Syndicat de la fonction publique du Québec v. Quebec (Attorney General)

This Court has before it two appeals by the Syndicat de la fonction publique du Québec (“S.F.P.Q.”), which represents two employees of the Quebec government covered by a collective agreement between the S.F.P.Q. and the government. Those employees no longer work for the Quebec government. They and the S.F.P.Q. are challenging the termination of their employment on the basis that they were not dismissed for a good and sufficient cause. It is common ground that the employees were entitled to present their unlawful dismissal complaints to a neutral outside decision‑maker. The issue is whether a grievance arbitrator designated under the collective agreement or the Commission des relations du travail (“C.R.T.”) has jurisdiction to hear a complaint in relation to the rights conferred on employees in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”). The appellant argues that the arbitrator has this jurisdiction. The respondent submits that jurisdiction over these cases lies with the C.R.T. In addition to the issue of the choice of forum, these appeals raise the more general issue of how the A.L.S., as a statute of public order, affects the content of collective agreements.

In my opinion, the grievance arbitrator must be held to have jurisdiction over the complaint for the purpose of determining whether the grievance and arbitration procedure set out in the collective agreement is equivalent to the recourse provided for in s. 124 A.L.S. This is because of the effect of the A.L.S., as a statute of public order, on the content of collective agreements entered into under the Labour Code, R.S.Q., c. C‑27 (“L.C.”). If the grievance and arbitration procedure is equivalent, the arbitrator must hear the grievance. If it is not, the grievance must be referred to the C.R.T. For the reasons that follow, I would find that, in the instant cases, the arbitrators had jurisdiction to hear the grievances. I would therefore allow both appeals and restore the judgment of the Quebec Superior Court.

These appeals arise out of a disagreement over the application of the collective agreement for government employees for 1998‑2002 between the Quebec government and the S.F.P.Q. One of the conditions of employment provided for in that agreement is that certain employees without job security may not, on being dismissed, grieve their dismissal before the designated grievance arbitrator except in special circumstances.

Case 32771 concerns clause 4‑14.28 of the collective agreement, which provides that the agreement’s disciplinary provisions — including clause 4‑14.21, pursuant to which employees may grieve disciplinary action taken against them — do not apply to seasonal or casual employees unless they were hired for periods of one year or more or have, in the case of casual employees, at least 12 months of service. No other recourse is provided for as regards employees to whom the grievance procedure is not available.

Case 32772 concerns clause 5‑17.04 of the agreement, which provides that an employee dismissed during or at the end of a probationary period may not grieve the dismissal. That clause reads as follows:

[translation] 5‑17.04 A decision by the Deputy Minister to terminate the employment of a temporary employee during or at the end of the probationary period provided for in section 13 of the Public Service Act or in the Directive concernant la classification des emplois de la fonction publique et sa gestion may not be grieved unless the purpose of the decision is to avoid the application of the second paragraph of this article.

However, following that probationary period, the Deputy Minister may lay off a temporary employee only because of a shortage of work, as a result of workforce reduction or under Chapter 6‑0.00.

Like any collective agreement, the agreement in issue here must be interpreted in light of the relevant provisions of the complex legislative scheme governing labour relations in Quebec.

The Quebec legislature has created an extensive legislative framework for labour relations in that province to take account of the fact that employees are often in a vulnerable position in relation to their employers, and to establish a stable, orderly system of labour relations. As is the case elsewhere in Canada, that framework is set out in a number of statutes that govern various aspects of individual and collective labour relations. The A.L.S., which lays down minimum conditions of employment, plays a particularly important role for both unionized and non‑unionized employees in Quebec. It represents the Quebec legislature’s most significant intervention in this area of labour relations and forms, together with the Act respecting occupational health and safety, R.S.Q., c. S‑2.1, the cornerstone of Quebec’s statutory employment law scheme (R. P. Gagnon, Le droit du travail du Québec (6th ed. 2008), at p. 143).

The A.L.S. is designed to provide Quebec employees with a minimum level of protection to which the parties to an employment relationship may not make exceptions. It was enacted in 1979 with the objective of improving the existing protection — considered insufficient — afforded by labour legislation that was exclusively economic in nature, such as the Minimum Wage Act, R.S.Q., c. S‑1. Because of the functional imbalance inherent in the employee‑employer relationship, the pre‑A.L.S. statutes did not lead to the establishment of fair conditions of employment (F. Morin, J.‑Y. Brière and D. Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at p. 52).

The A.L.S., which is social legislation, establishes — in Chapter IV — a wide range of standards that constitute a minimum level of protection applicable to many aspects of employment, including the payment of wages, family or parental leave and the termination of employment. The recourses needed to ensure compliance with the standards established in the A.L.S. are provided for in Chapter V. To reflect changing societal attitudes in this area, the A.L.S. has been amended frequently. Certain changes have been made to the complaint system under s. 124 A.L.S., and the number of years of uninterrupted service employees must have in order to present complaints is no longer five, but two. The protection of s. 124 is what the appellants are invoking in the instant cases.

Section 124 A.L.S. gives employees who have completed two years of uninterrupted service in the same enterprise a recourse they can exercise if they are dismissed without good and sufficient cause:

124. An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.

In Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261, the Quebec Court of Appeal considered the nature of the rights established in s. 124 A.L.S. and recognized that the section has a normative duality. Although procedural in form, s. 124 does not just create a remedy, as it also establishes a substantive labour standard that prohibits the dismissal or termination of an employee without good and sufficient cause once the employee has completed the required period of service. This standard applies to every individual contract for a fixed or indeterminate term, and every collective agreement. It accordingly constitutes an exception to the traditional principles of freedom of contract, and it limits the employer’s discretion to terminate any contract of employment with an indeterminate term at will upon giving sufficient notice.

The A.L.S. also establishes a recourse that employees can exercise in the event of a failure to comply with the substantive standard. That recourse, originally exercised before an arbitrator, then before a labour commissioner and now before the C.R.T. (Morin, Brière and Roux, at p. 1293), allows a dismissed employee to obtain specific performance of the employer’s obligation by being reinstated in the workplace or receiving equivalent monetary compensation. However, the recourse remains alternative in nature, since it can be exercised before the C.R.T. only where an equivalent remedial procedure is not provided for elsewhere in the A.L.S., in another Act or in an agreement, including a collective agreement. Insofar as the Quebec legislature accepts that an authority other than the one mentioned in s. 124 A.L.S. may have jurisdiction to rule on compliance with the labour standard established by that section, the procedural and substantive aspects of s. 124 can be considered severable from one another.

Collective agreements are governed, first and foremost, by the L.C., which, except in certain specific sectors, provides the exclusive framework for organizing collective labour relations (Morin, Brière and Roux, at p. 808). In particular, it contains the legal rules that govern the establishment of conditions of employment by employees and employers through collective bargaining, and it ensures the application of the resulting collective agreements by establishing mandatory grievance and arbitration procedures (Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27, at para. 93). The first paragraph of s. 100 L.C. provides that every grievance arising out of the application of a collective agreement must be submitted to a grievance arbitrator:

100. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.

Arbitrators also have the power — under s. 100.12 L.C. — to interpret and apply any Act or regulation if necessary to settle a grievance. Statutes of public order, such as the A.L.S., are binding on arbitrators, who are required to take them into account in carrying out their mandates. Under s. 62 L.C., provisions of a collective agreement that are contrary to public order or prohibited by law are null.

This, then, is the legislative context of the employees’ grievances in the instant cases.

In case 32771, the S.F.P.Q. challenged the dismissal of Claude Mireault, a casual employee of Pépinière forestière de Berthier, an organization that comes under the authority of Quebec’s Ministère des Ressources naturelles, de la Faune et des Parcs. According to the evidence accepted by the grievance arbitrator, Maureen Flynn, five grounds were raised for the decision to dismiss Mr. Mireault: an unsatisfactory appraisal of his work, his negative leadership style as it affected both his performance and how the other employees viewed the organization, his misogynistic attitude, and the fact that some employees were afraid of him. At the time of his dismissal, Mr. Mireault had completed 188 days of service between April 23, 2001 and December 2, 2003, or fewer than the 260 days of service needed, as negotiated by the parties, to avail oneself of art. 4‑14.21 of the collective agreement. However, he argued that he had completed the two years of uninterrupted service required by s. 124 A.L.S. On that basis, he sought to have his dismissal overturned, and claimed all the rights and benefits provided for in the collective agreement that applied to him.

In case 32772, the S.F.P.Q. contested the dismissal of Lahcene Messaoudan, a probationary employee of Quebec’s Ministère du Revenu. Mr. Messaoudan’s employer alleged that he had worked [translation] “illegally” by preparing tax returns for individuals and businesses in exchange for remuneration, that he had consulted the department’s files and used its equipment for purposes unrelated to his work, and that he had lied to his employer. Mr. Messaoudan claimed to have been constructively dismissed, and he sought immediate reinstatement and payment of the related wages and benefits, plus interest, since the date of his dismissal. Like Mr. Mireault, he submitted that he had completed the two years of uninterrupted service required by s. 124 A.L.S. and that he was therefore entitled to contest his dismissal despite the fact that he was a probationary employee.

As I mentioned above, the collective agreement for Quebec government employees provides that seasonal and casual employees hired for periods of less than one year, and probationary employees, may not grieve their dismissal before the designated grievance arbitrator. Mr. Mireault and Mr. Messaoudan both fell within one of those classes of employees. As a preliminary matter in each of their cases, therefore, the employer challenged the arbitrator’s jurisdiction to hear the grievances filed by the union. The union countered that the substantive labour standard in s. 124 A.L.S. is implicitly incorporated into every collective agreement and that the arbitrators therefore had the necessary jurisdiction to dispose of the grievances.

(1) Case 32771

Arbitrator Maureen Flynn accepted the S.F.P.Q.’s argument that because the A.L.S. is a statute of public order, the substantive standard established in s. 124 A.L.S. is incorporated into the collective agreement. She therefore dismissed the employer’s preliminary objection and concluded that she had jurisdiction to hear Mr. Mireault’s grievance. On the merits, she found that the employer had not shown that Mr. Mireault had done anything serious enough to warrant dismissing him without first applying the principle of progressive discipline. She accordingly allowed the grievance and held that Mr. Mireault had been wrongfully dismissed: [2006] R.J.D.T. 329.

(2) Case 32772

Arbitrator Pierre Laplante upheld the employer’s preliminary objection to his jurisdiction to hear Mr. Messaoudan’s grievance. After finding that the parties’ intention that temporary employees who are on probation should not be entitled to challenge their dismissal before an arbitration tribunal was inconsistent with the standard in s. 124 A.L.S., Arbitrator Laplante concluded that s. 124 A.L.S. was not incorporated into the collective agreement. He therefore held that he had no jurisdiction to hear the grievance: D.T.E. 2006T‑473, SOQUIJ AZ‑50370564.

On judicial review of the two arbitrators’ decisions, Fraiberg J. adopted Arbitrator Flynn’s reasoning and held that the arbitrators had exclusive jurisdiction over the disciplinary grievances. He accordingly dismissed the motion for judicial review in Mr. Mireault’s case and allowed the one in Mr. Messaoudan’s case: 2006 QCCS 5230, [2006] R.J.D.T. 1400.

There were six appeals raising similar legal issues that the Court of Appeal heard together, including the two I am considering in these reasons.

In reviewing the scope of s. 124 A.L.S., the Court of Appeal noted that the provision’s complexity — it contains both a labour standard and a procedural mechanism for implementing the standard — had been recognized in several decisions. A complaint under s. 124 A.L.S. can be presented only if no equivalent — that is to say, equally effective — remedial measure is provided for in an Act or an agreement. The Court of Appeal considered it clear that if s. 124 A.L.S. were implicitly incorporated into every collective agreement, the effect would be to truncate that provision significantly, as the exception to the C.R.T.’s jurisdiction to hear the complaint of an employee covered by a collective agreement would become superfluous.

After examining the legislative scheme established by the A.L.S. and the L.C., the Court of Appeal rejected the argument that the legislation does not give the C.R.T. exclusive jurisdiction. In its view, the complaint in question in s. 126 A.L.S. has to be the one filed under s. 124 A.L.S., over which the C.R.T. has exclusive jurisdiction pursuant to s. 114 L.C. The Court of Appeal pointed out that, in decisions concerning the jurisdiction of grievance arbitrators, the Supreme Court of Canada has stressed the fundamental importance, in such cases, of determining the legislature’s intention. In the cases at bar, the legislature did not choose to give a grievance arbitrator jurisdiction where an employee covered by a collective agreement presents a complaint under s. 124 A.L.S.; instead, it opted for a specialized tribunal, the C.R.T. Nor, the Court of Appeal stated, was there any indication that the C.R.T. had any difficulty carrying out its statutory mandate.

For these reasons, the Court of Appeal allowed the appeals and set aside the judgment of the Superior Court. It accordingly found that the grievances of Mr. Mireault and Mr. Messaoudan were not properly before the arbitrator and dismissed them: 2008 QCCA 1046 (CanLII) and 2008 QCCA 1054, [2008] R.J.D.T. 1005.

The parties are asking this Court to determine whether the substantive standard of public order set out in s. 124 A.L.S., which prohibits the dismissal without good and sufficient cause of an employee who has two years of uninterrupted service, is implicitly included in every collective agreement. In my view, the issue is framed incorrectly and does not reflect the true question raised by the appeals. To me, the issue is not whether the provisions of the A.L.S. are incorporated into the collective agreement or how jurisdiction is formally conferred on the C.R.T. Rather, these appeals raise a question about the hierarchy of sources of Quebec labour law and more specifically about how the A.L.S., as a statute of public order, affects the content of collective agreements and thus the jurisdiction conferred on the grievance arbitrators responsible for interpreting and applying such agreements.

(1) Union’s Arguments

The S.F.P.Q. argues, relying mainly on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, that the substantive standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.

The S.F.P.Q. submits that the principle of implicit incorporation of basic legal rules established in Parry Sound is not limited to the area of human rights, but also applies to the minimum labour standards established in various Canadian statutes. Where such standards are so incorporated, the grievance arbitrator remains the appropriate decision‑maker except where it is clear from the legislation and from the legislature’s intention that the application and implementation of a standard has been conferred exclusively on another authority and that the matter is therefore excluded from the arbitrator’s usual jurisdiction. The parties may not enter into an agreement that bypasses or eliminates the right to the recourse provided for in s. 124 A.L.S.; the legislature’s intention to grant the recourse to all employees, whether unionized or not, is a matter of directive public order. However, the implicit incorporation of s. 124 in no way affects the validity of a clause of a collective agreement that denies or limits the right to grieve in the case of certain employees without job security to whom the standard established in s. 124 A.L.S. does not apply.

According to the appellant, the labour standard established in s. 124 A.L.S. can be severed from the procedure provided for in that section. Collective agreement provisions that contravene or are inferior to that standard are of no force or effect and are deemed not to exist, which means that the arbitrator has jurisdiction to determine whether an employee was dismissed for a good and sufficient cause. The S.F.P.Q. submits that its position is consistent with the essential role of grievance arbitration in a unionized workplace, and with the fact that this dispute resolution mechanism is of mandatory public order. To refuse to incorporate the labour standard established in s. 124 A.L.S. into the collective agreement would amount to allowing the parties to exclude protection of the employment relationship from the jurisdiction of arbitrators and to make the C.R.T. responsible for such protection. Such a conclusion would be inconsistent with the legislature’s intention.

The S.F.P.Q. maintains that, to correctly interpret the final portion of the first paragraph of s. 124, it is essential to ask whether a remedial measure is provided for not only in an agreement but also in another Act. The appellant points out that a binding grievance arbitration scheme is provided for in “another Act” within the meaning of s. 124 A.L.S., namely the L.C.

The S.F.P.Q. adds that its position is consistent with the union’s monopoly on representation. Since a union has no duty to represent employees who exercise individual recourses available to them alone, such as a complaint under s. 124 A.L.S., the Court of Appeal’s decision creates two separate classes of unionized employees. The first consists of employees whose union has a duty to represent them under the collective agreement because they have a right to grieve a dismissal without good and sufficient cause after two years of service. These employees are distinguished from the members of a second class who are not entitled to performance of the duty of fair union representation under their collective agreement because they have no right to grieve a wrongful dismissal after two years of uninterrupted service. The only recourse available under the agreement to employees of this second class is to present complaints to the C.R.T. on their own. Therefore, this second class of unionized employees enjoys more limited rights than all other employees, including non‑unionized employees, who may be represented by the Commission des normes du travail.

According to the S.F.P.Q., the Court of Appeal’s decision would lead to a multiplicity of parallel recourses in collective labour relations matters. It requires the employee and the union to exercise two recourses against the employer’s decision to terminate the employee: a grievance filed by the union and a complaint presented by the employee under s. 124 A.L.S. The S.F.P.Q. submits that the legislature intended to give the C.R.T. only a residual jurisdiction over the recourse provided for in s. 124 A.L.S., but also intended to extend the application of the substantive right established in that section to all employees, including non‑unionized employees. The exception according to which a complaint cannot be presented where another remedial procedure is provided for in an agreement therefore remains relevant even if the standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.

(2) Respondent’s Arguments

The respondent submits that the issue of whether the C.R.T. has jurisdiction should be decided before the issue of whether the standard established in s. 124 A.L.S. is implicitly incorporated into the collective agreement. She argues that the incorporation of that standard would frustrate the legislature’s intention even though the standard is of public order. Section 124 provides that employees may not exercise the recourse under it if there is an equivalent remedial procedure in the A.L.S., in another Act or in an agreement. Unionized employees who cannot avail themselves of their grievance procedure because it is not an equivalent remedial procedure for the purposes of s. 124 A.L.S. must proceed before the C.R.T. If the content of s. 124 were incorporated into every collective agreement, the exception in that section for recourses recognized to be equivalent would be pointless.

According to the respondent, s. 124 A.L.S. is a procedural provision that contains a substantive legal rule, and these two components form an indivisible whole. The rights provided for in s. 124 are individual rights of public order and are held only by employees. The fact that a right is of public order cannot be reconciled with the possibility of a third party waiving the application of a provision such as s. 124 in the holder’s place. The respondent submits that no other conclusion can be reached absent a clear expression of legislative intent, as, for example, in s. 102 A.L.S.

The respondent adds that the legislative scheme of ss. 124 et seq. of the A.L.S. forms a coherent whole. It does not involve one complaint concerning the substantive right and another complaint serving as a procedural vehicle. Rather, there is only one complaint. The respondent argues that the exercise of rights provided for in a statute of public order does not create or revive an individual contract. The union’s monopoly on representation does not preclude this legislative choice, which the respondent submits was correctly interpreted and applied by the Court of Appeal.

The parties’ submissions are focussed on the question whether the substantive labour standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement. According to the incorporation argument, which the S.F.P.Q. supports, the standard, which can be severed from the procedural mechanism also provided for in s. 124, is implicitly incorporated into every collective agreement so as to give grievance arbitrators jurisdiction over grievances relating to the application of the standard. Accordingly, if an employee credited with two years of uninterrupted service alleges that he or she has been dismissed without good and sufficient cause, the union representing the employee can file a grievance with the arbitrator even if the collective agreement does not expressly provide that the employee can challenge the grounds for dismissal.

In her reasons, my colleague Deschamps J. discusses the implicit incorporation argument and concludes from her analysis that “neither the A.L.S. nor the L.C. provides support for [it]” (para. 100). I agree with her on this point. In my opinion, this argument, as presented by the appellant, is not consistent with the words of the A.L.S. and disregards the drafting techniques used by the Quebec legislature when it intends to incorporate a specific standard into collective agreements or individual contracts of employment.

The determining factor here is what the Quebec legislature has chosen to say where its intention has in fact been to incorporate standards established in the A.L.S. into collective agreements. Section 81.20, para. 1 A.L.S. provides a very good illustration of the drafting technique it prefers:

81.20. The provisions of sections 81.18, 81.19, 123.7, 123.15 and 123.16, with the necessary modifications, are deemed to be an integral part of every collective agreement. An employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available to employees under the agreement.

If, as the S.F.P.Q. contends, the legislature had intended to incorporate the substantive standard established in s. 124 A.L.S. into every collective agreement, it would have done so in the same manner as in s. 81.20 A.L.S., that is, by saying so expressly. There is no reason to think that the legislature chose to use two different drafting techniques to achieve the same result in the same statute. To conclude that it did so would be inconsistent with the presumption that a change in the term used to express a legal concept indicates a change in meaning and that a term generally retains the same meaning throughout a statute (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at pp. 400‑401; R. v. Barnier, [1980] 1 S.C.R. 1124, at pp. 1135‑36; P.‑A. Côté, with S. Beaulac and M. Devinat, Interprétation des lois (4th ed. 2009), at p. 382).

The incorporation of standards may result from the will of the parties as expressed in their collective agreement. However, it is readily apparent that, unlike, for example, in Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949 (C.A.), there is nothing in the collective agreement in issue in the instant cases to the effect that the provisions of the A.L.S. are deemed to replace those of the agreement.

In my opinion, the perspective from which the status of the A.L.S. as a statute of public order must be considered here is not really that of whether the provisions of the A.L.S. are implicitly incorporated into collective agreements, but that of how the hierarchy of relevant sources of labour law affects the content and implementation of such agreements. Only by examining the agreement from the perspective of the adaptations flowing from this public order status can it be determined whether the grievance arbitrator or the C.R.T. has jurisdiction to rule on the challenges of the employees and their union against the employees’ dismissal.

Section 93 expressly provides that the A.L.S. is a statute of public order. It reads as follows:

93. Subject to any exception allowed by this Act, the labour standards contained in this Act and the regulations are of public order.

In an agreement or decree, any provision that contravenes a labour standard or that is inferior thereto is absolutely null.

Under s. 93, an exception to the A.L.S. may be made only where one of the Act’s provisions so allows or where, as provided for in s. 94 A.L.S., the parties to a contract of employment or a collective agreement negotiate conditions that are more advantageous to the employees. Otherwise, any provision of a collective agreement that deprives an employee of the minimum conditions of employment set out in the A.L.S. is absolutely null (Isidore Garon, at para. 112).

Viewed narrowly, the fact that the A.L.S. is a statute of public order would mean only that the parties cannot agree to eliminate the recourse available to employees under s. 124 A.L.S. Such an interpretation seems too restrictive. The public order status the legislature has attributed to this provision means that no individual contract or collective agreement can prevent an employee credited with two years of uninterrupted service who is dismissed without good and sufficient cause from contesting his or her dismissal, and that any provision of such an agreement that purports to do so is of no effect. The agreement survives, but any of its provisions that are inconsistent with the minimum standard are of no effect. They are deemed unwritten, as provided for in ss. 62 and 64 L.C., and the agreement must be considered, interpreted and applied accordingly. In other words, the legislation limits the parties’ freedom of contract by denying any effect to the provisions included in the agreement that are inconsistent with standards of public order, or by requiring the parties to adopt conditions of employment that are at least as advantageous to employees as those provided for in the A.L.S. Thus, the public order status of the legislation affects the actual content of the contract of employment or collective agreement, and not just its legal framework.

I cannot therefore accept the respondent’s view that the only effect of the public order nature of the legislation in the instant cases is to preclude the parties from stipulating that an employee may not exercise the recourse provided for in s. 124 A.L.S. Instead, the mandatory nature of the standard means that any provision of an agreement that is inconsistent with the prohibition against the dismissal without good and sufficient cause of an employee credited with two years of uninterrupted service will be deemed unwritten, which alters the content of the collective agreement. The rest of the contract or agreement will survive a finding that the clause is invalid (ss. 62 and 64 L.C. and art. 1438 of the Civil Code of Québec, S.Q. 1991, c. 64). It is from this perspective that the collective agreement as altered by the standards of public order established in the legislation must therefore be examined to determine whether an employee may apply the agreement to contest his or her dismissal before a grievance arbitrator.

To determine whether an equivalent recourse exists for the purposes of s. 124 A.L.S., therefore, we must consider whether the collective agreement as altered provides for rights and recourses equivalent to those established in the A.L.S. for reviewing and sanctioning the dismissal without good and sufficient cause of employees credited with two years of uninterrupted service. It is only if the agreement does not provide for such recourses that the employee will have to take his or her complaint to the C.R.T.

As Professor Guylaine Vallée correctly points out, [translation] “[i]n the collective labour relations context, it is up to the parties to give effect to the hierarchy of sources under the collective agreement or during the grievance process. The interplay among the rules deriving from those sources in a unionized environment must be determined by collective labour relations authorities and not outside such authorities” (“Les lois de l’emploi et la convention collective”, in D. Roux and A.‑M. Laflamme, eds., Rapports hiérarchiques ou anarchiques des règles en droit du travail: Chartes, normes d’ordre public, convention collective, contrat de travail, etc.: Actes du colloque tenu à l’Université Laval/8 novembre 2007 (2008), 81, at p. 88). In accordance with these principles, the grievance arbitrator designated by the parties must, in considering a dismissal grievance, determine, in light of the modifications to the agreement that flow from the public order status of the A.L.S., whether he or she has the power under that agreement to grant the dismissed employee, if appropriate, a remedial measure equivalent to the one available under s. 124 A.L.S. If the answer to this question is no, the result will be a finding that the arbitrator lacks jurisdiction and must decline it in favour of the C.R.T.

In addition to ensuring recognition of the arbitrator’s jurisdiction, this approach enables the arbitrator to review the situation in the context of the entire collective agreement and to consider all relevant factors in analysing the equivalence of the recourse. It is also consistent with the alternative nature of the recourse before the C.R.T., since the C.R.T. will hear a complaint only if the grievance arbitrator who has initial jurisdiction to interpret the agreement determines that he or she cannot offer the employee a recourse equivalent to the one available through the C.R.T. In light of these principles, I will now consider the collective agreement that applies in the instant cases to determine whether the grievance arbitrators had jurisdiction to hear the grievances filed by Mr. Mireault and Mr. Messaoudan.

(1) Case 32771

At the start of these reasons, I discussed the provision in issue in this case, clause 4‑14.28 of the collective agreement for Quebec government employees, which provides that seasonal or casual employees may avail themselves of certain of the disciplinary provisions of the agreement only if they were hired for periods of one year or more. The last paragraph of that clause adds that, [translation] “[d]espite the foregoing, articles 4‑14.01 to 4‑14.06 and 4‑14.21 to 4‑14.27 apply to casual employees hired for periods of less than one (1) year who have twelve (12) months of service or more.”

Clause 4‑14.21 gives employees on whom disciplinary action is imposed the right to grieve that action [translation] “in accordance with the grievance procedure, on condition that grievances concerning suspension or dismissal are submitted within thirty (30) days after the suspension or dismissal takes effect”. Clause 4‑14.21 is therefore one of the clauses of which seasonal or casual employees hired for periods of less than one year who are credited with fewer than 12 months of service may not avail themselves.

Mr. Mireault was a casual employee of the Ministère des Ressources naturelles, de la Faune et des Parcs. At the time he was dismissed, he did not have either a contract of employment for one year or more or 12 months of service as defined in clause 5‑18.06 of the agreement. As a result, clause 4‑14.28 excluded him from the class of employees who could grieve their dismissal.

Mr. Mireault argues that he was credited with two years of uninterrupted service within the meaning of the A.L.S. Therefore, under s. 124 A.L.S., he could not be dismissed without good and sufficient cause, and he met the conditions for having a neutral authority determine whether his dismissal was lawful. Clause 4‑14.28 of the collective agreement precluded the exercise of that right, since it prohibited Mr. Mireault, as a casual employee, from submitting his complaint to arbitration.

However, on the basis of the principles discussed above, clause 4‑14.28 is absolutely null and therefore deemed unwritten because it is inconsistent with the substantive standard in s. 124. Clause 4‑14.28 denies employees who have completed two years of uninterrupted service the right to contest a dismissal without good and sufficient cause. It is therefore necessary to go back to clause 4‑14.21, which establishes the right to file a grievance. The arbitrator considering the grievance must examine the collective agreement, bearing also in mind the powers conferred on arbitrators under s. 100 L.C., to determine whether, in light of the public order status of the A.L.S., the agreement grants a recourse equivalent to the one available under s. 124 A.L.S. In other words, what must be determined is whether the arbitrator can review a dismissal made without good and sufficient cause and grant remedies equivalent to those that could be ordered by the C.R.T.

To conclude that the recourses are equivalent, both decision‑makers must have the power to review the employer’s decision and order appropriate remedies within a procedural framework of comparable effectiveness.

The C.R.T. can overturn the dismissal, order the employee’s reinstatement or fix indemnities (s. 118 L.C. and ss. 127 and 128 A.L.S.). Since the grievance arbitrator acts under the collective agreement (clause 4‑14.24) and the L.C. — which establishes and supplements the arbitrator’s powers (s. 100.12(f)) — he or she has an equivalent capacity for intervention. The proceedings would therefore be brought before decision‑makers with similar powers of intervention and similar guarantees of independence and impartiality. Although the time limit for filing a grievance (30 days) is shorter than the time limit for filing a complaint with the C.R.T. (45 days), this difference does not preclude a finding of overall equivalence between the recourses and the rights they create. Section 124 A.L.S. does not require the recourses to be perfectly identical; it requires them to be equivalent, which they are. I would therefore conclude that grievance arbitration is an equivalent recourse in this case because of the way the A.L.S., as a statute of public order, affects the content of the agreement, and on that basis I would find that the arbitrator had jurisdiction.

(2) Case 32772

I would reach the same conclusion in Mr. Messaoudan’s case. As we have seen, Mr. Messaoudan was a probationary employee of Quebec’s Ministère du Revenu, and he claims to have been dismissed even though he was credited with two years of uninterrupted service within the meaning of the A.L.S. Like clause 4‑14.28 in the case of seasonal or casual employees, clause 5‑17.04 of the collective agreement for Quebec government employees provides that grievance arbitration is not available to probationary employees. Since that clause is inconsistent with the substantive standard in s. 124 A.L.S., it is absolutely null and is therefore deemed unwritten. With this obstacle out of the way, the arbitrator could consider the merits of the dismissal and take the appropriate remedial action. Because the recourses were equivalent, the arbitrator had jurisdiction and could hear the grievance.

For these reasons, I would allow the appeals, set aside the judgments of the Quebec Court of Appeal and restore the judgment of the Superior Court, with costs.

English version of the reasons of McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. delivered by

Deschamps J. (dissenting) — There is no question that Quebec employees, whether they are covered by a collective agreement or an individual contract of employment, are protected against being dismissed without good and sufficient cause if they have at least two years of uninterrupted service in an enterprise. This protection is provided for not only in a great many collective agreements, but also in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”), which is a provision of public order. There are only a few exceptions to the rule in s. 124. The issue in these appeals is not whether the protection exists but in what forum employees must exercise their right. What must be determined is whether jurisdiction to settle the wrongful dismissal complaints of the employees concerned lies with an arbitrator appointed under a collective agreement that does not give those employees a right to arbitration, or with the Commission des relations du travail (“C.R.T.”).

Cases in which this Court has considered the appropriate forum to adjudicate certain disputes must be distinguished from those in which it has decided whether a standard applies to a party to an agreement. While it is clear that no decision‑maker may interpret a statute or agreement so as to deprive an employee of the benefit of a mandatory standard or to permit an employer to avoid the application of a rule of public order, it has to be recognized that the choice of the appropriate forum for implementing a legislative standard is not purely a matter of judicial policy. That decision falls first to the legislature, then to the parties and only lastly to the courts. In the instant cases, making arbitrators the exclusive forum for all employees covered by a collective agreement is not what either the legislature or the parties intended. The courts must abide by their choice. All collective agreements impose restrictions on arbitration, whether they are procedural restrictions, such as the steps of the grievance procedure or time limits, or substantive restrictions like those based on categories of employment (probationary or contract, temporary or casual, etc.). The appeals heard together by this Court provide a good insight into the variety of restrictions that can exist. A clear rule is needed before we can upset the delicate balance agreed on by the parties. I find no such rule in the instant cases. On the contrary, the legislature has established a specialized tribunal and given it exclusive jurisdiction over complaints by employees who do not have adequate remedial procedures under their collective agreements.

There are four appeals before this Court that raise the same issues. I discuss two of them in these reasons. The relevant provisions of the applicable legislation and collective agreement are reproduced in an appendix. In both these appeals, the employees concerned do not have an adequate remedial procedure because of restrictions on the arbitration procedure. I conclude that the C.R.T. is the appropriate forum to settle their complaints. I would dismiss both the appeals with costs.

Claude Mireault, a casual employee of the Ministère des Ressources naturelles, de la Faune et des Parcs, was dismissed on the basis of an unsatisfactory performance appraisal. The collective agreement between the appellant, the Syndicat de la fonction publique du Québec (“union”), and the employer, represented by the respondent, the Attorney General of Quebec, limits the right of casual and seasonal employees to avail themselves of the grievance procedure (clauses 4‑14.21 and 4‑14.28).

Lahcene Messaoudan, a temporary employee of the Ministère du Revenu, was dismissed during his probationary period. He was accused of, among other things, preparing tax returns for individuals, consulting the department’s files for purposes unrelated to his work on behalf of persons who were not his clients, and being paid for those services. Under the collective agreement, a decision by the Deputy Minister to terminate an employee’s employment during the probationary period may not be grieved (clause 5‑17.04).

The union filed a grievance in each of these cases.

In Mr. Mireault’s case, Arbitrator Maureen Flynn found that s. 124 A.L.S. establishes a labour standard that is incorporated into every collective agreement. She concluded on that basis that she had jurisdiction to hear the grievance. On the merits, she found that the employer had not proved what it had to prove. She allowed the grievance and held that Mr. Mireault had been wrongfully dismissed: [2006] R.J.D.T. 329. In Mr. Messaoudan’s case, Arbitrator Pierre Laplante determined that, because there were provisions in the collective agreement that were inconsistent with s. 124 A.L.S., he could not find that s. 124 had been implicitly incorporated into the agreement. He held that, in the case before him, the C.R.T. had exclusive jurisdiction to give effect to the protection, and he declined jurisdiction to hear the grievance: D.T.E. 2006T‑473, SOQUIJ AZ-50370564.

Fraiberg J., who heard the application for judicial review of those two contradictory decisions, concluded that, in a collective bargaining context, an arbitrator’s jurisdiction is better suited than that of the C.R.T. to the determination of whether a dismissal is wrongful. He also found that the grievance procedure was equivalent to the procedure set out in s. 124 A.L.S. and that the C.R.T. accordingly had no jurisdiction. He therefore dismissed the application in Mr. Mireault’s case and allowed the one in Mr. Messaoudan’s case: 2006 QCCS 5230, [2006] R.J.D.T. 1400.

On appeal from the judgment of Fraiberg J., the Court of Appeal stressed the normative nature of the rule in s. 124 A.L.S.: substantively, it is a labour standard; procedurally, it establishes an alternative scheme under which a complaint can be made to the C.R.T. if the agreement does not provide for an equivalent recourse. After analysing the relevant legislative provisions and the decisions of this Court, the Court of Appeal rejected the implicit incorporation argument. It concluded that by operation of s. 114 of, and s. 15 of Schedule I to, the Labour Code, R.S.Q., c. C‑27 (“L.C.”), the C.R.T. has exclusive jurisdiction to decide a wrongful dismissal complaint. The Court of Appeal therefore set aside the Superior Court’s judgment, quashed Arbitrator Flynn’s award and restored that of Arbitrator Laplante: 2008 QCCA 1046 (CanLII) and 2008 QCCA 1054, [2008] R.J.D.T. 1005.

In this Court, the union argues that s. 124 A.L.S. is implicitly incorporated into the collective agreement and that the rule established in that section is of public order. This incorporation of s. 124 results from the fact that arbitrators have the power to apply all statutory minimum labour standards. The union adds that arbitration is a dispute resolution mechanism that is not only mandatory but is even of public order, that the monopoly of unions on representation must not be interfered with, that a multiplicity of proceedings must be avoided and that the C.R.T. has only residual jurisdiction.

The employer submits on the basis of an analysis of the A.L.S. that the legislature did not intend that s. 124 be incorporated into every collective agreement. The employer adds that a finding that the C.R.T. has exclusive jurisdiction as an alternative forum would not affect the monopoly of unions on representation or the fact that employers’ rights are subject to legislative restrictions of public order.

There have been many cases in which it has been necessary to identify the appropriate forum for resolving disputes between unionized employees and their employers. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185 (“Morin”), at para. 14, the Chief Justice, relying on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, noted that the Court had not adopted a rule that would confer exclusive jurisdiction on grievance arbitrators: “. . . there is no legal presumption of exclusivity in abstracto. Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.” In proposing that the analysis begin with a review of the legislative provisions, the Chief Justice was confirming that the legislature’s purpose is paramount. This rule had also been applied in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360: “. . . in determining whether an adjudicative body has jurisdiction to hear a dispute, a decision‑maker must adhere to the intention of the legislature as set out in the legislative scheme, or schemes, governing the parties” (para. 23).

It might be asked which legislative provisions must be analysed first. In my opinion, the A.L.S. must be the starting point, since the protection claimed by the employees is provided for in that Act. As well, it is the A.L.S. that refers to the tribunal that has jurisdiction to enforce that protection. To start the analysis by altering the provisions of the collective agreement would amount to circumventing the provision this Court must interpret.

It is the first paragraph of s. 124 A.L.S. set out below — and the underlined words in particular — that is central to the issue here:

124. An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

(The terms “agreement”, “employee” and “uninterrupted service” are defined in s. 1 A.L.S.)

Under this provision, the Commission des normes du travail (“C.N.T.”) must determine whether there is a “remedial procedure” other than a recourse in damages available to the employee elsewhere in the A.L.S., in another Act or in an agreement. If there is, it will invite the complainant to avail him or herself of that other procedure. If there is not, it may, with the agreement of the parties, appoint a person who will endeavour to settle the complaint (s. 125 A.L.S.). If no settlement is reached, the C.N.T. must refer the complaint to the C.R.T. (s. 126 A.L.S.), which then has exclusive jurisdiction over the matter (s. 114 L.C.). The words of s. 114 L.C. are clear:

114. The Commission is responsible for ensuring the diligent and efficient application of the provisions of this Code and exercising the other functions assigned to it under this Code or any other Act.

Except as regards the provisions of sections 111.0.1 to 111.2, sections 111.10 to 111.20 and Chapter IX, the Commission shall hear and dispose, to the exclusion of any court or tribunal, of any complaint for a contravention of this Code, of any proceedings brought pursuant to the provisions of this Code or any other Act and of any application made to the Commission in accordance with this Code or any other Act. Proceedings brought before the Commission pursuant to another Act are listed in Schedule I.

For such purposes, the Commission shall exercise the functions, powers or duties assigned to it by this Code or any other Act.

The relevant parts of Schedule I read as follows:

SCHEDULE I

PROCEEDINGS BROUGHT UNDER OTHER ACTS

In addition to the proceedings brought under this Code, the Commission shall hear and decide proceedings under

. . .

(15) sections 86.1, 123.4, 123.9, 123.12 and 126 of the Act respecting labour standards (chapter N‑1.1);

According to the union, because a grievance procedure is provided for in the collective agreement, complaints must be heard by an arbitrator. More specifically, the union submits that the substantive protection for which the A.L.S. provides and the procedural scheme it establishes are two aspects that can be severed from one another. The substantive protection is implicitly incorporated into collective agreements, which means that only an arbitrator has jurisdiction.

The employer counters that the question of the arbitrator’s jurisdiction must be decided before that of the extent of the parties’ obligations. The C.N.T. or the grievance arbitrator, as the case may be, must decide the question of jurisdiction upon receiving the complaint or grievance. The exception to the C.R.T.’s exclusive jurisdiction applies where an agreement or statute provides for equivalent protection. According to the employer, implicit incorporation is inapplicable in these cases.

The protection provided for in s. 124 A.L.S. is not new. To answer the question before the Court, I will begin by reviewing how that protection has been interpreted for close to 25 years. I will then analyse other provisions of the A.L.S. and other statutes pursuant to which a forum other than an arbitrator is responsible for applying a labour standard. After that, I will consider the nature of the dispute. Finally, I will discuss the Court’s decisions on the implicit incorporation of standards of public order to determine how they relate to the question now before us.

The A.L.S. was enacted in 1979, and it replaced the Minimum Wage Act, R.S.Q. 1941, c. 164 (later the Minimum Wage Act, R.S.Q., c. S‑1), which had amended the Women’s Minimum Wage Act, R.S.Q. 1925, c. 100. The A.L.S. has been amended frequently to better respond to employees’ needs or to correct the wording of its provisions in light of how it has been applied. It is, therefore, a [translation] “legislative work in progress”: F. Morin, J.‑Y. Brière and D. Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at p. 498. It is a statute of public order (s. 93 A.L.S.). It applies to the vast majority of Quebec employees, both those covered by collective agreements and those covered by individual contracts of employment. The legislative protection against unfair dismissal was actually inspired by the protection found in one form or another in most collective agreements: G. Hébert and G. Trudeau, Les normes minimales du travail au Canada et au Québec: Étude juridique et institutionnelle (1987), at p. 160.

The Quebec courts have already considered the nature of the protection provided for in s. 124 A.L.S.: Is it procedural only, or does it also establish a substantive standard? This issue was resolved in Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261 (C.A.). In that case, the employer argued that since s. 124 is in a division of the A.L.S. dealing with recourses, it creates a special recourse that is available only if certain very specific conditions are met. The union contended that the section is normative. LeBel J.A., as he then was, held as follows (at p. 269):

[translation] It is true that this provision is procedural in form. It offers an arbitral recourse to employees who believe that they meet the conditions set out in the Act. However, the creation of this recourse introduces a substantive legal rule that departs from the traditional principles that applied to individual contracts of employment.

It was also necessary to interpret s. 124 A.L.S. in order to identify the appropriate forum for the recourse it created: Does the grievance procedure provided for in a collective agreement exclude the procedure provided for in the A.L.S.? As in Moalli, the courts held that the expression “remedial procedure” necessarily includes a substantive aspect. It is not enough for the agreement to provide for a grievance procedure. That procedure also has to enable employees to assert their rights adequately. As Marquis J. stated in Ateliers Roland Gingras inc. v. Martin, [1988] R.J.Q. 523 (Sup. Ct.),

[translation] the words “except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement” . . . refer to the existence of a recourse applicable to the specific case before the court. [pp. 525-26]

There have been many cases in which the Quebec Court of Appeal has considered whether a procedure was adequate. Three criteria have been identified for this purpose: