Quebec (Attorney General) v. Guérin

Quebec (Attorney General) v. Guérin
Collection
Supreme Court Judgments
Date
2017-07-27
Neutral citation
2017 SCC 42
Report
[2017] 2 SCR 3
Case number
36775
Judges
McLachlin, Beverley; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Quebec
Subjects
Administrative law
Notes
SCC Case Information: 36775
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3
Appeal heard: January 11, 2017
Judgment rendered: July 27, 2017
Docket: 36775
Between:
Attorney General of Quebec
Appellant
and
Ronald Guérin
Respondent
- and -
Conseil d’arbitrage, Fédération des médecins spécialistes du Québec and Régie de l’assurance maladie du Québec
Interveners
Official English Translation: Reasons of Wagner and Gascon JJ. and reasons of Côté J.
Coram: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Joint Reasons for Judgment:
(paras. 1 to 64)
Wagner and Gascon JJ. (McLachlin C.J. and Karakatsanis J. concurring)
Joint Reasons Concurring in the Result:
(paras. 65 to 82)
Brown and Rowe JJ.
Dissenting Reasons:
(paras. 83 to 112)
Côté J.
Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3
Attorney General of Quebec Appellant
v.
Ronald Guérin Respondent
and
Conseil d’arbitrage,
Fédération des médecins spécialistes du Québec and
Régie de l’assurance maladie du Québec Interveners
Indexed as: Quebec (Attorney General) v. Guérin
2017 SCC 42
File No.: 36775.
2017: January 11; 2017: July 27.
Present: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard of review — Arbitration — Statutory provision stating that dispute resulting from interpretation and application of agreement entered into under Health Insurance Act to be submitted to council of arbitration — Arbitrator dismissing dispute submitted by medical specialist — Standard of review applicable to arbitrator’s decision that there is no arbitrable dispute and that specialist did not have standing — Whether dispute raises true question of jurisdiction in relation to arbitrator — Health Insurance Act, CQLR, c. A‑29, ss. 19, 54.
Health law — Health insurance — Medical specialists — Specialized collective bargaining scheme — Arbitration — Nature of dispute — Standing — Agreement providing for recognition and designation of medical imaging laboratories that are eligible to receive digitization fee — Medical specialist contesting refusal to declare certain laboratories eligible for fee — Whether specialist’s proceeding is arbitrable dispute — Whether specialist has standing to submit dispute — Health Insurance Act, CQLR, c. A‑29, ss. 19, 54.
The Health Insurance Act (“Act”) provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism that resulted, in this case, in the Accord‑cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance maladie (“Framework Agreement”). The Fédération and the Ministère de la Santé et des Services sociaux (collectively, “negotiating parties”) created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocole concernant la radiologie diagnostique (“Protocol”), one of the schedules to the Framework Agreement. Section 54 of the Act provides that a “dispute resulting from the interpretation or application of [the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction”. A distinction is made in the Framework Agreement between a “dispute with respect to fees” raised by a physician and a “collective dispute” raised by the Fédération.
G, a radiologist who is a member of the Fédération, applied to the negotiating parties for a declaration that certain clinics were eligible for the digitization fee. His application was denied. G contested that decision by submitting a dispute to the council of arbitration. The arbitrator, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have standing to submit the dispute. The motion judge granted G’s motion for judicial review, finding that the arbitrator’s decision was unreasonable. The majority of the Court of Appeal upheld the motion judge’s decision.
Held (Côté J. dissenting): The appeal should be allowed and the award of the council of arbitration restored.
Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.: The arbitrator’s conclusions were reasonable. The reasonableness standard necessarily applies, because the arbitrator was called upon to interpret and apply his enabling statute, the Framework Agreement and the Protocol, which are at the core of his mandate and expertise. The issues in this case do not raise a true question of jurisdiction in relation to the council of arbitration. On the one hand, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applying his or her enabling legislation and related documents, whether a matter is arbitrable. Applying the reasonableness standard to such a question undermines neither the rule of law nor the other constitutional bases of judicial review. In contrast, the effect of applying the correctness standard would be to undermine the presumption in favour of the reasonableness standard that has been consistently recognized and endorsed by the Court in numerous cases. On the other hand, the question of G’s standing, too, relates to the arbitrator’s interpretation of his enabling legislation and of the Framework Agreement and does not cast doubt on his authority to make the inquiry submitted to him. Finally, the rule of law does not require the application of the correctness standard here. The fact that a question might give rise to conflicting interpretations does not on its own support a conclusion that that standard applies.
The arbitrator’s decision that the application did not raise an arbitrable dispute is reasonable. The determination of whether the dispute is arbitrable cannot be limited to s. 54 of the Act and must take the relevant terms of the Protocol into account. According to the arbitrator’s interpretation of the Protocol, the negotiating parties had reserved for themselves the authority to decide whether to recognize a laboratory, and had in so doing excluded that decision from the arbitration process. But the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application, as he was asking the arbitrator to rule on that question in place of the negotiating parties. It was reasonable for the arbitrator to conclude that if he were to rule on the dispute, the effect would be to alter the negotiated content of the Protocol by stripping the negotiating parties of their exclusive discretion under the Protocol.
It was also reasonable for the arbitrator to conclude that G did not have standing because, under the Framework Agreement and the Act, only the Fédération can submit such a dispute to a council of arbitration. The Act gives the Fédération a monopoly of representation in respect of its members both for the negotiation and for the application of the Framework Agreement except in the case of a dispute with respect to fees, and this case did not involve such a dispute. Section 54 does not entitle G to have recourse directly to arbitration. The main purpose of this section is to establish the exclusive nature of the tribunal’s jurisdiction, not to define standing or determine who may submit a dispute. The context of the Act as a whole also confirms this interpretation. The statutory provisions that set out specific situations in which a health professional may have recourse to arbitration would serve no useful purpose if s. 54 nonetheless entitled him or her to submit every possible type of dispute. Such an interpretation would also result in an untenable increase in numbers of arbitration cases. Thousands of medical specialists and other health professionals, as well as health institutions and even third parties such as contractors or patients, could have recourse to arbitration. It is impossible to imagine that to have been the legislature’s intention as regards the purpose and scope of s. 54.
A physician who feels aggrieved has a remedy in the general law of civil liability. If G can establish that the Fédération’s conduct involved bad faith, discrimination, arbitrary conduct or serious negligence, he will be entitled to bring an action against it in court and to be compensated for the resulting harm.
Per Brown and Rowe JJ.: The issue of the arbitrator’s capacity to hear G’s matter raised a question of jurisdiction, not of arbitrability, reviewable on the standard of correctness. The mere fact that a question of jurisdiction has not been discerned since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, or that the jurisprudence on such questions has been inconsistent, does not mean that they have ceased to exist. In this case, the arbitrator saw his capacity to hear G’s matter as a question of jurisdiction, as did the courts below. While an issue is not arbitrable before a tribunal that has no jurisdiction to hear it, arbitrability is distinct from jurisdiction and standing. Mischaracterizing questions of jurisdiction as questions of arbitrability risks undermining the coherence of the analytical structure in administrative law. The arbitrator erred in concluding that he did not have jurisdiction to hear the matter. Section 54 of the Act gives the council of arbitration exclusive jurisdiction to hear “dispute[s] resulting from the interpretation or application of an agreement”. A dispute concerning how the agreement between the Fédération and the Minister operated with respect to G’s facility was such a dispute.
While the arbitrator’s decision on the question of G’s standing is reviewable for reasonableness and was reasonable, questions of standing can be jurisdictional. A court determining the standard of review to be applied to an administrative tribunal’s decision on a question of standing must examine the text of the statutory grant of power. Standing can be a jurisdictional question where a tribunal is confined by the terms of its grant to hear only from a certain class of persons. In this case, the passive text of s. 54, the statutory grant of power, indicates that the jurisdiction of councils of arbitration is not confined to hearing matters brought from certain classes of persons. Furthermore, there is no floodgate concern that would militate against granting standing. The more persons who are placed in the difficult position in which G finds himself, the more compelling the basis for allowing him and others to have their disputes heard by an impartial decision‑maker.
Per Côté J. (dissenting): The determination of whether it was open to the arbitrator to hear the case raises a true question of jurisdiction, to which the standard of correctness applies, and the arbitrator erred in concluding that he did not have jurisdiction to hear G’s dispute.
The arbitrator also erred in concluding that G did not have standing. This question is one of jurisdiction, because the arbitrator cannot hear any dispute submitted by a medical specialist, except one with respect to fees. Even if the reasonableness standard is applied, the arbitrator’s decision is not defensible in respect either of the facts or of the law. The arbitrator’s conclusion is unreasonable insofar as it is based on a mischaracterization of the nature of the dispute and a misinterpretation of s. 54 of the Act.
In this case, the arbitrator concluded that the subject matter of G’s proceeding was a declaration recognizing the laboratories for the period at issue in the application and that G was asking that the rules negotiated by the parties to the Framework Agreement be modified. But that is a mischaracterization of the nature of the dispute that completely disregards the notice of dispute that instituted the proceeding. On the contrary, G’s challenge was related to how the Fédération and the Régie de l’assurance maladie du Québec had interpreted and applied the conditions for recognition.
Section 54 of the Act is drafted in broad, clear language. The arbitrator interpreted it narrowly on the basis of the language of the Framework Agreement, thereby disregarding the fundamental principle of the hierarchy of rules, according to which the scope of the Framework Agreement must depend on that of the Act, not the reverse. Moreover, the right provided for in s. 54 of the Act must be construed broadly and liberally. When the negotiating parties decide on and designate general radiology laboratories for the purposes of the digitization fee, they are interpreting and applying the agreement within the meaning of s. 54. A dispute submitted to the arbitrator thus results from a difference of opinion between the medical specialists and the negotiating parties. The Fédération’s monopoly of representation does not extend that far. Principles of Quebec labour law, such as that of the monopoly of representation granted to a union, should not be imported into the collective bargaining scheme provided for in the Act unless the Act expressly provides for this.
Lastly, the courts would not have been an appropriate forum for G, as his allegations correspond to none of the types of conduct on the basis of which he might bring an action against the Fédération.
Cases Cited
By Wagner and Gascon JJ.
Considered: Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309; Pérès v. Québec (Commission de la fonction publique), 2000 CanLII 18759; referred to: 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; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Canon Canada Inc. v. Sylvestre, 2012 QCCS 1422; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Ontario Refrigeration and Air Conditioning Contractors Assn. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787, 2016 ONCA 460, 131 O.R. (3d) 665, leave to appeal refused, No. 37179, March 10, 2017, [2017] Bull. S.C.C. 431; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300; Canadian Merchant Service Guild v. Teamsters, Local Union 847, 2012 FCA 210, 433 N.R. 200; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Syndicat des techniciens et techniciennes du cinéma et vidéo du Québec v. Mancone, [2002] R.J.Q. 2905; Centre hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330.
By Brown and Rowe JJ.
Applied: Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309; considered: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
By Côté J. (dissenting)
Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207.
Statutes and Regulations Cited
Act respecting the Régie de l’assurance maladie du Québec, CQLR, c. R‑5, s. 2.
Health Insurance Act, CQLR, c. A‑29, ss. 19, 21, 22.0.1, 22.2, 54, 104.1.
Interpretation Act, CQLR, c. I‑16, s. 41.
Labour Code, CQLR, c. C‑27, ss. 47.5, 69.
Public Service Act, CQLR, c. F‑3.1.1.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated April 2017, release 1).
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 6e éd. Cowansville, Que.: Yvon Blais, 2010.
Petit Robert: dictionnaire alphabétique et analogique de la langue française, nouvelle éd. Paris: Le Robert, 2012, “différend”.
Reid, Hubert, avec la collaboration de Simon Reid. Dictionnaire de droit québécois et canadien avec table des abréviations et lexique anglais‑français, 4e éd. Montréal: Wilson & Lafleur, 2010, “différend”.
APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Savard and Schrager JJ.A.), 2015 QCCA 1726, [2015] AZ‑51223767, [2015] J.Q. no 10976 (QL), 2015 CarswellQue 9920 (WL Can.), affirming a decision of Grenier J., 2013 QCCS 6950, [2013] AZ‑51046703, [2013] J.Q. no 19116 (QL), 2013 CarswellQue 14437 (WL Can.), allowing the application for judicial review of a decision of the council of arbitration, no 12‑DS‑499, January 29, 2013. Appeal allowed, Côté J. dissenting.
Patrice Claude and Isabelle Brunet, for the appellant.
René Piotte, Stéphanie Lalande and Pierre‑Alexandre Boucher for the respondent.
Francis Meloche and Sylvain Bellavance, for the intervener Fédération des médecins spécialistes du Québec.
No one appeared for the interveners Conseil d’arbitrage and Régie de l’assurance maladie du Québec.
English version of the judgment of McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. delivered by
Wagner and Gascon JJ. —
I. Overview
[1] This appeal concerns the reasonableness of an arbitration award made in the context of a specialized collective bargaining scheme, namely the scheme for medical specialists and the government of Quebec under the Health Insurance Act, CQLR, c. A‑29 (“Act”). More specifically, the award dealt with the very concept of a dispute and with standing to submit such a dispute to a council of arbitration under the Act and the Accord‑cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance maladie (“Framework Agreement”).
[2] The Protocole concernant la radiologie diagnostique (“Protocol”) is one of a large number of schedules that were negotiated under the Framework Agreement. It sets out the conditions for payment of a digitization fee, as well as what a medical imaging laboratory must do, and what criteria it must satisfy, to become eligible for that fee. The respondent, Dr. Ronald Guérin, is a radiologist. He wishes to contest by way of arbitration a joint decision of the Ministère de la Santé et des Services sociaux (“Ministère”) and the Fédération des médecins spécialistes du Québec (“Fédération”) (collectively, “negotiating parties”) to refuse to declare that the laboratories he represents are eligible to receive that fee for the years 2009 through 2011.
[3] The council of arbitration decided that Dr. Guérin’s objection could not give rise to an arbitrable dispute under the Act and the Framework Agreement and that, in any event, only the Fédération would have had standing to submit such a dispute. Further to a motion for judicial review, the Superior Court and the majority of the Court of Appeal both found that the council’s decision was unreasonable, concluding that it was open to Dr. Guérin under the Act to submit his dispute to the council of arbitration. The dissenting judge would have upheld the council’s decision, finding that its analysis was justified having regard to the Act and the Framework Agreement.
[4] We would allow the appeal and restore the council of arbitration’s award. It was reasonable for the council to conclude that, under the Framework Agreement, the Protocol and the Act, Dr. Guérin’s proceeding did not raise an arbitrable dispute, because the Fédération and the Ministère had reserved for themselves the full discretion to designate the medical imaging laboratories that would be eligible to receive the digitization fee. It was also reasonable for the council to conclude that, in any event, Dr. Guérin did not have standing to submit such a dispute for arbitration, as it was a collective dispute that the Framework Agreement lawfully reserved for the Fédération. Moreover, contrary to what the majority of the Court of Appeal stated, physicians who feel aggrieved are not without recourse: there is a general law principle that permits them to sue the organization that represents them if it has breached its duty of fair representation.
II. Background
A. Legislative Framework[1]
[5] The Act establishes a government‑funded universal health care system. It provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism. To this end, the Ministère may, “[f]or the purposes of this Act . . . enter into an agreement with the representative organizations of any class of health professionals” (s. 19 of the Act). Such an agreement “shall bind all professionals in the field of health who are members of the body which made the agreement” (s. 21). The agreement in question corresponds in the instant case to the Framework Agreement, a quite complex document containing almost 45 schedules that has been amended over 50 times since being concluded. It is the Fédération, which the Ministère has since 1970 recognized as the only organization representing medical specialists in Quebec, that is responsible for the negotiation and application of this agreement (Framework Agreement, schedule 1, s. 3.1).
[6] The Act provides that “[a] dispute resulting from the interpretation or application of an agreement [like the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction” (s. 54). In this respect, the Framework Agreement sets out an arbitration procedure, providing that [translation] “[a] dispute shall be filed by a medical specialist or by the Fédération in accordance with [the procedure]” (Framework Agreement, schedule 1, s. 20.1). A distinction is made in this procedure between a “dispute with respect to fees”, that is, one raised by a physician in relation to a claim for fees or to his or her service agreement with a health institution, and a “collective dispute” raised by the Fédération to resolve any other disagreement related to the application of the Framework Agreement (Framework Agreement, schedule 1, ss. 20.2 and 20.5).
[7] On June 1, 2009, the Fédération and the Ministère created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocol (s. 4.1). Rather than drawing up a list of eligible laboratories from the outset and incorporating it into the Protocol, the parties decided to adopt a flexible recognition mechanism that would enable them to adapt to the progressive development of medical imaging laboratories in Quebec.
[8] For a laboratory to be recognized, it must satisfy the conditions set out in the Protocol, and a physician must submit an application to the negotiating parties (ss. 4.2 and 4.3 of the Protocol). One of the requirements is that the modernized equipment be and remain the property of radiologists (s. 4.2(iv) of the Protocol). The application is first reviewed by a joint committee of representatives of the negotiating parties, which recommends that the laboratory either be or not be recognized (s. 4.4 of the Protocol). Further to that recommendation, the negotiating parties decide on and designate the laboratories that will be recognized for the purposes of the digitization fee (s. 4.5 of the Protocol). Finally, the Régie de l’assurance maladie du Québec (“RAMQ”) implements that decision (s. 4.6 of the Protocol). Once a laboratory has been recognized, the physician may bill for the fee.
[9] In September 2009, further to an arrangement entered into with the Ministère, the Fédération informed radiologists that they could on an exceptional basis have their laboratories recognized retroactively to June 1, 2009 if they submitted an application to that effect by November 1, 2009.
[10] In October 2010, the negotiating parties amended the Protocol once again to clarify the conditions concerning the ownership of radiology equipment. This amendment applied as of June 1, 2009, that is, as of the day the fee first came into effect (Amendment 54 to the Framework Agreement, s. 2.3).
B. Factual Context
[11] Dr. Guérin is a radiologist and a member of the Fédération. In this case, he is acting as a medical specialist and the medical director of a radiology clinic, and as the representative of 35 radiologists practising in other clinics belonging to the same company.
[12] In October 2009, Dr. Guérin applied to the negotiating parties for a declaration that the clinics in question were eligible for the digitization fee. His application was denied, however, on the basis that, because of the structure of the company, the laboratory equipment was not directly or indirectly owned by radiologists. Dr. Guérin disagreed with this interpretation of the “ownership test”, but he nonetheless tried to comply with it by making some changes to the company’s structure. He and his colleagues thus altered the structure of their corporation’s share capital and adopted a new shareholder agreement. This led the negotiating parties to inform Dr. Guérin in July 2011 that they would be recognizing the laboratories effective retroactively to June 21, 2011, the day of the joint committee’s recommendation.
[13] Although Dr. Guérin was happy that the laboratories were being recognized, he felt that this recognition should be retroactive to the day the fee was created or, at the very least, to April 8, 2010, the date when the structure of the laboratories was modified. A request to that effect was denied.
[14] This impasse led him to submit a dispute to the council of arbitration set up under s. 54 of the Act. The Fédération and the Ministère opposed him jointly in this proceeding, arguing as a preliminary matter that a decision regarding the recognition of a laboratory by the negotiating parties for the purposes of the digitization fee cannot give rise to an arbitrable dispute. They also maintained that only the Fédération, and not a physician, could submit such a dispute.
III. Judicial History
A. Arbitration Award (Mtre. Marc Gravel), No. 12‑DS‑499, January 29, 2013
[15] Arbitrator Gravel, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant Dr. Guérin the first of the conclusions being sought and to recognize the laboratories for the purposes of the digitization fee. In the arbitrator’s opinion, the Framework Agreement did not give him the authority to make such a decision in place of the negotiating parties. Given that recognition is an [translation] “inevitable and necessary prerequisite” to a claim for the digitization fee, a physician cannot submit a dispute with respect to fees without first having obtained this recognition (arbitration award, at para. 33, reproduced in A.R., at p. 25).
[16] The arbitrator also concluded that the Fédération has a monopoly of representation in respect of its members. In his view, it is up to the Fédération and the Ministère to negotiate the recognition of laboratories. A physician has no role to play in those negotiations and cannot challenge their outcome by way of arbitration absent clear language to that effect. It was therefore not open to Dr. Guérin to [translation] “ask a council of arbitration . . . to modify in respect of him the rules that the parties to the Framework Agreement, and they alone, negotiated” (para. 57).
B. Quebec Superior Court (Grenier J.), 2013 QCCS 6950
[17] The motion judge granted Dr. Guérin’s motion for judicial review. Applying the standard of reasonableness, she concluded that the arbitrator’s decision was unreasonable because it did not fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (para. 26 (CanLII), quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
[18] In the motion judge’s opinion, the only issue was whether the council of arbitration had jurisdiction to consider the dispute. She asserted in this respect that the arbitrator had [translation] “erred as regards the subject of the case before him and as regards the scope of his jurisdiction” (para. 18). Because, in her view, the case turned mainly on whether Dr. Guérin had standing, she focused her analysis essentially on the interpretation of s. 54 of the Act, rather than on that of the provisions of the Protocol the arbitrator had discussed.
[19] The motion judge maintained that what Dr. Guérin had asked the arbitrator to do was not to recognize the laboratories, but to correct the interpretation and application of the conditions of the Protocol and to declare that the laboratories had satisfied those conditions as of 2009. Thus, only the interpretation and application of the Protocol — and not its substance — were at issue.
[20] The motion judge concluded that s. 54 of the Act, which was drafted in broad terms, entitles a physician to contest decisions of the negotiating parties by way of arbitration. The negotiating parties cannot restrict a physician’s access to arbitration, as s. 54 of the Act authorizes them only to decide on the composition of a council of arbitration and to appoint arbitrators. The standard dictionary definition of “dispute” should apply, which means that a dispute may be submitted in respect of any difference of opinion, including the one at issue in this case.
C. Quebec Court of Appeal, 2015 QCCA 1726
(1) Majority Reasons of Duval Hesler C.J.Q. and Schrager J.A.
[21] The majority of the Court of Appeal upheld Grenier J.’s decision. They began by noting that the parties were not questioning the applicability of the reasonableness standard. In the majority’s opinion, however, the arbitrator’s decision to the effect that he lacked jurisdiction to rule on the issue before him and that Dr. Guérin did not have standing to submit the dispute was unreasonable.
[22] Like the motion judge, the majority of the Court of Appeal devoted most of their reasons to the question of standing. They concluded that a physician is entirely free to have recourse to arbitration in order to resolve an issue relating to the interpretation of the Framework Agreement or to its application to his or her particular situation. Section 54 of the Act is clear, and it provides that a dispute concerning the interpretation or application of an agreement entered into under the Act can be submitted to arbitration. The Framework Agreement unduly limits the scope of s. 54 by reserving for the Fédération recourse to arbitration for any dispute other than those that physicians are expressly authorized to submit to arbitration. In addition, the language of the provisions that set out the arbitration procedure is non‑exhaustive.
[23] Finally, the majority of the Court of Appeal rejected any analogy to the scheme of the Labour Code, CQLR, c. C‑27, in part because of the absence in the Act of a recourse analogous to the one provided for in s. 47.5 of the Code for failure to represent. Dr. Guérin was therefore without any recourse to contest an interpretation of the Framework Agreement that was prejudicial to him.
(2) Dissenting Reasons of Savard J.A.
[24] The dissenting judge would have allowed the appeal, as she considered the arbitrator’s decision to be reasonable.
[25] She noted that the arbitrator had found that the dispute concerned the recognition of laboratories, a final decision for which the negotiating parties were responsible and that he lacked jurisdiction to review. That is why he had not inquired into whether the mechanism for recognizing laboratories is compatible with the arbitration process provided for in the Act and the Framework Agreement.
[26] The dissenting judge observed that for the majority, and for the motion judge, the dispute instead concerned the interpretation of one of the criteria that had to be satisfied in order to obtain the recognition being sought, not the mechanism for deciding whether that recognition should be granted. But what had to be asked in applying the reasonableness standard was whether the arbitrator’s analysis concerning the subject matter of the dispute fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law.
[27] In the dissenting judge’s view, it had been reasonable for the arbitrator to conclude that the decision to designate a laboratory is one that falls to the negotiating parties and that cannot be contested before a council of arbitration. The agreement between those parties is binding on Dr. Guérin and his fellow physicians, and it is not open to them to contest such a designation.
[28] Finally, the dissenting judge concluded that s. 54 of the Act does not preclude the negotiating parties from settling their disputes otherwise than by way of arbitration. The provisions of the Framework Agreement that reserve the possibility of submitting disputes to arbitration for the Fédération except in the case of a dispute with respect to fees are not contrary to s. 54 of the Act and are compatible with the Fédération’s monopoly of representation, which resembles the monopoly existing in labour law.
IV. Issues
[29] This being a case of judicial review, it will be necessary first to identify the applicable standard of review before turning to the merits to determine whether Dr. Guérin’s proceeding is a dispute within the meaning of the Act and, if so, whether it was open to Dr. Guérin himself to submit it to the council of arbitration.
V. Analysis
A. Applicable Standard of Review Is Reasonableness
[30] The courts below were unanimous in concluding that the applicable standard of review was reasonableness (motion judge’s reasons, at para. 26; C.A. reasons, at paras. 21, 45‑46 and 71). Indeed, the parties agreed on this point in the Court of Appeal. In this Court, although Dr. Guérin acknowledged that the current law supports the application of that standard, he asserted that the standard of correctness should nonetheless apply (R.F., at paras. 15‑17; transcript, at pp. 58‑59 and 80‑81).
[31] The courts below were right to apply the reasonableness standard. Reasonableness necessarily applies, because the council of arbitration was called upon to interpret and apply its enabling statute, the Framework Agreement and the Protocol, which are at the core of its mandate and expertise (notice of dispute (reproduced at para. 2 of the arbitration award), in the recitals and at paras. 1‑3; Dunsmuir, at para. 54; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 11; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 32).
[32] The two arguments on which Dr. Guérin relies in asserting that the correctness standard should apply are without merit. First, as both the motion judge (at para. 26) and all the judges of the Court of Appeal (at paras. 21 and 85) recognized, it is wrong to argue that this appeal raises a true question of jurisdiction in relation to the council of arbitration (Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at para. 35). As this Court has noted in the past, courts should “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 233, quoted in Dunsmuir, at para. 35). In a similar vein, this Court has frequently stressed that, if they exist, “[t]rue questions of jurisdiction are narrow and will be exceptional” (Alberta Teachers, at para. 39; see also at para. 34; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 26; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219, at para. 27). Such questions must be understood “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (Dunsmuir, at para. 59; see also Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 34; Canon Canada Inc. v. Sylvestre, 2012 QCCS 1422, at para. 29 (CanLII)).
[33] It is clear, on the one hand, that the council of arbitration had jurisdiction to interpret and apply agreements entered into under the Act, such as the Framework Agreement and its schedules, including the Protocol. It therefore had the authority to make the inquiry and to determine whether Dr. Guérin’s proceeding raised an arbitrable dispute under the Act and the Framework Agreement. Indeed, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applying his or her enabling legislation and related documents, whether a matter is arbitrable (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 16). The fact that