2010 QCCA 2358, 2010 QCCA 2358

Unofficial English Translation Université de Sherbrooke c. Patenaude 2010 QCCA 2358 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020696-100 (450-17-003556-108) DATE: DECEMBER 16, 2010 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. PAUL VÉZINA, J.A. UNIVERSITÉ DE SHERBROOKE APPELANT / Respondent v.

YVES PATENAUDE and L’ASSOCIATION DES PROFESSEURES ET PROFESSEURS DE LA FACULTÉ DE MÉDECINE DE L’UNIVERSITÉ DE SHERBROOKE (APPFMUS) RESPONDENTS / Petitioners JUDGMENT [ 1 ] The Court is seized of an appeal from a judgment of the Superior Court, District of Saint-François (the Honourable Mr. Justice Martin Bureau), which on May 6, 2010, granted the respondents’ motion and issued the so-called safeguard orders referred to below. I. Facts and proceedings [ 2 ] The respondent Patenaude is a professor at the Faculté de médecine of the appellant university.

It should be noted from the outset that working conditions and labour relations of the faculty’s professors are governed by a memorandum that is the result of negotiations between the appellant and the respondent Association des professeures et professeurs de la Faculté de médecine de l’Université de Sherbrooke (APPFMUS) , [1] an association that is not certified within the meaning of the Labour Code . [2] The arbitration proceedings that the memorandum provides for in case of disagreement, disciplinary matters included, is a consensual process governed by the relevant provisions of the Code of Civil Procedure (arts. 940 et seq.

C.C.P. ). [ 3 ] Several complaints were made against the respondent Patenaude by students and colleagues who accused him of psychological harassment toward them. Relying on subsection 81.19 of the Act respecting labour standards , [3] and on its own policy on this matter, [4] the appellant retained counsel to investigate the situation. From May 19, 2009, and throughout the investigation, it also suspended the respondent Patenaude from his teaching duties, with pay.

The suspension was not challenged. [ 4 ] In December of 2009, the investigator concluded in a report [5] that the conduct of the respondent Patenaude constituted psychological harassment, at least in respect of some of the complainants. On February 5, 2010, the Vice-Rector, Human Resources and Student Affairs, sent a disciplinary notice to the respondent Patenaude on behalf of the appellant. [6] The sanction imposed on him consisted of the imposition of training measures (corrective measures), which he had to comply with as a condition of reinstatement, which was to be followed by supervisory measures.

The disciplinary notice, which is not a model of clarity on this point, nonetheless implied that his reinstatement would take place at the end of the prescribed training and that the suspension previously imposed for administrative reasons would continue during that period, becoming disciplinary in nature from that point. [ 5 ] On February 11, 2010, the respondent Patenaude, who denied any harassment, challenged the sanction and filed a notice of disagreement [7] alleging various irregularities in the handling of the complaints (some of which go back to 2005), the investigation process, [8] and the disciplinary process.

He also alleged, among other things, that [ translation ] “ [t]he corrective measures cannot be undertaken so long as a court has not ruled on whether psychological harassment took place”. [ 6 ] The notice of disagreement triggered the arbitration process provided by the Protocole entre l’Université de Sherbrooke et l’APPFMUS . [9]

[ 7 ] The appellant refused to rescind the corrective measures or to reinstate the respondent Patenaude during the arbitration proceedings and instead threatened to impose a new disciplinary sanction on him if he did not comply with the notice of February 5. [10] The contractual arbitrator not having the power to issue interim orders [11] and not yet having been appointed at that date, the respondent Patenaude, relying on

article 940.4 C.C.P. , [12] asked the Superior Court to stay the execution of the corrective measures described in the notice of February 5, 2010, as well as the imposition of any disciplinary sanction and to order his reinstatement, with all his rights and privileges. The respondent APPFMUS, pursuant to its mandate under the memorandum, joined Mr. Patenaude as a party to the motion. [ 8 ] It should be noted that the respondents’ motion seeks what it refers to as a safeguard order. The judgment discussed below bears the following heading: [ translation ] “ judgment on safeguard order”. Strictly speaking, however, what was sought and obtained here, considering

article 940.4 C.C.P. , is more of an interlocutory injunction within the meaning of

article 752 C.C.P. than a safeguard within the meaning of articles 754.2 or 46 C.C.P. [ 9 ] In a different vein, we should also point out that the arbitrator responsible for ruling on the disagreement between the parties has now held several days of hearings. Four others were scheduled, with the last in June of 2011. According to the parties, that may not be sufficient and they already foresee the hearing continuing beyond June of 2011. II.

Trial judgment and appeal proceedings [ 10 ] On May 6, 2010, the Superior Court ruled in favoured of the respondents and issued the following orders: [ translation ] [62] ORDERS the respondent, its senior officers, administrators, employees and other persons of authority to stay the performance of all corrective measures in exhibit R-7; [63] ORDERS the respondent, its senior officers, administrators, employees and other persons of authority to stay the imposition of all disciplinary measures or other measures resulting from the petitioner’s refusal to carry out the corrective measures; [64] ORDERS the respondent, its senior officers, administrators, employees and other persons of authority to reinstate the petitioner in his teaching position at the Faculté de médecine and ORDERS the respondent, its senior officers, administrators, employees and other persons of authority to recognize all the rights and privileges related to his tenure; [65] DECLARES that these orders will be valid until an arbitrator has ruled definitively on the disagreement exhibit R-8; [ 11 ] Essentially, the judge believes that the situation of the respondent Patenaude met the usual conditions of colour of right, serious or irreparable injury, and balance of convenience, conditions to which, given the circumstances, urgency was added (even though this criterion did not have to be considered separately since, in reality, an interlocutory injunction was involved). [ 12 ] Concerning colour of right, he concluded succinctly that the respondents’ grounds for contesting were serious: [ translation ] [28] It remains that the petitioners contested the findings of the investigation report, cast doubt on the investigator’s impartiality, impugned with apparently serious grounds the process itself, and raised arguments not devoid of all reasonableness concerning the consequences of the corrective measures imposed. [ 13 ] Concerning injury and balance of convenience, the judge was of the opinion that: [ translation ] [42] If, however, the petitioners succeed following their notice of disagreement and the arbitrator concludes that no psychological harassment took place, the sanction will already have been imposed, the corrective measures will have already been put in place, and the petitioner will already have been subjected to a process solely because of conclusions that he committed actions constituting harassment.

As a result of all that, he will have already “paid the price” without having deserved to. [43] Certainly, if the arbitrator were to conclude that such harassment took place, the coexistence during the proceedings of the petitioner and his colleagues and students, previously victims of such harassment, could cause serious inconvenience.

At first sight, it is, however, less than that which would be caused for the petitioner and above all is in all likelihood more easily compensated by eventual damages for such inappropriate and illegal actions. [44] One can also foresee that, as a result of the investigation already carried out and of its findings, also because of the petitioners challenging its conclusions, the petitioner should, at least during the proceedings and until a definitive decision has been made by the arbitrator, demonstrate better conduct that will be better adapted.

It is highly likely that the petitioner will conduct himself with prudence and respect during the proceedings. [45] Regardless, to impose such corrective measures at present appears, despite the respondent’s goodwill and desire to protect the petitioner’s colleagues and students, if they indeed need such protection, to be the imposition of a sanction before conviction, and the petitioner may suffer irreparable injury. [ 14 ] Finally, concerning urgency, the judge distinguished first between the suspension imposed in May of 2009, and the situation resulting from the notice given in February of 2010: the matter went from prevention to discipline.

The fact that the respondents did not contest the suspension of May 2009 did not constitute an obstacle to their application for a safeguard order. That being the case, the judge concluded (at para. 56) that it was urgent to act, for the following reasons: [ translation ]

[51] Informed that the petitioners had challenged the process, the decision, and its consequences, the respondent decided to insist just the same that the corrective measures be put in place immediately.

It informed the petitioner that any refusal to comply with them would be considered serious insubordination likely to be sanctioned severely by a disciplinary measure up to and including dismissal. [52] It was the respondent that, with the objective of protecting the petitioner’s colleagues and students, decided to immediately impose corrective measures that were directly related to the findings of the investigation report to the effect that the petitioner harassed colleagues and students. [53] Imposition of such corrective measures is not merely cautionary or preventive, but assumes the existence of a situation of harassment that no court or decision-making authority has yet found through an adversarial process. [54] The respondent went further than merely suspending some of the petitioner’s rights and privileges pending a definitive decision: it imposed on him corrective measures that obliged him to take action and to become involved in an involuntary process failing which it threatened him with serious sanctions. [55] The Court believes that the petitioners were justified in wanting to obtain the suspension of such measures so long as a definitive decision has not been made according to the processes provided in the memorandum of understanding between the petitioners and the respondent. [ 15 ] The appellant brought a motion for leave to appeal the judgment, concerning only the conclusion ordering the respondent Patenaude’s reinstatement, a conclusion for which it sought a stay.

Leave to appeal was granted on July 6, 2010, but not the stay, such that, in point of fact, the respondent Patenaude was reinstated in August 2010. III. Analysis A. Preliminary discussion [ 16 ] The appellant appeals only the conclusion at paragraph 64 of the trial judgment (which ordered the immediate reinstatement of the respondent Patenaude, until the arbitrator’s decision on the merits of the disagreement).

It does not challenge the suspension of the corrective measures imposed by the disciplinary notice; nor did it challenge the prohibition on sanctioning the respondent Patenaude for refusing to comply with the measures in question. [ 17 ] The respondents argue, however, that by not challenging the other conclusions the appellant has placed itself in a situation where it cannot seek suspension of the reinstatement order.

To agree that it do so, and to rule in its favour, would mean that the respondent Patenaude, being then suspended until the arbitrator’s final decision, would in some way be in a worse situation than that resulting from the original disciplinary notice and would be sanctioned again in an even more severe manner (which is expressly prohibited at para. 63 of the trial judgment): the suspension would in effect become indeterminate and the resulting inconvenience would only increase.

The respondent Patenaude might then be tempted to comply with the corrective measures that he challenged, which, as the appellant acknowledged, would end the suspension and allow his reinstatement. In other words, in appealing only from the conclusion in paragraph 64 of the trial judgment, the appellant achieves its objectives as if it had challenged all the conclusions. [ 18 ] Again, according to the respondents, it would be illogical for the appellant to want to prevent Mr. Patenaude’s reinstatement while it agrees to suspend the corrective measures that were to be the condition for it.

If the corrective measures are no longer valid, at least temporarily, then reinstatement should ensue, just as temporarily. [ 19 ] The appellant responds to these arguments by pointing out that even if it did not challenge the conclusions temporarily rescinding the corrective measures and prohibiting it from sanctioning the respondent Patenaude for refusing to comply with them, it could not be prevented from challenging his reinstatement. It considers the disciplinary notice to be clear: there can be no reinstatement if the corrective measures are not followed.

They were the subject of a stay that it no longer challenged, but it refuses to be compelled to reinstate the respondent Patenaude, whose suspension with pay [13] would have to continue. It never wanted him to be reinstated unless he had first completed the training program specified in the disciplinary notice of February 5, 2010, and that is still what it seeks in appeal. [ 20 ] Admittedly, the situation is unusual. All things considered, the Court believes that there are no grounds to dismiss the appeal for the reason submitted by the respondents. B.

Discussion of the merits [ 21 ] With respect, the Court believes that the injunction should not have been issued for the application that was made did not meet the conditions established by case law on such matters.

It is true that, an interlocutory injunction being of a discretionary nature, an appellate court must proceed cautiously in this regard, but this case requires intervention. * * [ 22 ] The usual rule concerning disciplinary sanctions in an employment context is as follows: the disciplinary sanction, whose imposition arises from the employer’s power of direction , [14] has an immediate effect whether the employee (or an external observer) considers it founded or unfounded [15] (and whether the context is unionized or, as in this case, non-unionized).

That is true regardless of the nature of the challenged measure (reprimand, salary cut, suspension or even dismissal). [ 23 ] That the sanction has an immediate effect obviously does not prevent the employee from challenging it and if a tribunal later annuls the sanction, it will issue the necessary orders to ensure the utmost compensation for the injury suffered as a result of imposition of a measure that proves to be unjustified, in accordance with the usual principle of restitutio in integrum .

That being said, during the proceedings, the sanction will keep all its effect and, as a general rule, there is no need to stay it. That is considered normal because a disciplinary sanction arises from the employer’s power of control and direction (unilateral power), the employee being obliged to comply

because of the relationship of subordination that links him or her to the employer [16] (duty of obedience). [ 24 ] In brief, unless the employment contract or collective agreement so provides or permits, a disciplinary sanction, even one that is challenged, in principle retains all its effect. That being said, a stay may occasionally be ordered, to be effective during the proceedings. Such a measure is exceptional, however, and tribunals seldom have recourse to it.

In Syndicat des employés en radio- télédiffusion de Radio-Québec (S.E.R.T.) et Société de Radio Télévision du Québec (Radio-Québec) , [17] the adjudicator Frumkin explained as follows the circumstances in which a stay may be issued during proceedings concerning a disciplinary sanction: [ translation ] The decisions consulted by the Court indicate that, owing to the exceptional nature of the order and the specific situations that it covers, a motion for an interlocutory order such as that of which the Court is seized must rely on at least prima facie evidence that the grievance is serious, that it has a chance of being allowed, and that either the imposition of the measure constitutes a disloyal strategy used by the employer for an illegitimate purpose, or the application of the measure would in all likelihood cause serious or irreparable injury, or yet, the employee will be seriously penalized by the application of the measure, so that, given the relative weight of the inconvenience, it is imperative to grant the motion.… [ 25 ] These words, from an adjudicator, are no less true in cases where the sanction is challenged in a different forum.

The same rule is observed in cases where, for example, a dismissal is imposed by the employer, but challenged under

section 124 A.L.S. , or when any measures are imposed on employees who argue that they are unlawful under sections 15 et seq. L.C. Such measures have an immediate effect, which is not usually stayed in the case of a challenge, despite the seriousness of it or the potential prejudicial effect on the employee. [ 26 ] The fact that the matter here involves articles 940 et seq.

C.C.P. , concerning contractual arbitration, does not justify departing from the usual rule. [ 27 ] In brief, subject to a contractual provision to the contrary, the principle is that of the immediate effect of the disciplinary sanction that persists even if it is challenged before an arbitral or judicial forum.

A stay during proceedings may, however, be ordered in an exceptional manner, as a function of the following conditions, reiterated by the adjudicator Frumkin: colour of right, serious or irreparable injury, and balance of convenience, which are precisely the conditions of an interlocutory injunction . [18] [ 28 ] Considering these conditions, was there reason to impose a stay of the sanction imposed by the appellant on the respondent Patenaude? [ 29 ] The colour of right.

One should first note that the Protocole entre l’Université de Sherbrooke et l’APPFMUS provides for neither a stay of disciplinary sanctions during proceedings or the possibility of applying for such a stay.

That being said, it is appropriate to examine the matter as a function of the rules ordinarily applicable to such an application. [ 30 ] Disregarding the view held at that time by an Ontario authority, the adjudicator Jean-Pierre Lussier quite rightly wrote that: [ translation ] One must be mindful that a temporary order has an exceptional nature because it intervenes before the parties can determine the merits of the dispute.

The order therefore imposes on one party conduct which, by definition, it objects to without being able to set out to the decision maker all its grounds challenging the upholding of the grievance. In my opinion, an adjudicator, whose mandate is to safeguard the rights of both parties, should not issue an order simply because a case is arguable.

I believe one must be able to establish a colour of right (a prima facie case). [19] [ 31 ] What about this instance? [ 32 ] In the opinion of the Court, the respondents, which perhaps have an arguable case and which perhaps will again prevail on its merits, did not establish in a sufficiently serious manner the colour of their right, which required more than the allegations in the respondent Patenaude’s affidavits. [ 33 ] The evidence at trial was slim indeed, consisting of these affidavits, the affidavit of a representative of the appellant (Marie- Claude Meunier) and various exhibits.

It does not appear that the deponents were examined about their sworn statements and, at the hearing (which according to the motion for leave to appeal lasted about an hour and a half), no witnesses were heard. [ 34 ] Considering this evidence alone, the grounds for challenging the disciplinary sanction, as set forth by the respondents, although they are not trivial, do not reach the threshold of prima facie demonstration. [ 35 ] The assertion that the respondent Patenaude never engaged in psychological harassment is clearly not sufficient to establish colour of right on its own.

It is true that the excerpts from the investigator’s report, as they were filed, do not make it possible to arrive at any definitive conclusion whatsoever, one way or the other.

That being said, the excerpts, which are nevertheless fairly substantial, reproduce the complaints made against the respondent Patenaude and his criticism of them: on the face of these complaints and comments, one may think that for the respondents, the matter may not have had a foregone conclusion. [ 36 ] Moreover, one must take into account the obligations that are incumbent on the appellant regarding psychological harassment and that, a priori , justified its acting as it did to the extent that an investigation report concluded that psychological harassment had taken place.

In brief, the respondents’ denials in this regard, which only an arbitrator will truly be able to assess on the basis of complete evidence, do not make it possible to find colour of right. [ 37 ] The respondents asserted, however, that the investigator mandated by the appellant was in a conflict of interest because this person is employed as a lecturer by the appellant (no further details were provided) and that, in April 2008, the person apparently took

part in a training mission in Africa with one of the appellant’s vice-rectors. It is therefore understandable that respondents challenge the reliability of the report of an investigator whose neutrality is questionable, which would irremediably vitiate the investigation process. [ 38 ] One assumes (although this was not formally argued before this Court and the trial judge did not refer to it) that the respondents’ grievance in this regard was based on

article 8.3 of the appellant’s harassment policy. This provision provides that when a complaint is admissible, an administrative investigation may be carried out by an external investigator. [ 39 ] At first sight, the respondents’ argument is not without interest, but caution is required. An employer that conducts an investigation before imposing a disciplinary sanction is not obliged to do so by retaining an impartial third party or to impose on itself the equivalent of quasi-judicial proceedings.

Moreover, it is not obliged in such a matter to respect the principles of procedural fairness (even in the case of a public employer, as the Supreme Court recently decided in Dunsmuir v. New Brunswick [20] ). In this case, there is no need to impose a general duty of procedural fairness on the appellant beyond the provisions of the memorandum governing disciplinary practices and those of the policies that the appellant adopted.

Therefore, this general duty of procedural fairness cannot serve as the basis for a motion for a stay of the disciplinary measure during the arbitral proceedings. [ 40 ] The text of the appellant’s antiharassment policy, read in its context and in the general context of labour law, does not allow one to assume that reference to an external investigator was intended to rule out a person who has only a sporadic relationship with the institution. Such a contextualized reading of the policy and its

article 8.3 does not exclude an external investigator who is merely an investigator from a faculty, department or work unit other than that of the person whose conduct is under investigation: it is not a matter, therefore, of excluding any investigator having any link with the appellant, but merely excluding an investigator who would be associating with the subject of the investigation on a daily basis, which could understandably create unease. That being said, it will be up to the arbitrator seized of the disagreement to rule on the meaning to be given to this provision of the policy.

At the interim stage where we are, however, one cannot say that the respondents have made a prima facie demonstration of their arguments in this regard. [ 41 ] Similarly, the respondents’ arguments concerning the investigation process itself and the investigator’s alleged conduct are very difficult to assess, but appear to conflict in many respects with the text of the appellant’s antiharassment policy.

Perhaps the policy deserves to be challenged, but again one cannot speak of a colour of right. [ 42 ] For the rest, the other grounds cited by the respondents challenging the disciplinary sanction do not make it possible to find a colour of right.

Thus the allegation that the imposition of the sanction [ translation ] “presumes that the petitioner Patenaude is ‘guilty’ of psychological harassment even before an independent tribunal (the contractual arbitrator) has ruled on the notice of disagreement R- 5” [21] shows a poor understanding of the disciplinary process and its usual effects. [ 43 ] In brief, the respondents did not establish the colour of their right, and their motion should have been dismissed for that reason alone. [ 44 ] The injury.

One can add that, as constructed, the file does not show that the requirement of serious or irreparable injury was met. [ 45 ] Concerning injury resulting from dismissal, which is the measure for which a stay is most frequently sought, the adjudicator Gagnon, seized of an application for temporary reinstatement, wrote that: [ translation ] There is no doubt that a dismissed employee suffers the inconvenience inherent in his or her dismissal during arbitration proceedings.

But only in unusual circumstances can one conclude that such inconvenience constitutes an unacceptable injury that makes intervention imperative. In fact, the inconvenience suffered must be greater than the inconvenience inherent in the loss of employment.

Otherwise, even in the absence of a status quo ante clause, any dismissed employee would be entitled automatically to keep his or her job during arbitration proceedings. [22] [ 46 ] These words are certainly applicable to the sanction imposed in this case on the respondent Patenaude or to the suspension that could result from the fact that the Court here rules in favour of the appellant: the injury or inconvenience suffered must be greater than the inconvenience inherent in this type of sanction, otherwise it would amount to giving the right to an automatic stay. [ 47 ] There is no doubt that, in the context in question, which is that of psychological harassment, a very serious matter, the imposition of a sanction on the respondent Patenaude involves inconvenience; one might even speak of injury, including damage to his reputation. [ 48 ] Even so, the injury that could be caused to the respondent Patenaude does not go beyond the inconvenience ordinarily associated with a disciplinary sanction of conduct of the type of which he is accused. [ 49 ] First, the injury that is cited here and that consists of having to serve a punishment that could be annulled is an undoubtedly real but common inconvenience resulting from implementation of all the disciplinary sanctions that are the subject of a challenge and also resulting from the general state of the law on the issue.

This is only [ translation ] “the inconvenience inherent in the sanction”, to paraphrase the adjudicator Gagnon in Syndicat de l’industrie du journal du Québec inc., distribution (C.S.N.) et Presse ltée (La) , [23] inconvenience that, alone, would not justify an order of the type granted by the trial judgment. [ 50 ] Furthermore, the injury that Mr. Patenaude would suffer, in the event that the arbitrator agreed with him on the merits, can be the subject of relief (including, as the case may be, financial relief). Under

article 10.13 of the memorandum, the arbitrator has powers similar to those that subsection 100.12 L.C. gives to an adjudicator and they appear sufficient to ensure adequate relief. [ 51 ] We note here that there is no need to take into account on this point the amending agreement apparently signed in 2008 by the appellant and the respondent APPFMUS. This agreement, like other documents in the schedules of the respondents’ factum, was not filed with the Superior Court . It was apparently submitted to the judge of our Court who gave leave to appeal, but that is not sufficient to

allow filing in the appeal case on the merits, which would require leave from the Court itself, as provided by

article 509 C.C.P. , which leave was not sought. In any case, even if this agreement could be considered, its text is such that it is not possible to state that it amends

article 10.13 of the previous memorandum. That is another matter that the arbitrator seized of the disagreement will have to resolve. [ 52 ] In brief, even though one acknowledges the feelings of annoyance and embarrassment that the respondent Patenaude may feel as a result of a suspension that he considers unjustified, wrongful, and undeserved, and even if one recognizes that his reputation may suffer as a result of the situation, at least temporarily, that does not constitute injury that justifies the order issued in the court below.

His situation in this regard is typical of any employee undergoing, for example, suspension or dismissal for a serious disciplinary infraction, such as repeated insubordination, dishonesty, and so on. [ 53 ] Balance of convenience and urgency.

In light of the foregoing, it is not appropriate to discuss the balance of convenience, even had we considered that the reinstatement of the respondent Patenaude, in August 2010, following our colleague’s refusal to order a stay of the trial judgment, may invalidate the appellant’s arguments in this regard: the inconvenience that it sought to prevent by its appeal may indeed have occurred already, at least in part. That is not sufficient, however, for the Court to dismiss the appeal, given all of the foregoing. IV.

Disposition [ 54 ] FOR THESE REASONS, THE COURT: [ 55 ] ALLOWS the appeal, with costs; [ 56 ] SETS ASIDE the trial judgment for the sole purpose of expunging the conclusion at paragraph 64 of the judgment. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. PAUL VÉZINA, J.A. Mtre Stéphane Reynolds Monty Coulombe For the appellant Mtre Sylvain Seney Melançon, Marceau, Grenier & Sciortino For the respondents Date of hearing: December 3, 2010