The Metaphysics of Jurisdiction: Quebec (Attorney General) v. Guérin, 2017 SCC 42
Judicial disagreement in administrative law cases is nothing new and nothing remarkable. Canadian judges have been disagreeing with each other — often at inordinate length — about the “standard of review” for over 30 years. But there are several remarkable features of the Supreme Court of Canada’s latest foray into standard of review in Quebec (Attorney General) v. Guérin, 2017 SCC 42.
First, three judges identified a “true” question of jurisdiction reviewable on a standard of correctness, which suggests that the category of “jurisdictional” questions, on life support since it narrowly survived an attempt to euthanize it in Alberta Teachers’, has regained some vitality. Indeed, it is significant that the improvement in its vital signs came in a labour arbitration case, a field of law where deference has become de mise.
Second, it was the three newest members of the Court (Brown and Rowe JJ., concurring and Côté J., dissenting) who identified a jurisdictional question. As I commented to the Lawyers’ Daily, “this sharp disagreement, in an area of judicial review where the doctrine was thought to have been settled in favour of deference, portends further protracted debates about the ‘standard of review'”. The ‘politics of deference‘ on the Court might be shifting or about to shift:
it now seems unlikely that the top court will coalesce around “the sensible compromise” proposed most prominently by Federal Court of Appeal Justice David Stratas of adopting a reasonableness standard in virtually all cases, “but with the range of reasonable outcomes contracting or expanding in response to contextual considerations.”
Third — and most remarkably — I am not sure that Brown and Rowe JJ., with whose analysis Côté J. agreed, succeeded in actually identifying a jurisdictional question. At issue here was a classic labour arbitration problem. Guérin is a radiologist in the Canadian province of Québec. The province had signed an agreement with a body that represents consultant doctors. The Health Insurance Act provides for the conclusion of such agreements and, in s. 54, that a “dispute resulting from the interpretation or application of an agreement” is a matter exclusively for arbitration. In relevant part, the agreement contains provisions relating to a “digitization fee”, designed to incentivize innovation. Dr. Guérin asked an arbitrator to determine that certain radiology clinics fell within the scope of the agreement and were eligible to claim the “digitization fee”. But the arbitrator declined, essentially on the basis that only the parties to the agreement — the province and the federation — had the power to designate laboratories that would be eligible for the digitization fee.
In times past (and in other jurisdictions), this might well have been characterized as a matter going to the arbitrator’s jurisdiction (and see para. 69). But as the majority, per Wagner and Gascon JJ. explained:
It is clear, on the one hand, that the council of arbitration had jurisdiction to interpret and apply agreements entered into under the Act, such as the Framework Agreement and its schedules, including the Protocol. It therefore had the authority to make the inquiry and to determine whether Dr. Guérin’s proceeding raised an arbitrable dispute under the Act and the Framework Agreement. Indeed, it is well established that the reasonableness standard applies where an arbitrator must determine, by interpreting and applying his or her enabling legislation and related documents, whether a matter is arbitrable (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII),  2 S.C.R. 157, at para. 16). The fact that an arbitrator can dismiss a proceeding on the basis that it does not constitute an arbitrable dispute does not necessarily lead on its own to the conclusion that the proceeding raises a true question of jurisdiction (at para. 33).
The standard of review was reasonableness and the arbitrator’s conclusion was reasonable (at para. 49). In addition, the arbitrator’s conclusion that Dr. Guérin did not have standing to bring a claim to arbitration was reasonable (at para. 50).
Brown and Rowe JJ. concurred in the result but reached it by a different route. In their view, “[t]he question of whether the arbitrator had the authority to decide on Dr. Guérin’s matter was…clearly jurisdictional” (at para. 70). However, as is often the case in delineating matters that go to jurisdiction and those that go to the merits, the conclusion is based more on assertion than on logic (see, e.g. the rhetoric in para. 70). Brown and Rowe JJ.’s real reason and justification for identifying a “true” question of jurisdiction that had to be answered correctly (at para. 71) can be found in the following passage:
The matter raised by Dr. Guérin — specifically, a dispute concerning how the agreement between the Fédération des médecins spécialistes du Québec (“Fédération”) and the Minister of Health and Social Services operated with respect to his facility — was clearly a “dispute resulting from the interpretation or application of an agreement” (at para. 71, my emphasis).
For Brown and Rowe JJ., the question before the arbitrator required a particular answer. But the concept of jurisdiction is not doing any analytical work here. Their conclusion is driven by their interpretation of the statute and agreement: only one answer was possible and, as a result, the arbitrator had to give the correct answer. Again, however, this does not demonstrate that the question was jurisdictional. It simply demonstrates that, on Brown and Rowe JJ.’s interpretation, the range of possible, acceptable outcomes contained only one possibility. Indeed, it would have been possible for Brown and Rowe JJ. to have come to precisely the same conclusion by applying a reasonableness standard: that the range of reasonable outcomes contained only one possible, acceptable interpretation.
Lest it be thought that I am reading too much into paragraphs 70 and 71, Brown and Rowe JJ.’s discussion of Dr. Guérin’s standing to bring the claim to arbitration is analytically identical to their discussion of jurisdiction. Here, Brown and Rowe JJ. agreed with the majority that a reasonableness standard applied. They distinguished Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50,  3 SCR 309, in which a standing issue had been treated as jurisdictional. In that case, they reasoned, the statute “explicitly restricted the class of suppliers which could bring a complaint” (at para. 79, my emphasis). Here, by contrast, the arbitrator’s decision on standing was “reviewable for reasonableness, but principally because the jurisdiction of councils of arbitration is not statutorily confined…to hearing matters brought from certain classes of persons” (at para. 81):
The passive text in s. 54 of “is submitted” (“est soumis”), unaccompanied by any qualification upon who does the actual “submitting”, stands in contrast to the language of the statutory grant in Northrop Grumman (“Canadian supplier”) (at para. 81).
As with the discussion of jurisdiction, the analytical work here is being done by Brown and Rowe JJ.’s interpretation of the statutory provisions, which, on the standing question, gave the arbitrator some interpretive scope.
Brown and Rowe JJ. are not the first Canadian judges to follow an approach that, analytically, begins with the construction of the relevant statutory provisions rather than with their classification by reference to the general principles of judicial review of administrative action (see here). But we should not be misled by their rhetoric into thinking that what mattered here was the “jurisdictional” nature of the questions at issue. In short, the most remarkable aspect of the decision in Guerin is that the first two remarkable aspects disappear when the third is viewed from the proper perspective.
This content has been updated on July 31, 2017 at 09:34.