C’est qui le maître chez l’arbitre?

A challenge, perhaps, from the Québec Superior Court to the established rule that tribunals are masters of their own procedures, as long as they do notviolate the rules of natural justice. A challenge, certainly, to anyone who thinks the distinction in administrative law between matters of procedure (for reviewing courts) and matters of substance (for decision-makers) is an easy one to grasp and apply.

Here, four individuals made complaints to a labour arbitrator. At the outset, the individuals’ union representative successfully sought an order excluding witnesses from the hearing. Two of the complainants were to be called and were thus excluded; the two others remained. Subsequently, however, the union sought to call one of the two complainants who had sat in on the arbitration up to that point. In addition, it changed representatives and sought to call the previous representative as a witness. While it is not clear from the facts, it is possible that the uncomfortable operation of changing union representatives mid-stream was what led to the difficulties. In any event, the arbitrator excluded the evidence.

Collier J. reversed the arbitrator’s decision to exclude. Interestingly, he classified the matter as one of procedural fairness, to which a standard of correctness should apply. This conclusion is not self-evident. Decisions on the admissibility of evidence can attract deference, as Lamer C.J. explained for a majority of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque (1993):

The question before this Court is…whether, in erroneously deciding to exclude evidence relevant to the ground of dismissal which he has himself identified as being that which he must examine, the arbitrator necessarily commits an excess of jurisdiction.  In my view the answer to this question must in general be no.  It will be yes, however, if by his erroneous decision the arbitrator was led to infringe the rules of natural justice.

On this analysis, it is only the question of procedural fairness to which a standard of correctness applies. A standard of reasonableness applies to the decision-maker’s admissibility determination. In other words, Lamer C.J. drew a distinction between procedure (correctness) and substance (reasonableness). In the present case, following this approach, the questions for the reviewing court would have been (a) was the arbitrator’s decision to exclude the witnesses reasonable; and (b) did it render the process unfair?

By contrast, Collier J. asked whether the arbitrator’s decision to exclude the witnesses was correct, treating it is as a matter of procedure rather than substance. He examined whether the arbitrator’s admissibility determination was consistent with the general rule that parties should not be excluded from hearings. Concluding that it was not, he quashed the arbitrator’s decision in its entirety.

So much for the arbitrator’s claim to be maître chez lui!

But Collier J. does give a good, sharp explanation of the standard of correctness:

Il s'ensuit que le Tribunal doit entreprendre sa propre analyse de la question et il n'est nullement tenu d'acquiescer au raisonnement de l'arbitre.  Si le Tribunal n'est pas d'accord avec la conclusion de l'arbitre, il y substitue sa propre décision et rend la décision qui s'impose.

Like many things, the standard of correctness sounds better in la langue de Molière. 

H/T Ashley Kandestin au Blogue du CRL