Canadian Union of Public Employees, Local 301 v. Montreal (City)

Canadian Union of Public Employees, Local 301 v. Montreal (City)
Collection
Supreme Court Judgments
Date
1997-03-27
Report
[1997] 1 SCR 793
Case number
24761
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Quebec
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 24761
Decision Content
Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793
City of Montreal Appellant
v.
Canadian Union of Public Employees, Local 301 Respondent
and
Conseil des services essentiels Mis en cause
Indexed as: Canadian Union of Public Employees, Local 301 v. Montreal (City)
File No.: 24761.
1996: November 5; 1997: March 27.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier and Cory JJ.
on appeal from the court of appeal for quebec
Labour law ‑‑ Essential services ‑‑ Union instructing certain municipal employees to refuse to work overtime for duration of holiday weekend ‑‑ Conseil des services essentiels ordering employees to report to work if requested by employer and ordering union representatives to take all necessary steps to ensure employees did so ‑‑ Council order suspending collective agreement provision allowing employees to refuse to work overtime without giving reason ‑‑ Whether council exceeded jurisdiction in making order ‑‑ Whether order patently unreasonable.
Judicial review ‑‑ Standard of review ‑‑ Conseil des services essentiels.
Administrative law ‑‑ Natural justice ‑‑ Transcript of hearing ‑‑ Conseil des services essentiels ‑‑ Council making remedial order preventing certain municipal employees from collectively refusing to work overtime for duration of holiday weekend ‑‑ Council failing to make machine recording of hearing giving rise to order ‑‑ Whether resulting lack of transcript of hearing violates rules of natural justice.
The appellant City requested the intervention of the Conseil des services essentiels (the “Council”), alleging that the respondent union had instructed the City’s blue collar employees to refuse to work overtime for the duration of a holiday weekend. Under their collective agreement with the City, the union members have the right to refuse to work overtime without giving a reason. The Council held a public hearing at which witness testimony and argument by legal representatives on behalf of both parties were heard. Owing either to human or mechanical error, the hearing was not taped. The Council ordered the union to take all necessary measures to ensure that its blue collar members reported to work and fulfilled their usual duties, whether in regularly scheduled or overtime hours, as requested by the employer. The employees were similarly ordered to report to work if requested by the employer, again for regular hours or overtime. The union filed a motion for judicial review of the Council’s decision. The Council then conveyed its written reasons to the parties. It found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of the Quebec Labour Code were established. These provisions authorize the making of orders to ensure the maintenance of services to which the public is entitled where there exists a concerted action, other than a strike or slowdown, which is related to a labour conflict and either is currently or has the potential of prejudicing these services. The union filed an amended motion for review of the Council’s decision, on the grounds that the tribunal had interpreted the law and the evidence in a patently unreasonable manner. The motion was dismissed by a Superior Court judge, who further held that the absence of a recording of the proceedings before the Council constituted neither a miscarriage of justice nor a failure to observe the principles of natural justice. The Court of Appeal overturned the judgment, granted the union’s motion for review, and quashed the Council’s order. It found that in ordering the suspension of a provision of the collective agreement, the Council had exercised a remedial power not conferred upon it, thereby committing a jurisdictional error.
Held: The appeal should be allowed.
To ascertain whether the question facing the Council was one which the legislature intended it to decide, a pragmatic and functional interpretation of the enabling statute is required, one which considers the wording, purpose and underlying reasons of the legislation in creating the tribunal, as well as the tribunal’s expertise and the problem before it. The Quebec Labour Code establishes and governs a system of collective bargaining and constructive settlement of disputes between employers and employees in the province. A special regime is established for employees in “the public services” and “the public and parapublic sectors”, and the Council is created and granted various functions and remedial powers essential to the implementation of the special regime. The need for this specialized body is evident: when public employees strike, the pressure exerted on the employer is not largely financial, as in the private sector, but rather arises from the disruption of services upon which society depends for the daily activities of its members. While the public, through its elected representatives, has chosen to sustain a certain level of disruption in order to extend the same rights to public employees as are available to other workers, this cannot be unlimited. The government must balance the right to strike against other entitlements and needs such as those established in human rights and social legislation. The health and safety of the greater populace will always take priority over the workers’ and/or employers’ interests in achieving a fair and equitable settling of the terms of employment. In addition to the penalties attached to illegal strikes and other contraventions of the Code, which fall within the jurisdiction of the Labour Court, the legislation has granted the Council broad powers to make orders which maintain the public’s ongoing access to fundamental services. Unlike the labour relations tribunals in, inter alia, other provinces, the Council’s role is not to resolve the labour conflict or protect the collective bargaining rights of the parties to the labour dispute but, given a conflict’s existence, to ensure the protection of the public from consequences of this dispute which their elected representatives have chosen not to tolerate.
The Court of Appeal erred in finding that the order made by the Council constituted an excess of jurisdiction. The issue before the Council was one which lies logically at the heart of its specialized jurisdiction stricto sensu. The task faced by the Council was the fashioning of an effective order to secure the provision of services to which the public is entitled. When faced with a concerted action which is or threatens to be prejudicial to services to which the public is entitled, the Council is authorized to fashion an order which is required and reasonable in the circumstances to secure the maintenance of these services. Clearly, this is the very type of problem this permanent, specialised body is intended to remedy.
In the presence of a strongly worded privative clause such as the one in s. 139 of the Labour Code, where the factual and legal aspects of the problem facing the tribunal place the question squarely within its sphere of expertise, the tribunal’s decision will stand unless it is patently unreasonable. The strong connection between the problem before the Council and both its specialized expertise and the statutory regime which guides and protects its decisions provides ample indication of the need for curial deference upon review. The order at issue here represents a rationally supportable interpretation by the Council of its remedial provisions. Where a right gained through collective bargaining is exercised collectively for the purposes of applying illegal pressure tactics, preventive action to maintain public services will necessarily suspend the exercise of this right, by the individuals involved in the conflict, for these ends. Given the broad powers in s. 111.17 of the Code to make orders targeting any persons or groups of persons involved in the conflict, the Council clearly had the power to target the union both through its representatives and its individual members. It is also logical to encompass the individual union members who participate in the illegal action in case the union delegates refuse to withdraw their instruction. There is a rational connection between the source of the prejudice and the order forbidding the union representatives and individuals to refuse overtime for the purposes of collectively pressuring the employer to accede to the union’s wishes. Moreover, only those involved in the conflict were prevented from exercising their individual rights in this manner. The order in this case was also not only consistent with the objectives of the Code in creating these remedial provisions, but was tailored specifically to fulfill them in the circumstances. The order restricts the right to refuse overtime only where it is for the purposes of illicit pressure tactics related to labour conflict and only for the period of the concerted action identified by the Council. The principles governing contempt proceedings support a finding that the order is not patently unreasonable.
The Council’s failure to make a machine recording of the hearing did not violate the rules of natural justice. The Code does not require a recording of hearings before the Council. In the absence of any express statutory requirements, the traditional common law requirements for a record of an administrative tribunal’s proceedings include the document which initiated the proceedings and the document containing the tribunal’s adjudication. Neither the reasons for the ruling nor evidence presented at the hearing have been considered necessary elements of the record to be presented to the superior tribunal upon appeal or review. Moreover, administrative bodies are normally under no obligation to make verbatim transcripts or recordings of their proceedings. In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. Here the affidavit evidence provided in conjunction with the application for judicial revew provided a more than adequate record for reviewing the factual findings of the Council to determine whether the union’s claim was grounded.
Cases Cited
Distinguished: Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; referred to: Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Syndicat canadien de la fonction publique v. Conseil des services essentiels, [1989] R.J.Q. 2648; Syndicat des chauffeurs de la Société de transport de la Ville de Laval v. Conseil des services essentiels, [1995] R.D.J. 597; Communauté urbaine de Montréal v. Fraternité des policiers et policières de la Communauté urbaine de Montréal inc., [1995] R.J.Q. 2549; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R 644; National Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R. 269; Syndicat du transport de Montréal v. Conseil des services essentiels, Sup. Ct. Mtl., No. 500‑05‑000353‑902, February 8, 1990; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; Hydro‑Québec et Syndicat canadien de la fonction publique, section locale 957, C.S.E. 88‑1691/3c, July 14, 1989; Hydro‑Québec et Syndicat canadien de la fonction publique, section locale 1500, C.S.E. 88‑1691/3c, July 11, 1989; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388; Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232; Rhéaume v. Canada (1992), 153 N.R. 270; Cameron v. National Parole Board, [1993] B.C.J. No. 1630 (QL); Desjardins v. National Parole Board (1989), 29 F.T.R. 38; R. v. Hayes, [1989] 1 S.C.R. 44; Cahoon v. Conseil de la Corporation des Ingénieurs, [1972] R.P. 209; Beaudry v. Fournier, D.T.E. 94T‑433; C.I.L. Inc. v. Plante, [1983] T.T. 121; Spécialités Jones Ltée v. Langlois, [1981] T.T. 143; Unicast Canada ltée v. Léveillé, D.T.E. 91T‑879; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.
Statutes and Regulations Cited
Act respecting health services and social services, R.S.Q., c. S‑4.2, s. 5.
Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2.
Canada Labour Code, R.S.C., 1985, c. L‑2, ss. 91 , 93 , 99(2) .
Canadian Charter of Rights and Freedoms .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 50 et seq., 834, 846.
Labour Code, R.S.Q., c. C‑27, ss. 1 “lock‑out”, “strike”, 20.2, 52 to 58, 106, 107, 109, 111.0.3, 111.0.4, 111.0.6, 111.0.13, 111.0.15, 111.0.17, 111.0.18, 111.0.19, 111.0.20, 111.0.21, 111.0.23, 111.0.24, 111.0.25, 111.1, 111.10, 111.11, 111.12, 111.14, 111.16, 111.17, 111.18, 111.19, 111.20, 139.
Public Service Act, R.S.Q., c. F‑3.1.1.
Authors Cited
Bernier, Jean, et Madeleine Lemieux. «La grève et les services essentiels au Québec». Dans J. Bernier, dir., Grèves et services essentiels. Sainte‑Foy: Presses de l’Université Laval, 1994, 205.
Dubé, Jean‑Louis, et Pierre Gingras, «Historique et problématique du régime de négociation collective dans le secteur de la santé et des services sociaux» (1991), 21 R.D.U.S. 519.
Dussault, René, and Louis Borgeat. Administrative Law: A Treatise, vol. 4, 2nd ed. Translated by Donald Breen. Toronto: Carswell, 1990.
Gagnon, Robert P. Le droit du travail du Québec: pratiques et théories, 3e éd. Cowansville, Qué.: Yvon Blais, 1996.
Gagnon, Robert P., Louis LeBel et Pierre Verge. Droit du travail, 2e éd. Sainte‑Foy: Presses de l’Université Laval, 1991.
Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law, 2nd ed. Scarborough, Ont.: Carswell, 1994.
Lemelin, Maurice. Les négociations collectives dans les secteurs public et parapublic: expérience québécoise et regard sur l’extérieur. Montréal: Agence d’ARC, 1984.
Macaulay, Robert W., and James L. H. Sprague. Hearings Before Administrative Tribunals. Scarborough, Ont.: Carswell, 1995.
APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 1050, allowing the union’s appeal from the dismissal by the Superior Court of its motion for judicial review of a decision of the Conseil des services essentiels. Appeal allowed.
Diane Lafond, for the appellant.
Jacques Lamoureux and Yves Morin, for the respondent.
Sylvain Lussier, for the mis en cause.
//L’Heureux-Dubé J.//
The judgment of the Court was delivered by
1 L’Heureux-Dubé J. -- This appeal raises two issues. The first is whether the Conseil des services essentiels -- an administrative tribunal created by provisions of the Quebec Labour Code, R.S.Q., c. C-27 -- exceeded its jurisdiction in making a remedial order preventing certain employees of the appellant from collectively refusing to work overtime for the duration of a holiday weekend. The second issue concerns the failure by the Conseil des services essentiels to make a machine recording of the hearing which gave rise to the order. This Court must determine whether the resulting lack of a transcript of that hearing violates the rules of natural justice.
2 At the outset, reference to the relevant statutory and collective agreement provisions and a review of the facts and judgments are in order.
I. Relevant Statutory and Collective Agreement Provisions
3 Labour Code, R.S.Q., c. C-27
DIVISION IV
REMEDIAL POWERS
111.16. In public services and in the public and parapublic sectors, the Conseil des services essentiels, of its own initiative or at the request of an interested person, may inquire into a lock-out, a strike or a slowdown that is contrary to law or during which the essential services provided for in a list or agreement are not rendered.
. . .
111.17. The council, if it considers that the conflict is or is likely to be prejudicial to a service to which the public is entitled or that the essential services provided for in a list or agreement are not rendered during a strike, may, after giving the parties the opportunity to submit their views, make an order to ensure that a service to which the public is entitled is available, or require compliance with the law, a collective agreement or an agreement or list on essential services.
The council may
(1) enjoin any person involved in the conflict or any category of these persons it determines to do what is required to comply with the first paragraph of this section, or abstain from doing anything in contravention thereof;
(2) require from any person involved in the conflict to remedy any act or omission done or made in contravention of the law, of an agreement or of a list;
(3) order in respect of a person or group of persons involved in a conflict, taking into consideration the conduct of the parties, the application of the measures of redress it considers best appropriate, including the establishment of a fund for the benefit of the users of the service that has been adversely affected, and the terms and conditions governing the administration and use of that fund;
(4) order every person involved in the conflict to do or abstain from doing anything that it considers reasonable in the circumstances in view of maintaining services for the public;
(5) order, where that is the case, that the grievance or arbitration procedure under a collective agreement be accelerated;
(6) order a party to make known publicly its intention to comply with the order of the council.
111.18. The council may, in the same manner, exercise the powers conferred on it by sections 111.16 and 111.17, if, in the course of a conflict, it considers that a concerted action other than a strike or a slowdown is or is likely to be prejudicial to a service to which the public is entitled.
111.20. The council may file a true copy of an order made under section 111.17 at the office of the prothonotary of the Superior Court of the district in which the public service or agency involved is situated.
Every order filed under the first paragraph has the same force and effect as if it were a judgment of the Superior Court.
139. Except on a question of jurisdiction and except when the Court is sitting in penal matters, no extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure (chapter C-25) shall be exercised and no injunction granted against an arbitrator, the Conseil des services essentiels, a certification agent, a labour commissioner or the Court acting in their official capacities.
Collective Agreement between the City of Montreal and the Canadian Union of Public Employees, Local 301 for the period from January 1, 1992 to December 31, 1992
[translation]
7.10 Distribution of Overtime
. . .
d) Refusal of overtime
The incumbent employee who refuses or neglects to do overtime work when required, whether for the purposes of paragraph a) or paragraph b), is considered as having provided this overtime work. Employees whose rights are prejudiced by the principle set out in this paragraph can claim lost wages.
e) Shortage of Candidates
In the case of a shortage of candidates for the work to be done in overtime hours for the purposes of paragraphs a) and b), this overtime is to be offered in turn, by section, to the incumbent employees who are registered on the eligibility list pursuant to article 19, subject to their being sufficiently competent to do this overtime work.
For the driver-operators assigned in the regions, further to the use of the mechanisms established in article 7, in the event of a shortage, the City will offer the overtime hours by turn among the driver-operators in the order of their general seniority as driver-operators. Subsequently, the City will offer the overtime to the employees whose names appear on the eligibility list and who hold the necessary licences.
Review Powers of the Superior Court of Quebec
Code of Civil Procedure, R.S.Q., c. C-25
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 the proceeding are not susceptible of appeal.
It is under this provision that the case was evoked before the Quebec Superior Court.
II. Facts and Judgments
4 On September 2, 1994, the appellant (the “City”) requested the intervention of the Conseil des services essentiels (the “Council”) in a situation which threatened to prejudice the provision of certain public services. The City alleged that the respondent Union had instructed the City’s “blue collar” employees to refuse to work overtime for the duration of the Labour Day weekend, that is, from 3:30 p.m. on September 2 to 7:30 a.m. on September 6. According to the City, these pressure tactics related to conflict over the imposition on these employees of three days of non-paid holidays pursuant to Bill 102. These employees had not yet acquired the right to strike. Earlier that day, the City had written to the Union representatives asking them to put an end to these pressure tactics and indicating its intention to approach the Council if no response was immediately forthcoming.
5 The Council held a public hearing that evening at which witness testimony and argument by legal representatives on behalf of both parties were heard. The City’s witnesses described a variety of public services which would be interrupted in the event of a concerted refusal to work overtime. The Union undertook to ensure that the public’s health and safety would not be affected during the weekend. Owing either to personal or mechanical error, the hearing was not taped. For this reason, no transcript of the proceedings is available. That evening, the Council delivered a written decision consisting of an order with reasons to follow. The Council ordered the Union, and certain representatives and delegates of the Union, to take all necessary measures to ensure that the blue-collar members of the Union reported to work and fulfilled their usual duties, whether in regularly scheduled or overtime hours, as requested by the employer. The employees were similarly ordered to report to work if requested by the employer, again for regular hours or overtime. It is noteworthy that pursuant to article 7.10 of their collective agreement with the City, the Union members have the right to refuse to work overtime without giving a reason.
6 On September 2, 1994 this order was filed at the office of the prothonotary of the Quebec Superior Court pursuant to s. 111.20 of the Code. On September 3 and 7, the City filed two successful motions to institute contempt of court proceedings. The City alleged that Union representatives and members had ignored the order and a concerted refusal to work overtime had taken place. On September 30, 1994, the Union filed an application for juicial review of the Council’s decision pursuant to art. 846 of the Quebec Code of Civil Procedure (“C.C.P.”). On October 6, 1994, subsequent to the filing of this motion, the Council conveyed its written reasons to the parties. On October 13, 1994, the Union filed an amended motion for review which was dismissed by a judge of the Superior Court on October 19, 1994. This decision was successfully appealed to the Court of Appeal, which rendered its decision on April 3, 1995: [1995] R.J.Q. 1050.
Order and Decision of the Conseil des services essentiels
7 The relevant excerpts of the order made on September 2, 1994, are as follows:
[translation]
WHEREAS the parties are bound by a collective agreement which is in force until December 31, 1994.
WHEREAS there exists a conflict between the parties.
WHEREAS there exists a concerted action within the meaning of section 111.18 of the Labour Code which consists of a refusal to work overtime and of an incitement of the employees to leave their work.
WHEREAS this concerted action is prejudicial to the service to which the public is entitled.
WHEREAS the role of the union, its officers and representatives in this concerted action has been clearly established.
WHEREAS the Conseil has given the parties the opportunity to present their views.
WHEREAS there exists an emergency.
ON THE BASIS OF WRITTEN REASONS WHICH WILL BE CONVEYED TO THE PARTIES AT A LATER DATE, THE CONSEIL DES SERVICES ESSENTIELS MAKES THE FOLLOWING ORDERS:
ORDERS the Canadian Union of Public Employees, Local 301, its agents, representatives, officers and employees to take all necessary measures to ensure the presence at work and performance of their usual duties on the part of all union members, where the employer requests their presence, whether during regular or overtime hours.
ORDERS the Canadian Union of Public Employees, Local 301, its agents, representatives, officers and employees to take all necessary measures to ensure that each person who is required to report to work, whether for regular or overtime hours, may do so without being prevented in any manner whatsoever.
. . . [These two orders are repeated but addressed specifically, by name, to various representatives of the Union.]
ORDERS all employees who are members of the Canadian Union of Public Employees, Local 301, to report to work if requested by the employer, whether for regular or overtime hours.
DECLARES that this order comes into force immediately and remains in force until the Union has legally acquired the right to strike.
DECLARES that this order will be filed at the office of the prothonotary of the Superior Court of the District of Montreal.
RESERVES its jurisdiction to make any other order it deems necessary.
8 In the written reasons which followed on October 6, 1994, the Council’s president, Madeleine Lemieux, began by noting the similarity between the present inquiry and one which had taken place before the July long weekend of that year. The July hearing had concerned a concerted refusal to work overtime in response to a Union instruction which arose in relation to conflict over the application of Bill 102 to the Union’s members. The order made in this appeal was identical to that which followed the earlier hearing.
9 In its reasons in the current inquiry, the Council made a number of factual findings based on the testimony it had heard. The employer had described a number of public services which would be or risked being disturbed by the refusal to work overtime. These included: weekend recreational activities, a delay in the opening of public arenas and hockey training camps, garbage pick-up in public parks, loss of plants and flowers at public gardens due to lack of watering, special construction projects, telephone and other communication services including emergency telephone calls, emergency repairs of the rides at an amusement park, emergency repairs in the case of power failure or water shortage, certain aspects of garbage collection and disposal, and the provision of security guards. Witnesses from each of these public service sectors further testified that a Union delegate had informed the employer’s representatives that there would be no overtime workers to effect these duties. The Council observed that the respondent Union had admitted to the overtime embargo, but had claimed that the lack of employees would not affect the health or safety of the public.
10 On the basis of this evidence, the Council found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of the Code were established. These provisions authorize the making of orders to ensure the maintenance of services to which the public is entitled where there exists a concerted action, other than a strike or slowdown, which is related to a labour conflict and either is currently or has the potential of prejudicing these services. The Council noted the difference between their role during times of legal strike, which is to ensure “essential services” for the health and safety of the public, and their role during times of illegal collective action, which is the broader duty to protect all public services. It held that the Union’s withdrawal from the employer of the performance of work upon which the latter could normally rely constituted a strike. The strike was an illegal one, as none of the Labour Code’s requirements had been fulfilled. As such, the Council held that it had the power to intervene, by making the order that it had.
Superior Court
11 The respondent Union filed an amended motion for judicial review of the Council’s decision, on the grounds that the tribunal had interpreted the law and the evidence in a patently unreasonable manner. The motion was dismissed by Guthrie J. In his view, the Quebec Court of Appeal decision in Syndicat canadien de la fonction publique v. Conseil des services essentiels, [1989] R.J.Q. 2648, at pp. 2653-54, had established that ss. 111.17 and 111.18 authorize not only orders mandating compliance with the collective agreement, law, or essential services list, but also, more generally, the maintenance of public services. Guthrie J. found that the evidence before the Council supported its finding that there was a concerted action, the refusal to work overtime, which would likely prejudice services to which the public is entitled. In his opinion, as s. 139 of the Code contains a strong privative clause protecting the decisions of the Council, the court could only intervene where the appreciation of the evidence constituted a patently unreasonable error of law. This was not the case.
12 Guthrie J. further held that the absence of a recording of the proceedings before the Council constituted neither a miscarriage of justice nor a failure to observe the principles of natural justice. Had it been, he stated on the basis of Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 593, the order would not be subject to the same nullity as if the Council had exceeded its jurisdiction. Relying on jurisprudence of this Court and the Quebec Court of Appeal, he finally observed that the standard of review for the order was a stringent one. The order must be clearly unreasonable, abusive, or arbitrary for the court to intervene. As the order had none of these characteristics he dismissed the motion.
Court of Appeal (Rothman, Deschamps and Otis JJ.A.)
13 The respondent Union appealed the dismissal of its motion to the Court of Appeal on two alternate grounds: first, in ordering the suspension of a provision of the collective agreement, the Council had exercised a remedial power not conferred upon it, thereby committing a jurisdictional error; and second, the Council had violated the rules of natural justice, by virtue of holding a hearing without making a machine recording thereof. The appeal was allowed on the first ground for the following two reasons.
14 First, the order abrogated a key provision of the collective agreement, namely, the right to refuse overtime. The Court of Appeal concluded that the legislator had not empowered the Council to interfere with the provisions of a collective agreement except in the particular instance described in s. 111.17, viz. to modify or accelerate grievance or arbitration procedures. Relying upon this Court’s decision in Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412 (“Acadie”), the Court of Appeal held that general provisions authorizing orders by such a board cannot support an unlimited intrusion in the collective bargaining process. The Council’s express authority to intervene in a grievance or arbitration is an exceptional power. The remedial powers of the Council are otherwise limited by the requirements of respect of the Code and the collective agreement, reasonableness, and necessity.
15 Second, the order was broader than was required in that it prevented all employees from refusing overtime, without ensuring a connection between the refusal and a concerted action likely to prejudice public services. The Court of Appeal observed that the excessive nature of the order became evident if one considered that an employee could not refuse to work overtime for good reason without facing a contempt charge before which he or she would have to justify the refusal. As the order did not link the prohibition of refusing overtime directly to the concerted action, it had the effect of temporarily suspending an individual right in the collective agreement. This it could not do. The Court of Appeal found that the decision clearly exceeded the powers granted the Council and, as such, constituted a jurisdictional error which was reviewable on a correctness standard. As a result, it overturned the judgment of the court of first instance, granted the motion for review, and quashed the order of the Council. The City had cited a number of participants in the Union-directed refusal to work overtime for contempt of the order. The judgment of the Court of Appeal removed the basis for these charges.
III. Issues
16 In disposing of this appeal, the following two issues must be addressed:
1. Does the remedial order made by the Council constitute an excess of jurisdiction?
2. Does the absence of a machine recording and thus transcript of the hearing before the Council constitute a denial of the respondent’s rights to natural justice?
IV. Analysis
1. The Order
A. Remedial Jurisdiction of the Council
17 In deciding whether the Council has exceeded its jurisdiction, this Court must first determine whether the problem addressed by the tribunal fell within the exclusive and specialized jurisdiction granted it by the legislature. In other words, did the Council, in determining the appropriate order in this case, act within its jurisdiction stricto sensu? This Court has repeatedly stated that the courts should proceed cautiously when faced with the task of assessing the jurisdiction of an administrative tribunal. These bodies play a very important and special role in regulating social, economic, and political activities and relationships within an increasingly complex society. The administrative tribunal, with its specialized expertise, accumulated experience, and sensitivity as regards problems which arise in a particular field, is essential to the effective and fair implementation of state policy aimed at addressing these concerns. While the courts have maintained the important role of ensuring that these bodies limit their activity to those powers entrusted to them by the legislature, we must be careful to avoid unduly limiting the jurisdiction of such a body, thereby negating its specialized expertise and interfering with its intended functions.
18 For this reason, while this Court has maintained that tribunals must correctly interpret statutory provisions which grant and limit their jurisdiction if they wish to escape judicial review, curial intervention must also respect the limits intended by the legislature. As Dickson J., as he then was, warned in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“CUPE”), at p. 233:
The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.
Dickson J. was concerned that a court’s determination of what it characterizes as a question going to a tribunal’s jurisdiction stricto sensu may, in reality, decide a question which would “lie logically at the heart of the specialized jurisdiction confided to the Board” (p. 236). To address this concern, the CUPE decision established the principle of curial deference in judicial review of administrative decision-making which continues to inform the jurisprudence of this Court.
19 In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, subsequent to various attempts to articulate the difference between questions going to jurisdiction and those falling within the specialized competence of an administrative body, this Court established a “pragmatic and functional” approach which continues to be the authoritative method for determining this issue. In Bibeault, writing for the Court, Beetz J. explained that the question to be asked is whether the legislator intended the issue to be within the tribunal’s jurisdiction. In this context, a “pragmatic and functional” interpretation of the enabling statute is required. Beetz J. directed courts to consider the following factors in undertaking this task: a) the wording of the enactment conferring jurisdiction on the tribunal; b) the purpose of the statute in creating the tribunal; c) the reason for the tribunal’s existence; d) the area of expertise of the tribunal’s members; and e) the nature of the problem before the tribunal. He also emphasized that the functional and pragmatic approach for determining the legislator’s intent should be applied equally to questions which, at first blush, appear to limit a tribunal’s jurisdiction.
20 Our initial task in disposing of this ground of review is thus to ascertain whether the question facing the Conseil des services essentiels was one which the legislature intended it to decide. Our pragmatic and functional interpretation of the remedial provisions of Quebec’s Labour Code which were exercised by the Council begins with an examination of the wording of these provisions. These sections will be difficult to interpret, however, without background knowledge of both the special schemes governing collective bargaining for “public” employees and the related duties of the Council to which these provisions refer. For this reason, I will begin with a brief overview of these regimes as they are situated in the general structure of the Code.
21 Speaking generally, the Quebec Labour Code establishes and governs a system of collective bargaining and constructive settlement of disputes between employers and employees in the province, as defined in the Code’s initial chapter. Chapter II creates the right of employees to belong to the employee association of their choice, such as a union. These provisions set out a scheme whereby a particular association will be certified to represent the employees in a local bargaining unit and establishes the powers of labour commissioners and the Labour