Canada: Quebec Court Of Appeal Confirms That Bargaining Hard Is Not Always Bargaining In Bad Faith

The Quebec Court of Appeal¹ has rejected a motion for leave to appeal a Superior Court ruling that² had allowed a motion for judicial review quashing a decision of the Commission des relations du travail (CRT). The CRT had determined that the Government of Quebec had negotiated in bad faith during the 2003-2005 collective bargaining round with the public and parapublic sectors.

Facts

In January 2012, the CRT handed down the decision Association des juristes de l'État,³ in which, after 72 days of hearings, it determined that the government and its representatives had, by, among other things, remaining inflexible on salary issues throughout the bargaining process, failed to negotiate in good faith during the bargaining round with the public and parapublic sectors.⁴ The bargaining round ended with the passage of An Act respecting the conditions of employment in the public sector.⁵ At the judicial review stage, the Superior Court quashed the CRT's decision, sending the matter back to the CRT so that another commissioner could rule on the complaints alleging that the government had negotiated in bad faith.⁶

Decision

After determining that the CRT decision was subject to the reasonableness standard of judicial review, the Court of Appeal reiterated the principle holding that firm or hard bargaining is not necessarily bargaining in bad faith. To arrive at a finding of bad faith, it is necessary to find, in the light of all collective negotiations and the real objectives of the party complained against, that the party complained against was only surface bargaining in order to destroy the bargaining relationship. The core of the Court of Appeal's reasoning reads as follows [translation]:

In light of this principle, the Court of Appeal determined that the CRT should have taken all negotiations into consideration, not just the salary component, and given some thought to the motivation behind the government's firm position on the total payroll increase–something it did not do. Such an omission justified the Superior Court's intervention.

The Court of Appeal concluded by stating the question that will have to be answered by the new member of the CRT [translation]: "Was this a matter of a hard-line position arising from a budgetary framework that was reasonable in light of the province's financial situation, or a strategy aimed at destroying the collective bargaining relationship?"

Comments

Although this ruling does not decide the case on merits, it does clarify the distinction between hard bargaining and bargaining in bad faith and focus the debate for the CRT, which will likely have to consider this matter again, while carrying out a comprehensive assessment of the evidence to determine whether the government's position was reasonable given the economic and budgetary conditions prevailing at the time of the 2003-2005 bargaining round with the public and parapublic sectors.

An application for leave to appeal this ruling to the Supreme Court of Canada has not been filed.

Footnotes

1 Syndicat de la fonction publique et parapublique du Québec (S.F.P.Q.) c Québec (Gouvernement du), 2013 QCCA 575, Pierre J. Dalphond, JCA.

2 Québec (Gouvernement du) c Garant, 2013 QCCS 28, Claudine Roy, JSC.

3 Association des juristes de l'État et Syndicat des agents de la paix en service correctionnel du Québec et autres, 2012 QCCRT 0043.

4 For a summary of this decision, see our Legal update published in May 2012 here.

5 SQ 2005 c 43.

6 For a summary of this decision, see our Legal update published in February 2013 here.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.