Categorical Disagreement: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8
Even in the good old days when judicial review of administrative action was organized around readily identifiable poles such as “judicial” and “administrative” decisions, lawyers engaged in all manner of “verbal gymnastics” to contort their cases into a more favourable category (SA de Smith, Judicial Review of Administrative Action, 1st ed., 1961). In an administrative law world dominated for decades now by contextual analysis, categorical frameworks are incongruous features on the landscape. And, frankly, with context so dominant, categories can never be as categorical as their supporters would like. Consider Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8.
Here, a school board had to decide whether to end its contractual relationship with a teacher, on the basis that the teacher had serious criminal antecedents. Having heard from the teacher, the executive committee of the board entered an in camera session during which it deliberated. Once its deliberations were concluded, the board issued a resolution removing the teacher from his position and providing some supporting reasons.
Subsequently, the teacher’s union filed a grievance on his behalf contesting the dismissal, alleging for instance that the termination procedure in the collective agreement had not been followed. Notably, the collective agreement provided that a teacher could only be dismissed after “thorough deliberations” by the board. After the board had made its case to the arbitrator, the union called as witnesses the three members of the executive committee who had deliberated in camera. Ruling on the board’s objection, the arbitrator concluded that the testimony would be relevant in assessing whether the deliberations were “thorough”.
The Supreme Court of Canada was unanimous in concluding that it was legitimate for the arbitrator to have the decision-makers testify. It was wrong to suggest that the decision-maker’s motives were “unknowable”, a principle that “applies only to decisions of a legislative, regulatory, policy or purely discretionary nature made by public bodies” (at para. 47). Here, the board was acting as an employer, a situation in which “the principles of employment law that are applicable to any dismissal” apply (at para. 50). Moreover, the principle of deliberative secrecy did not shield the members of the board:
[W]hen the executive committee decided to dismiss B after deliberating in camera, it was not performing an adjudicative function and was not acting as a quasi‑judicial decision maker. Rather, it was acting as an employer dismissing an employee. Its decision was therefore one of a private nature that falls under employment law, not one of a public nature to which the constitutional principles of judicial independence and separation of powers would apply. No valid analogy can be drawn between [an] administrative tribunal…whose quasi‑judicial decision was final and could not be appealed, and the decision‑making authority of a public employer — even where the authority in question is the employer’s executive committee — that decides to resiliate an employee’s employment contract (at para. 61).
However, the Court divided six to three on — what else — the standard of review. For the majority, Gascon J. applied a standard of reasonableness, on the basis that labour arbitrators are to be afforded deference on matters of procedure and substance falling within their area of expertise:
Because the arbitrator has full authority over evidence and procedure in an inquiry into a grievance, it is up to the arbitrator to apply the rule of relevance to the facts of the case in such a way as he or she deems helpful for the purpose of ruling on the grievance. This is exactly what the arbitrator did in the instant case in concluding that what took place in the executive committee’s in camera deliberations was relevant. A reviewing court owes deference to the arbitrator’s decision. Moreover, the appellants themselves recognize in this Court that their arguments against allowing the commissioners to be called to testify about those deliberations are based on the question whether that testimony would be relevant. With this in mind, applying the standard of correctness cannot be justified (at para. 36).
That the arbitrator was applying a general principle of deliberative secrecy that can be applied in areas other than labour relations did not change this analysis:
The questions of evidence and procedure that arise here with respect to the principle that motives are “unknowable” and to deliberative secrecy in the context of an employer’s collective decision‑making authority are not outside the arbitrator’s area of expertise. Nor does the application of that principle and of deliberative secrecy to a fact situation characteristic of a dismissal amount to a question that is detrimental to consistency in the country’s fundamental legal order (at para. 38).
Côté J. disagreed. Deliberative secrecy, like professional secrecy, must be interpreted in a uniform and consistent manner across regulatory domains. It is a question of general law of central importance to the legal system and outside the expertise of an arbitrator (at para. 85):
Where the question relates not simply to the rules of evidence in general, but to the scope of such basic rules as those relating to the immunities from disclosure and deliberative secrecy, a court reviewing an arbitrator’s decision in this regard must be able to go further than merely inquiring into the reasonableness of the decision. Where necessary, it must also be able, absent clear instructions to the contrary, to substitute its own view for that of the arbitrator if the arbitrator’s decision is incorrect. But my colleague’s reasoning leads to the conclusion that judicial review on a question related to the scope of professional secrecy, for example, would also be subject to the reasonableness standard. 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 (at para. 78).
I think this is further evidence, if any were needed, that the categories alone rarely resolve the question of what standard of review to apply in difficult cases. The dominant considerations are, for Gascon J., the relative expertise and scope of authority of the arbitrator and, for Côté J., the essentially legal nature of the question. These, it goes without saying, are contextual factors external to the categories. On balance, I prefer Gascon J.’s approach: unlike professional secrecy, it is unnecessary to define deliberative secrecy in the same way for all administrative decision-makers; this case is very close to those cases in which administrative decision-makers’ application of common law concepts or legal definitions to particular regulatory domains has been treated deferentially on judicial review.
Disagreement in administrative law is healthy and I doubt that it could ever be eliminated but this decision is another example that, despite the Dunsmuir reforms, both context and disagreement continue to play an important role in judicial review of administrative action in Canada.
This content has been updated on March 23, 2016 at 15:09.