2011 QCCA 588, 2011 QCCA 588

Unofficial English Translation Vallières c. Alliance du personnel professionnel et technique de la santé et des services sociaux (CPS et APTMQ) 2011 QCCA 588 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019991-090 (450-05-005696-097) DATE: March 30, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. PAUL VÉZINA, J.A. GUY COURNOYER, J.A. (AD HOC) DANIELLE VALLIÈRES APPELLANT – Impleaded party v.

ALLIANCE DU PERSONNEL PROFESSIONNEL ET TECHINIQUE DE LA SANTÉ ET DES SERVICES SOCIAUX (CPS and APTMQ) RESPONDENT – plaintiff and COMMISSION DES RELATIONS DU TRAVAIL IMPLEADED PARTY – defendant and CENTRE HOSPITALIER UNIVERSITAIRE DE SHERBROOKE (CHUS) IMPLEADED PARTY – impleaded party JUDGMENT [ 1 ] THE COURT; - On the appeal from a judgment rendered on August 27, 2009, by the Superior Court, District of Saint- François (the Honourable Mr.

Justice François Tôth), which granted the respondent's application for judicial review of a judgment rendered by the Commission des relations du travail concluding that the union had breached its duty of fair representation with respect to the appellant Danielle Vallières pursuant to sections 47.3 and 47.5 of the Quebec Labour Code [1] (L.C.), the whole resulting from a disciplinary sanction handed down by the Centre hospitalier universitaire de Sherbrooke. [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Brossard J.A., with which, for concurring reasons, Vézina J.A. agrees, Cournoyer J.A. (ad hoc) dissenting: [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the judgment of the Superior Court; [ 6 ] DISMISSES the respondent's application for judicial review and CONFIRMS the decision rendered on December 18, 2008, by the Commission des relations du travail. [ 7 ] The whole with costs here and in Superior Court against the respondent. [ 8 ] For his part, and for different reasons, Cournoyer J.A. (ad hoc) would have dismissed the appeal, with costs.

ANDRÉ BROSSARD, J.A. PAUL VÉZINA, J.A.

GUY COURNOYER, J.A. (AD HOC) Mtre Ghislain Richer Richer & Associates For the appellant Mtre Denis Bradet Poudrier, Bradet For the respondent Mtre Hélène Fréchette (absent) For the Commission des relations du travail Mtre Danielle Gauthier (absent) Heenan, Blaikie For the Centre hospitalier universitaire de Sherbrooke (CHUS) Date of hearing: December 1, 2010 REASONS OF BROSSARD, J.A. [ 9 ] The appellant appeals from a Superior Court judgment (the Honourable Mr.

Justice François Tôth), which granted the respondent's application for judicial review of a judgment rendered by the Commission des relations du travail (the "CRT") concluding that the union had breached its duty of fair representation with respect to the appellant Danielle Vallières pursuant to sections 47.3 and 47.5 of the Quebec Labour Code [2] (L.C.), the whole resulting from a disciplinary sanction handed down by the Centre hospitalier universitaire de Sherbrooke (hereinafter the "CHUS"). [ 10 ] From the outset, there is reason to point out that this case has two very distinctive and specific aspects that, up to a point, make it possible to consider it as a particular case or even as precedent.

First, the factual background giving rise to the dispute in respect of which the appellant has asked the respondent to file a grievance involving two employees of the CHUS did not initially result from an employee/employer work conflict.

Second, the complaint that originated the dispute was one of psychological harassment against the appellant but was brought by a co-worker who was the appellant's immediate supervisor. [ 11 ] Also, the assessment of the merits of the appellant's possible grievance against the decision of the CHUS was essentially based on the subjective psychological perceptions of the various actors and not on the flagrant breach of a concrete and specific disciplinary standard. [ 12 ] In this sense, the case is indisputably particular and that, in my opinion, distinguishes it from Syndicat des fonctionnaires municipaux de Montréal (SCFP) v.

Francine Gauvin , a case also before us, in which the judgment was filed on the same day as in the present matter. Indeed, Gauvin , wherein we intervened against a decision of the CRT, concerned a grievance filed against an employer's decision. The union was neutral in every respect toward the grievance the appellant had asked it to file. That situation differs from the present case in that the union can, up to a point, be considered to be in a conflict of interest insofar as the originating dispute concerns a psychological harassment complaint brought by one of its members against another one of its members.

I am of the view that, in such circumstances, the union, in assessing the merits of the grievance condemning the conduct of one of them, is in a rather delicate position that imposes on it a greater duty of prudence and objectivity in exercising its discretion conferred by

section 47.2 L.C. THE FACTS [ 13 ] Because the central issue submitted for determination to the Superior Court was the reasonableness of the CRT's ruling and whether that ruling was a rational, possible outcome of the dispute between the appellant and the respondent (not between the appellant and the CHUS and even less so between the appellant and the co-worker). I believe it useful to keep to the

summary of facts found in the decision of Commissioner Cloutier. [translation] [5] The complainant, who is a nurse, has worked for the Hospital since 1974. She held the position of team leader in the woodwork shop of the mental health department until May of 2007. [6] Before the imposition of the measure, which we will discuss later, the complainant's duties included, amongst others, supervising the trainees, CEGEP or university students, particularly those in psychoeducation. [7] During the 2005-2006 school year, one of the complainant's psychoeducation trainees was Mélanie Lemay.

In May of 2006, at the end of Lemay's training program, the complainant wrote a letter to Josée Mireault, the department head and her supervisor, to inform her of Lemay's exceptional qualities and to insist that the Hospital hire Ms. Lemay, which the Hospital did. [8] In May of 2007, the complainant resigned from her post as team leader. Ms. Lemay was then hired for the position and became the complainant's supervisor.

[9] On February 11, 2008, at around 2 p.m., Ms. Mireault telephoned the complainant to inform her that she wished to meet with her at 3 p.m. regarding a psychological harassment complaint that had been filed against her by another employee. Ms. Mireault suggested that she not come to the meeting alone and that she should have a union representative present. [10] At the appointed time, the complainant went to the meeting with Ms. Bourret, a union representative, whom she met only a few minutes before the meeting. Ms.

Bourret, who was aware of the psychological harassment complaint, suggested that she be as forthcoming as possible . [11] Also present at the meeting with Ms. Mireault was Mr. Stéphane Migneault, the Hospital's labour relations advisor. Together, they informed the complainant that there had been a psychological harassment complaint filed against her by Ms. Lemay . Mr. Migneault read the complainant, but did not give the complainant a copy. He stated that she would receive a copy should the Hospital maintain the complaint. [12] Ms.

Lemay's complaint is eleven pages long and refers to twenty or so incidents that allegedly occurred between May of 2006 and December of 2007. The Hospital representatives invited the complainant to comment on the criticisms made against her and asked both her and Ms. Bourret to add dates and times . The meeting ended around 5:30 p.m. The complainant undertook to verify certain dates and times and to send the information to Ms. Bourret, which she did two days later. ... [14] On April 3, 2008, the Hospital notified the complainant that it was maintaining Ms.

Lemay's complaint, in part for the following reasons: [translation] The investigation has revealed very different comments and perceptions regarding the allegations of the complaint in question. We must conclude, however, that there is indeed psychological harassment in light of the effects suffered by Ms. Lemay . Indeed, the language, apparently harmless actions, insinuations, innuendos, criticisms, perceptions, and so on have contributed to vexatious conduct toward Ms. Lemay. This repeated and unwanted behaviour clearly demeaned Ms.

Lemay's dignity and psychological integrity and resulted in an unhealthy work environment. (Reproduced without changes). [15] In light of this finding, the Hospital gave the complainant a notice of professional awareness and withdrew the supervision of the training program from her, at least until the fall of 2008, which entailed the loss of a bonus. (Emphasis added.) [ 14 ] Commissioner Cloutier then interrupted his narrative of the facts to point out that in 1999, the union had adopted a [translation] "Policy to counter harassment and violence in the work place".

In 2002, many years prior to the facts at issue, and in relation to this policy, the union had set up a response mechanism for those cases where both persons involved in the harassment complaint were union members. [ 15 ] The union's response mechanism provides that the union must lead its own investigation, independently from the employer's. To this end, a union advisor must be assigned to each of the members involved.

This advisor's role is to speak and investigate on behalf of the member to whom he or she has been assigned and to represent them . [ 16 ] When a disciplinary measure is imposed by the employer, each of the advisors must submit a report to an advisory committee, which is made up of the coordinator for feminist action, the policy officer for feminist action, the policy spokesperson for the relevant bargaining unit, the two advisors who conducted the parallel investigation, and a consultant, if need be.

In the present case, it would appear that Isabelle Bourret was appointed as consultant to the advisory committee, after being replaced as advisor to the appellant by another advisor, Rachel Chartrand, as we shall see later on. In other words, Isabelle Bourret, went from being an advisor and representative to the appellant to being an [translation] "independent" consultant to the advisory committee. [3] [ 17 ] The advisory committee's role was to counsel the union, if need be, as to the appropriateness of either filing a grievance or not or of deciding not to take the grievance to arbitration.

This latter process and the advisory committee's role are detailed in the working paper respecting the response mechanism adopted by the union pursuant to its policy to counter harassment and violence in the work place. [ 18 ] Violence, whether physical or verbal, sexual harassment, and abuse of authority are well defined in the policy to counter harassment and violence in the work place; psychological harassment, however, is not described therein except in the context of characterizing physical violence in the following terms: [translation] Language or actions intending to destroy a person psychologically or morally. [ 19 ] What is most striking and foremost, however, upon reading both the policy to counter harassment and the document detailing the response mechanism, is that both documents are principally aimed at the forms of harassment likely to manifest themselves by an employer or a supervisor towards a female employee.

The policy obviously purposes, first and foremost, to protect this employee. [ 20 ] As for the response mechanism, it mirrors this philosophy, to a degree: [translation]

THE COMPLAINANT MAY EXPECT: - to obtain labour relations services from a union advisor of the same gender in the event of a sexual harassment situation; - to be informed by the union advisor of the APTS policy and of the existing remedies; - to have the advisor collect all the necessary information in order to process the complaint and explore, with the complainant, his or her expectations and the possible outcomes of the situation; - to have the advisor request that the complainant draft a written complaint during the process, if deemed necessary.

THE RESPONDENT MAY EXPECT: - to be notified, in the event of a written complaint, of its existence as well as of the content of the allegations. INQUIRY PROCESS Following a written complaint opposing several members of the APTS, the union advisor will ensure that the file is transferred. Two advisors will then speak with, investigate, and intervene with respect to each of the parties involved. The union advisors may obtain the support of the feminist action committee throughout the handling of the file.

THE ADVISORY COMMITTEE A case involving violence must be brought before the advisory committee when disciplinary measures have been imposed on one of our members. After assessing the case, the advisory committee will render a consensus decision on whether to file and/or maintain a grievance disputing the measure imposed.

If the allegations are found to have merit after the APTS investigation and the disciplinary measure is proportionate to the seriousness of the impugned acts, the advisory committee will recommend that the grievance not be taken to arbitration as regards the sanctions. [ 21 ] Upon reading these documents, I cannot help but feel some uneasiness, similar to that expressed by Commissioner Cloutier in the ratio decidendi of his decision, which we will consider later. This entire policy is obviously focused first and foremost on protecting the complainant, the victim of psychological harassment, which is legitimate.

To a point, this removes the idea that a grievance under the L.C. essentially follows from employer/employee relations and that its thrust is the right of an employee disciplined by his or her employer to request arbitration by a third party, such as an arbitrator. [ 22 ] The underlying philosophy of setting up a parallel investigation mechanism, or at least the impression given thereby, is that, in matters of psychological harassment involving two of its members, the union positions itself above all the parties involved, searching for its own truth, independently, regardless of the employer's decision or of its reasons .

The possibility of a grievance that would benefit employees who have been punished by their employer becomes subordinate to this truth of which the union is the sole author.

The union is no longer a simple party in the employer/employee debate, but becomes a judge. [ 23 ] A reading of the documents governing the union's internal process, however, gives the impression that, contrary to law, in matters of psychological harassment the burden of proof rests with the accused, not the complainant. [ 24 ] That said, I will now return to the narrative of facts found in Commissioner Cloutier's judgment regarding the investigation led by the union in the course of its intervention.

The conclusions of this judgment relating to the procedure followed by the union in this case can be summarized as follows: - Isabelle Bourret, who had been assigned as the appellant's advisor, was replaced in early March of 2008 by Rachel Chartrand. A union advisor since December of 2006, this was her first assignment of this kind.

She was appointed by the union after the first convocation before the CHUS, but prior to its decision. - Rachel Chartrand, advisor, explained to the CRT that her mandate consisted in collecting the appellant's version, accompanying her to meetings with CHUS representatives, meeting with any witnesses who could support the appellant's version, and reporting all of this to the advisory committee. Another advisor, Noëlaine Allard, played the same role vis-à-vis the complainant, Mélanie Lemay. - There is conflicting evidence as to the date of the first meeting between Rachel Chartrand and the appellant.

During this meeting, the advisor had in her possession a copy of the complaint but did not give it to the appellant. She testified to having afterwards met the only witness suggested by the appellant, who affirmed that the appellant [translation] "wasn't the type to do that", but who did not have any personal knowledge of the facts on which the complaint was based. - In her testimony before the CRT, she added that she explained to the appellant both her role and the union's decision-making process and suggested that she let her know the name of any other useful witness or document.

That same day, the appellant sent her various documents, including two letters of appreciation, the complainant's curriculum vitae, and an information leaflet explaining the program that was in effect in the department where they worked. - On April 3, 2008, Rachel Chartrand was present at the meeting during which disciplinary measures were imposed on the appellant. She maintained that she did not speak up because her role was limited to ensuring that things went according to the rules. Afterward, she attempted to comfort the appellant.

The complainant, for her part, testified that she had already written a letter on March 18, 2008, before the April 3, 2008 decision, informing Rachel Chartrand that she was unhappy with her services, though she did not send it to her. She testified that her main criticisms of Rachel Chartrand were that she did not question coworkers who could have testified as to her personality and that she did not counsel her on the fact that she could have filed documents supporting her position or offered up additional witnesses.

- The union's advisory committee met on April 21, 2008. As at that date, the appellant had yet to ask the union to file a grievance against the CHUS's decision and the sanction it imposed. For that meeting, Rachel Chartrand prepared a document listing the incidents stated in Mélanie Lemay's psychological harassment complaint and the appellant's version or answer to each of them.

After deliberating for six hours on the elements of the complaint, but without hearing either the appellant or the complainant , the committee decided that the complainant's version was more credible and that, consequently, the psychological harassment complaint had merit and the disciplinary measure was proportionate to the alleged wrongdoing. - To find that the complaint had merit, the advisory committee considered whether a reasonable person, in similar circumstances, would have similarly experienced what the complainant Mélanie Lemay claimed to have experienced. - It is noteworthy that the advisor assigned to Mélanie Lemay, Noëlaine Allard, testified before the committee as to the value of Ms.

Lemay's testimony, which she found to be credible. In contrast, Rachel Chartrand, the presumed representative and advisor to the appellant before the CHUS, declared that she did not find the complainant to be credible. Because most of the incidents listed in the complaint were unwitnessed, the committee then simply considered which version of the facts was the most likely.

To come to a conclusion, the committee also took into account two written employee statements that had been attached to the complaint, the contents of which –indeed, their very existence and certainly not the identity of the employees in question – were never disclosed to the appellant. The appellant learned of the existence of these two statements only when she was informed of the committee's decision.

The committee coordinator testified that [translation] "though these statements carried some weight, they did not tip the scale in favour of the complainant". [ 25 ] Moreover, it appears from the testimony heard before the CRT that the committee found that the complainant lacked credibility because, when assessing the her version, they attributed determinative consideration to the fact that she admitted nothing and that she harboured no doubts, which were signs that she wanted to defend herself on every front . [ 26 ] Finally, and the point seems material to me because credibility seems to have been the overriding consideration for the committee's decision, only Rachel Chartrand, the appellant's supposed advisor, met with her and only the complainant's advisor and representative met with the complainant, Mélanie Lemay.

Rachel Chartrand never met the complainant and the complainant's advisor never met the appellant.

None of the five other members of the committee ever met either party . [ 27 ] In short, the finding regarding the appellant's lack of credibility, and thus that a grievance would be destined to fail, rested solely on the statement of the advisor Rachel Chartrand (who was meant to represent the appellant) and, as previously mentioned, on the fact that the appellant wanted to defend herself against all the charges. [ 28 ] On April 24, 2008, Rachel Chartrand and Élaine Giroux [4] met with the appellant to inform her of the advisory committee's decision and summarized how and why it came to the conclusion it did.

The appellant expressed her displeasure and, on that occasion, gave Rachel Chartrand the demand letter she had previously drafted on March 18, 2008, which ended with the express demand that Ms. Chartrand speak in her defence against the complaint, assert her rights, and protect her honour and reputation. [ 29 ] Élaine Giroux then told her of the existence of the remedy under sections 47.2 and following of the Labour Code and, as the appellant was then on sick leave, she was counselled to wait until things were going better before undertaking such actions.

This was done after formally explaining that the union had decided not to represent her should a grievance be filed . CRT DECISION [ 30 ] At the outset, after a lengthy analysis of the evidence, and referring to

section 47.2 L.C. , Commissioner Cloutier underlined that the only question that needed answering was the following: [translation] "Was the union's decision not to challenge the disciplinary measure imposed on the complainant tainted by the arbitrary?" [ 31 ] He went on to summarize the principles set out by the Supreme Court of Canada, particularly those in Canadian Merchant Service Guild v. Gagnon [5] and Noël v.

Société d'énergie de la Baie James, [6] concerning the union's duty of representation respecting a grievance and its discretion in the matter, which must be exercised in good faith, objectively and honestly, taking into consideration the significance of the grievance and its consequences for the employee on the one hand, and the union's legitimate interests on the other.

He also quoted excerpts from Noël specifically adding the concepts of arbitrariness and serious negligence, the close link between the two, and the fact that a gross error in processing a grievance may be considered serious negligence without requiring the intent to harm. Finally, he pointed out that mere incompetence in processing a file did not constitute a breach of the duty of representation because

section 47.2 L.C. does not impose a standard of perfection on the union. [ 32 ] In short, his judgment is correct as far as the law is concerned. [ 33 ] Upon completing his analysis of the law, Commissioner Cloutier stated the reasons supporting his decision to allow the appellant's complaint, which are all based on the evidence . They make up the bulk of his decision and the only reasons therefore.

The wording is carefully chosen and I am of the opinion that they should therefore be quoted verbatim: [translation] [46] The investigation led by the Hospital before it imposed the punishment on the complainant [translation] " revealed very different comments and perceptions regarding the allegations of [Ms. Lemay's] complaint ". So reads the letter given to the complainant. The Hospital nonetheless found [translation] "the presence of psychological harassment in light of the effects suffered by Ms. Lemay ." Though this finding may be surprising, it is not up to the Commission to decide whether it has merit.

It does demonstrate, however, that the assessment made of the perceptions of the persons involved was determinative . [47] In this case, the union's investigation is not at issue. Ms. Chartrand initially communicated with the complainant by telephone to obtain her version of the facts and then met with her. She read the documents sent to her by the complainant and met the only witness suggested by the complainant.

[48] The problem lies with the result of the investigation. First, the advisory committee decided the merits of the psychological harassment complaint, whereas its role was to weigh the chances of success of a grievance challenging the measure imposed on the complainant for the reasons given by the Hospital , and in doing so, weigh the chances of success of the psychological harassment complaint also. [49] Another issue is the fact that the advisory committee determined the credibility of both the complainant and Ms.

Lemay sight unseen , based on the [translation] "testimony" of the union advisors who could testify only as to the credibility of the party they [translation] "represented" and not to the other's because they had never met. [50] But most of all, in addition to the preceding, the issue is that the advisory committee made a decision while considering that one version was more credible or probable than the other and, to reach this decision, took into account two statements that the complainant was unable to contradict because they were not submitted to her . [51] The duty of representation imposed on an association of employees is not one of best skill.

One must take into account not only the environment and the fact that the individuals are not seasoned experts, but also the significance of the grievance for the employee . [52] Because of the consequences of such a complaint on both parties , a psychological harassment complaint is a serious, significant matter for both the alleged victim of harassment and the person accused of harassing. In the complainant's case, the Hospital relieved her of her responsibility for supervising the trainees, which entailed the loss of a bonus.

She also had to live with the label of harasser. [53] The union should not have decided the merits of the psychological harassment complaint; even if that had been its role, it could not determine the complainant's credibility or the likelihood that the facts raised in this complaint had occurred by basing itself on, for instance, statements that the complainant was not allowed to refute. [54] Also, though it was its role to decide the chances of success of a grievance challenging the disciplinary measure imposed on the complainant, it should not have done so by weighing the credibility of the complainant without letting her refute the two statements on which the advisory committee relied. [55] In proceeding or deciding as it did, the union decided arbitrarily. (Emphasis added.) [ 34 ] While the first five paragraphs of these findings are based exclusively on the evidence, the other five are findings of mixed fact and law.

THE SUPERIOR COURT JUDGMENT [ 35 ] The judge began by giving his own

summary of the evidence, which was essentially the same as the one in the CRT judgment, which I quoted earlier. [ 36 ] Then, relying on case law, and in particular on the above-cited Supreme Court cases from which he in turn quoted relevant excerpts, noting that the role of the CRT seized with a complaint for breach of the union's duty of fair representation under sections 47.2 and 47.3 L.C. consisted solely of ensuring that, in light of all the circumstances, the union's choice not to file a grievance or not to take the case to arbitration was not arbitrary, discriminatory, in bad faith, or the result of serious negligence.

He rightly pointed out that the CRT had substituted its own opinion for that of the union. [ 37 ] He then proceeded with his own analysis of the union's decision not to take the grievance to arbitration and of the union's decision-making process. In the judge's view, determining the chances of success of the grievance necessarily required considering the psychological harassment complaint.

The union could decide not to challenge the disciplinary measures imposed on the appellant if it found that there had indeed been psychological harassment, which, obviously, was tantamount to saying that the grievance would have no chance of success. [ 38 ] Up to this point, I have no issue with his judgment, which correctly reflects the principles as set out by case law. [ 39 ] But he pushes his analysis slightly farther.

While pointing out that the advisory committee had several versions of the facts to contend with – the appellant's, the complainant's and the witnesses’ [7] –and adding that there was no formal obligation for the committee to hold a trial-like hearing, a point I will revisit, he expressed the opinion that the union's sole duty was to search for the truth in a just, fair , and objective manner.

He then found that, in his view, the union had done just that, thereby substituting his own opinion for that of Commissioner Cloutier's. [ 40 ] Even taking for granted that the CRT’s criticisms were justified, the judge found that the union's decision could not be characterized as arbitrary according to the

interpretation given to this term by case law. [ 41 ] He did add the following sentence, however, as well as the last paragraph of his opinion, which lead me to seriously question the standards used by the judge to find as he did. I quote: [translation] [58] Even taking for granted the CRT’s criticisms, the union's decision cannot be characterized as arbitrary according to the

interpretation given to this term by case law. The union's decision is reasonable given all the circumstances revealed by the evidence . (Emphasis added.) [ 42 ] Then:

[translation] [59] In the narrow context of a complaint based on

section 47.2 L.C. , the CRT clearly erred in concluding as it did . The CRT could not intervene and substitute its opinion for that of the union. This was not one of the reasonably acceptable outcomes given the facts revealed by the evidence and the applicable law. (Emphasis added.) [ 43 ] Did the judge confuse the standards of intervention applicable to each respective level, or was this a simple, insignificant accidental slip? [ 44 ] Indeed, the reasonableness of the union's decision was not at issue in the findings of the CRT.

Its only objective was to determine whether the union's decision was the result of an arbitrary approach or of an objective and fair analysis of the extrinsic evidence presented to the employer, whose decision could in law be the object of a grievance. [ 45 ] By the same token, the CRT may have erred, and its error may be one that, on appeal, could confer upon an appellate court as such the power to substitute its own analysis and its own opinion concerning the evidence for that of the administrative tribunal whose decision is impugned, subject to the distinctions made on the subject in Dunsmuir .

But in this case, we are sitting in judicial review, which requires that we show great deference toward the experienced tribunal that saw and heard Rachel Chartrand, the only one to have stated that the appellant was not credible.

Again according to Dunsmuir , a Court sitting in review must only intervene in cases where the decision was unreasonable and does not rationally constitute a possible acceptable outcome that is "defensible in respect of the facts and the law". [ 46 ] In other words, Tôth J. seems to have inversed the standards of intervention in litigation and to have done so first and foremost on the basis of the facts proved, though not in so many words.

In this context, and regardless of the judge's statements at the beginning of his reasons, the mere appearance of applying the incorrect standard of review to his assessment of the evidence and of the circumstances justifies our Court, in my view, to question the reasonableness of Commissioner Cloutier's decision. THE ISSUE IN DISPUTE AND THE ANALYSIS [ 47 ] The only issue in dispute here, as before the Superior Court, is the following: - Is the CRT's decision granting the appellant's complaint under

section 47.3 L.C. reasonable, and was it a rational possible outcome in light of all the circumstances? [ 48 ] Because neither the respondent's good faith nor the prima facie objective nature of the general investigative process established to assess the chances of success of a grievance can be questioned, the more specific issue in the present case may be restated as follows: - is the CRT's finding concerning the arbitrary nature of the process followed by the union through its advisory committee in this case reasonable, and does it constitute a possible defensible outcome in light of all the circumstances? [ 49 ] I have had occasion to read the opinion of my colleague Cournoyer, J.A.

In my view, with the greatest respect, it appears that he commits the same error as the trial judge. [ 50 ] Let me explain. The CRT could have found as my colleague does with great eloquence, in which case, it is obvious that its decision could not have been characterized as unreasonable and would have been unchallengeable. But it found otherwise. Was its decision thus rendered unreasonable?

That is the only issue that both the Superior Court and my colleague have not addressed. [ 51 ] With respect, I find that, relying on the reasons of LeBel J in Noël , [8] they substitute their own opinion for that of the CRT, as though the applicable standard were that of correctness.

In so doing, they appear to set aside the principles set out by the Supreme Court in Dunsmuir . [9] [ 52 ] Again with respect, the reasons expressed by my colleague appear to assess the union's process based solely on the objective appearance of the procedure in place (which should not be characterized as [translation] "superficial, careless" or irrelevant) and not on the merits of the case before us or on the use made of the scheme in the present case, that the CRT has termed arbitrary, which I tend to agree with. [ 53 ] At issue in this case is the approach taken, which the CRT should have characterized, not the theoretical validity of the process set up solely for psychological harassment cases.

The theoretical reasonableness of the union's conclusion does not necessarily render unreasonable the CRT's finding specifically concerning the process adopted in the appellant's case and the resulting decision. [ 54 ] The deference due to the CRT in assessing the evidence and the facts as well as the inferences that may be drawn oblige us, in my opinion, to consider the question in light of [translation] "all the circumstances" as described in its decision and to take into consideration the entire context of the file and its particular aspects. [ 55 ] I am of the view that it is difficult to determine the reasonableness of the CRT's decision and to explain the Court's answer on the subject without reviewing and explaining the facts of the file (meaning the circumstances) adduced before the CRT and on which it relied. [ 56 ] The following

summary and list of facts and circumstances should in no way be considered a value judgment by this Court on the rectitude or correctness of the decision or on the union's approach. Indeed, that is not what this Court must decide. That assessment essentially falls under the exclusive jurisdiction of the CRT seized with an application for review of a union decision. In other words, it should not be inferred from the following enumeration that this Court is criticizing the union.

[ 57 ] That said, my understanding of the excerpts from Commissioner Cloutier's analysis and

summary of facts is that Mélanie Lemay's complaint refers to incidents alleged against the appellant that began in May of 2006. [ 58 ] It was in May of 2006, however, that the appellant, who had been working for the CHUS for thirty-two years, wrote to the employer (Josée Mireault) to let her know of the exceptional qualities of Mélanie Lemay and to insist that the CHUS hire her. Already, there is something not quite right in this. [ 59 ] Furthermore, hired in May of 2007 to replace the appellant who had voluntarily resigned from her post as team leader, Mélanie Lemay became the appellant's supervisor.

The harassment incidents that she listed, according to the complainant, continued until December of 2007. For eight months, the supervisor was psychologically harassed by her subordinate, thanks to whom she had gotten her job with the hospital. [ 60 ] It is only through the telephone call placed by Josée Mireault, who was summoning her to a meeting that following hour, that the appellant learned of the psychological harassment complaint filed against her.

It was the first she had heard of it. [ 61 ] With one hour's notice, it was suggested that she be assisted by a union representative, with whom she met only a few minutes before the meeting and whose only advice was to be as forthcoming as possible. [ 62 ] During that meeting, where Josée Mireault herself was assisted by the hospital's labour relations advisor, who read the eleven page complaint to the appellant, referring to twenty or so incidents going back almost two years.

The advisor did not give her a copy, which she would only receive if the hospital maintained the complaint, and did not refer to the alleged witnesses. He urged the appellant to give her comments then and there, asking her to add dates and times. [ 63 ] The union representative assisting her during this meeting on February 11 informed her that, until the hospital had made a decision, there was no other route available through the union. On April 3, in a short written notice of the hospital's decision, the appellant was informed that the complaint was maintained.

The following considerations were cited: - The hospital's investigation revealed [translation] "comments and perceptions that greatly differ", and that are thus controversial, if not contradictory, with respect to the respective "perceptions" of each party regarding their conversations; - The finding of psychological harassment rests essentially [translation] "on the effects suffered by Ms. Lemay".

Does this mean that the effects prove the cause, whether or not they are reasonable?; - The language and actions alleged against the appellant are [translation] "apparently inoffensive", but result in, among other things, [translation] "perceptions, and so on" that there are innuendos, insinuations and criticisms, wherefore the characterization of vexatious conduct on behalf of the appellant; - Finally, the decision of the CHUS does not refer in any way to the two statements attached to the complaint, as though they were irrelevant for the purposes of the employer's decision, the sole object of the dispute before the CRT. [ 64 ] This is about as subjective as it gets: contradictory evidence, subjective and psychological perceptions that, without doubting the possibility that they are justifiable, cannot however be considered objectively based on concrete facts.

Where does the burden of proof lie? [ 65 ] It is this foundation on which rest the CHUS's findings that the union should have considered to determine, first and foremost, whether grievance arbitration would have had any chance of success or whether it would have been destined to fail. This was Commissioner Cloutier's first reason, in paragraph 46 of his decision, in which he stated that the CHUS's finding was surprising in light of its reasons, although it was not up to the CRT to judge its merits.

He expressed and emphasized the fact that the assessment of the very different perceptions of the persons involved became determinative. [ 66 ] Although Isabelle Bourret told the appellant that she had no recourses until the hospital had reached a decision, the union nonetheless began its own parallel investigation in March of 2008, before the decision in question. The union assigned Rachel Chartrand, a union advisor, to the appellant. [ 67 ] It gave Ms.

Chartrand a double mandate: (1) on the one hand, she was to collect the appellant's version and, as the case may be, those of the witnesses suggested by the appellant and (2) on the other hand, she was to assist the appellant and be present during meetings with the representatives of the hospital. The role of this [translation] "union advisor" was nothing if not ambiguous. She had the complaint in hand, but did not give the appellant a copy; the appellant had to insist for her to agree to meet with a witness she had suggested.

Rachel Chartrand explained to her that another advisor was playing the same role for the complainant, Mélanie Lemay, and that, afterwards, the union would decide which version it should accept. She explained her role to the appellant, but acknowledges that the procedure to [translation] "determine which member the union would support" was not very clear to the appellant. [ 68 ] In short, one may question the exact role of the advisory committee with regard to a complaint which the employer had yet to decide. Was it that of arbitrator between the parties?

As all of this took place before the CHUS's decision, are we to understand that its objective was to decide beforehand, and even before knowing the CHUS's decision, whether it was likely that there would be a grievance?

And if that were the case, could the union then objectively decide the merits of the request to file a grievance against the CHUS's decision and against the evidence submitted to the CHUS, when it had already reached its own decision based on different elements? [ 69 ] Stated briefly, whatever the union's merit in setting up an investigative procedure, at first glance, it appears that the mechanism in question, at least in this case, seems to have blurred the roles of judge and party, of [translation] "advisors" to the parties and members of the advisory committee. [ 70 ] As to the manner in which the meeting of the advisory committee proceeded on April 21, 2008, I note the following elements,

without judgment or comment: - Most of the advisory committee members neither met nor spoke with the complainant or the appellant; their only basis for deciding as they did was what was reported by the two union advisors, who are each of them assigned to one of the parties and have a contradictory, if not to say a highly ambiguous, mandate of representation; - The advisory committee deliberated and discussed for about six hours before reaching a decision, which would seem to indicate that the parties' respective positions were not only contradictory but debatable, and subject to opposing points of view; - The advisory committee did in fact acknowledge that the versions were contradictory and took it upon itself to decide who was telling the truth and who was lying, to determine the credibility of the two parties to the dispute without any member of the advisory committee having heard either one of them, and relying on two anonymous statements, the existence of which was unknown to the appellant. - At the time of this meeting, the committee still was not seized of a request from the appellant, who therefore had no burden of proof to meet; she was the accused, not the complainant; the appellant never had the opportunity to argue her case before the union. [ 71 ] In short, the appellant never had the opportunity to seriously and reasonably argue the insufficiency of the reasons given by the CHUS when her only burden, with regard to her grievance application, was to establish a reasonable chance of convincing an arbitrator that the grounds raised by the CHUS were insufficient to justify its finding and the sanction imposed. [ 72 ] The union conducted its own parallel and separate investigation without even knowing which evidence had been accepted by the CHUS.

It raised completely different reasons to find [translation] "concurrently" for psychological harassment, based on evidence that may never have been adduced before the CHUS or stated as one of its reasons, i.e., the two statements whose authors and contents were unknown to the appellant.

The union dismissed the testimony of the member on the grounds that she lacked credibility, which was not questioned by the CHUS in its own decision. [ 73 ] In short, the union did not consider the merits of the CHUS's decision but only the merits of the appellant's defence to the charges laid against her by Mélanie Lemay, while imposing on her, as the CHUS had done, the burden of proof.

CONCLUSIONS [ 74 ] First of all, I emphasize that the preceding statements and comments as well as the findings that will follow are in no way a critical remark on the policy adopted by the union in 1999 [translation] "to counter harassment and violence in the work place" or of the response mechanism set up for cases where the persons involved in a harassment complaint are both members of the union, quite the opposite.

Insofar as one of the objectives and consequences of this policy and mechanism is to dejudicialize the psychological harassment conflict, to facilitate its conciliation through an internal procedure, and even to avoid the employer's intervention altogether, the union should be praised. [ 75 ] The problem lies in that in this particular case, as I pointed out from the outset in paragraph [4] of my reasons, the union is in a novel situation where there is a possible apparent conflict of interest between two of its members.

I reiterate that, in my view, in such circumstances, the response mechanism set up should be used with the greatest circumspection and prudence to avoid any appearance of favourable prejudice toward one or the other of the protagonists.

According to the principle whereby justice must not only be done, but also be seen to be done, the application to file a grievance by the employee must be decided with the greatest possible objectivity. [ 76 ] Was it unreasonable on the part of Commissioner Cloutier to point out that the reasons given by the CHUS in support of its disciplinary ruling and its findings were [translation] "surprising" (para 46)? [ 77 ] Was it unreasonable on the part of Commissioner Cloutier to find that what was at issue was the result of the investigation and particularly, the fact that the advisory committee had decided on the merits of the psychological harassment complaint rather than weighing the chances of success of a grievance in light of the reasons given by the hospital (para 48)? [ 78 ] Was it unreasonable on the part of Commissioner Cloutier to point out that what was also at issue was [translation] "that the advisory committee determined the credibility of both the complainant and Ms.

Lemay sight unseen, based on the 'testimony' of the union advisors who could testify only to the credibility of the party they 'represented' and not to the other's because they had never met" (para 49)? [ 79 ] Was it unreasonable on the part of Commissioner Cloutier to point out that the main issue, in addition to the preceding, was that the advisory committee had [translation] "made a decision while considering that one version was more credible or probable than the other" and that, to do so, it had taken into consideration [translation] "two statements that the complainant was unable to contradict because they were not submitted to her" (para 50)? [ 80 ] Was it also unreasonable on the part of Commissioner Cloutier to point out that the duty of representation imposed on the union also bound it to take into account [translation] "the significance of the grievance for the employee" (para 51)? [ 81 ] Then, was it unreasonable to the point of being unjustifiable for Commissioner Cloutier to assert that the union should not have decided the merits of a psychological harassment complaint and that, even had that been its role, [translation] "it could not determine the complainant's credibility or the likelihood that the facts raised in the complaint had occurred by basing itself on, for instance, statements" that were unknown to the appellant (para 53)? [ 82 ] Finally, was it unreasonable for Commissioner Cloutier to find that, in the circumstances, the union [translation] "decided arbitrarily" (para 55)?

I would be personally inclined to add to this the discriminatory nature of the decision as a result of placing the burden of proof on the appellant, in the context of both the employer's investigation and the investigation of the [translation] "advisory committee".

[83] These were the only issues that the Superior Court judge needed to address in the context of an application for judicial review.The judgment a quo entirely skirted these issues to insist instead on a non-issue, the reasonableness of the union's decision.

The object ofthe dispute before the trial judge, however, was only the reasonableness of Commissioner Cloutier's decision in the context of thereasons given by the employer, taking into account the fact that the dispute in this matter was above all a dispute between the appellantand the CHUS, not between members of the same union. [84] In my opinion, to follow the reasoning of my colleague Cournoyer J.A. is akin to saying that, regardless of all the facets of thecase, the standard of correctness applies to the CRT, not only in the present case, but in any similar psychological harassment case. [85] For my part, I do not hesitate to find that Commissioner Cloutier's decision was not unreasonable and that it could rationallyconstitute an acceptable outcome to the application before him, defensible in light of the facts adduced and the law. [86] For all of these reasons, I would intervene, allow the appeal, set aside the judgment of the Superior Court, dismiss therespondent's application for judicial review, and confirm the CRT's decision from December 18, 2008. [87] The whole with costs here and in Superior Court against the respondent.

ANDRÉ BROSSARD, J.A. REASONS OF VÉZINA, J.A. [88] I have had the benefit of reading the reasons of both my colleagues. With respect for the one, I share the opinion of the other. [89] First, it should be noted that the Commissioner accepted that [translation] "...it is not the union's investigation that is at issue".There has not been any negligence by the union. We cannot criticize it for having treated the case superficially or carelessly.

On thecontrary, the union made great efforts in time and thought to untangle this psychological harassment situation involving two of itsmembers. [90] Usually, this finding would have brought about a dismissal of the employee complaint against the union. But it is a criticismof an entirely different order that the CRT accepted. It saw an error in principle that resulted in the employee being treated unfairly. [91] The union, with the best intentions in the world, gave itself a role that it did not have.

It established itself as arbitrator betweentwo of its members who were involved in the harassment situation rather than fulfil its traditional role of defender of the employeesanctioned by the employer. The Commissioner wrote: [translation] [41] The union argues that its investigation was serious, objective, and honest and led it to conclude that the complainant's conductseemed to constitute psychological harassment.

To do so, it assessed certain contradictions in the complainant's version, relying on thecriteria set out by the courts. [The union argues that t]he Commission must not question whether it made the right decision, but onlyexamine the quality of its investigation. ... [53] The union should not have decided the merits of the psychological harassment complaint even if that had been its role ... [54] Also, though it was its role to decide the chances of success of a grievance challenging the disciplinary measure imposed on thecomplainant, it should not have done so ... [92] Arbitrary conduct and negligence almost always go hand in hand.

The Commissioner gave an example by quoting theSupreme Court: [translation] [45] Also, in Noël v. Société d'énergie de la Baie-James, (2001) 2001 SCC 39 , 2 S.C.R. 207, the concepts of arbitraryconduct and serious negligence were defined in the following words: 50. The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. ... [93] Though it is often the case, it is not always so. The

definitions given by Cornu[10] present this duality: [translation] Arbitrary Adj. or subst. – Lat. arbitrarius: arbitral, voluntary, arbitrary.

• 1 (adj.) a/ Nature of a decision (not. of an individual or special measure) that is not the result of applying an existing rule but is the product of free will. Comp. to subjective, sovereign, discretionary. See principle of lawfulness. b/ Pejoratively, unfair nature of a judgment (or of the power to make that judgment) or of a distinction that does not comply with the requirements of reason or of a moral code and often devoid of relevance; at times syn. of unlawful (see Const. 1958 at

section 66). See arbitrary arrest, discrimination. • 2 ... [ 94 ] By deciding to deliberate and rule on the merits of the complaint rather than on the grounds supporting a grievance against the employer, the union set aside the application of an [translation] "existing rule" and ended up with a [translation] "product of free will". [ 95 ] I hasten to reiterate that not only did the union act without any intent to injure, but the objective it pursued was laudable: to bar psychological harassment and thereby favour harmony at work amongst its members. [ 96 ] This objective is not easily achieved.

The harassment seemingly did not result from an employer's decision. What is the union's role when faced with this new type of issue? [ 97 ] In attempting to meet the challenge, the union forgot its traditional role – I would even go so far as to say its primary role – to defend one of its members who had been punished by the employer. More so because the situation was serious for that member. Sometimes, it is better to leave well enough alone.

The Commissioner wrote: [translation] [52] Because of the consequences of such a complaint for both parties, a psychological harassment complaint is a serious, significant matter for both the alleged victim of harassment and the person accused of harassing. In the complainant's case, the Hospital relieved her of supervising the trainees, which entailed the loss of a bonus.

She also had to live with the label of harasser. [ 98 ] It is the very mandate of the Commission des relations du travail to contribute, through its decisions, to the creation of parameters to guide unions so that they may deal with these new situations. All the experience gathered by that specialized instance is of the utmost relevance to reaching this objective.

The courts must have the wisdom to let its interrelationship with the unions express itself. [ 99 ] By establishing itself as arbitrator, the union had a duty to treat the person "accused" of harassment fairly, wherefore the Commissioner's criticism of the union's manner (it all hinges on the manner) of proceeding: [translation] [49] Another issue is the fact that the advisory committee determined the credibility of both the complainant and Ms.

Lemay sight unseen, based on the [translation] "testimony" of the union advisors who could testify only to the credibility of the party they [translation] "represented" and not to the other's because they had never met. [50] But, most of all, the issue in addition to the preceding is that the advisory committee made a decision considering that one version was more credible or probable than the other and, to reach this conclusion, it took into consideration two statements that the complainant was unable to contradict because they were not submitted to her. ... [53] The union should not have decided the merits of the psychological harassment complaint even if that had been its role, it could not determine the complainant's credibility or the likelihood that the facts raised in the complaint had occurred by basing itself on, for instance, statements that the complainant was not allowed to refute. [54] Also, though it was its role to decide the chances of success of a grievance challenging the disciplinary measure imposed on the complainant, it should not have done so by weighing the credibility of the complainant, without letting her refute the two statements on which the advisory committee relied. [ 100 ] This way of confirming the employee's wrongdoing, without fully giving her the opportunity to know the facts alleged against her or to explain herself, was deemed unacceptable by the Commissioner.

It is difficult to disagree with him. [ 101 ] Again, the union seems to have acted in good faith, to protect the "victim" of harassment, if there was such a victim. But this legitimate concern made it lose sight of the employee's fundamental right to an informed defence. [ 102 ] The CRT deemed the union to be wrong about the direction it gave its investigation, not about the quality of same. This is a matter of principle, a doctrinal concern that is not alien to the mandate assigned to the CRT by the legislature.

Its opinion cannot be characterized as unreasonable and it must be respected by the courts. [ 103 ] I find that the Superior Court should not have revised the Commissioner's decision.

PAUL VÉZINA, J.A. REASONS OF COURNOYER, J.A. [ 104 ] I have read the reasons of Brossard J.A. With respect for his opinion, I share the opinion of the Superior Court, which found that the CRT's decision was not one of the possible acceptable outcomes in light of the facts and law. [11] [ 105 ] First, I find that the CRT did not show deference toward the union's investigation and, second, that this investigation did not reveal any of the conducts prohibited under

section 47.2 of the Labour Code according to the test set out by the Supreme Court in Noël v. Société d'énergie de la Baie James . [12] [ 106 ] In Noël , LeBel J. noted that the duty of representation stated in

section 47.2 of the Labour Code [13] "prohibits four types of conduct: bad faith, discrimination, arbitrary conduct and serious negligence". [14] He defines the concepts of arbitrary conduct and serious negligence as follows: The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner.

It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however, the employee is not entitled to the most thorough investigation possible . The association’s resources, as well as the interests of the unit as a whole, should also be taken into account. The association thus has considerable discretion as to the type and extent of the efforts it will undertake in a specific case . (See Adams , supra , at pp. 13-20.1 to 13-20.6.) The fourth element in s. 47.2 L.C . is serious negligence.

A gross error in processing a grievance may be regarded as serious negligence despite the absence of intent to harm. However, mere incompetence in processing the case will not breach the duty of representation, since s. 47.2 does not impose perfection as the standard in defining the duty of diligence assumed by the union .

In assessing the union’s conduct, regard must be had to the resources available, the experience and training of the union representatives, who are usually not lawyers, and the priorities connected with the functioning of the bargaining unit ( see Gagnon , supra , at pp. 310-13; Veilleux , supra , at pp. 683-87; Adams , supra , at p. 13-37). [15] [Emphasis added.] [ 107 ] The CRT did not find that the union's investigation was superficial or careless or that the union failed to examine the relevant facts.

Instead, the CRT deemed that the results of the union's investigation were at issue, not the investigation itself. [16] [ 108 ] The CRT faults the advisory committee set up by the union for having decided on the merits of the complaint when it was only supposed to assess its chances of success.

It also faults the assessment of the credibility of the complainants made by this committee without having heard the complainant or the person who was the subject of the complaint. [ 109 ] In my opinion, these elements did not entitle the CRT to intervene; it should have respected the union's discretion in determining the breadth and depth of its investigation. [ 110 ] In Noël , LeBel J. pointed out that an employee is not entitled to the most thorough investigation.

Consequently, it is not appropriate to impose on the union an investigation that complies with the attributes of an adjudicative court because the union only had a duty of diligence in this respect. [17] [ 111 ] In Syndicat national des employées et employés du Centre de soins prolongés Grace Dart (CSN) v.

Holligin-Richards , [18] Baudouin J.A. described the mandate of the Labour court, today the CRT, as follows: [translation] Its role is not to substitute its own opinion to that expressed in the union's decision or to sit in appeal of it, but merely to ensure that, in light of all the circumstances of the case, the union's choice not to proceed to arbitration was the result of a serious assessment, not the result of arbitrary conduct, bad faith, discrimination, or serious negligence. This principle was well established by the Supreme Court in Canadian Merchant Service Guild v. Gagnon ; Tremblay v.

Syndicat des employés et employées professionnels(les) et de bureau,

section locale 57 ; Noël v. Société d'énergie de la Baie James and Centre hospitalier Régina ltée v. Prud'homme , mentioned by my colleague Rousseau-Houle J.A. in Métras v. Tribunal du travail . The union member's right to arbitration is not an absolute right, it is relative. In this respect, the union enjoys significant discretion that is ultimately based on its strategic assessment and its tactical consideration of the management of the disciplinary file. Therefore, it is only the exercise of reviewing this discretion that the Court must consider.

It has only limited jurisdiction and cannot substitute its own opinion for the union's, which, with respect, seems to have happened here . [19] [Emphasis added. Citations omitted.] [ 112 ] In reviewing the union's discretion, the CRT could not characterize the union's investigation in the present case as arbitrary.

Nor could it substitute its opinion for that of the union's discretion, which, in my opinion, it did here. [ 113 ] The CRT's decision therefore cannot be considered to be one of the possible acceptable outcomes in fact and in law, [20] because the union's decision was itself a possible and acceptable outcome to this case. [ 114 ] For these reasons, I would dismiss the appeal with costs.

GUY COURNOYER, J.A. (AD HOC)