Noël v. Société d'énergie de la Baie James

Noël v. Société d'énergie de la Baie James
Collection
Supreme Court Judgments
Date
2001-06-28
Neutral citation
2001 SCC 39
Report
[2001] 2 SCR 207
Case number
26914
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Action
Civil procedure
Labour law
Notes
SCC Case Information: 26914
Decision Content
Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001 SCC 39
Christian Noël Appellant
v.
Société d’énergie de la Baie James Respondent
and
United Steelworkers of America, Local 6833 (FTQ) Mis en cause
and
Bernard Lefebvre Mis en cause
Indexed as: Noël v. Société d’énergie de la Baie James
Neutral citation: 2001 SCC 39.
File No.: 26914.
2000: October 11; 2001: June 28.
Present: L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Judgments and orders – Res judicata – Conditions – Employee contesting legality of arbitral award – Superior Court dismissing employee’s application for judicial review on ground he lacked requisite interest to bring proceeding – Employee then commencing direct action in nullity to quash arbitral award – Whether principle of res judicata prevents bringing new proceeding.
Civil procedure – Direct action in nullity – Interest – Labour relations – Employee dismissed by employer – Arbitrator dismissing grievance contesting dismissal – Union refusing to bring matter before Superior Court – Whether employee has requisite interest to bring direct action in nullity to quash arbitral award – Code of Civil Procedure, R.S.Q., c. C-25, arts. 33, 55.
Labour relations – Arbitral award – Direct action in nullity – Interest – Union’s duty of representation – Employee dismissed by employer – Arbitrator dismissing grievance contesting dismissal – Union refusing to bring matter before Superior Court – Whether employee has requisite interest to bring direct action in nullity to quash arbitral award – Code of Civil Procedure, R.S.Q., c. C-25, arts. 33, 55.
After being dismissed by his employer, an employee, represented by his union, sought reinstatement, but his grievance was dismissed by an arbitrator. Under the collective agreement, the union had the exclusive authority to represent the employees for the purposes of the grievance and arbitration procedure; none of its provisions gave an employee the right to take a grievance to arbitration personally or to be a party to a proceeding before the arbitrator. Following the arbitration award, the union decided, despite the employee’s demands, that it would not take the matter further. The employee then decided to act on his own and filed an application for judicial review under art. 846 C.C.P. The Superior Court granted the employer’s motion to dismiss and found that the employee did not have the requisite interest to bring such proceedings since he was not a party within the meaning of art. 846. The employee then brought a direct action in nullity under art. 33 C.C.P. The Superior Court again granted the employer’s motion to dismiss, on the ground that the employee did not have the requisite interest. The Court of Appeal, in a majority judgment, affirmed the judgment.
Held: The appeal should be dismissed.
(1) Res Judicata
The principle of res judicata did not prevent the employee from bringing a direct action in nullity. For a judgment to amount to res judicata with respect to a proceeding, it is not enough that the main legal issue be identical. It must be established that three things are identical: parties, object and cause. In this case, the parties and the object are identical. The cause of the action, which is the presumed illegality of the award, was common to the two proceedings; only the procedural route differs. However, in order for the res judicata principle to apply, the first Superior Court judgment would have had to deal with the substance of the case. That judgment made no determination concerning the employee’s substantive right. It dealt solely with an important procedural issue: the interest required for the purposes of art. 846 C.C.P. Accordingly, that decision does not amount to res judicata, except on the question of the employee’s status as a party for the purposes of art. 846 C.C.P.
(2) Interest
The existence of an interest in bringing a judicial proceeding depends on the existence of a substantive right; it is not enough to assert that a procedure exists. In applying art. 33 C.C.P., we must be careful not to assess the procedural interest using only a purely literal analysis of art. 55 C.C.P. which applies a broad definition of the legal interest. In this case, the employee’s direct action in nullity alleges that the arbitrator made a patently unreasonable decision. The employee’s procedural interest, within the meaning of art. 55, must be interpreted and assessed in the context of a labour relations scheme that is based on collective bargaining and the union’s monopoly on representation.
The union’s duty of representation is not limited to bargaining and the arbitration process. Where a union has an exclusive representation mandate, the corresponding duty extends to everything that is done that affects the legal framework of the relationship between the employee and the employer. However, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from s. 101 of the Labour Code, which provides that an “arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned”. The arbitration process represents the normal and exclusive method of resolving the conflicts that arise in the course of administering collective agreements, including disciplinary action. Judicial review cannot therefore be seen as a routine way of challenging awards or as a right of appeal. While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation of stability in labour relations in a situation where there is union representation. Allowing an employee to take action against a decision made by his
or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, would offend the union’s exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and would jeopardize the effectiveness and speed of the arbitration process. Recognition of this kind of right to challenge an arbitration award would also offend the fundamental principles governing relations with the employer where there is a right of exclusive collective representation. In a case where the arbitration process has been carried out in accordance with the collective agreement, the employer is entitled to expect that a grievance that has been disposed of by the arbitrator will, as a rule, be disposed of permanently, and that the arbitration process will not be exposed to challenges that are launched without any control being exercised by its union interlocutor.
The concept of interest for the purposes of art. 33 C.C.P. must therefore be analyzed in that context. An employee does not have the requisite interest if the union’s decision appears to fall within the leeway it is allowed with respect to the performance of its representation mandate. The nature of the labour relations scheme established by the Labour Code is an impediment to recognizing that an employee has a sufficient interest to challenge an arbitration award which he or she contends is unreasonable, on the sole ground that the union refuses to institute judicial review proceedings. However, in some situations – for example, collusion between employer and union or violation of the rules of natural justice – the employee could bring an action in nullity himself or herself.
In this case, the employee does not have the requisite interest to bring a direct action in nullity. It can be concluded from his action that he personally intends to commence judicial review proceedings based on the unreasonableness of the arbitration award. This falls within the reasonable exercise of the union’s discretion in the conduct of collective labour relations with the employer.
Cases Cited
Referred to: Lessard v. Gare d’autobus de Sherbrooke ltée, J.E. 94-1854; Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555; Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Roberge v. Bolduc, [1991] 1 S.C.R. 374; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; François Nolin Ltée v. Commission des relations de travail du Québec, [1968] S.C.R. 168; Comité d’appel du bureau provincial de médecine v. Chèvrefils, [1974] C.A. 123; Fraternité des Policiers de la Communauté urbaine de Montréal v. City of Montreal, [1980] 1 S.C.R. 740; Fortier v. Thermolec Ltée, [1985] R.D.J. 81; Jeunes Canadiens pour une civilisation chrétienne v. Fondation du Théâtre du Nouveau-Monde, [1979] C.A. 491; Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509; Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217, [1975] 2 Can. L.R.B.R. 196; Hémond v. Coopérative fédérée du Québec, [1989] 2 S.C.R. 962; McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; Becotte v. Syndicat canadien de la Fonction publique, local 301, [1979] T.T. 231; Haley and Canadian Airline Employees’ Association (1981), 41 di 311; Centre hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330; Gendron v. Municipalité de la Baie-James, [1986] 1 S.C.R. 401; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles, [1993] 2 S.C.R. 756; Hoogendoorn v. Greening Metal Products and Screening Equipment Co., [1968] S.C.R. 30.
Statutes and Regulations Cited
Act to amend the Code of Civil Procedure, the Act respecting the Régie du logement, the Jurors Act and other legislative provisions, S.Q. 1996, c. 5, s. 6.
Act to amend the Code of Civil Procedure, the Civil Code and other legislation, S.Q. 1983, c. 28, s. 34.
Civil Code of Québec, S.Q. 1991, c. 64, art. 2848.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 33, 55, 165, 834.1, 840, 846, 847.
Code of Civil Procedure, S.Q. 1965, c. 80, art. 834.
Constitution Act, 1867, s. 96 .
.
Labour Code, R.S.Q., c. C-27, ss. 47.2, 47.3 to 47.5, 53, 67, 68, 69, 100.5, 101.
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora: Canada Law Book, 2000 (loose-leaf).
Blouin, Rodrigue, et Fernand Morin. Droit de l’arbitrage de grief, 5e éd. Cowansville, Qué.: Yvon Blais, 2000.
Brown, Raymond E. “The ‘Arbitrary’, ‘Discriminatory’ and ‘Bad Faith’ Tests Under the Duty of Fair Representation in Ontario” (1982), 60 Can. Bar Rev. 412.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Gagnon, Robert P. Le droit du travail du Québec: pratiques et théories, 4e éd. Cowansville, Qué.: Yvon Blais, 1999.
Morin, Fernand, et Jean-Yves Brière. Le droit de l’emploi au Québec. Montréal: Wilson & Lafleur, 1998.
Royer, Jean-Claude. La preuve civile, 2e éd. Cowansville, Qué.: Yvon Blais, 1995.
Veilleux, Diane. “Le devoir de représentation syndicale: Cadre d’analyse des obligations sous‑jacentes” (1993), 48 Relat. ind. 661.
APPEAL from a judgment of the Quebec Court of Appeal, [1998] R.J.Q. 2270, [1998] R.J.D.T. 1064, [1998] Q.J. No. 2746 (QL), affirming a judgment of the Superior Court. Appeal dismissed.
Paule Lafontaine and Paul Faribault, for the appellant.
Jean Beauregard, for the respondent.
Laurent Roy and Christiane Morrisseau, for the mis en cause United Steelworkers of America, Local 6833 (FTQ).
English version of the judgment of the Court delivered by
1 LeBel J. — After being dismissed by his employer, the Société d’énergie de la Baie James (“SEBJ”), Noël filed a grievance seeking reinstatement. When his grievance was dismissed, he applied for judicial review of the arbitration award. When he found that an application for judicial review did not lie under art. 846 of the Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”), he filed a direct action in nullity under art. 33 C.C.P. The Superior Court and the Quebec Court of Appeal, in turn, ruled against him and dismissed his action on the ground that he had no legal interest. In this Court, the appeal by Noël raises the problem of an employee’s interest in obtaining judicial review of an arbitration award made under the Labour Code, R.S.Q., c. C‑27 (“L.C.”), by way of a direct action in nullity. The issue directly raised by the case is the relationship between the procedural rules governing interest and the substantive law rules defining the collective bargaining scheme that applies in Quebec labour law. For reasons that differ in part from those of the majority of the Quebec Court of Appeal, I would dismiss the appeal.
I. Facts
2 This case first arose in 1992. At that time, Noël was working for the SEBJ as a flight dispatcher at the Fontanges airport on James Bay. The appellant was subject to the terms of a collective agreement between the United Steelworkers of America, Local 6833 (FTQ) (hereinafter the “union”) and the respondent, negotiated under the Labour Code. The union had been certified to represent the members of the bargaining unit to which Noël belonged.
3 Under the collective agreement, the union had the exclusive authority to represent the employees for the purposes of the grievance and arbitration procedure. None of its provisions gave an employee the right to take a grievance to arbitration personally or to be a party to a proceeding before the arbitrator.
4 Over the preceding years, Noël had been involved in disputes with his employer. Although they were resolved, further incidents occurred. Following a train of events which there is no need to describe, the employer terminated the appellant’s employment, and the appellant filed eight grievances, including one relating to his dismissal.
5 The mis en cause, Bernard Lefebvre, who was appointed as the arbitrator, heard these grievances. Subject to compliance with the rules and means of proof that apply to arbitration, the parties agreed to allow Noël the option of stating his case directly to the arbitrator. However, the union retained control of the arbitration process; it had carriage of the case and covered the associated costs. Noël testified as a witness and made submissions to the arbitrator. On February 20, 1995, the arbitration award dismissed the eight grievances, and accordingly upheld Noël’s dismissal.
6 Although the union had until then supported the appellant and initiated the arbitration process, it decided, following the arbitration award, despite Noël’s demands, that it would not take the matter further. It refused to apply for judicial review of the arbitration award. Noël then decided to act on his own.
II. Judicial History
7 In June 1995, approximately four months after the arbitration award, Noël filed an application for judicial review under art. 846 C.C.P. The employer immediately filed a motion to dismiss citing various grounds, but primarily the fact that Noël did not have the requisite interest to bring such proceedings, since Noël was not a party within the meaning of art. 846 C.C.P. Michel Côté J. of the Superior Court accepted that argument and dismissed the action on October 25, 1995. Noël did not appeal that decision. A few weeks later, on November 16, 1995, the appellant filed a direct action in nullity in the Superior Court. That proceeding challenged the legality of the arbitration award and sought to have it quashed. The SEBJ again filed a motion to have the appellant’s action dismissed, citing the principle of res judicata, the unreasonable delay in bringing the action and the fact that its former employee did not have the requisite interest.
8 Halperin J. of the Superior Court allowed the motion to dismiss and dismissed the appellant’s action on January 26, 1996. He believed that he was bound by the decision of the Quebec Court of Appeal in Lessard v. Gare d’autobus de Sherbrooke ltée, J.E. 94-1854, and accordingly he held that the interest that an employee must have in order to bring a direct action in nullity against an arbitration award on the ground of excess of jurisdiction is the same as is required for filing an application for judicial review under art. 846 C.C.P.
9 Noël then appealed to the Quebec Court of Appeal. That court’s decision on the appeal was divided: [1998] R.J.Q. 2270. Mailhot J.A., for the majority, found that a party’s interest should be determined on the basis not of the title of the pleading, but of the relief sought. The legal basis for the exercise of the superintending and reforming power was the same in proceedings under both art. 33 and art. 846 C.C.P. The appellant sought a declaration of the nullity of the arbitration award on the ground of excess of jurisdiction because it was unreasonable, and thereby to be reinstated in his employment. Lessard, supra, therefore had to be applied. In the labour law context, where the rule is exclusive legal representation by the union, the interest required for bringing a direct action in nullity is the same as is required by art. 846 C.C.P. for an application for judicial review. Only a party to the case in the lower tribunal would have sufficient interest. An employee who was represented by his or her union would not have that status. Mailhot J.A. excluded from that finding such hypothetical cases as collusion between employer and union or injustice amounting to fraud. In such situations, an employee could bring a direct action in nullity himself or herself.
10 Robert J.A., dissenting, would have allowed the appeal and recognized the appellant’s interest. He accepted that apart from exceptional situations that did not exist in that case, the grievance still belongs to the union, which has carriage of it during the arbitration process, to the exclusion of the employee. However, a fundamental distinction would have to be made between an employee’s interest in the arbitration case initiated for the purpose of applying and interpreting the collective agreement and the interest that would enable him or her to invoke the superintending and reforming power of the Superior Court to have the legality of the arbitrator’s decision determined.
11 In the view of Robert J.A., the proceedings provided for in arts. 846 and 33 C.C.P. are governed by two separate procedural schemes and raise different legal policy issues. Direct actions in nullity originate in the case law. Applications for judicial review are creatures of statute. Accordingly, there are two separate procedural schemes that apply with respect to interest. A direct action in nullity would require only sufficient interest within the meaning of art. 55 C.C.P. Any person who believed that his or her rights had been infringed would have that interest. The requirement of status as a party in the lower tribunal would then apply only to an application for judicial review under art. 846 C.C.P.
12 Robert J.A. pointed out that these two procedural routes are optional and apply in the alternative since the decision of this Court in Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555. A litigant therefore has the option of selecting the procedural vehicle he or she considers appropriate. Interest is a relevant factor in making this choice. Recognition of such an interest would prevail over concern for the stability of arbitration awards or over the risk of upsetting the general labour relations scheme.
13 In the view of Robert J.A., applying the test in art. 846 to art. 33 in order to determine a litigant’s interest would unduly limit the superintending and reforming power vested in the Superior Court by virtue of the general common law principles. A direct action in nullity under art. 33 C.C.P. is the route generally taken to invoke the superintending and reforming power. The reasons for preferring to proceed by way of judicial review, or evocation as it is often called, is often one of efficiency, in terms of the procedural conduct of the two proceedings, in that the application procedure frequently seems simpler and speedier. In addition, where there is no legislative provision relating to the interest that is required in order to bring a direct action in nullity, the sufficient interest standard in art. 55 C.C.P. would apply. Also, any other conclusion would leave the employee with no recourse, other than an action against his or her union where it refused to apply for judicial review of the arbitration award. The specific recourse provided in ss. 47.3 to 47.5 L.C. does not mean that an employee can obtain a second arbitration once the arbitration has taken place and the arbitrator has rendered a decision on the merits.
14 Robert J.A. therefore found that the employee had the necessary interest to bring a direct action in nullity. Because he was adversely affected by the arbitration award, he had sufficient interest within the meaning of art. 55, even though he was not a party for the purposes of art. 846 C.C.P. The decision in Lessard, supra, was incompatible with an accurate understanding of the nature of an application under art. 33 and was contradicted by a strong trend in the decisions of the Superior Court; it was not binding on the Court of Appeal and should be overturned.
15 Robert J.A. considered it necessary to make a ruling on the other two arguments raised by the SEBJ in its motion to dismiss. The SEBJ had argued, first, that the judgment of Côté J. dismissing the application for judicial review was res judicata. Robert J.A. rejected that argument because that decision was res judicata only with respect to lack of interest for judicial review purposes under art. 846 C.C.P., and not in relation to the merits.
16 Robert J.A. then addressed the argument that the application was brought out of time, but made no ruling on that point. He acknowledged that the delay seemed long to be reasonable, but felt that it would be difficult for the Court of Appeal to rule in that regard, there being insufficient evidence on that point. He would therefore have allowed the appeal and referred the case to the Superior Court to determine whether the delay had been reasonable and then, if it was, to dispose of the matter on the merits.
III. Relevant Legislation
17 Code of Civil Procedure, R.S.Q., c. C-25
33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Québec, and bodies politic, legal persons established in the public interest or for a private interest within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.
55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein.
165. The defendant may ask for the dismissal of the action if:
(1) There is lis pendens or res judicata;
(2) One of the parties is incapable or has not the necessary capacity;
(3) The plaintiff has clearly no interest in the suit;
(4) The suit is unfounded in law, even if the facts alleged are true.
846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:
(1) when there is want or excess of jurisdiction;
(2) when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;
(3) when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;
(4) when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.
However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with a proceeding are not susceptible of appeal.
Labour Code, R.S.Q., c. C‑27
47.2. A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members.
47.3. If an employee who has been the subject of dismissal or of a disciplinary sanction believes that the certified association is, in that respect, violating section 47.2, he shall, if he wishes to invoke this section, submit a written complaint to the Minister within six months. The Minister shall appoint an investigator who shall endeavour to settle the dispute to the satisfaction of the interested parties and of the certified association.
47.4. If no settlement has been reached within thirty days of the appointment of the investigator or if the association does not carry out the agreement, the employee shall, if he wishes to invoke section 47.2, apply to the Court within the fifteen ensuing days to request that his claim be referred to arbitration.
47.5. If the Court considers that the association has violated section 47.2, it may authorize the employee to submit his claim to an arbitrator appointed by the Minister for decision in the manner provided for in the collective agreement, as in the case of a grievance. Sections 100 to 101.10 apply mutatis mutandis. The association shall pay the employee’s costs.
The Court may, in addition, make any other order it considers necessary in the circumstances.
IV. Analysis
A. Unreasonable Delay
18 The motion to dismiss filed by the SEBJ raised three issues: unreasonable delay, res judicata and lack of interest. As Robert J.A. found, it is not possible, given what is in the record, to consider the issue of unreasonable delay. In the absence of any factual basis, had this appeal been allowed, the only fair solution for both parties would have been to refer the case back to the Superior Court on this point for the evidence that was needed to be introduced in that court.
19 Accordingly, I will not address that question. This leaves the issue of res judicata and the problem of interest, and I will address them in order.
B. Res Judicata
20 The SEBJ argues that the principle of res judicata applies. That principle would operate to prevent a fresh action being brought following the judgment by Côté J. of the Superior Court, who dismissed the application for judicial review filed by Noël under art. 846 C.C.P. Quebec civil procedure defines the concept of res judicata narrowly, as it does the concept of lis pendens, with which it is closely connected (see D. Ferland and B. Emery, Précis de procédure civile du Québec (3rd ed. 1997), vol. 1, at pp. 206-9; J.-C. Royer, La preuve civile (2nd ed. 1995), at pp. 463-64). For a judgment to amount to res judicata with respect to a proceeding, it is not enough that the main legal issue be identical. It must be established that three things are identical: parties, object and cause (art. 2848 of the Civil Code of Québec, S.Q. 1991, c. 64). (See Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440, at p. 448; Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 404‑27.) In this case, the parties are undoubtedly identical. The object, a declaration of the nullity of the arbitration award, also appears to be the same. The cause of the action, which is the presumed illegality of the award, was common to the two proceedings. Only the procedural route differs. However, in order for the res judicata exception to apply, the first judgment would have had to deal with the actual substance of the case. It did not. The first decision, the Superior Court judgment delivered by Côté J., made no determination concerning the appellant’s substantive right. It dealt solely with an important procedural issue: the interest required for the purposes of art. 846 C.C.P.; it went no further than that. The Superior Court did not decide whether the application for judicial review had any merit. Accordingly, the decision of that court does not amount to res judicata, except on the question of Noël’s status as a party for the purposes of art. 846 C.C.P. We must therefore now consider the main issue raised by the appellant, his interest within the meaning of art. 33 C.C.P.
C. Interest -- Relationship to Substantive Law
1. Parties’ Arguments
21 The debate regarding interest raises the question of the relationship between civil procedure and substantive law, that is, in this case, the fundamental institutions of Quebec labour law. In the appellant’s submission, art. 33 C.C.P. neither defines nor limits interest. The general rule of sufficient interest in art. 55 C.C.P. then applies. Noël, who believes his rights to have been violated by the decision of the arbitrator, Lefebvre, claims to have the requisite interest and denies that the general principles of labour law can restrict that interest. Such a restriction would negate the very existence of the superintending and reforming power of the Superior Court, which is constitutional in nature and is derived not only from the Code of Civil Procedure, but from the fundamental general common law principles that apply in Quebec public law.
22 The appellant acknowledges the general rule of the unique nature of labour law institutions and specifically the union’s exclusive representation mandate. However, he submits that this power of representation, and the legal consequences of that power, do not extend beyond the collective agreement bargaining process and measures taken to administer the agreement, such as the grievance procedure. Beyond the sphere to which that mandate applies, the principles of civil procedure governing interest again apply.
23 Noël argues that no external limitation on the provisions of the Code of Civil Procedure limits the power of the Superior Court in respect of the application of art. 33 C.C.P., under which, he contends, all grounds for judicial review, including want of jurisdiction in the strict sense, breach of the rules of natural justice, collusion between the parties and the various types of errors subject to review by the Superior Court in accordance with the “reasonable” or “patently unreasonable” test, may be argued.
24 The SEBJ, with the union’s support on this point, advocates a completely different approach, which reflects the approach taken by the Court of Appeal. It points out that it is important that there be co‑ordination between labour law and civil procedure, to avoid jeopardizing the operation of the procedures for representation and for negotiating of working conditions. From this standpoint, a party’s legal interest is defined in terms of the fundamental characteristics of a labour relations system, one of the most important features of which is exclusive representation of the employees by the union. This function, which is broader than the appellant suggests, would not be limited to negotiating the collective agreement and to the grievance and arbitration process. It would extend, for example, to subsequent measures to enforce or review the arbitration award. The existence of that function prevents an employee from challenging what the union has negotiated or what is decided in an arbitration in which the employee was represented by his or her union.
25 The SEBJ also points out that it is important that stability be the rule in terms of the results of bargaining and arbitrations involving the union. The union’s representation mandate imposes obligations on the employer. It is therefore important that an employer which has properly performed its obligations to the union not be exposed to the possibility of untimely action taken by every one of the employees who belong to the bargaining unit seeking to challenge the solutions reached through the process of collective bargaining or of administering the labour agreement.
26 The SEBJ also submits that the nature of the proceeding that the employee chooses to institute is immaterial. The proceedings are fundamentally identical, whether they are brought under art. 846 or art. 33. The interest is therefore identical. The nature of the labour relations scheme defines and limits that interest for purposes of exercising the power of judicial review, and the interest required is therefore the interest specified in art. 846, with the exception of situations in which the employee was a party to the proceedings before the arbitrator as an individual, or extreme situations such as collusion between employer and union, as recognized by the Court of Appeal. That argument having been made, we must now consider the procedural rules governing direct action in nullity and application for judicial review, in the civil procedure and administrative law of Quebec.
2. Procedural Rules Governing Applications for Judicial Review
27 Under the constitutional arrangements that prevail in Canada, each province has a superior court whose members are appointed under s. 96 of the Constitution Act, 1867 . That court is the cornerstone of the Canadian judicial system. It has what has been characterized as a “core” jurisdiction, which cannot be removed from it by the provincial legislatures. (See MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at p. 740, Lamer C.J.) Among the essential powers reserved for a superior court, as a court of general jurisdiction, is the judicial review of lower tribunals and administrative bodies. While that power may be circumscribed, it cannot be totally removed from the Superior Court or transferred to another body. (See Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at p. 235; Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, at p. 155; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681.)
28 Quebec civil procedure provides a structure for bringing proceedings which ask the Superior Court to exercise its superintending and reforming power. We are concerned in this case with applications for judicial review (art. 846 C.C.P.) and direct actions in nullity (art. 33 C.C.P.). These are of course separate proceedings, but the rules governing the procedure in each instance have evolved to the point that the similarities between them have become increasingly pronounced. Both allow for the same form of review. In Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 358, Gonthier J. pointed out the common origin and objective of these proceedings.
29 These proceedings are now two procedural methods of achieving the same result. The fact that one is available does not rule out the possibility of using the other, as this Court held in Vachon, supra. Direct actions in nullity and applications for judicial review derive from the same source: the jurisdiction given to the Superior Court to supervise administrative bodies or lower tribunals. Their objective is also identical. Only their procedural rules differ, although an increasingly pronounced convergence between the two may be observed.
3. Evolution of the Procedure
30 The wording of art. 33 has undergone only minor amendments since the enactment of the 1965 Code of Civil Procedure (S.Q. 1965, c. 80). Direct actions in nullity follow the procedure for ordinary actions in courts at first instance. They are introduced by a declaration and then, following joinder of the action, they are heard on the merits by the Superior Court. The only significant change to this procedure since 1965 was to eliminate the writ of summons in 1996, as was done in respect of all proceedings by declaration (An Act to amend the Code of Civil Procedure, the Act respecting the Régie du logement, the Jurors Act and other legislative provisions, S.Q. 1996, c. 5, s. 6). Furthermore, no judicial leave is required in order to institute the proceeding. The decision to bring a matter before the court lies entirely with the party.
31 The procedure for judicial review, which is governed by art. 846 C.C.P., is one of the extraordinary recourses provided for in Title VI of Book II of the Code of Civil Procedure. A party introduces it by motion, in accordance with art. 834. In practice, this means that, unlike proceedings instituted by declaration, the case will be heard without any preliminary exchange of pleadings by the parties. As a rule, the readiness process is speedier.
32 However, the Quebec National Assembly has substantially altered the procedure that applies to these extraordinary recourses. When the 1965 Code of Civil Procedure was originally enacted, the procedure was different. Like the other extraordinary recourses such as quo warranto and mandamus, “evocation”, as it was called at the time, necessitated a two-stage procedure. This recourse could be exercised only with the leave of a judge, under art. 834 C.C.P. The purpose of the initial application was to obtain leave. If it were granted, a writ of summons was issued and the case proceeded on the merits. After the first stage, the allegations made in the application became, so to speak, the allegations in the action itself.
33 In the case of recourses such as quo warranto and mandamus, the judge to whom the application for leave was made, in the first stage, did not go beyond a summary of the applicant’s arguments for the purposes of granting leave. In the case of evocation, based on this Court’s interpretation of art. 847 C.C.P. in François Nolin Ltée v. Commission des relations de travail du Québec, [1968] S.C.R. 168, the judge was required to satisfy himself that the facts alleged in the application, which were assumed to be proven, justified the exercise of the recourse in law. In other words, the judge ruled on the law before hearing the case on the facts, as in the case of motions to dismiss.
34 That interpretation soon caused problems with respect to the exercise of the recourse. The question arose whether the conclusions of law stated by the judge who granted leave were binding on the judge who heard the case on the merits. After considerable debate in the Quebec Court of Appeal (see, inter alia, Comité d’appel du bureau provincial de médecine v. Chèvrefils, [1974] C.A. 123), this Court held that the judge who heard a case on the merits was not bound by the conclusions of law stated by the first judge. The Court held that the decision rendered in the leave application had only the weight of an interlocutory judgment, and that it was not res judicata. (See Fraternité des Policiers de la Communauté urbaine de Montréal v. City of Montreal, [1980] 1 S.C.R. 740.)
35 To solve these problems, the legislature