STANDARD OF REVIEW IN COMMISSION SCOLAIRE DE LAVAL V. SYNDICAT DE L’ENSEIGNEMENT DE LA RÉGION DE LAVAL, 2016 CARSWELLQUE 1791, 2016 SCC 8 (S.C.C.)
The decision of the Supreme Court of Canada in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 CarswellQue 1791, 2016 SCC 8 (S.C.C.) can be read as causing some confusion as to the application of the standard of review respecting procedural decisions of decision-makers which involve the application of fundamental legal principles. The majority of the Court took the position that such decisions were subject to the reasonableness standard of review. The minority of the court (concurring in the result) applied the correctness standard of review. As I will set out in more detail below in my opinion the two conclusions are wholly compatible. They are, in fact, aspects of the same principle – the principle respecting the review of discretionary decision-making.
The Commission scolaire de Laval decision dealt with the issue as to whether it was proper for an arbitrator to allow the examination of witnesses as to certain matters was a matter of evidence over which the Arbitrator had been given exclusive jurisdiction by section 100.2 of the Quebec Labour Code. The standard of review respecting such a decision is reasonableness. The desire of a party to focus on a question of law that may be involved in that decision does not change the nature of the question into a question of central importance to the legal system and outside of the arbitrator’s area of expertise.
In the case in point members of a school board’s executive committee deliberated in camera as to whether an employee should be terminated. The issue arose as to whether the committee’s deliberations were sufficient to meet the collective agreement requirement that such termination could only take place after “thorough deliberations”. At a grievance arbitration, over the objections of a party, the Arbitrator held that he would allow members of the committee to testify to be asked questioned as to the substance of the committee’s deliberations in the in camera proceedings and what had happened in terms of the information submitted. The Arbitrator explained that this was necessary in order to allow him to know what had happened during the in camera session and determine if the committee’s deliberations had been “thorough” as required by the collective agreement. In other words, the arbitrator determined that the substance of the in camera discussions was relevant in order to determine if the deliberations met the requirements of the collective agreement and that it was thus proper to ask questions to elicit that information. The Arbitrator also rejected the argument that deliberative secrecy operated to preclude the giving of testimony by the executive members. He held that the fact that a body deliberates in camera does not necessarily mean that it benefits from deliberative secrecy. Further, the fact that the executive committee could decide unilaterally to sit in camera should not enable its members to shield themselves from scrutiny by a grievance arbitrator
The Arbitrator’s interlocutory decision was taken to judicial review.
The objection to the questioning of the members was based on two arguments. First that the motives of the individual members of a decision-making body were unknowable and not relevant to the propriety of the ultimate decision reached and second that the deliberations of the members was protected by deliberative secrecy.
In a split 4 -3 decision the majority of the Supreme Court of Canada held that the standard of review respecting the arbitrator’s decision to allow the members to be examined was reasonableness. The essence of the majority’s ruling was that this was an evidentiary matter within the exclusive jurisdiction of the Arbitrator and within his expertise.
Section 100.2 of the Quebec Labour Code gave the Arbitrator the full authority and exclusive jurisdiction over evidence and procedure in the arbitration process. (“100.2. The arbitrator shall proceed with all dispatch with the inquiry into the grievance and, unless otherwise provided in the collective agreement, in accordance with such procedure and mode of proof as he deems appropriate.”) He also had the exclusive jurisdiction to interpret the collective agreement between the parties. He was called upon to interpret whether the terms of the collective agreement had been met in the procedure followed in the employee’s dismissal and he was authorized by the agreement to annual that decision if that procedure had not been followed. There was a presumption that the standard of review applicable to an agency’s interpretation of its home statute was reasonableness. The Arbitrator’s decision to allow the examination of the committee members was based on his conclusion that their testimony would be helpful to him in determining whether the collective agreement and the relevant Education Act had been complied with. His conclusion flowed from his interpretation of those instruments. The case law established that reviewing courts owed the greatest possible deference to an interpretation of provisions of the Education Act by a grievance arbitrator in an educational setting. That presumption was reinforced by the fact that the Court had held that the usual standard for judicial review of decisions of grievance arbitrators was reasonableness. This standard was equally appropriate where an arbitrator applies or adapts common law and equitable doctrines that emanate from the courts because the grievance arbitrator was part of a discrete and special administrative scheme under which the decision maker has specialized expertise. Lastly, the arbitrator’s decision was protected by a full privative clause.
The majority held that it was important to focus on what the parties were actually asking for and what the arbitrator ultimately decided. The arbitrator had allowed the examination of the members of the executive committee. The majority stated that: “It is this decision that is at issue in the judicial review proceedings, and it was reasonable.” It noted that the arbitrator had not yet ruled on the relevance of specific questions, as none had been asked when the objection to the witnesses being called was raised.
With respect to relevance as the arbitrator had full authority over evidence and procedure it was up to the arbitrator to apply the rules of relevance to the facts of the case in such a way as he deemed helpful. He was asked, in the context of his interpretation of the Labour Code, the Education Act, and the collective agreement, to decide on the application of well-known and uncontroversial rules and principles. Because the Arbitrator had full authority over evidence and procedure in an inquiry into a grievance, it was up to the Arbitrator to apply the rule of relevance to the facts of the case in such a way as he or she deemed helpful for the purpose of ruling on the grievance.
As to the argument respecting deliberative secrecy shielding the deliberations, the arbitrator applied a known rule in order to decide whether deliberative secrecy shielded the executive committee’s deliberations. He was not asked to expand the scope of that rule. The application of a known rule in the determination of the admissibility of information, in light of the Arbitrator’s broad jurisdiction over evidence and procedure, did not amount to a question of central importance to the legal system as a whole that is outside the arbitrator’s area of expertise.
The majority held that the questions of evidence and procedure as to the relevance of the deliberations and the application of deliberative secrecy in the context of an employer’s collective decision-making were not outside of the Arbitrator’s area of expertise. The fact that the concepts did not fall solely within the Arbitrator’s expertise or that one of the issues was a general principle of law that applied in other legal fields was not enough to justify dispensing with the reasonableness standard of review.
The Court went on to determine that the information in question was relevant and that the case law argued did not operate to make it otherwise and that the principle of deliberative secrecy did not apply to employment situations such as the one in question. Thus, the arbitrator’s decision was reasonable.
The minority of the Court, although concurring in the result, held that the standard of review was correctness. It honed in on the two legal questions – immunities from disclosure and deliberative secrecy – which had to be determined in the overall decision to allow the questioning. It held that these were two basic legal questions of central importance to the legal system as a whole over which the Arbitrator had no particular expertise or expertise unique to his specialized role.
” 78 … Given the importance of such questions and the fact that an arbitrator has no particular expertise or expertise unique to his or her specialized role with respect to such matters, I am of the opinion that, despite the privative clause in the instant case, the legislature could not have intended such an outcome.”
These were questions of law that were general in nature and which had to be applied uniformly and consistently. Furthermore, whatever answer was given to those questions it would not flow from the assessment intrinsically linked to the facts of the case but would be based on principles that were not specific to the arbitration process.
The minority distinguished the earlier case of the Supreme Court of Canada in M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 CarswellMan 606, 2011 SCC 59,  3 S.C.R. 616, 340 D.L.R. (4th) 1 (S.C.C.). The minority explained:
“83 This case can therefore be distinguished from Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59,  3 S.C.R. 616, to which my colleague refers (at paras. 33 and 38). First of all, what was at issue in that case was the application to the facts of a principle — estoppel — whose scope was well known and clearly defined. Moreover, Fish J. stated that arbitrators are well equipped to adapt and fashion that principle as they see fit (para. 45). The same cannot be said with respect to the immunities from disclosure and deliberative secrecy. These principles, which relate to the administration of justice as a whole, must be applied uniformly and consistently. In addition, the principle at issue in Nor-Man was closely linked to the arbitrator’s discretion to order the remedy he or she considers just and appropriate in the circumstances of the case before him or her. Finally, and most importantly, the application of the principle of estoppel was not of central importance to the legal system in such circumstances.”
In my view, it may be easier to approach the decision in Commission scolaire de Laval from the perspective of a discretionary decision made by the Arbitrator as to whether the members of the executive committee could be questioned as to the in camera proceedings. The standard of review respecting exercises of discretion is reasonableness. But implicit in the determination of the reasonableness of the exercise of discretion is that the decision-maker must be correct in the identification and application of the general legal principles relating to that exercise (most basically such as the principles respecting the exercise of discretion- fettering, improper purpose, and so forth).
As I have explained earlier in Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals (Carswell) in my discussion respecting the Dunsmuir standard of review relating to discretionary decisions the statement that an agency’s exercise of its discretion is subject to the reasonableness standard of review is a simplification. The standard of reasonableness does not focus solely on the merits of a decision. For a decision to be reasonable it must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir – emphasis added).
“… There are actually three types of sub-decisions involved in the making of a discretionary decision by an agency.
- The identification of whether the agency has discretion to exercise.
- The identification and application of the proper legal principles applicable to the exercise of discretion.
- The exercise of judgement in exercising the discretion used to arrive at the merits of the case.
Following Dunsmuir and the developments to its principles since the issuance of that decision:
(i) whether an agency has properly identified the existence or extent of discretion will likely be treated as an agency’s interpretation of its own statute and thus subject to the reasonableness standard of review;
(ii) whether an agency had properly identified and applied the proper legal principles respecting the exercise of discretion will likely be treated as a question of law of central importance to the legal system and outside of the agency’s expertise and thus subject to the correctness standard of review; and
(iii) the merits of the exercise of the agency’s discretion (the policy or judgement-based aspect of the matter) will remain subject to the reasonableness standard of review.”
One can see these three elements at play in the majority’s decision in Commission scolaire de Laval. The majority looked to the reasonableness standard of review in determining the authority of the Arbitrator to make the decision in question. The questions respecting whether legal principle as developed by case law rendered the individual testimony of the members of the committee relevant or whether the legal principle of deliberative secrecy applied outside of the adjudicative forum were determined by both the majority and the minority on the basis that the Arbitrator was correct as to the operation of those principles. And the merits as to whether the testimony was relevant or should be allowed was determined on the basis of reasonableness.
The difference between the majority and the minority positions is that the minority focuses solely on the issue of the legal principles while the majority wraps that issue in the broader matter of the question as to the propriety of the decision to allow the testimony of the executive committee members.
The adoption by the majority of the overall reasonableness standard does not result in the admission of some range of permissible answers as to the relevant legal principles themselves. As the majority noted, this was not a case where some new parameter was sought to be applied to those principles. The legal principles respecting relevance and the extent of deliberative secrecy remained and were properly identified. The minority focuses on the question of the identification and operation of the two legal principles in question and states that because these were questions of central importance to the legal system as a whole and outside of the expertise of the Arbitrator the standard of review respecting the identification and operation of those principles was correctness. The majority focuses on the broader question of the decision to allow the testimony in question and states that that was subject to the reasonableness standard of review. Implicit in the majority decision, however, as evident from its discussion of the principles of relevance and deliberative secrecy, is the requirement that for the Arbitrator’s decision to allow that testimony to fall within an acceptable range of possible answers in light of the facts and the relevant legal principles. The exercise of discretion on the basis of an incorrect understanding of the relevant legal principle does not fall within a range of answers which are defensible in respect of the law. Both the majority and minority of the Supreme Court of Canada in Commission scolaire de Laval require the proper identification of the legal principles involved.