Pointe-Claire (City) v. Quebec (Labour Court)

Pointe-Claire (City) v. Quebec (Labour Court)
Collection
Supreme Court Judgments
Date
1997-04-24
Report
[1997] 1 SCR 1015
Case number
24845
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Quebec
Subjects
Labour law
Notes
SCC Case Information: 24845
Decision Content
Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015
City of Pointe‑Claire Appellant
v.
Syndicat des employées et employés
professionnels‑les et de bureau, section locale 57
(S.E.P.B.‑O.P.E.I.U.‑C.L.C.‑F.T.Q.) Respondent
and
The Labour Court, the Labour Commissioner
General and Réal Bibeault Mis en cause
Indexed as: Pointe‑Claire (City) v. Quebec (Labour Court)
File No.: 24845.
1996: November 6; 1997: April 24.
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 ‑‑ Identification of real employer in tripartite relationship ‑‑ Relevant criteria ‑‑ Temporary employee hired by city through employment agency ‑‑ Inclusion of employee in union’s bargaining unit ‑‑ Labour Court finding that employee’s real employer was city and not agency ‑‑ Whether Labour Court’s decision patently unreasonable.
The appellant city hired a temporary employee through a personnel agency to work for 6 weeks as a receptionist and then for 18 weeks as a clerk. During the two work assignments, the employee’s wages were determined and paid by the agency, which submitted an invoice to the city. The employee performed her work under the direction and supervision of a manager working for the city. The general working conditions, such as hours of work, breaks and statutory holidays, were dictated by the city. If the employee had not been qualified or had experienced problems in adapting, the city would have informed the agency, which would have taken the appropriate action. The respondent union, which holds the certification certificate for most of the city’s employees, submitted a request to the office of the labour commissioner general under s. 39 of the Labour Code seeking, inter alia, to have the temporary employee included in the union’s bargaining unit. The labour commissioner found that the city was the employee’s real employer during the two assignments and granted the union’s request. On appeal, the Labour Court affirmed the decision. It acknowledged that the agency recruited, assigned positions to, evaluated, disciplined and paid the temporary employees, but concluded that the city was the real employer by focusing on the question of which party had control over the temporary employee’s working conditions and the performance of her work. The Labour Court also noted that there was a relationship of legal subordination between the city and the employee because the city’s managers directed and supervised how she did her day‑to‑day work. The Superior Court dismissed the motion in evocation brought by the city, finding that the Labour Court’s decision was not patently unreasonable. The Court of Appeal affirmed that judgment in a majority decision.
Held (L’Heureux‑Dubé J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, Gonthier and Cory JJ.: To determine whether the Labour Court’s decision is patently unreasonable, it must be asked whether the decision was based on the evidence adduced and whether the Labour Court’s interpretation of the legislative provisions was patently unreasonable. The Labour Code provides few indications of how to determine the real employer in a tripartite relationship, and the definitions of the terms “employer” and “employee” found in the Code have had to be interpreted by specialized administrative tribunals. To identify the real employer in a tripartite relationship, a comprehensive approach must be taken. The criterion of legal subordination, which basically encompasses the notion of actual control by a party over the employee’s day‑to‑day work, and the criterion of integration into the business must not be used as exclusive criteria for identifying the real employer. In a context of collective relations governed by the Labour Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work—and not only over the supervision of their day‑to‑day work. Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite relationship, a comprehensive approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. This approach requires a consideration of the factors relevant to the employer-employee relationship, including: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.
Here, the Labour Court used a comprehensive approach by not basing its decision solely on the criterion of legal subordination. It certainly gave greater probative value to working conditions and the criterion of legal subordination, but it also considered other factors that define the employer-employee relationship, such as the role of the agency and the city with respect to remuneration and discipline, and the specific facts of the employee’s case. Nor did the Labour Court ignore the agency’s role in recruiting, training and evaluating the employee. However, it justified giving predominant weight to working conditions and the legal subordination test by relying on the ultimate objective of the Labour Code. The purpose of certification is to promote bargaining between the employer and the union in order to determine the employees’ working conditions. According to the Labour Court, those conditions are “essential aspects of an employee’s experience”. The reasoning of the Labour Court, a highly specialized agency that has expertise in labour law and is protected by a privative clause, was not patently unreasonable.
The Labour Court’s conclusion that the city was the employee’s employer for the purposes of the Labour Code does not lead to a patently unreasonable result. The applicability of the city’s collective agreement to the employee during her assignments does not raise any major difficulties. Moreover, although the agency was the employee’s employer for the purposes of the Act respecting labour standards, no inconsistency can be found in the application of the Code and that Act. Each of the labour statutes has a distinct object and its provisions must be interpreted on the basis of their specific purpose. Moreover, this case relates to provisions of the Labour Code, specifically whether the Labour Court’s decision was patently unreasonable, and not to the Act respecting labour standards. The arrangement is not perfect. However, the relationship in question here is not a traditional bipartite relationship, but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is thus natural that labour legislation designed to govern bipartite situations must be adjusted in some ways.
After an analysis of the facts, the legislation and the cases, there is a basis for the Labour Court’s decision in the Labour Code and the evidence, and it is therefore not patently unreasonable.
Per L’Heureux‑Dubé J. (dissenting): Given the Labour Court’s exclusive and specialized jurisdiction to determine whether an employee should be included in a bargaining unit, as well as the privative clause in the Labour Code, a reviewing court may only intervene if the Labour Court’s decision is patently unreasonable. While a high degree of deference is warranted in reviewing the Labour Court’s decision, if such a decision fundamentally contradicts the underlying principles and intended outcomes of the enabling legislation and interferes with the effective implementation of other statutes which support and protect employees, intervention by the reviewing court is in order. Here, the Labour Court was asked to interpret the “employer‑employee relationship” within the scope of the Code’s regime governing certification and the collective bargaining process in the context of a tripartite arrangement. The modern rule of statutory interpretation holds, inter alia, that a court must adopt an interpretation that is appropriate in terms of its acceptability ‑‑ namely, the reasonableness of its outcome. Where an administrative tribunal contrives an absurd interpretation, it commits an error of law that warrants judicial intervention pursuant to any standard of review.
The wording, history, context and purpose of the Code reveal that it never contemplated a tripartite employment relationship. The Code’s core objective is to facilitate relations between an employer and the representative of its employees, with the aim of setting adequate terms of employment and fostering industrial peace. The Code further seeks to achieve these ends for the benefit of the parties to the collective agreement, and the present and future employees it contemplates. In the type of tripartite relationship at issue in this case, all of the traditional elements of an employment relationship exist between the agency and its employee. Such an agency typically interviews, tests, hires, trains, negotiates a work assignment with, sets the wages for, and establishes its disciplinary measures as regards these employees. An agency and an employee will conclude a contract whereby that employee agrees to fulfill intermittent temporary replacements of personnel of the agency’s clients, under the particular client’s supervision, in exchange for an hourly wage and other employment benefits. There is no legal link of a contractual nature between the employee of the agency and the client. As the Code only envisages and regulates the negotiation of a bipartite employment relationship, and does not contemplate the existence of two simultaneous employers for one employee, for the same work, done at the same time, logic would dictate that an agency in such circumstances is the employer of such an employee for the purposes of this regime. As a consequence, the conclusion which the Labour Court should have reached prima facie is that the Code’s regime governing collective bargaining was not intended to cover tripartite arrangements. Furthermore, the Labour Court should have avoided adding wording to the Code and the collective agreement, in the absence of any clear indication having regard to the text of the agreement or the legislation, the intent of the legislature in adopting the Code, the intent of the parties in entering into the collective agreement, and the underlying policy objectives of this labour relations regime. The Labour Court’s decision subjects a client and the employee of an agency to the binding legal relationship established by a collective agreement, a relationship that was established with a union which was not certified to represent such an employee and that was never intended to be covered by the Code. This decision involves altering an agreement which was collectively negotiated between the City and the representative of its employees in a manner which flies in the face of the objectives of the Code in establishing this regime.
To identify the “employer‑employee relationship” within a tripartite arrangement, a court must adopt a global approach aimed at determining, first and above all, the legal status of the parties, by examining all the rights and obligations agreed to by the various parties, and thereby finding who the real employer is. The focus on identifying the employer to whom the employee is legally subordinate and the examination of all the relevant factors of an employment relationship are essential to a global determination of the true employer in a tripartite arrangement. The test of de facto control over the work performed by the employee is too rigid and must be rejected. That test was developed in the bipartite context and has a very different objective from that at issue in a tripartite arrangement. This type of control is only one of a series of factors which define the employment relationship in a tripartite context. Here, the Labour Court failed to apply the proper test. Rather than undertaking a global review of the various elements of the tripartite arrangement to determine who maintained legal control over the employee, the Labour Court enumerated the various factors which govern the quantity and quality of work done by the employee of an agency in the performance of her work, and then, on this basis, determined which employer had de facto control over the greatest number of these factors. In so doing, the Labour Court rejected the proper approach, which focuses on the legal status of the parties, in favour of a test where de facto subordination is the controlling element. The purpose of the Code, the intent of the legislation, and the negotiated collective agreement between the City and its employees’ certified union were not analysed in great detail but were given only cursory mention by the Labour Court. As well, discipline, remuneration, recruitment, hiring, training, evaluation and assignment of tasks, all functions undertaken by the agency vis‑à‑vis the employee, were virtually ignored.
The Labour Court used the wrong definitional test in its interpretation of the “employer‑employee relationship” and this error qualifies as patently unreasonable for it leads to an absurd result. The Labour Court’s decision creates two legal relationships, binding one employee to two separate employers simultaneously, for the same work done at the same time, during her temporary assignments with the City ‑‑ one employer for the purposes of collective bargaining and another for all other purposes. This situation produces a number of impracticable, anomalous, and irrational consequences for the parties involved: confusion will arise as to who the employer is ‑‑ particularly as regards the employee’s employment‑related human rights; incoherence is created within labour and employment legislation; important employee’s rights under the collective agreement binding the City are unenforceable against the agency if they conflict with the obligational content of the contract of employment concluded between the agency and the employee and, therefore, are virtually meaningless for the employee within this arrangement; many conditions of employment which are of great concern to a temporary services employee will be absent from the collective agreement since these employees were not contemplated as being included in the bargaining unit covering the City’s employees; the employee is prevented from exercising her rights, pursuant to the Code, to collective negotiation with the agency of important terms and conditions of employment; and, finally, the Labour Court’s approach denies the employee many rights and benefits established by legislation aimed at ensuring minimum standards of employment. It is inconceivable that a tribunal empowered to give effect to the collective bargaining regime established by the Code would deny a vulnerable group of employees the right to avail themselves of not only this regime, but others intended to protect employees. The Labour Court’s decision cannot be sustained. While the Labour Court has a broad jurisdiction to interpret its legislation and decide the question before it, even when this requires filling gaps and resolving ambiguities in statutes, this jurisdiction cannot extend to an interpretation which essentially ignores the fundamental requirement that an employer and an employee have actually agreed to enter a legal relationship of employment and brings results diametrically opposed to those intended by the Code and other pieces of labour legislation.
Cases Cited
By Lamer C.J.
Considered: Hôpital Royal Victoria v. Vassart, [1990] R.J.Q. 1961; Centre d’accueil Mgr Coderre v. Union des employés de service, local 298 (F.T.Q.), [1985] T.T. 291; Syndicat des employés des hôpitaux de Val d’Or (C.S.N.) v. Syndicat des employés de l’hôpital Malartic (C.S.N.), [1974] T.T. 425; Société d’énergie de la Baie James v. Léa Benoît & Associés Ltée, [1975] T.T. 323; Syndicat des professeurs du Québec v. Procureur général du Québec, [1970] T.T. 314; Syndicat des fonctionnaires provinciaux du Québec Inc. v. Procureur général du Québec, [1984] T.T. 353; Messageries dynamiques, division de groupe Québecor inc. v. Syndicat québécois de l’imprimerie et communications, local 145, [1986] T.T. 431; Caisse d’économie Hydro v. Syndicat des employées et employés professionnels‑les et de bureau, section locale 57, [1988] T.T. 429; referred to: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R 1324; 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; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84; Hôtel du Jardin v. Syndicat des salariés de l’Hôtel du Jardin (F.E.M.S.Q.), D.T.E. 91T‑1122; A. & F. Baillargeon Express (Québec) inc. v. Teamsters du Québec, chauffeurs et ouvriers de diverses industries, local 69, Labour Ct., No. 200‑28‑000182‑805, February 10, 1981; Garderie Blanche‑Neige inc. v. Giguère, Labour Ct., No. 500‑28‑000286‑799, July 11, 1980; Syndicat des salariés du Foyer Mgr Gendron Grandes Bergeronnes (C.S.N.) v. Union des employés de service, local 298 (F.T.Q.), Labour Ct., No. 200‑28‑000067‑790, November 1, 1979; Labourers’ International Union of North America, Local 183 v. York Condominium Corp., [1977] O.L.R.B. Rep. 645; Hotel and Club Employees’ Union, Local 299 v. Sutton Place Hotel, [1980] O.L.R.B. Rep. 1538; United Electrical, Radio and Machine Workers of Canada v. Sylvania Lighting Services, [1985] O.L.R.B. Rep. 1173; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada v. Nichirin Inc., [1991] O.L.R.B. Rep. 78; Labourers International Union of North America, Local 607 v. Grant Development Corp., [1993] O.L.R.B. Rep. 21; International Brotherhood of Electrical Workers, Local 586 v. Dare Personnel Inc., [1995] O.L.R.B. Rep. 935; Nationair (Nolisair International Inc.) (1987), 70 di 44; United Brotherhood of Carpenters & Joiners of America, Local Union 93 v. Templet Services, [1974] O.L.R.B. Rep. 606; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 819 v. Tower Company (1961) Ltd., [1979] O.L.R.B. Rep. 583; Nolisair International Inc. (Nationair Canada) (1992), 89 di 94.
By L’Heureux‑Dubé J. (dissenting)
Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Centre d’accueil Mgr Coderre v. Union des employés de service, local 298 (F.T.Q.), [1985] T.T. 291; Hôpital Royal Victoria v. Vassart, [1990] R.J.Q. 1961; Labourers’ International Union of North America, Local 183 v. York Condominium Corp., [1977] O.L.R.B. Rep. 645; Hotel and Club Employees’ Union, Local 299 v. Sutton Place Hotel, [1980] O.L.R.B. Rep. 1538; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 819 v. Tower Company (1961) Ltd., [1979] O.L.R.B. Rep. 583; United Brotherhood of Carpenters & Joiners of America, Local Union 93 v. Templet Services, [1974] O.L.R.B. Rep. 606; Zeller’s Inc. v. Agences de personnel Cavalier Inc., [1994] C.A.L.P. 719; Niagara Employment Agency Inc., [1989] O.L.R.D. No. 921 (QL); I.M. Personnel Agency Inc., [1989] O.L.R.D. No. 970 (QL); First Team Personnel Inc., [1994] O.L.R.D. No. 2630 (QL); All‑Work, Inc., 193 N.L.R.B. 918 (1971).
Statutes and Regulations Cited
Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001, s. 2 “employer”.
Act respecting labour standards, R.S.Q., c. N‑1.1, ss. 1(7), (12) [am. 1990, c. 73, s. 1], 66 et seq., 124 [idem, s. 59].
Act respecting occupational health and safety, R.S.Q., c. S‑2.1, s. 1 “employer”.
Act respecting the Québec Pension Plan, R.S.Q., c. R‑9, s. 1(i).
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 16.
Labour Code, R.S.Q., c. C‑27, ss. 1(k), (l) [am. 1982, c. 54, s. 52; am. 1983, c. 22, s. 1; idem, c. 55, s. 138; am. 1984, c. 47, s. 26; am. 1985, c. 12, s. 1; am. 1991, c. 69, s. 1], 39 [am. 1983, c. 22, s. 21], 67, 100 [idem, s. 61], 118 [repl. 1990, c. 4, s. 229], 119, 122 [am. 1992, c. 61, s. 177], 139 [repl. 1982, c. 16, s. 5; am. 1983, c. 22, s. 93; am. 1985, c. 12, s. 93; am. 1990, c. 4, s. 232].
National Labor Relations Act, 29 U.S.C. §151 (1994).
Taxation Act, R.S.Q., c. I‑3, s. 1 “employer”.
Unemployment Insurance Act, R.S.C., 1985, c. U‑1, s. 13 [now Employment Insurance Act, S.C. 1996, c. 23, s. 14 ].
Authors Cited
Arthurs, Harry William, et al. Labour Law and Industrial Relations in Canada, 4th ed. Markham, Ont.: Butterworths, 1993.
Bennion, Francis Alan Roscoe. Statutory Interpretation: A Code, 2nd ed. London: Butterworths, 1992.
Christie, Innis, Geoffrey England and Brent Cotter. Employment Law in Canada, 2nd ed. Toronto: Butterworths, 1993.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991.
Dennard, H. Lane, and Herbert R. Northrup. “Leased Employment: Character, Numbers, and Labor Law Problems” (1994), 28 Ga. L. Rev. 683.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Dubé, J.‑ L., et Nicola Di Iorio. Les normes du travail, 2e éd. Sherbrooke: Revue de droit Université de Sherbrooke, 1992.
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.
Grant, Michel, et Pierre Laporte. “Salarié d’accord, . . . mais de qui (à la recherche du véritable employeur) -- Analyse de la jurisprudence du Tribunal du travail concernant les entreprises de ‘placement de main‑d’{oe}uvre’” (1987), 47 R. du B. 1205.
Masse, Claude. “Le nouveau Code civil du Québec et l’entrepreneur précaire”. Dans Lucie Lamarche, dir., Emploi précaire et non‑emploi: droits recherchés. Cowansville, Qué.: Yvon Blais, 1994, 37.
Moberly, Robert B. “Temporary, Part‑Time, and Other Atypical Employment Relationships in the United States” (1987), 38 Lab. L.J. 689.
APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 1671, affirming a judgment rendered by the Superior Court on November 5, 1993, dismissing a motion in evocation against a decision of the Labour Court, D.T.E. 93T‑806. Appeal dismissed, L’Heureux‑Dubé J. dissenting.
Pierre‑André Côté and Michel Dupuy, for the appellant.
Pierre Gingras and Serge Cadieux, for the respondent.
English version of the judgment of Lamer C.J. and La Forest, Gonthier and Cory JJ. was delivered by
1. The Chief Justice ‑‑ This appeal raises the question of determining the real employer in a tripartite relationship in the collective labour relations context. What must be determined in the present case is whether the Labour Court made a patently unreasonable decision when it ruled that a temporary employee of the City of Pointe‑Claire (the “City”) who had been hired through a personnel agency was included in the bargaining unit of the union that represented the City’s permanent employees.
I. Facts
2. Personnel Hélène Tobin inc. (hereinafter the “agency”) is an agency whose business involves, inter alia, supplying temporary staff to businesses that are part of its clientele. The agency’s staff consists of three permanent employees and at least thirty employees (“temporary employees”) whose services are supplied to its clients on a temporary basis. The temporary employees are recruited and selected by the agency, which administers evaluation tests to them. The agency sees to the employees’ career development by entrusting them with increasingly demanding assignments and sometimes recommending that they take courses. It agrees with the client on the rate for the temporary employees’ services without regard to what the client pays its own employees in the same category. The agency pays its temporary employees an hourly wage that varies depending on the specific assignment. The wage paid by the agency is calculated on the basis of the number of hours recorded on a form filled out by the employee and countersigned by the client. The agency does not pay its temporary employees when they are not assigned to a client. The client can officially hire the employee, but the agency charges additional fees if this is done before the end of an assignment of 18 consecutive weeks. If the client is not satisfied with the quality of the temporary employee’s work, it must inform the agency, which will then take the appropriate action. The agency can change an employee’s assignment if the employee is underqualified or overqualified. As well, the agency has an employer number assigned by the Commission de la santé et de la sécurité du travail (“CSST”) and it withholds the necessary amounts from the employee’s wages for taxes and employment‑related costs (vacation pay and contributions to unemployment insurance, the CSST and the Quebec Pension Plan).
3. The City asked the agency to send it someone to serve as receptionist at city hall from November 5 to December 14, 1990. The agency assigned Ginette Lebeau to the position. At the end of this initial six‑week assignment, Ms. Lebeau informed the agency that she did not want another assignment before the beginning of January 1991. She also informed the City that she would like to apply for permanent employment. The City had her complete a form and, on December 17, 1990, had her take the necessary tests. Ms. Lebeau qualified for a position as a clerk with the City with an average of 94 percent.
4. After New Year’s Day, the agency offered Ms. Lebeau another work assignment with the City, this time as a clerk in the purchasing department. That second assignment lasted 18 weeks, from January 14 to May 17, 1991. On May 20, 1991, after the time allotted for the second work assignment had expired, Ms. Lebeau was hired directly by the City as a temporary employee. On June 17, 1991, she became a permanent employee at the City’s Municipal Court.
5. During the two work assignments in question, which lasted 6 and 18 weeks respectively, Ms. Lebeau’s wages were determined and paid by the agency. She filled out a time sheet given to her by the agency, had it signed by the City and then returned a copy to the agency. When the agency was informed of the number of hours she had worked, it paid her and submitted an invoice to the City, without informing the City what wages it had paid. Ms. Lebeau performed her work under the direction and supervision of a manager working for the City. The City also took part in her training, since it showed her how to do her work. Ms. Lebeau’s general working conditions, such as hours of work, breaks and statutory holidays, were dictated by the City. If she had not been qualified or had experienced problems in adapting, the City was supposed to inform the agency, which would have found the solution necessary to remedy the situation. In practice, when Ms. Lebeau was late or absent, she notified her immediate supervisor at the City.
6. The respondent Syndicat des employées et employés professionnel‑les et de bureau, section locale 57 (S.E.P.B.‑O.P.E.I.U.‑C.L.C.‑F.T.Q.), holds the certification certificate for most of the City’s employees. On January 25, 1991, the respondent union submitted a request to the office of the labour commissioner general under s. 39 of the Labour Code, R.S.Q., c. C‑27, seeking, inter alia, a declaration that Ms. Lebeau was included in the union’s bargaining unit because she was employed by the City during her two work assignments of 6 and 18 weeks respectively.
II. Relevant Statutory Provisions
7. The Labour Code defines “employer” and “employee” as follows:
1. In this code, unless the context requires otherwise, the following expressions mean:
. . .
(k) “employer -- anyone, including Her Majesty, who has work done by an employee;
(l) “employee -- a person who works for an employer and for remuneration, but the word does not include: [the exceptions are not applicable in this case];
8. The Quebec legislature has given labour commissioners exclusive jurisdiction to determine the matters relating to s. 39 of the Labour Code:
39. Of its own motion during its investigation and at any time upon request by an interested party, the labour commissioner may decide if a person is an employee or a member of an association, if he is included in the bargaining unit, and any other matters relating to certification.
9. That jurisdiction is transferred to the Labour Court when it sits on appeal from a labour commissioner’s decision. When the decision of a labour commissioner is appealed, it is the Labour Court that has jurisdiction to hear the appeal, under s. 118 of the Labour Code:
118. In addition to the other matters which are declared by law to be within its competence, such Court [the Labour Court] shall have jurisdiction, to the exclusion of any other Court, to hear and decide, in appeal, as to any decision of a labour commissioner who closes a case, and as to any decision of the labour commissioner general made under section 8 or section 9.
10. The scope of the Labour Court’s jurisdiction when it sits on appeal from a labour commissioner’s decision is set out in s. 119 of the Labour Code:
119. The Court sitting in appeal may confirm, amend or quash any decision referred to it and render the decision which, in its opinion, should have been rendered in the first place.
11. In s. 122 of the Labour Code, the Quebec legislature has provided that when the Labour Court sits in matters of certification, it has the same powers as a labour commissioner:
122. When it sits otherwise than in penal matters, the Court and each of its members shall have the powers and immunities of commissioners appointed under the Act respecting public inquiry commissions (chapter C‑37), except the power to order imprisonment; whenever they sit in matters of certification, they shall also have all the powers of a labour commissioner, and sections 21 to 47 shall apply mutatis mutandis. [Emphasis added.]
12. The decisions of the Labour Court sitting on appeal from a labour commissioner’s decision are protected by the privative clause found in s. 139 of the Labour Code:
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.
III. Decisions Below
Office of the Labour Commissioner General, D.T.E. 92T-517
13. The labour commissioner granted the respondent union’s request under s. 39 of the Labour Code that Ms. Lebeau be included in the bargaining unit. According to commissioner Bibeault, the City was Ginette Lebeau’s real employer during her two work assignments. The commissioner said that since the evidence showed that the City had actual control over the work done by Ms. Lebeau, it acquired the status of her employer (at p. 7 of the full text):
[translation] I agree with the position taken by the [union’s] representative. It is the most logical and realistic one. In short, whoever directs the employees and makes the decisions that affect them is their real employer. This is also the position that has been adopted by the majority of Labour Court judges.
Labour Court, D.T.E. 93T-806
14. Judge Prud’homme noted that, prima facie, the agency seemed to be Ginette Lebeau’s employer since it had a number of the traditional attributes of an employer. The agency recruited, evaluated, paid and disciplined the temporary employees. However, Judge Prud’homme said that this approach failed to consider the essential aspects of an employer-employee relationship, namely, on the one hand the establishment of working conditions, and on the other hand the supervision of the performance of work. The judge stressed the importance, in the context of an employee’s day‑to‑day work, of control over the working conditions established by collective agreement, such as rules governing working hours, breaks, meal periods and statutory holidays. Ms. Lebeau had the same working conditions as the City’s other employees; she therefore did her work within a system established by the City and not the agency. In addition, Ms. Lebeau performed her work under the direction and supervision of City representatives. Judge Prud’homme stated the following about working conditions and the performance of work, at p. 11 of the full text:
[translation] Thus, when it came to working conditions -- aside from the exceptions that I will discuss next -- and the performance of work as such, the City was omnipresent while the agency had no authority.
15. Judge Prud’homme acknowledged that the agency had some control over two of Ms. Lebeau’s working conditions: discipline and wages. He was of the view, however, that the City’s involvement with respect to discipline and wages diluted the impact of the agency’s role in these areas. As regards discipline, the judge noted that the City would have been at the source of any action taken by the agency concerning Ms. Lebeau. With respect to the setting of wages, the judge pointed out that the rate of pay was directly affected by the type of service requested by the City and the number of hours the temporary employee worked there. For all these reasons, the judge held that the City was Ms. Lebeau’s employer for the purposes of the Labour Code, at p. 13:
[translation] This analysis necessarily leads to the conclusion that the City was Ginette Lebeau’s employer within the meaning and for the purposes of the Labour Code. The Code is concerned with the realities of the “employer‑employee” relationship rather than the form in which that relationship has been established; those realities essentially relate to the working conditions that the Code seeks to ensure are set up in a certain way. In this case, the conditions surrounding Ginette Lebeau’s work were predominantly determined by the City, not the agency; in addition, Ginette Lebeau was legally subordinate to the City, as shown by the fact that it was the City that issued instructions with respect to, and controlled the actual performance of, her work.
Judge Prud’homme added that this conclusion was consistent with the majority of the Labour Court’s decisions on the subject.
Superior Court (District of Montreal, No. 500-05-005556-939, November 5, 1993)
16. Côté J. rejected the City’s argument in support of its motion in evocation that the evidence adduced before the labour commissioner clearly showed that Ms. Lebeau was an employee of the agency and not of the City. According to the judge, the Labour Court’s reasoning was not patently unreasonable (at p. 5):
[translation] A careful review of the judgment in question and of the evidence before the labour commissioner, which was entered into the record in lieu of an affidavit, shows that the appellate judge analysed that evidence in detail and made a reasoned assessment of a number of criteria and factors that are very similar to those set out in Hôpital Royal Victoria v. Vassart. It cannot be said that this approach was patently unreasonable or that there was anything irrational about it; on the contrary, although I do not have to agree with the appellate judge, it is sufficient to say that his method of reasoning was rational and that his decision finds support in the evidence. In this regard, there are no grounds for evocation.
Court of Appeal, [1995] R.J.Q. 1671
Rousseau‑Houle J.A. (Tyndale J.A. concurring)
17. Rousseau‑Houle J.A. noted that s. 39 of the Labour Code clearly establishes that the labour commissioner is responsible for deciding whether a person is an employee and if that person is included in the bargaining unit. A misinterpretation on such an issue will not mean that the labour commissioner loses jurisdiction unless his or her assessment is patently unreasonable.
18. The judge stated that identifying the real employer in a tripartite relationship can be difficult because both the personnel agency and its client each clearly have some of the traditional attributes of an employer vis‑à‑vis the employee. The judge referred to the relevant criteria that must be considered in order to determine the real employer (at p. 1674):
[translation] Day‑to‑day control over the work done is therefore only one factor in determining the employer. The selection process, hiring, discipline, training, evaluation, assignment of duties and the length of time the services are provided are all elements to be considered when it must be determined who the real employer is in a tripartite relationship. Remuneration is not really a probative factor, since it is ultimately the client that bears the financial burden.
In the context of this case, in which the issue of employer identification arises in relation to an employee’s membership in the bargaining unit, the nature and concrete reality of the work done and the employee’s connection with the business are important criteria.
19. After reviewing the Labour Court’s conclusions with respect to legal subordination, disciplinary authority, the wages paid by the agency and the purpose of the Labour Code, Rousseau‑Houle J.A. found that the Labour Court’s decision was not patently unreasonable.
Deschamps J.A. (dissenting)
20. Deschamps J.A. conceded that the Labour Court had exclusive jurisdiction to decide the issue under s. 39 of the Labour Code. However, she stated that the Labour Court’s decision was patently unreasonable since it could not be reconciled with either the law or the facts.
21. Deschamps J.A. acknowledged that with one exception, namely Centre d’accueil Mgr Coderre v. Union des employés de service, local 298 (F.T.Q.), [1985] T.T. 291, the Labour Court has consistently found that the real employer in a tripartite relationship is the client and not the personnel agency. However, while in its other decisions the Labour Court had considered a number of criteria to determine the real employer, in the present case it had based its decision solely on the criterion of legal subordination. The judge stated the following in this regard (at p. 1676):
[translation] The Labour Court, under the guise of the so-called “legal subordination” criterion, which in fact merely identified who had day‑to‑day control over the performance of work, took a narrow view that made the employment agency’s client the employer without taking account