R.D.J. 28], there was no ambiguity in the employer’sdisciplinary decisions, whose ultimate effect was to limit the arbitrator’s jurisdiction, which is not the case here, where, since there is noexpress provision, it can be questioned whether the agreement of August 24, 1992, contains a waiver by Lamonde and the union of theirright to contest in the future and always the appropriateness of any dismissal.

The question is all the more important and legitimate giventhat, to quote Pierre Viau J. of the Superior Court, this is [translation] “an agreement ‘for life’” (Québec (Procureur général) v. Ferland,(Montreal) 500-05-009412-907 (5 October 1990) J.E.T. 90T-1280). As the trial judge pointed out, it is far from evident that theagreement contains such a waiver. [51] In the present case, the agreement of June 11, 2010, was verbal, contained no waiver to the grievance and arbitration procedureand did not provide for dismissal as the only possible sanction in case of a violation.

Consequently, this agreement cannot have the effectof neutralizing the arbitrator’s reinstatement and substitution power under paragraph 100.12(

f) of the Labour Code. [52] The employer nonetheless maintains that the arbitrator’s power is “implicitly” limited and that the limitation stems from thecircumstances surrounding the agreement.[24] However, to set aside an arbitrator’s jurisdiction under paragraph 100.12(f), however, anexpress waiver and not just an “implicit” waiver is required. [53] Moreover, there are currently two lines of authority among grievance arbitrators concerning the effect an express waiver to thegrievance and arbitration procedure may have on the arbitrator’s reinstatement and substitution power when the parties havepredetermined a dismissal sanction in a “last chance” agreement.[25] Some arbitrators consider themselves bound by such a clause: thearbitrator’s role would therefore be limited to determining whether the employee honoured his or her commitments, failing which therewould be no other choice but to confirm the predetermined dismissal sanction.[26] Other arbitrators consider that their reinstatement andsubstitution power remains intact given the public order nature of paragraph 100.12(

f) of the Labour Code,[27]although a breach of theconditions of the “last chance” agreement is a serious aggravating factor weighing in favour of maintaining the dismissal.[28] The firstline of authority predominates[29] and, according to some arbitrators,[30] was endorsed by the Court in the aforementioned AlimentsDelisle ltée v. Descoteaux. [54] There is no need, however, to address this controversy in this appeal since, at any rate, the verbal agreement between theemployer, Aubin and his union contains no provision explicitly excluding the arbitrator’s jurisdiction in case of violation of itsprovisions. In the present case, the arbitrator’s jurisdiction under paragraph 100.12(

f) of the Labour Code and paragraph 21.11(

B) of thecollective agreement therefore remains intact. [55] Exercising the very broad jurisdiction conferred on her by the Labour Code, the arbitrator concluded that the employer actedprematurely in dismissing Aubin without giving him a chance to show his willingness to change his behaviour through outpatientrehabilitation.

According to the arbitrator, when all the circumstances are considered, a measure other than dismissal, namely, a six-month suspension, was appropriate to sanction Aubin’s misconduct . [56] It is of course possible to disagree with such a conclusion, but it is a huge leap to assert that it is not an acceptable possibleoutcome that is justifiable in fact and in law. This conclusion may well appear reasonable given that the employee involved hadaccumulated almost 35 years of service with the employer at the time of his dismissal, an important (if not decisive) factor in thearbitrator’s decision.

The arbitrator’s consideration of the appellant Aubin’s outpatient rehabilitation [57] The employer raises a collateral issue, arguing that the fact that the arbitrator took into account certain events subsequent to thedismissal, namely that Aubin attended outpatient rehabilitation for a year, renders the arbitrator’s award unreasonable. [58] In the present case, the arbitrator found that Aubin violated the conditions of the agreement with his employer concerninginpatient rehabilitation.

Nevertheless, the arbitrator considered that [translation] “dismissal is too severe a sanction for non-compliancewith an agreement.”[31] The arbitrator’s decision is therefore based on the arbitrary nature of the requirement for inpatient rehabilitation.Indeed, as the arbitrator noted, the psychologist who assessed Aubin as part of the employee assistance program stated that inpatient

rehabilitation was not necessarily suitable for Aubin, who had already taken steps to seek outpatient rehabilitation. [32] [ 59 ] Thus, the arbitrator’s decision that the dismissal of July 20, 2010, was unwarranted is based mainly on prior events and not on events subsequent to the employer’s decision. [ 60 ] The arbitrator admitted into evidence only the fact that Aubin received outpatient rehabilitation in order to [ translation ] “assess the worker’s motivation.” [33] His lack of motivation or, more accurately, his low level of commitment, is actually a ground in support of dismissal invoked by the employer in its dismissal letter of July 20, 2010, reproduced above. [ 61 ] The evidence of Aubin’s motivation was therefore admissible since it was relevant to the issue before the arbitrator.

The arbitrator concluded that the events prior to the dismissal –namely, obtaining an appointment for outpatient rehabilitation and agreeing to go to Pavillon Pierre-Péladeau – already demonstrated Aubin’s motivation. [34] From this perspective, the evidence that Aubin attended outpatient rehabilitation for a year simply confirms this motivation. This evidence was therefore admissible since it helped the arbitrator determine whether the dismissal was reasonable and appropriate at the time it was ordered by the employer. [ 62 ] As L’Heureux-Dubé J. noted in Cie minière Québec Cartier v.

Québec (Grievances arbitrator) , [35] referring to the decision of Moisan J.A. in Commission scolaire de Sept-Îles v.

Morin , [36] when analyzing an employer’s decision to dismiss an employee for chronic absenteeism due to alcohol consumption, it is appropriate to determine whether the employee’s problem is likely to improve in the foreseeable future; “such an analysis, if performed as at the time the employee was dismissed, is reasonable and entirely within the jurisdiction of the arbitrator.” [ 63 ] This is what the arbitrator did by concluding that Aubin’s dismissal was premature because the employer should have allowed him to demonstrate his motivation through outpatient rehabilitation.

Although the arbitrator noted that Aubin had attended an outpatient rehabilitation program for a year, while recognizing that this event was subsequent to the dismissal, she also noted that it was relevant to assessing his motivation. [ 64 ] According to the principles established in Cie minière Québec Cartier v. Québec (Grievances arbitrator) , the arbitrator could take such evidence into account since it was relevant to determining whether it was reasonable to dismiss Aubin before his motivation could be established through outpatient rehabilitation.

As L’Heureux-Dubé J. stated in that case: [37] This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented.

Conclusions [ 65 ] For these reasons, I would allow the appeal, set aside the judgment of the Superior Court and restore the arbitration award, the whole with costs both in first instance and in appeal in favour of the appellants. ROBERT M. MAINVILLE, J.A. [13] Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 at paras. 45–47 ; Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23 at para 247 . Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100 at para. 35 ; Dr. Q. v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 at para. 43 ; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans) , 2006 FCA 31 , [2006] 3 F.C.R. 610 at para. 14 .