Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., (2007) 359 N.R. 199 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 07, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 359 N.R. 199 (SCC);2007 SCC 14;[2007] ACS no 14;DTE 2007T-273;278 DLR (4th) 577;359 NR 199;[2007] SCJ No 14 (QL);64 Admin LR (4th) 1;JE 2007-618;[2007] 1 SCR 591;AZ-50423140

Lévis v. Fraternité des policiers (2007), 359 N.R. 199 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2007] N.R. TBEd. MR.008

City of Lévis (appellant) v. Fraternité des policiers de Lévis Inc. and Danny Belleau (respondents) and Association des policières et policiers provinciaux du Québec (intervenor)

(31103; 2007 SCC 14; 2007 CSC 14)

Indexed As: Lévis (City) v. Fraternité des policiers de Lévis Inc. et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ.

March 22, 2007.

Summary:

A municipality dismissed a police officer after he pleaded guilty to several criminal offences, all of which fell within the scope of both s. 116(6) of the Quebec Cities and Towns Act (CTA) and s. 119, para. 2 of the Quebec Police Act (PA). The union filed a grievance. The grievance arbitrator held that s. 119, para. 2 (PA) had rendered s. 116(6) (CTA) inapplicable to municipal police officers. He also found that there were specific circumstances which justified another sanction under s. 119, para. 2 (PA), and, as a result, overturned the dismissal and ordered that Belleau's employment be restored. Had s. 116(6) (CTA) applied alone, Belleau's challenge to his dismissal would have failed. The municipality appealed.

The Quebec Superior Court quashed the arbitrator's award. The union appealed.

The Quebec Court of Appeal allowed the appeal. The municipality appealed.

The Supreme Court of Canada allowed the appeal. McLachlin, C.J.C., Bastarache, Binnie and Charron, JJ., held that the standard of review concerning the compatibility of the two legislative provisions was correctness, while the question of whether the arbitrator correctly interpreted and applied s. 119, para. 2 (PA) to Belleau's conduct was reasonableness; s. 116(6) (CTA) and s. 119, para. 2 (PA) were in conflict and s. 119, para. 2 (PA) prevailed; and the arbitrator erred in overturning Belleau's dismissal and reinstating him in the circumstances. Deschamps and Fish, JJ., agreed with the majority's conclusion concerning the applicability of s. 119, para. 2 (PA) to the facts of the case, but were of the opinion that it was compatible with s. 116(6) (CTA). Fish, J., agreed with the majority decision apart from the discussion respecting the standards of review. Fish, J., was of the opinion that the arbitrator's decision as a whole was entitled to deference.

Arbitration - Topic 3585

The arbitrator - Powers - Respecting remedies - Belleau, a municipal police officer, pleaded guilty to several criminal offences, all of which fell within s. 119, para. 2 of the Quebec Police Act (PA) - Section 119, para. 2 required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances which would justify another sanction - The municipality dismissed Belleau - A grievance arbitrator reinstated Belleau - The Supreme Court of Canada held that the arbitrator erred when he equated his jurisdiction under s. 119, para. 2 to the jurisdiction that he would normally enjoy under s. 100.12(f) of the Quebec Labour Code (LC) - Under s. 119, para. 2 (PA), the municipality did not have the burden of proving that dismissal was the appropriate sanction - Rather, the burden was on the police officer to show that specific circumstances existed to exclude dismissal - The arbitrator was not free to substitute the decision that he or she deemed to be fair and reasonable - Unless the police officer could demonstrate specific circumstances, the arbitrator had to confirm the dismissal - The arbitration was still governed by the collective agreement and the LC, but the arbitrator did not have the same discretion in disciplinary matters that he or she would otherwise enjoy under s. 100.12(f) (LC) - If arbitrators maintained their plenary jurisdiction under s. 100.12(f) there would be little point to a provision that mandated dismissal - Under s. 119, para. 2 (PA), the arbitrator's jurisdiction was limited to considering whether the police officer had demonstrated specific circumstances and, if so, what other sanction should be applied - See paragraph 69.

Arbitration - Topic 7802

Judicial review (incl. appeals) - General principles - Functional approach - The Supreme Court of Canada stated that "... the pragmatic and functional approach may lead to different standards of review for separate findings made by an arbitrator ... This will most frequently be the case when an arbitrator is called upon to construe legislation. The arbitrator's interpretation of the legislation - a question of law - may be reviewable on a different standard than the rest of the decision ... While interpretations of general public statutes or statutes external to an administrative decision maker's constituting legislation will often be reviewed on a standard of correctness, this will not always be so ... The answer in each case will depend on the proper application of the pragmatic and functional approach, which requires various factors be taken into account such as the presence or absence of a privative clause, the expertise of the decision maker, the purpose of the governing legislation and the nature of the question under review ... Since the presence or absence of a privative clause will likely be the same for all aspects of an administrative decision, whether there is a possibility of more than a single standard of review under the pragmatic and functional approach will largely depend on whether there exist questions of different natures and whether those questions engage the decision maker's expertise and the legislative objective in different ways. Of course it may not always be easy or necessary to separate individual questions from the decision taken as a whole. The possibility of multiple standards should not be taken as a licence to parse an administrative decision into myriad parts in order to subject it to heightened scrutiny. However, reviewing courts must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of review should be adopted when there are clearly defined questions that engage different concerns under the pragmatic and functional approach." - See paragraph 19.

Arbitration - Topic 7803

Judicial review (incl. appeals) - General principles - Nature of review proceeding (incl. standard of review) - A municipality dismissed a police officer after he pleaded guilty to several criminal offences, all of which fell within the scope of both s. 116(6) of the Quebec Cities and Towns Act (CTA) and s. 119, para. 2 of the Quebec Police Act (PA) - The grievance arbitrator held that s. 119, para. 2 (PA) had rendered s. 116(6) (CTA) inapplicable to municipal police officers - He also found that there were specific circumstances which justified another sanction under s. 119, para. 2 (PA) - As a result, he overturned the dismissal and ordered that Belleau's employment be restored - Had s. 116(6) (CTA) applied alone, Belleau's challenge to his dismissal would have failed - The Supreme Court of Canada, applying the functional and pragmatic approach, held that the standard of review concerning the compatibility of the two legislative provisions was correctness, while the question of whether the arbitrator correctly interpreted and applied s. 119, para. 2 (PA) to Belleau's conduct was reasonableness - See paragraphs 21 to 28.

Labour Law - Topic 9154

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - What constitutes cause for - [See Arbitration - Topic 3585 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Scope of review (incl. standard) - [See Arbitration - Topic 7802 and Arbitration - Topic 7803 ].

Municipal Law - Topic 1021

Officers - Dismissal - General - Section 119, para. 2 of the Quebec Police Act (PA) required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances which would justify another sanction - Section 116(6) of the Quebec Cities and Towns Act (CTA) provided for disqualification without exception for criminal and penal offences punishable with imprisonment for one year or more if the offence was in connection with the office or employment - The municipality submitted that the two provisions were complementary because s. 119 (PA) was concerned with a disciplinary sanction while s. 116 (CTA) was a purely administrative measure providing for admissibility to municipal employment - The Supreme Court of Canada rejected the submission - While s. 119 (PA) did speak of "dismissal" ("destitution") while s. 116 (CTA) spoke of "disqualification" ("inhabilité"), the different wording should not obscure the practical effect of the two provisions - Both ultimately resulted in the termination of the employment relationship - The effect of disqualification under s. 116(6) (CTA) was slightly broader in that it prevented a person from holding any municipal employment for a period of five years, but that did not diminish the fact that disqualification first and foremost resulted in the municipal employee's dismissal - See paragraphs 50 and 51.

Municipal Law - Topic 1021

Officers - Dismissal - General - Section 116(6) of the Quebec Cities and Towns Act (CTA) provided for disqualification without exception for criminal and penal offences punishable with imprisonment for one year or more only if the offence was in connection with the office or employment - A municipality dismissed Belleau, a police officer, after he pleaded guilty to several criminal offences - The Supreme Court of Canada stated that "it is hard to see the appellant's invocation of s. 116(6) CTA in this case as anything other than an attempt to give effect to a disciplinary measure. Through s. 116(6) CTA, the appellant hopes to find a legal basis for its decision to implement the recommendation of its director of public security to dismiss Belleau, a recommendation which was the result of a disciplinary hearing conducted in accordance with the provisions of the collective agreement and the appellant's Règlement no 756 relating to disciplinary sanctions. I cannot see how an application of s. 116(6) CTA in this case could qualify as an administrative measure." - See paragraph 52.

Municipal Law - Topic 1127

Employees - Dismissal - Grounds - [See first Municipal Law - Topic 1021 ].

Municipal Law - Topic 1408

Powers of municipalities - General principles - Administrative power defined - [See second Municipal Law - Topic 1021 ].

Police - Topic 4103

Internal organization - Dismissal of members - What constitutes cause for dismissal - Section 119, para. 2 of the Quebec Police Act required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances which would justify another sanction - The phrase "specific circumstances" was not defined in the legislation - The Supreme Court of Canada held that an arbitrator could take into account any circumstance surrounding the offence which related to whether the police officer would be able to continue to serve the public effectively and credibly - Reference to attenuating and aggravating circumstances in other employment law contexts might sometimes be useful, but this had to be done with regard to the unique issues that were raised by the criminal conduct of police officers - See paragraph 73.

Police - Topic 4103

Internal organization - Dismissal of members - What constitutes cause for dismissal - Belleau pleaded guilty to threatening to cause death or bodily harm, assault, three counts of storing a firearm in a careless manner or without reasonable safety precautions, and failing to comply with a condition of his undertaking - Belleau was a 15 year veteran of a municipal police force - Section 119, para. 2 of the Quebec Police Act required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances justifying another sanction - The Supreme Court of Canada held that a grievance arbitrator erred (reached an unreasonable decision) in overturning Belleau's dismissal and reinstating him - The arbitrator was entitled to consider that Belleau's family problems were plausibly related to his conduct that gave rise to the threat and assault charges - It was also relevant that Belleau was a long-serving officer with no prior record of disciplinary problems, who was generally seen as a non-violent man - However, the context was one of domestic violence, and Belleau pleaded guilty to an assault on his wife - This was a very important consideration given the public's reliance on police intervention in such cases - Further, the firearms offences were not related to Belleau's personal circumstances and could not be justified, as the arbitrator sought to do, on the grounds that they were technical offences - More serious was Belleau's conscious defiance of his undertaking not to communicate with his spouse, two hours after he had agreed to it - See paragraphs 68 to 80.

Police - Topic 4103

Internal organization - Dismissal of members - What constitutes cause for dismissal - [See Statutes - Topic 502 ].

Police - Topic 4114

Internal organization - Dismissal of members - Grievance - Jurisdiction of arbitrator - [See Arbitration - Topic 3585 ].

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - [See Arbitration - Topic 7803 ].

Police - Topic 4205

Internal organization - Discipline - Punishment - Dismissal - [See Arbitration - Topic 3585 , first and second Police - Topic 4103 and Statutes - Topic 502 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - Section 119, para. 2 of the Quebec Police Act (PA) required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances which would justify another sanction - Section 116(6) of the Quebec Cities and Towns Act (CTA) provided for disqualification without exception for criminal and penal offences punishable with imprisonment for one year or more if the offence was in connection with the office or employment - The Supreme Court of Canada held that the provisions were in conflict and that s. 119, para. 2 (PA), the more recent and more specific provision, should prevail - The connection requirement in s. 116(6) (CTA) would most often be satisfied in the case of police officers, resulting in dismissal - The legislative objective of providing a narrow exception for all police officers who had committed a hybrid offence during the course of their career should not be defeated - Municipal police officers should not be dismissed by virtue of s. 116(6) (CTA) (or s. 269 of the Municipal Code) without the benefit of being able to prove that there were specific circumstances justifying another sanction - The legislative debates respecting s. 119, para. 2 (PA) suggested that a conscious policy choice was made to provide a specific exception for all acting police officers - Courts should avoid an interpretation that would serve to defeat such a clearly stated legislative objective - See paragraphs 24 to 67.

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See Statutes - Topic 502 ].

Statutes - Topic 6252

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - What constitutes a conflict - The Supreme Court of Canada stated that "The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation: 'According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.'" - See paragraph 47.

Statutes - Topic 6252

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - What constitutes a conflict - Section 119, para. 2 of the Quebec Police Act (PA) required the dismissal of police officers who had been convicted of a hybrid criminal offence, except if the officer could demonstrate specific circumstances which would justify another sanction - Section 116(6) of the Quebec Cities and Towns Act (CTA) provided for disqualification without exception from municipal employment for criminal and penal offences punishable with imprisonment for one year or more if the offence was in connection with the office or employment - The Supreme Court of Canada held that there was a clear zone where the statutes overlapped and came into conflict - Most, if not all, hybrid Criminal Code offences targeted by s. 119, para. 2 (PA) also carried a term of imprisonment of at least 12 months - Because of the seriousness of criminal conduct by police officers, the connection requirement in s. 116(6) (CTA) would most often be satisfied, especially in the case of hybrid offences, which were more serious than summary offences - Disqualification under s. 116 (CTA) would, by necessity, lead to the municipal police officer's dismissal, but without any opportunity, in contrast to s. 119, para. 2 (PA), to demonstrate specific circumstances - See paragraphs 47 and 48.

Statutes - Topic 6255

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - General and special statutes - [See Statutes - Topic 502 ].

Cases Noticed:

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [paras. 19, 112].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 19].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [paras. 19, 115].

Green Bay Health Care Centre - see Newfoundland Association of Public Employees v. Newfoundland et al.

Newfoundland Association of Public Employees v. Newfoundland et al., [1996] 2 S.C.R. 3; 196 N.R. 212; 140 Nfld. & P.E.I.R. 63; 438 A.P.R. 63, refd to. [para. 19].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [paras. 19, 107].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 20].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 21].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 21].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 21].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 28].

Fraternité des policiers de la Communauté urbaine de Montréal Inc. v. Communauté urbaine de Montréal and Rousseau, [1985] 2 S.C.R. 74; 60 N.R. 286, refd to. [para. 36].

Péloquin v. Syndicat des agents de la paix en services correctionels du Québec, [2000] R.J.Q. 2215 (C.A.), refd to. [para. 36].

Lévis (Ville) v. Syndicat des policiers et pompiers de Lévis, D.T.E. 89T-344 (T.A.), refd to. [para. 38].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228; 311 N.R. 313; 2003 SCC 68, refd to. [para. 41].

Syndicat des employés municipaux de Beauce (C.S.D.) v. St-Georges (Ville), J.E. 2000-540; SOQUIJ AZ-0019015 (Que. C.A.), refd to. [para. 42].

Association des pompiers de Laval v. Laval (Ville), [1985] T.A. 446, refd to. [para. 42].

Fraternité des policiers de Deux-Montagnes/ Ste-Marthe-sur-le-Lac v. Deux-Montagnes (Ville), J.E. 2001-524; SOQUIJ AZ-50083424 (Que. C.A.), refd to. [para. 43].

Pelland v. St-Antoine (Ville), 1994 CarswellQue 1900 (C.Q.), refd to. [para. 44].

Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, refd to. [para. 47].

Massicotte v. Boutin, [1969] S.C.R. 818, refd to. [para. 47].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [paras. 49, 88].

Ile-Perrot (Ville) v. Union des employés de service, section locale 800, D.T.E. 2000T-619 (T.A.), refd to. [para. 51].

Duguay v. Paspébiac (Ville), D.T.E. 2003T-47; SOQUIJ AZ-50152875 (C.T.), refd to. [para. 51].

Duval v. R. (1938), 64 K.B. 270 (Que.), refd to. [para. 86].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 87].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 88].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171; 2005 SCC 13, refd to. [para. 92].

Prince Edward Island (Provincial Secretary) v. Egan, [1941] S.C.R. 396, refd to. [para. 99].

Ross v. Registrar of Motor Vehicles and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 99].

Bell v. Prince Edward Island (Attorney General), [1975] 1 S.C.R. 25; 1 N.R. 27; 5 Nfld. & P.E.I.R. 173, refd to. [para. 99].

Ricard v. Lord, [1941] S.C.R. 1, refd to. [para. 102].

Beaudoin v. Roy, [1984] R.L. 315, refd to. [para. 102].

Roy v. Mailloux, [1966] B.R. 468 (Que.), refd to. [para. 102].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 110].

Canada Post Corp. v. Smith et al. (1998), 109 O.A.C. 117; 40 O.R.(3d) 97 (C.A.), refd to. [para. 110].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 W.L.R. 163 (H.L.), refd to. [para. 111].

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, refd to. [para. 111].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 111].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 113].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC 22, refd to. [para. 114].

Statutes Noticed:

Cities and Towns Act, R.S.Q. 1977, c. C-19, sect. 116(6) [para. 7].

Labour Code, R.S.Q. 1977, c. C-27, sect. 100.12(f), sect. 101 [para. 7].

Police Act, R.S.Q. 1977, c. P-13.1, sect. 115, sect. 119 [para. 7].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 349 [para. 85]; 350 [para. 47]; 358, 359 [para. 58].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 178 [paras. 87, 88]; 179 [para. 88].

Halsbury's Laws of England (3rd Ed. 1955) (1961 Update), vol. 36, p. 466 [para. 87].

Québec, Assemblée nationale, Journal des débats de la Commission permanente des institutions, 1st Sess., 36 Legislature (May 26, 2000), pp. 2 [paras. 61]; 3, 4 [paras. 61, 73].

Sullivan, Ruth - see Driedger, Elmer A., Construction of Statutes.

Counsel:

Richard Ramsay, Sarto Veilleux and François LeBel, for the appellant;

Serge Gagné and Maude Gagné, for the respondents;

Gino Castiglio and André Fiset, for the intervener.

Solicitors of Record:

Langlois Kronström Desjardins, Lévis, Quebec, for the appellant;

Trudel, Nadeau, Anjou, Quebec, for the respondents;

Castiglio & Associés, Montréal, Quebec, for the intervener.

This appeal was heard on November 7, 2006, by McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The court delivered its decision in both official languages, on March 22, 2007, including the following opinions:

Bastarache, J. (McLachlin, C.J.C., Binnie and Charron, JJ.,  concurring) -  see paragraphs 1 to 81;

Deschamps and Fish, JJ. - see paragraphs 82 to 105;

Abella, J. - see paragraphs 106 to 117.