Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles)

Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles)
Collection
Supreme Court Judgments
Date
1993-06-30
Report
[1993] 2 SCR 756
Case number
22717
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Quebec
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 22717
Decision Content
Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756
Roland Lapointe Appellant
v.
Domtar Inc. Respondent
and
Commission d'appel en matière de lésions
professionnelles Mis en cause
and
Commission de la santé et de la sécurité
du travail Mis en cause
Indexed as: Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles)
File No.: 22717.
1993: April 1; 1993: June 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for quebec
Workers' compensation ‑‑ Income replacement indemnity ‑‑ Commission d'appel en matière de lésions professionnelles ‑‑ Interpretation of s. 60 of the Act respecting Industrial Accidents and Occupational Diseases ‑‑ Evocation ‑‑ Standard of review applicable to Commission's decisions ‑‑ Whether Commission's interpretation patently unreasonable ‑‑ Whether in the absence of a patently unreasonable error conflicting decisions by two administrative tribunals may give rise to judicial review ‑‑ Act respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A‑3.001, s. 60.
Judicial review ‑‑ Standard of review ‑‑ Appellate administrative tribunal ‑‑ Workers' compensation ‑‑ Standard of review applicable to decisions of Commission d'appel en matière de lésions professionnelles.
Judicial review ‑‑ Basis for judicial intervention ‑‑ Conflicting decisions by two administrative tribunals ‑‑ Whether jurisprudential conflict constitutes an independent basis for judicial review.
The appellant, an employee of the respondent company, was injured in an industrial accident three days before the temporary closure of the plant. Citing the closure, the company refused to compensate the employee for more than those three days. The Commission de la santé et de la sécurité du travail and the Bureau de révision paritaire affirmed the company's decision and dismissed the complaint of the employee, who argued that under s. 60 of the Act respecting Industrial Accidents and Occupational Diseases ("A.I.A.O.D.") he was entitled to an income replacement indemnity covering the entire period of his disability, that is a period of 14 days. On appeal, the Commission d'appel en matière de lésions professionnelles ("CALP") found for the employee and ordered the company to pay him, pursuant to s. 60, 90 percent of his net salary or wages for each day or part of a day he would normally have worked according to his usual work schedule, regardless of the plant closure. The Superior Court dismissed the company's motion in evocation because, in its view, the CALP had acted within its jurisdiction and its decision was not unreasonable. The Court of Appeal reversed this judgment and granted the application for evocation. While of the opinion that the CALP's decision was not patently unreasonable, the court nevertheless observed that with respect to the interpretation of s. 60 it was in the interest of justice to resolve at once the conflicting decisions of the CALP and the Labour Court, which has jurisdiction over penal proceedings under the A.I.A.O.D. Abandoning traditional curial deference, the court consequently intervened to resolve the unstable situation and held that under s. 60 an employer is not required to pay a salary or wages to an employee injured in an industrial accident when there is a plant closure. This appeal is to determine whether, in the absence of a patently unreasonable error, conflicting decisions by administrative tribunals may give rise to judicial review.
Held: The appeal should be allowed.
Strictly speaking, the interpretation of s. 60 is within the CALP's jurisdiction. A functional analysis of the A.I.A.O.D. clearly demonstrates that the legislature intended to give this tribunal the power to make a final ruling on the meaning and scope of s. 60. As an appellate administrative tribunal, the CALP hears and disposes exclusively of all appeals brought under the A.I.A.O.D. and its members have all the powers necessary for the exercise of their jurisdiction, including the power to rule on any question of law or of fact. Protected by a full privative clause, CALP decisions are final and without appeal and every person contemplated in the decision must comply with them without delay. Further, s. 60 is not only one of the legislative provisions on which the CALP has the express power to rule, it employs concepts which are at the core of its area of expertise. The interpretation of s. 60 by the CALP is thus a function directly relating to the objective sought by the legislature. Since the interpretation of s. 60 is within the tribunal's jurisdiction, the standard of review applicable is whether the decision is patently unreasonable.
The CALP's decision is not patently unreasonable. It can be rationally defended both on the facts and on the law. While the CALP may have overlooked several important aspects which are peculiar to the general system of compensation, this is not a basis for judicial intervention as this would simply be an error of law within jurisdiction.
It is doubtful whether there is a conflict between the decisions of the CALP and the Labour Court with respect to the interpretation of s. 60. For one thing, the Court of Appeal's conclusion on this point is based on a single judgment of the Labour Court in a penal matter and fails to take into account the numerous decisions rendered by the CALP, which has always adopted the same interpretation. The situation created by an isolated decision at variance with a consistent line of authority cannot a priori be characterized as a true "jurisprudential conflict". Furthermore, these two bodies interpreted the same legislative provision, but in the particular context of each one's jurisdiction, in the one case a penal one and, in the other, an administrative one. Since these are matters where the ground rules are completely different, a disagreement on the interpretation of a legislative provision does not necessarily place the CALP and the Labour Court in a jurisprudential conflict. In addition, it is wrong to suggest that the CALP's interpretation leads to a dead end as there exists, parallel to the penal remedy, a civil remedy (s. 429 A.I.A.O.D.). Finally, the allegedly irreconcilable "conflict" between these two tribunals is mitigated by the fact that the Labour Court's decisions, unlike those of the CALP, can be appealed to the Superior Court under the Code of Penal Procedure.
Assuming however, without deciding the point, that the CALP's interpretation and that of the Labour Court create a jurisprudential conflict, such a conflict does not constitute an independent basis for judicial review. When decisions made within jurisdiction are not patently unreasonable, the principles underlying curial deference should prevail. Consistency in the application of the law is a valid objective but is not an absolute one. This objective must be pursued in keeping with the decision‑making autonomy and independence of members of the administrative bodies. Inquiring into a case of decision‑making inconsistency and solving it where there is no patently unreasonable error means altering the institutional relationship between administrative tribunals and courts. Such intervention by a court of law risks eliminating the decision‑making autonomy, expertise and effectiveness of the administrative tribunal and risks, at the same time, thwarting the original intention of the legislature, which has already determined that the administrative tribunal is the one in the best position to rule on the disputed decision. Administrative tribunals have the authority to err within their area of expertise, and a lack of unanimity is the price to pay for the decision‑making freedom and independence given to the members of these tribunals. Recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of those principles given that administrative tribunals and the legislature have the power to resolve such conflicts themselves.
Cases Cited
Disapproved: Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261; considered: Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home (1984), 48 O.R. (2d) 225; United Steelworkers of America, Local 14097 v. Franks (1990), 75 O.R. (2d) 382; referred to: Tousignant et Hawker Siddeley Canada Inc., [1986] C.A.L.P. 48; Commission de la santé et de la sécurité du travail v. BG Chéco International Ltée, [1991] T.T. 405; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada Labour Relations Board v. Halifax Longshoremen's Association, Local 269, [1983] 1 S.C.R. 245; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 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; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Desmeules et Entreprises B.L.H. Inc., [1986] C.A.L.P. 66; Béland et Mines Wabush, C.A.L.P., No. 00138‑09‑8604, November 27, 1986; Collins & Aikman Inc. et Dansereau, [1986] C.A.L.P. 134; Lambert et Vic Métal Corp., [1986] C.A.L.P. 147; Létourneau et Électricité Kingston Inc., [1986] C.A.L.P. 241; Hydro‑Québec v. Conseil des services essentiels (1991), 41 Q.A.C. 292; Syndicat canadien de la Fonction publique v. Commission des écoles catholiques de Québec, J.E. 90‑176; Syndicat des communications graphiques, local 509M v. Auclair, [1990] R.J.Q. 334; IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952.
Statutes and Regulations Cited
Act respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A‑3.001, ss. 1, 44, 60, 349, 350, 358 [am. 1992, c. 11, s. 31], 373 et seq., 391, 396 [am. 1986, c. 58, s. 114], 397, 400, 405, 406, 407, 409, 429, 458 [am. 1990, c. 4, s. 35], 473 [am. idem, s. 38], 589.
Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1.
Code of Penal Procedure, R.S.Q., c. C‑25.1.
Labour Code, R.S.Q., c. C‑27, s. 112.
Authors Cited
Comtois, Suzanne. "Le contrôle de la cohérence décisionnelle au sein des tribunaux administratifs" (1990), 21 R.D.U.S. 77.
Jobin, Jean‑François. "Le contrôle judiciaire des erreurs de compétence ou dites proprement juridictionnelles: où en sommes‑nous?" (1990), 50 R. du B. 731.
MacLauchlan, H. Wade. "Some Problems with Judicial Review of Administrative Inconsistency" (1984), 8 Dalhousie L.J. 435.
Morissette, Yves‑Marie. "Le contrôle de la compétence d'attribution: thèse, antithèse et synthèse" (1986), 16 R.D.U.S. 591.
Mullan, David J. "Natural Justice and Fairness ‑‑ Substantive as well as Procedural Standards for the Review of Administrative Decision‑Making?" (1982), 27 McGill L.J. 250.
Ouellette, Yves. "Le contrôle judiciaire des conflits jurisprudentiels au sein des organismes administratifs: une jurisprudence inconstante?" (1990), 50 R. du B. 753.
Ouimet, Hélène. "Commentaires sur l'affaire Produits Pétro‑Canada c. Moalli" (1987), 47 R. du B. 852.
APPEAL from a judgment of the Quebec Court of Appeal, [1991] R.J.Q. 2438, 39 Q.A.C. 304, reversing a judgment of the Superior Court, [1987] C.A.L.P. 254, dismissing a motion in evocation with respect to a decision of the Commission d'appel en matière de lésions professionnelles, [1986] C.A.L.P. 116. Appeal allowed.
Laurent Roy, for the appellant.
René Delorme and Martin Roy, for the respondent.
Claire Delisle, for the mis en cause CALP.
Jean‑Claude Paquet, Louise Chayer and Berthi Fillion, for the mis en cause CSST.
//L'Heureux-Dubé J.//
The judgment of the Court was delivered by
L'Heureux‑Dubé J. ‑‑ This appeal raises questions which lie at the core of the institutional relationship between courts of law and administrative tribunals. The issue is whether, in the absence of a patently unreasonable error, conflicting decisions by administrative tribunals may give rise to judicial review. The provision at issue here (s. 60 of the Act respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A‑3.001 ("A.I.A.O.D.")) reads as follows:
60. The employer of a worker at the time he suffers an employment injury shall pay him, if he becomes unable to carry on his employment by reason of his injury, 90% of his net salary or wages for each day or part of a day the worker would normally have worked had he not been disabled, for fourteen full days following the beginning of his disability.
The employer shall pay the salary or wages referred to in the first paragraph to the worker at the time he would normally have paid them to him if the worker has furnished the medical certificate contemplated in section 199.
The salary or wages referred to in the first paragraph constitute an income replacement indemnity to which the worker is entitled for fourteen full days following the commencement of his disability and the Commission shall reimburse the amount thereof to the employer within fourteen days of receipt of his claim, failing which it shall pay him interest determined in accordance with section 323 from the first day it is late.
If the Commission subsequently decides that the worker is not entitled to the whole or part of the indemnity, the Commission shall claim reimbursement from the worker in accordance with Division I of Chapter XIII.
I ‑ Facts
At about 11:30 a.m. on December 17, 1985, the appellant, a joiner permanently employed by the respondent Domtar Inc., was injured in an industrial accident. As a consequence of his employment injury, he was unable to carry on his employment from December 18, 1985 until January 2, 1986. In the days preceding the accident, Domtar had planned and announced the temporary closure of its newsprint plant for the period from 4 p.m. on December 21, 1985 to 8 a.m. on January 2, 1986.
Domtar compensated the appellant for the day of December 18 and for the days of December 19 and 20. Citing the temporary closure of the plant, Domtar refused to compensate the appellant for more than those three days. On January 6, 1986, in a complaint submitted to the mis en cause the Commission de la santé et de la sécurité du travail ("CSST"), the appellant argued that he was entitled to an income replacement indemnity covering the entire period of his disability, that is a period of 14 days ending on January 2, 1986. On January 24, 1986, the CSST dismissed the complaint and confirmed that Domtar had paid the correct amount. On January 30, 1986, the appellant asked the compensation branch of the CSST to issue a payment order against Domtar. On February 10, 1986, the compensation branch affirmed the CSST's original decision and denied the application for an order.
On February 21, 1986, the appellant filed an application for review with the Bureau de révision paritaire ("BRP") of the CSST. On April 10, 1986, a majority of the BRP affirmed the original decision. The appellant then appealed to the mis en cause the Commission d'appel en matière de lésions professionnelles ("CALP"). On November 27, 1986, the CALP found that on account of his employment injury and in accordance with s. 60 A.I.A.O.D., the appellant was entitled to 90 percent of his net salary or wages for each day or part of a day on which, according to his usual work schedule, he would have worked between December 22, 1985, the date on which the plant closed, and January 1, 1986. The CALP accordingly reversed the decision of the BRP and ordered Domtar to pay the appellant this amount.
On December 23, 1986 Domtar brought a motion in evocation to the Quebec Superior Court from the decision of the CALP. By judgment dated June 30, 1987, the motion in evocation was dismissed. This decision was appealed to the Quebec Court of Appeal. By a unanimous judgment dated September 11, 1991, that court allowed the appeal, granted the motion in evocation and reversed the CALP decision.
II ‑ Legislation
The mechanism set up by the legislature to implement the A.I.A.O.D. comprises several decision‑making bodies.
The CSST, established by the Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1, is the body responsible for administering the A.I.A.O.D. (s. 589). Section 349 A.I.A.O.D. gives it jurisdiction to decide any question contemplated by the Act:
349. The Commission has exclusive jurisdiction to decide any matter or question contemplated in this Act unless a special provision gives the jurisdiction to another person or agency.
Decisions of the CSST are subject to the following privative clause:
350. Except on a question of jurisdiction, no proceedings under article 33 of the Code of Civil Procedure (chapter C‑25) nor any extraordinary recourse within the meaning of the said Code may be taken, nor any provisional remedy be ordered against the Commission by reason of an act performed or decision rendered pursuant to an Act under its administration.
The BRP is an intermediary level of jurisdiction. A person aggrieved by a decision of the CSST may ask this body to review it. Section 358 A.I.A.O.D. reads as follows:
358. A person who believes he has been wronged by a decision rendered by the Commission under this Act may, within 30 days of notification of the decision, apply for review thereof by a review office established under the Act respecting occupational health and safety (chapter S‑2.1).
However, a person may not apply for the review of any matter of a medical nature in respect of which the Commission is bound under section 224 or of any decision of the Commission rendered under section 256 or the first paragraph of section 365.2, or for the review of a refusal by the Commission to reconsider its decision pursuant to the first paragraph of section 365.
BRP decisions are not protected by a privative clause.
The CALP is the body to which BRP decisions may be appealed. Under s. 397 A.I.A.O.D., the CALP has exclusive jurisdiction to hear and dispose of appeals brought under ss. 37.3 and 193 of the Act respecting Occupational Health and Safety and the A.I.A.O.D. Section 400 further provides:
400. The board of appeal may confirm the decision or the order brought before it; it may also quash the decision or the order and shall in that case render the decision or make the order that should have been given initially.
CALP decisions are final and not subject to appeal and they are protected by a full privative clause:
405. Every decision of the board of appeal must be in writing and substantiated, signed and notified to the parties and to the Commission.
Decisions are final and without appeal and every person contemplated in the decision shall comply therewith without delay.
409. Except on a question of jurisdiction, no proceedings under article 33 of the Code of Civil Procedure (chapter C‑25) nor any extraordinary recourse within the meaning of the said Code may be taken, nor any provisional remedy be ordered against the board of appeal or one of its commissioners acting in his official capacity.
A judge of the Court of Appeal may annul summarily, upon a motion, any action granted, any writ, order or injunction issued or granted contrary to this section.
The Labour Court was established by the Quebec Labour Code, R.S.Q., c. C‑27, s. 112. Penal proceedings under the A.I.A.O.D. are brought before it. Section 473 reads as follows:
473. Proceedings pursuant to this chapter are instituted before the Labour Court created by the Labour Code (chapter C‑27) and sections 118, 121, 124 to 128 and 133 to 136 of that Code apply.
No proceedings may be brought except by the Commission or by a person generally or specially designated by it for that purpose within one year after the Commission becomes aware of the offence.
A breach of s. 60 A.I.A.O.D. is dealt with in s. 458:
458. Every employer who contravenes the first paragraph of section 32 or 33, section 59, the first or second paragraph of section 60 . . . is guilty of an offence and liable to a fine of not less than $500 nor more than $1 000 in the case of a natural person and to a fine of not less than $1 000 nor more than $2 000 in the case of a legal person.
Decisions of the Labour Court may be appealed to the Superior Court under the Code of Penal Procedure, R.S.Q., c. C‑25.1.
III ‑ Judgments
Bureau de révision paritaire, [1985‑86] B.R.P. 505
The majority summed up the issue as follows (at p. 506):
[translation] The issue raised before the Bureau de révision paritaire is whether the worker was entitled to more than two days' compensation for his period of disability from December 19, 1985 to January 2, 1986.
It added (at p. 507):
[translation] In order to answer the question raised it must be determined whether, had he not been disabled, the worker would normally have worked during the 14‑day period following the beginning of his disability. Specifically, if the worker had not suffered the industrial accident on December 17, 1985, would he have worked during that 14‑day period?
In our opinion, the closure of the plant must be regarded as normal in this case as it was scheduled, and even if the worker had not suffered an accident he would only have received two days of his wages, that is up to December 20, 1985, as indeed most of the workers did. [Emphasis in original.]
In the absence of evidence establishing that the appellant intended to use his seniority right during the layoff period to bump another employee with less seniority, the majority concluded that the application should be dismissed (at p. 507):
[translation] We accordingly believe that had he not been disabled, and based on the evidence presented, Mr. Lapointe would normally have worked only 2 days, namely December 19 and 20, during the 14‑day period following the beginning of his disability.
The original decision is accordingly upheld.
In the opinion of the dissenting member, Mr. Tardif, there was no doubt that the appellant intended to use his seniority right. Being of the view that, had the appellant not been disabled, this seniority right would have enabled him to work during the layoff period, Mr. Tardif would have overturned the CSST's decision and ordered Domtar to compensate the appellant for each day or part of a day he would have worked during the 14 days following the beginning of his disability. (The dissenting member's reasons are not reported in the B.R.P.)
Commission d'appel en matière de lésions professionnelles, [1986] C.A.L.P. 116
After reviewing the wording and purpose of s. 60 A.I.A.O.D., the CALP found that the expression "would normally have worked" could not be separated from the words "had he not been disabled" which immediately follow it. Accordingly, it considered that, in interpreting this provision, no account whatever could be taken of factors or circumstances extrinsic to the worker's inability to carry on his employment by reason of his employment injury. The CALP referred to its own decision in Tousignant et Hawker Siddeley Canada Inc., [1986] C.A.L.P. 48, to the effect that the suspension or breach of an employment contract by a layoff has no effect on the worker's inability to carry on his employment as a result of an employment injury. Applying these principles to the facts of this case, it added (at p. 119):
[translation] In the present case, the appellant was employed by the party concerned on December 17, 1985, the date on which he suffered an employment injury. By reason of this employment injury the appellant was unable to carry on his employment until January 2, 1986.
Under s. 60 of the Act respecting Industrial Accidents and Occupational Diseases, the party concerned was therefore obliged to pay the appellant, regardless of the plant closure, 90% of his net salary or wages for each day or part of a day he would normally have worked, according to his usual work schedule, had it not been for his inability to carry on his employment by reason of his injury for the first 14 full days following the beginning of that disability.
It concluded that Domtar should pay the appellant 90 percent of his net salary or wages for each day or part of a day he would normally have worked according to his usual work schedule, regardless of the plant closure.
Superior Court, [1987] C.A.L.P. 254
Summarizing the CALP's conclusion in this case and in Tousignant et Hawker Siddeley Canada Inc., supra, Masson J. recalled the purpose and wording of the A.I.A.O.D. Even if the CALP's decision was wrong, he was of the view that the CALP had nevertheless acted within its general jurisdiction (at p. 257):
[translation] We are of the view that, by acting in this way, the respondent Commission d'appel carried out one of the duties imposed on it by law and acted within its general jurisdiction.
The decision of the Commission d'appel may be wrong, but it was nonetheless made within the limits of its jurisdiction.
Adding that the CALP's decision was not unreasonable, Masson J. concluded that the CALP had not exceeded its jurisdiction and he accordingly dismissed the motion in evocation.
Court of Appeal, [1991] R.J.Q. 2438
Mailhot J.A.
Mailhot J.A. first reviewed ss. 405 and 409 A.I.A.O.D., which exclude, respectively, all appeals from decisions of the CALP and extraordinary remedies, except on a question of jurisdiction. She noted that, for the CALP's decision to be reversed, it had to be shown that the CALP had [translation] "exceeded its jurisdiction or given the provision in question an interpretation so unreasonable that it could not be rationally supported on the relevant legislation" (p. 2441).
Recalling the wording of s. 60 A.I.A.O.D. and the arguments of the parties, Mailhot J.A. considered that the application of the patently unreasonable error test would not satisfactorily dispose of the case. In this regard, she cited the Labour Court's decision in Commission de la santé et de la sécurité du travail v. BG Chéco International Ltée, [1991] T.T. 405, where it was held that s. 60 raised a reasonable, significant and insurmountable doubt as to an employer's duty in the event of a layoff occurring within the 14‑day period mentioned in that provision. Mailhot J.A. also referred to the Court of Appeal's decision in Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261, and observed that it was in the interest of justice for the conflict to be resolved at once, regardless of traditional curial deference, because such deference, while ordinarily leading to dismissal of the application for evocation, did not resolve the unstable situation. Although there were two possibilities which could be rationally defended, in her opinion the ideal of justice, which promotes the rule of law, was not really served. She therefore felt it desirable that the intention of the legislature should prevail.
Concluding that the issue could only be resolved by the exception indicated in Moalli, supra, Mailhot J.A. noted that the legislative intent was not to treat injured workers differently from other workers as regards the first 14 days covered by s. 60. In her view, the words "for each day or part of a day the worker would normally have worked" are intended to ensure that the injured person is treated like other workers, in other words, that he is entitled to the salary or wages to which he would have been entitled if the employer had work to give him and could do so, if these days were part of his regular schedule or if his contract was still in effect. Finally, Mailhot J.A. noted that this interpretation is fairer to everyone and is consistent with the other provisions of the A.I.A.O.D. She concluded that, as there is no obligation to pay a salary or wages when there is a plant closure, strike, lockout, layoff, unpaid leave and so on, there can be no obligation on the employer to pay 90 percent of the net salary or wages during these periods.
Mailhot J.A. accordingly would have allowed the appeal and granted the application for evocation.
Baudouin J.A. (concurring)
While concurring in Mailhot J.A.'s conclusion, Baudouin J.A. was of the view that, even though the wording of s. 60 may be open to several interpretations, it does not automatically follow that no interpretation can ever be patently unreasonable. He disposed of the appeal in the same way as Mailhot J.A. (at p. 2446):
[translation] Like my colleague, I am of the view in this case that the function of this Court is to resolve the conflict between the two administrative agencies, a conflict which creates uncertainty and is not in the interests of effective justice. Accordingly, without necessarily finding that the interpretation given by the Commission d'appel is patently unreasonable (even though it seems illogical to me, given a rational interpretation of the Act read as a whole, and inconsistent with the resulting philosophy), I believe that this situation is identical to that confronting this Court in Produits Pétro-Canada Inc. v. Moalli. [Emphasis in original.]
IV ‑ Issues
As I said at the outset, this appeal raises questions which lie at the core of the institutional relationship between courts of law and administrative tribunals: was the CALP's decision patently unreasonable? If so, it is open to judicial review. If not, does the fact that there were, at least apparently, divergent interpretations of the same legislative provision by two administrative tribunals give rise to judicial review?
V ‑ Analysis
While the first question raises issues which this Court has already had an opportunity to decide on several occasions, the second raises a problem which has been the subject of some controversy. A review of the principles laid down by this Court in recent years will, first, provide the background against which this appeal must be analysed. This review will indicate the principles underlying the standard of review applicable to the CALP's decision and clarify the real issues presented here by the Court of Appeal's intervention.
A. Applicable Standard of Review
Although the Court of Appeal recognized that, strictly speaking, the interpretation of s. 60 was within the CALP's jurisdiction, a functional analysis of the Act, however brief, seems desirable if not essential to decipher the legislative intent (see Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230, at p. 258 (per La Forest J.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 ("PSAC No. 2"), at pp. 965 (per Cory J.) and 977 (per L'Heureux‑Dubé J.); Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471, at pp. 485‑86 (per Lamer C.J.); Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 ("PSAC No. 1"), at pp. 628 (per Sopinka J.) and 657 (per Cory J.); CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at p. 1002, and U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1088). Determining the legislative intent as to the standard of review applicable to the decision of an administrative tribunal involves recognizing that, within its area of expertise, its decision‑making autonomy may be of prime importance. Conversely, failing to go through the process of rejecting the correctness standard may conceal the real meaning of judicial intervention that falls outside the limits of the jurisdiction of an administrative agency. An initial conclusion that, for purposes of judicial review, the legislature admits several possible and rational constructions of the same legislative provision thus becomes of primary importance. This conclusion, while constituting the necessary starting‑point of a discussion of the powers of supervision and control of courts of law, is ultimately the guiding principle for analyzing the appropriateness of judicial review.
In Bibeault, Beetz J. summarized the principles governing judicial review of decisions of an administrative tribunal, emphasizing its area of jurisdiction (at p. 1086):
1.if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;
2.if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.
The initial step advocated by this Court must therefore focus primarily on the concept of jurisdiction. This step must, however, take into account both the desirability of curial deference and the ease with which a question can be incorrectly characterized as one of jurisdiction (see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 233, and Canada Labour Relations Board v. Halifax Longshoremen's Association, Local 269, [1983] 1 S.C.R. 245, at p. 256). Bibeault explained the meaning of the concept of jurisdiction in the context of judicial review as follows (at p. 1090):
Jurisdiction stricto sensu is defined as the power to decide. The importance of a grant of jurisdiction relates not to the tribunal's capacity or duty to decide a question but to the determining effect of its decision. As S. A. de Smith points out, the tribunal's decision on a question within its jurisdiction is binding on the parties to the dispute. . . . The true problem of judicial review is to discover whether the legislator intended the tribunal's decision on these matters to be binding on the parties to the dispute, subject to the right of appeal if any. [Emphasis added.]
This amounts to asking "Who should answer this question, the administrative tribunal or a court of law?" It thus involves determining who is in the best position to rule on the impugned decision. According to Beetz J., at p. 1088, in order to deal adequately with the question "Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?", a court of law
examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.
The legislature's intention to give the CALP the power to make a final ruling on the meaning and scope of s. 60 A.I.A.O.D. is not open to question. As an appellate administrative tribunal, the CALP hears and disposes exclusively of appeals brought under ss. 37.3 and 193 of the Act respecting Occupational Health and Safety and the A.I.A.O.D. (s. 397). It has exclusive jurisdiction to "confirm the decision or the order brought before it; it may also quash the decision or the order and shall in that case render the decision or make the order that should have been given initially" (s. 400). Its members are subject to specific obligations set out in ss. 373 et seq. A.I.A.O.D., they have all the powers necessary for the exercise of their jurisdiction and may rule on any questions of law or of fact (s. 407). In addition to these significant powers, the CALP has an obligation to publish its own decisions (s. 391), the authority to make recommendations to the Minister (s. 396) as well as the authority to review or revoke its own decisions for cause (s. 406).
Several provisions are designed to ensure that CALP decisions are effective. The decisions are final and without appeal and every person contemplated in the decision must comply with them without delay (s. 405). They may be filed in the office of the prothonotary of the Superior Court of the district in which the appeal was brought and such filing makes them executory as if they were final judgments of the Superior Court without appeal, and with all the effects thereof (s. 429). CALP decisions are also protected by a full privative clause, which I reproduce here for the sake of convenience:
409. Except on a question of jurisdiction, no proceedings under article 33 of the Code of Civil Procedure (chapter C‑25) nor any extraordinary recourse within the meaning of the said Code may be taken, nor any provisional remedy be ordered against the board of appeal or one of its commissioners acting in his official capacity.
A judge of the Court of Appeal may annul summarily, upon a motion, any action granted, any writ, order or injunction issued or granted contrary to this section.
Finally, the nature of the problem presented here raises questions on which the CALP is eminently qualified. Section 60 A.I.A.O.D. is not only one of the legislative provisions on which the CALP has the express power to rule, it employs concepts which are at the core of its area of expertise, namely disability, employment injury and the complex system of compensation set up by the Quebec legislature. The interpretation of s. 60 by the CALP is, thus, a function directly relating to the objective sought by the legislature: to permit an administrative tribunal to issue a final ruling on decisions of first instance by giving a final interpretation of its enabling statute.
Since the interpretation of s. 60 A.I.A.O.D. is, strictly speaking, within the jurisdiction of the CALP, the standard of review applicable here is whether the decision is patently unreasonable. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., supra, Dickson J. formulated the question which courts of law must constantly keep in mind in such circumstances (at p. 237):
Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? [Emphasis added.]
The patently unreasonable error test is the pivot on which judicial deference rests. As it relates to matters within the specialized jurisdiction of an administrative body protected by a privative clause, this standard of review has a specific purpose: ensuring that review of the correctness of an administrative interpretation does not serve, as it has in the past, as a screen for intervention based on the merits of a given decision. The process by which this standard of review has progressively been accepted by courts of law cannot be separated from the contemporary principle of curial deference, which is, in turn, closely linked with the development of extensive administrative justice (see