Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval

Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval
Collection
Supreme Court Judgments
Date
2016-03-18
Neutral citation
2016 SCC 8
Report
[2016] 1 SCR 29
Case number
35898
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Quebec
Subjects
Administrative law
Notes
SCC Case Information: 35898
Decision Content
SUPREME COURT OF CANADA
Citation: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29
Appeal heard: October 14, 2015
Judgment rendered: March 18, 2016
Docket: 35898
Between:
Commission scolaire de Laval and
Fédération des commissions scolaires du Québec
Appellants
and
Syndicat de l’enseignement de la région de Laval and
Fédération autonome de l’enseignement
Respondents
- and –
Centrale des syndicats du Québec
Intervener
Official English Translation
Coram: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 75)
Partially Concurring Reasons:
(paras. 76 to 86)
Gascon J. (McLachlin C.J. and Abella and Karakatsanis JJ. concurring)
Côté J. (Wagner and Brown JJ. concurring)
Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29
Commission scolaire de Laval and
Fédération des commissions scolaires du Québec Appellants
v.
Syndicat de l’enseignement de la région de Laval and
Fédération autonome de l’enseignement Respondents
and
Centrale des syndicats du Québec Intervener
Indexed as: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval
2016 SCC 8
File No.: 35898.
2015: October 14; 2016: March 18.
Present: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for quebec
Labour relations — Dismissal — Arbitration — Grievances — Collective agreement stipulating that decision to dismiss teacher could be made only after “thorough deliberations” by school board’s executive committee — Executive committee deciding to dismiss teacher by way of resolution adopted after deliberations held in camera — Arbitrator allowing examination of members of executive committee on motives for their decision — Whether principle that motives are “unknowable” and deliberative secrecy apply to public employer that decides to take disciplinary action against employee.
Administrative law — Judicial review — Standard of review — Arbitration — Inquiry — Interlocutory decision allowing examination of members of decision-making authority of public employer on motives for their decision to dismiss employee — Objections to examination — Whether questions related to principle that motives are “unknowable” and deliberative secrecy that were raised before arbitrator are sufficiently important to legal system that standard applicable to judicial review of interlocutory decision must be correctness.
In June 2009, B was summoned to attend a special meeting of the executive committee of the Commission scolaire de Laval (“Board”), his employer. The committee had to determine whether B’s judicial record was relevant to his functions as a teacher and, if it was, decide whether to resiliate his employment contract. After hearing B in a partially in camera meeting (from which the public was excluded), the executive committee ordered a totally in camera meeting (from which the teacher and his union representative were excluded) in order to deliberate. Upon completion of these two in camera meetings, the committee, sitting in public once again, proceeded to adopt a resolution that terminated B’s employment contract.
The Syndicat de l’enseignement de la région de Laval (“Union”) filed a grievance with respect to B’s dismissal, alleging, inter alia, that the procedure for dismissal provided for in the collective agreement had not been followed. The collective agreement stipulated that the employment relationship could be terminated “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose”. In the course of the inquiry into the grievance, the Union summoned as its first witnesses three members of the executive committee who had been present for the in camera deliberations of June 2009. The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera. The Board also submitted that the principle that motives are “unknowable” that had been stated in Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, precludes the examination of the members of any collective body on the motives that underlie a decision made by way of a written resolution. The arbitrator dismissed these objections and allowed the examination of the executive committee’s members.
The Superior Court, hearing a motion for judicial review of the arbitrator’s interlocutory decision, applied the standard of correctness and granted the motion, barring any testimony by members of the executive committee except as regards the formal process that led to their decision that was announced at a public meeting. The majority of the Court of Appeal, also applying the standard of correctness, restored the arbitrator’s decision and allowed the examination of the executive committee’s members, subject to the usual limits of what is relevant.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis and Gascon JJ.: The standard applicable to the arbitrator’s interlocutory decision is reasonableness. Whether the examination of the members of the Board’s executive committee should be allowed is ultimately an evidentiary issue. The arbitrator has exclusive jurisdiction over such matters, and he allowed the examination of the executive committee’s members on the basis that their testimony would be helpful to him in determining whether the collective agreement and the legislation had been complied with. This conclusion flowed from his interpretation of the collective agreement between the parties and of the Education Act. The presumption that when an administrative tribunal interprets or applies its home statute, the standard of review applicable to its decision is reasonableness therefore applies in this case. This presumption is reinforced by the fact that the usual standard for judicial review of decisions of grievance arbitrators is reasonableness.
The issues in this case are not included in the narrow class of issues for which the standard is correctness. That standard can apply to questions of law that are of central importance to the legal system as a whole and are outside the decision maker’s area of expertise. Questions of this nature are rare and tend to be limited to situations that are detrimental to consistency in the country’s fundamental legal order. In this case, in light of the arbitrator’s broad jurisdiction over evidence and procedure, there is no question of law of central importance that is outside his area of expertise. The questions of evidence and procedure that arise here with respect to the principle that motives are “unknowable” and to deliberative secrecy in the context of an employer’s collective decision‑making authority are not outside the arbitrator’s area of expertise. Nor does the application of that principle and of deliberative secrecy to a fact situation characteristic of a dismissal amount to a question that is detrimental to consistency in the country’s fundamental legal order. Once this is established, maintaining that the concepts at issue do not fall solely within the arbitrator’s expertise in the area or jurisdiction over the matter, or that one of them is a general principle that applies to other legal fields, is not enough to justify dispensing with the deferential standard that is required in such a case.
In light of the information available to him at the time of the summonses, and of the content of the collective agreement and the applicable legislation, the arbitrator allowed the examination of the members of the Board’s executive committee in the grievance proceeding before him. It is this decision that is at issue in the judicial review proceedings, and it was reasonable. Neither the argument that the motives are “unknowable” nor that of deliberative secrecy counters this conclusion.
The principle that the motives of a legislative body are “unknowable” and deliberative secrecy do not apply to a public employer, the Board in this case, that decides to take disciplinary action against an employee, even if an in camera meeting is ordered. Any employee, whether in the public or the private sector, has a right to contest disciplinary action taken against him or her and can, in doing so, raise any relevant evidence. For this, the employee may examine the employer’s representatives on the reasons for the action and on the decision‑making process that led to it.
It is wrong to say that Clearwater established a rule of relevance that applies to every collective decision made by a decision‑making body by means of an official document regardless of the nature of the decision or of the body making it. Rather, the “unknowable” motives in question are those that led a legislative body to adopt provisions of a legislative nature, that is, to carry out acts of a public nature. In this case, the executive committee’s decision was made in a completely different context. Even though the Board is a legal person established in the public interest, it was acting as an employer when it decided to dismiss teacher B by way of a resolution of its executive committee. That decision had an effect on the employment contract between B and the Board and was made in the context of a process provided for in the collective agreement between the parties. It was not a decision of a legislative, regulatory, policy or discretionary nature. Rather, it was made in the specific context of a contractual relationship. A rule of relevance based on the public nature of an impugned decision therefore does not apply here. It was reasonable for the arbitrator to rule that he needed to know what had taken place in camera in order to determine whether the executive committee’s deliberations had been thorough. His decision on this point was consistent with those of several grievance arbitrators who had in the past allowed the examination of school board officials regarding in camera deliberations in disciplinary matters. Given the recognized jurisdiction of arbitrators over evidence and procedure, deference must be shown.
As for deliberative secrecy, it was reasonable for the arbitrator to reject this argument, too. When the executive committee decided to dismiss B after deliberating in camera, it was not performing an adjudicative function and was not acting as a quasi‑judicial decision maker. Rather, it was acting as an employer dismissing an employee. Its decision was therefore one of a private nature that falls under employment law, not one of a public nature to which the constitutional principles of judicial independence and separation of powers would apply. As a result, the discussions held by the committee’s members in camera are not shielded by deliberative secrecy.
Finally, limits should not be placed in advance on the questions that may be asked of the executive committee’s members. Assessing the relevance of evidence falls within the exclusive jurisdiction of the arbitrator. It is not open to a reviewing court to speculate about the types of questions that could be relevant before the examination has even begun. It will be up to the arbitrator to decide what is relevant on the basis of the questions that are eventually asked and to determine which of them really further the resolution of the case. If a court must intervene, it will do so after the arbitrator has ruled on a given point.
Per Wagner, Côté and Brown JJ.: There is disagreement with the majority as regards the applicable standard of judicial review. There are times when a question concerning an area over which the arbitrator generally has full authority is of such a nature as to affect the administration of justice as a whole and relates to principles in respect of which the arbitrator has no particular expertise in that they are not specific to the arbitrator’s specialized role. Where the question relates not simply to the rules of evidence in general, but to the scope of such basic rules as those relating to the immunities from disclosure and deliberative secrecy, a court reviewing an arbitrator’s decision in this regard must be able to go further than merely inquiring into the reasonableness of the decision. Where necessary, it must also be able, absent clear instructions to the contrary, to substitute its own view for that of the arbitrator if the arbitrator’s decision is incorrect.
The applicable standard of review cannot depend on how a court will ultimately answer the question, as that could make it even more difficult to predict what the result of the analysis will be. Instead, what is important is the nature of the question being raised. In this case, despite the existence of a privative clause and even though the appeal arises in the context of the hearing of the evidence, over which the arbitrator has full authority, the questions that have been raised are general questions of law that, by their nature, are of central importance to the administration of justice as a whole and in respect of which the arbitrator has no particular expertise. Such questions require uniform and consistent answers, which means that both the majority and the dissenting judges of the Court of Appeal, like the Superior Court judge, were right to hold that the applicable standard of review in this case is correctness. However, the result is the same regardless of which standard applies.
Cases Cited
By Gascon J.
Distinguished: Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3; applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; referred to: Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; General Motors of Canada Ltd. v. Brunet, [1977] 2 S.C.R. 537; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Syndicat de l’enseignement du Grand‑Portage v. Morency, 2000 SCC 62, [2000] 2 S.C.R. 913; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp., 2014 SCC 45, [2014] 2 S.C.R. 323; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106; Syndicat des professionnelles et professionnels de l’éducation du Bas‑St‑Laurent v. Commission scolaire des Monts‑et‑Marées (2006), S.A.E. 7953, 54 R.S.E. 481; Syndicat des enseignantes et enseignants de Le Royer v. Commission scolaire de la Pointe‑de‑l’Île (2000), S.A.E. 7006, 47 R.S.E. 1049; Syndicat des travailleuses et travailleurs de l’enseignement de Portneuf C.E.Q. v. Commission scolaire de Portneuf (1988), S.A.E. 4674, 35 R.S.E. 1722; Association des enseignants de Le Royer v. Commission scolaire régionale Le Royer (1975), S.A. 513, 6 R.S.E. 43; Duke of Buccleuch v. Metropolitan Board of Works (1872), L.R. 5 H.L. 418; O’Rourke v. Commissioner for Railways (1890), 15 App. Cas. 371; Ward v. Shell‑Mex, [1952] 1 K.B. 280; Re Knight Lumber Co. (1959), 22 D.L.R. (2d) 92; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Noble China Inc. v. Lei (1998), 42 O.R. (3d) 69; Comité de révision de l’aide juridique v. Denis, 2007 QCCA 126; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, 253 N.S.R. (2d) 134; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Promutuel Dorchester, société mutuelle d’assurance générale v. Ferland, [2001] R.J.Q. 2882; Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; North Island Laurentian Teachers’ Union P.A.P.T. v. Commission scolaire Laurenval (1985), S.A.E. 3964, 33 R.S.E. 1262; Commission scolaire des Grandes‑Seigneuries et Association des professeurs de Lignery (Vishwanee Joyejob), 2015 QCTA 663, [2015] AZ‑51203453; Syndicat des salariés de Béton St‑Hubert — CSN v. Béton St‑Hubert inc., 2010 QCCA 2270; Sûreté du Québec v. Lussier, [1994] R.D.J. 470; Collège d’enseignement général et professionnel de Valleyfield v. Gauthier Cashman, [1984] R.D.J. 385; Lethbridge Regional Police Service v. Lethbridge Police Association, 2013 ABCA 47, 542 A.R. 252; Canadian Nuclear Laboratories v. Int’l Union of Operating Engineers, Local 772, 2015 ONSC 3436; Blass v. University of Regina Faculty Assn., 2007 SKQB 470, 76 Admin. L.R. (4th) 262.
By Côté J.
Distinguished: Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; referred to: Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
Statutes and Regulations Cited
Charter of human rights and freedoms, CQLR, c. C‑12, s. 18.2.
Criminal Records Act, R.S.C. 1985, c. C‑47 .
Education Act, CQLR, c. I‑13.3, ss. 34.3, 143, 179, 258.1 para. 1(1), 258.4, 261.0.1 to 261.0.6 [ad. 2005, c. 16, s. 11], 261.0.2 [idem], 261.0.3 [idem], 261.0.7 [idem].
Labour Code, CQLR, c. C‑27, ss. 1(f), 100 et seq., 100.2, 100.12(a), (f), 139, 139.1, 140.
Authors Cited
Brown, Donald J. M., and David M. Beatty, with the assistance of Christine E. Deacon. Canadian Labour Arbitration, 4th ed. Toronto: Canada Law Book, 2015 (loose‑leaf updated December 2015, release 48).
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Qué.: Yvon Blais, 2014.
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability of the Crown, 4th ed. Toronto: Carswell, 2011.
Morin, Fernand, et autres. Le droit de l’emploi au Québec, 4e éd. Montréal: Wilson & Lafleur, 2010.
Morin, Fernand, et Rodrigue Blouin, avec la collaboration de Jean‑Yves Brière et Jean‑Pierre Villaggi. Droit de l’arbitrage de grief, 6e éd. Cowansville, Qué.: Yvon Blais, 2012.
Quebec. Ministère de l’Éducation, du Loisir et du Sport. Verification of Judicial Records: Information Guide for School Boards and Private Schools in Québec. Québec: The Ministère, 2011.
Royer, Jean‑Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. by Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the Quebec Court of Appeal (Bich, Gagnon and Savard JJ.A.), 2014 QCCA 591, 69 Admin. L.R. (5th) 95, [2014] AZ‑51056975, [2014] J.Q. no 2352 (QL), 2014 CarswellQue 2355 (WL Can.), setting aside a decision of Delorme J., 2012 QCCS 248, [2012] AZ‑50826061, [2012] J.Q. no 621 (QL), 2012 CarswellQue 774 (WL Can.). Appeal dismissed.
Yann Bernard, René Paquette, Geneviève Beaudin and Kassandra Church, for the appellants.
Justine Dauphinais‑Sauvé and Audrey Limoges‑Gobeil, for the respondent Syndicat de l’enseignement de la région de Laval.
Stéphane Forest and Gaétan Lévesque, for the respondent Fédération autonome de l’enseignement.
Claudine Morin, Nathalie Léger and Amy Nguyen, for the intervener.
English version of the judgment of McLachlin C.J. and Abella, Karakatsanis and Gascon JJ. delivered by
Gascon J. —
I. Introduction
[1] Any employee, whether in the public or the private sector, has a right to contest disciplinary action taken against him or her and can, in doing so, raise any relevant evidence. For this, the employee may examine the employer’s representatives on the reasons for the action and on the decision‑making process that led to it.
[2] However, public law immunities protect decisions of an adjudicative, legislative, regulatory, policy or purely discretionary nature made by public bodies. As a result, there are sometimes limits on the right to examine members of the decision‑making authorities of such bodies on the considerations on which their decisions are based.
[3] The interplay of these rights and immunities can lead to conflict. This appeal involves one such conflict. At issue is the right of a public body’s employee to examine members of a decision‑making authority of his or her employer on the motives for their decision to dismiss the employee after deliberations held in camera.
[4] The respondent Syndicat de l’enseignement de la région de Laval (“Union”) filed a grievance with respect to the dismissal of a teacher. In the course of the inquiry into the grievance, the appellant Commission scolaire de Laval (“Board”) objected to the examination of three commissioners who were members of its executive committee, which had decided in camera to dismiss the teacher. In the Board’s view, the motives of individual members of a collective body that underlie a decision thus made by the body by way of a resolution are “unknowable”, and therefore irrelevant. In addition, the executive committee’s members were shielded by deliberative secrecy from being compelled to testify regarding their in camera deliberations.
[5] The arbitrator dismissed the Board’s objections and allowed the examination of the executive committee’s members regarding their deliberations and their decision to dismiss the teacher. On a motion for judicial review, the Superior Court quashed the arbitrator’s decision and barred any testimony by members of the executive committee except as regards the formal process that led to their decision that was announced at a public meeting. The majority of the Court of Appeal restored the arbitrator’s decision and allowed the examination of the executive committee’s members, subject to the usual limits of what is relevant.
[6] I would dismiss the appeal. The principle that the motives of a legislative body are “unknowable” and deliberative secrecy do not apply to a public employer, the Board in this case, that decides to take disciplinary action against an employee, even if an in camera meeting is ordered. The three members of the Board’s executive committee can be examined, subject to the limits of what is relevant and to the other rules applicable to the inquiry into the grievance. The arbitrator has exclusive jurisdiction to determine whether any questions that may be asked are relevant.
II. Facts
[7] The Board is a legal person established in the public interest under the Education Act, CQLR, c. I‑13.3 (“EA”). The Union, which is certified under the Labour Code, CQLR, c. C‑27 (“L.C.”), represents a number of the Board’s employees, including B, a vocational training instructor employed by the Board since March 2000.
[8] In the winter of 2009, B’s principal asked him to send a declaration concerning his judicial record to the Board’s human resources unit. As a result of amendments made to the EA in 2006 (S.Q. 2005, c. 16), a school board must “ensure” that “persons who work with minor students and persons who are regularly in contact with minor students . . . have no judicial record relevant to their functions within that . . . board” (s. 261.0.2). The EA provides for a mechanism enabling the board to require a job applicant or an employee to send it a declaration concerning his or her judicial record (ss. 261.0.1 to 261.0.6). Where a school board notes that a person holding a teaching licence has a record it considers relevant to that person’s functions, it must notably inform the Minister of that fact (s. 261.0.7), and the Minister may refuse to renew the licence or may suspend or revoke it or attach conditions to it (s. 34.3).
[9] The EA’s scheme for verifying records provides an exception for an offence for which a “pardon” has been obtained (s. 34.3 para. 1(1) and s. 258.1 para. 1(1)). The EA thus reflects the protection provided for in s. 18.2 of the Quebec Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec Charter”):
18.2. No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.
[10] The word “pardon” as used in s. 18.2 of the Quebec Charter includes the “pardon” provided for at the time in the Criminal Records Act, R.S.C. 1985, c. C‑47 (“CRA ”): Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698, at para. 14. Moreover, as is authorized by s. 258.4 EA, the Minister prepared a guide entitled Verification of Judicial Records: Information Guide for School Boards and Private Schools in Québec (2011), to which the appellants refer in their factum. This guide deals, among other subjects, with pardons (p. 13). Thus, under the EA, a teacher who obtained a pardon under the CRA is exempted from application of the provisions on the verification of judicial records and on notifying the Minister of the existence of such a record.
[11] In March 2009, in response to his principal’s request, B indicated that he had been convicted of possession of a prohibited weapon in March 1980, possession of narcotics for the purpose of trafficking in December 1980 and July 1995, and possession of proceeds of crime in June 1996. It is also alleged that B informed the Board’s human resources unit that he had applied for a pardon under the CRA and that he expected to obtain one in about June 2009. Moreover, the Union submitted that the principal of the training centre at which B taught had been aware of B’s record on hiring him nine years earlier.
[12] After examining the declaration with respect to B’s judicial record, the director of the human resources unit expressed the opinion that B’s record was relevant to his functions as a teacher. A review committee reached the same conclusion. Under the EA (s. 261.0.3), however, the final decision on whether an employee’s record is relevant to his or her functions must be made by the Board’s authorities, that is, by its council of commissioners or its executive committee (ss. 143 and 179).
[13] On June 29, 2009, B was summoned to attend a special meeting of the Board’s executive committee. The committee had to determine whether B’s judicial record was relevant to his functions and, if it was, decide whether to resiliate his employment contract. B attended the meeting with a union representative. After hearing B in a [translation] “partially in camera meeting” (from which the public was excluded), the executive committee ordered a “totally in camera meeting” (from which the teacher and his representative were excluded) in order to deliberate. Upon completion of these two in camera meetings that lasted a total of 27 minutes, the committee, sitting in public once again, proceeded to adopt resolution No. 238, which terminated B’s employment contract.
[14] This resolution listed the offences of which B had been convicted, noted [translation] “the provisions of the [EA] concerning judicial records of persons who work with minors” and mentioned the recommendations of the human resources unit and the director general that B’s record was relevant to his functions. The executive committee unanimously decided that “the employment relationship between the teacher [B] and the Board [is] resiliated as of this day on the ground of incapacity”. In the Board’s view, the fact that a teacher has a judicial record that is relevant to his or her functions makes the teacher legally incapable of performing those functions.
[15] On July 2, the Union filed a grievance on B’s behalf to contest his dismissal. It alleged that [translation] “[t]he procedure for dismissal provided for in the collective agreement was not followed” and that “[t]he board has contravened . . . the [EA] and the Quebec Charter”. The Board and the Union are bound by both provincial and local collective agreements. The local agreement provides that the Board may dismiss a teacher for one of the following reasons only: [translation] “. . . incapacity, failure to discharge his or her duties, insubordination, misconduct or immorality” (clause 5‑7.02). It adds that the employment relationship may be terminated “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose” (clause 5‑7.06).
[16] On July 3, the day after the grievance was filed and four days after the employment relationship was terminated, the National Parole Board granted B a pardon under the CRA .
[17] The inquiry into the grievance began before arbitrator Jacques Doré on May 12, 2010 and on November 3 and 24 of that same year. After the Board had completed its evidence, the Union began its own by summoning as its first witnesses three members of the executive committee who had been present for the in camera deliberations of June 29, 2009. The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera. It asked the arbitrator to limit the scope of the three members’ testimony such that they would not be questioned about the in camera deliberations. The Union countered that this testimony would be relevant, admissible and necessary, given that it intended to [translation] “contes[t] both the procedure followed and the ground relied on by the employer”. The respondent Fédération autonome de l’enseignement (“FAE”) intervened in support of the Union’s position. The appellant Fédération des commissions scolaires du Québec (“FCSQ”) also intervened, asking that the summonses be quashed.
III. Judicial History
A. Arbitrator’s Interlocutory Decision
[18] The arbitrator rejected the arguments of the Board and the FCSQ and allowed the examination of the members of the executive committee on what had been said in camera. In order to determine in particular whether the committee’s deliberations had been [translation] “thorough” as required by the collective agreement, he considered it necessary to know their substance, including what had “happened in camera in terms of the information transmitted orally and in writing in the discussions between the members, as well as any objections that were raised, etc.” (para. 17). This was especially true given his observation that according to the parties’ submissions, the “thorough deliberations” had taken place in camera (para. 14). He noted that “[t]he adjective ‘thorough’ was not added by the parties to the agreement solely to ‘make things look nice’”, that it “means something” and that it “adds a dimension to the deliberations” (para. 16).
[19] In the arbitrator’s opinion, the fact that a body deliberates in camera does not necessarily mean that it benefits from deliberative secrecy. As well, the fact that the executive committee can decide unilaterally to sit in camera should not enable its members to shield themselves from scrutiny by a grievance arbitrator (paras. 18‑21). However, he said that he would be prepared to hear the testimony of the executive committee’s members in camera, if he received a request to that effect, to ensure that they would be able to speak as freely as in their deliberations (para. 22).
B. Quebec Superior Court (2012 QCCS 248)
[20] Delorme J., hearing a motion for judicial review of the arbitrator’s interlocutory decision, found that the application of deliberative secrecy is a [translation] “question of law that is outside the arbitrator’s particular area of expertise and is of interest to all school boards” (para. 19 (CanLII)). He accordingly applied the standard of review of correctness (paras. 17‑21).
[21] Delorme J. cited Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, to the effect that deliberative secrecy is the rule for administrative tribunals, but that it can be lifted if a litigant presents valid reasons for believing that the tribunal’s process was tainted by procedural errors (paras. 27‑28 and 31). He added that this Court had held in Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, that the intentions of members of a municipal council are irrelevant to the determination of whether a resolution adopted by the council is valid. In Delorme J.’s opinion, these principles apply to a school board’s decision to resiliate an employment contract (paras. 30‑31). He found that the executive committee’s decision to deliberate in camera had rendered its deliberations confidential, adding that, although the committee is not required to hold its meetings in public, it has provided in its rules of procedure that they are to be open to the public [translation] “unless it decides otherwise” (para. 24). Because the committee chose to deliberate in camera pursuant to its rules of procedure, that choice must be respected (para. 26).
[22] Delorme J. concluded that the examination could not concern [translation] “the underlying reasons or the development of those reasons in the minds of the executive committee’s members” (para. 44). The latter could be compelled to testify only about the “formal process that led to the decision made in the public meeting” (ibid.).
C. Quebec Court of Appeal (2014 QCCA 591, 69 Admin. L.R. (5th) 95)
[23] The majority of the Court of Appeal, per Bich J.A., allowed the appeals of the Union and the FAE and restored the arbitrator’s interlocutory decision. They, like Delorme J., applied the standard of correctness. In their view, the principle that motives are “unknowable” and deliberative secrecy, on which the Board and the FCSQ relied, are questions of central importance to the legal system as a whole that are outside the arbitrator’s specialized area of expertise and require a uniform and consistent answer to ensure legal order (paras. 39‑53).
[24] This being said, Bich J.A. held in light of Wells v. Newfoundland, [1999] 3 S.C.R. 199, and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, that a decision with respect to employment, and more specifically with respect to dismissal, made by a public body falls under employment law, whether individual or collective, and not under public law (para. 76). In her opinion, the rule from Clearwater does not apply in the case at bar. According to that rule, which is merely a restatement of the principle of relevance, the motives of the members of a public body’s decision‑making authority in performing functions of a legislative, regulatory, policy or purely discretionary nature are irrelevant to the determination of whether a decision made in such a context is valid (para. 89). However, the Board is not performing such functions in deciding, as in B’s case, to dismiss an employee (para. 92).
[25] Furthermore, Bich J.A. held that deliberative secrecy does not apply in the instant case, since the executive committee is not an authority that performs adjudicative functions (para. 124). Also, the fact that the executive committee decided unilaterally to meet in camera is not in itself sufficient to shield its members from being compellable (paras. 102‑19).
[26] Bich J.A. noted that the rule of relevance is of general application, including in a proceeding before a grievance arbitrator (para. 59). It is settled law that [translation] “the circumstances of and grounds for” a dismissal are relevant to a challenge to the dismissal (paras. 64 and 67). Moreover, clause 5‑7.13 of the local collective agreement gives the arbitrator a very broad power to examine the dismissal “from every angle, having regard both to procedure and to substance” (para. 129). This does not, in Bich J.A.’s view, mean “that there are no limits to the questions that can be put to the commissioners who have been summoned” (para. 142). What each decision maker thought at each minute of the deliberations will undoubtedly not be relevant. But it is the arbitrator who must decide whether particular questions are relevant and will further the inquiry into the grievance (para. 143). Bich J.A. noted that if an appellate court were to determine the exact meaning of the expression “thorough deliberations”, it would usurp the grievance arbitrator’s exclusive jurisdiction to interpret the collective agreement (para. 133).
[27] Gagnon J.A., dissenting, would have dismissed the appeals and affirmed Delorme J.’s judgment. Unlike Delorme J., however, he would have quashed the summonses of the executive committee’s members rather than limiting their testimony to the formal process (para. 214). Applying the standard of correctness, Gagnon J.A. concluded that Clearwater applies to the decisions of any public collective decision maker, whether acting in a private or public capacity, provided that the communicated decision officially expresses the public body’s will (paras. 172‑73). Resolution No. 238 of the Board’s executive committee is one such decision. It speaks for itself and sets out the grounds for dismissal (paras. 177‑79). Thus, although the executive committee’s members are in principle compellable (para. 152), given the absence of any allegation of bad faith, examining them would be irrelevant to the determination of whether the dismissal was valid (paras. 174 and 180).
[28] Gagnon J.A. stressed that the employer is not required to show that the deliberations leading up to the adoption of a resolution for dismissal were adequate (para. 162). In his view, the expression [translation] “thorough deliberations” is not “a formal qualitative standard” that will, if it is not met, cause a dismissal to be invalid (para. 188). At any rate, he observed, it can be seen from the evidence that the decision to dismiss “was not made lightly” (para. 206).
IV. Issues
[29] The central issue of the appeal is whether the Union may examine the three commissioners, members of the Board’s executive committee, and what the scope of such examinations would be. It will require the Court to determine whether the principle that the motives of a legislative body are “unknowable” and deliberative secrecy are applicable to the facts of this case. It will also be necessary to establish, if the examinat