Thursday, 1 May 2014

How (Not) to Conduct Deferential Review: Dionne v. Commission scolaire des Patriotes, 2014 SCC 33

The province of Quebec allows pregnant workers to exercise a right of withdrawal from dangerous work environments. At issue in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 was a supply teacher's thwarted effort to exercise her right of withdrawal. A unanimous Supreme Court of Canada quashed the decision of the Commission des lésions professionnelles and held that teacher was entitled to withdraw.

Although it may seem unusual to treat schools as dangerous workplaces, it is common and accepted practice in Quebec for pregnant teachers to withdraw from the workplace because of the risk of contracting harmful diseases from their students. Reading between the lines of the present case, the school board and the CLP apparently took umbrage at the teacher's temerity in claiming her statutory rights, evidence perhaps of a disconnect between law-in-the-books and law-in-practice and lingering discomfort amongst employers about assertive employees.

Be that as it may, the most interesting aspect of the case, from an administrative-law point of view, lies in the differing approaches to the task of judicial review taken by the appellate judges involved. In my view, the Quebec Court of Appeal's stance was more appropriate than that of the Supreme Court of Canada. And of the Quebec Court of Appeal judges, the dissenting reasons of Dalphond J.A. are preferable to the majority reasons of Wagner J.A. (who is now a member of the Supreme Court, though obviously he did not sit on this appeal).

First, the facts. D was a qualified teacher. But she did not have a permanent contract of employment. She was a supply teacher: she was contacted on a regular basis by the school board and filled in as requested. Once she learned that she was pregnant, she responded to offers from the school board by saying she would be happy to teach but that she would have to exercise her right to withdraw due to her pregnancy.

All agree that when a supply teacher agrees to teach for a particular period of time, a contract is formed between the teacher and the school board. The question was whether, in light of her desire to exercise her right of withdrawal, D was a "worker" for the purposes of the Act respecting occupational safety, ss. 40-48 of which provide for the right of withdrawal and associated rights. Properly speaking, the right is to be re-assigned to other activities that are not dangerous, with a right to withdraw, with benefits, if no re-assignment is offered by the employer.

In the Supreme Court, Abella J. made only fleeting reference to the decision under review. She engaged in an analysis of the text and purpose of the statutory provisions at issue, concluding (at para. 30) that the legislation "protects pregnant women in two significant ways: it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security". She mentioned and criticized the CLP's conclusion that D could not be treated as a "worker" because her inability to go to the workplace frustrated the creation of a contract of employment:
[39]                          The scheme is intended to protect pregnant workers who have a contract to work.  It would be anomalous, to say the least, to use the legislated right of a pregnant worker to withdraw from an unsafe workplace to conclude that her withdrawal negates the formation of the contract of employment...
[43]                          A contract was formed...when Ms. Dionne accepted the School Board’s offer to supply teach and therefore became a “worker”...Her pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace, and that in turn triggered her statutory right to substitute that work with a safe task or withdraw.
This was the core of Abella J.'s reasoning and justified her conclusion that CLP's decision was unreasonable. The thrust of Abella J.'s analysis was that the CLP should have answered the question before it in a particular way. Passing references to unreasonableness (at paras. 36 and 45) cannot obscure the fact that Abella J. essentially stepped into the shoes of the CLP and rendered what she thought was the most appropriate decision in the circumstances. Reading the judgment from start to finish, one could be forgiven for thinking the Supreme Court was sitting in an appellate capacity, rather than conducting a judicial review.

Contrast this approach with that of Dalphond J.A., dissenting in the Quebec Court of Appeal: 2012 QCCA 609. Both Dalphond J.A. and Abella J. reached the same result, but by very different means. Dalphond J.A. began with the decision of the CLP, underlining its central elements:
[37] Partant, pour qu’il y ait formation d’un nouveau contrat, il faut que la personne soit en mesure de s’obliger à effectuer un travail sous la subordination d’un employeur et qu’elle soit rémunérée en conséquence, selon les termes de l’article 2085 C.c.Q.
[38] Le tribunal ne peut donc partager l’opinion de la procureure de madame Dionne quand elle allègue qu’une seule offre de suppléance acceptée par madame Dionne entraîne la formation d’un contrat. En effet, il manque une cause essentielle à ce contrat, soit une prestation de travail. Ainsi, les dix fois, en novembre 2006, où madame Dionne accepte une offre de suppléance, il n’y a pas formation de contrat puisque aucune prestation de travail n’est offerte ou ne peut être offerte par elle...
Plainly, the CLP's conclusion was based on the absence of a contract between the parties. Dalphond J.A. went on to examine the text and purpose of the legislation, but primarily to provide context for his conclusion that the CLP's position was contrary to the text and purpose of the law (at para. 40).

He gave three reasons why the CLP's decision was unreasonable. First, the CLP's own logic supported the conclusion that offer and acceptance of occasional work triggered the right to withdrawal and related provisions, but the school board had made no effort to give D other tasks, such as correcting work or dealing with small groups of students (at paras. 48-49). Second, for the CLP to deny that a contract had been created was contrary to its own factual conclusions and the evidence in the record (at para. 50). Third, the CLP's position was irrational, because it placed teachers like D in an invidious position of choosing between potential harm to their child and the loss of statutory benefits (at para. 51).

Dalphond J.A.'s approach is notable because he carefully examined the reasons given for the administrative decision and, by demonstrating their internal inconsistencies and irrational effects, justified his decision to intervene. Rather than establishing an external benchmark based on his examination of the law and the facts against which to judge the decision, as Abella J. did, he worked from within the decision to demonstrate why it was untenable. Whereas Abella J. asserted (at para. 43) that, based on the evidence, there was no contract, Dalphond J.A. preferred to say that the CLP's own conclusion was that there was a contract and that its refusal to recognize this led to perverse results.

Wagner J.A.'s decision to uphold the CLP is problematic too. Although he was sensible to note (at paras. 104-105) that quashing the CLP's decision would have the effect of transforming D from an occasional to a full-time worker, this reasoning is barely evident in the available extracts from the CLP's decision. Moreover, demonstrating the dangers of reading administrative decisions too generously, Wagner J.A. attributed to the CLP reasons that it did not express:
[106]      De plus, je constate que l'appelante a choisi d'offrir ses services à l'intimée sachant qu'elle ne voulait pas en réalité accepter les suppléances qui lui seraient offertes et que cette dernière, en temps normal, n'avait aucune obligation de retenir ses services. Cela ajoute au caractère aléatoire, improbable et artificiel du lien et du contrat d'emploi invoqués.
This is not as bad as the first-instance judge's suggestion that D acted in bad faith (2010 QCCS 1550 at para. 52) but it does suggest that there was something underhanded about action D's attempt to avail herself of her statutory rights. This amounts to attempt to bolster the CLP's reasoning by reference to (the judge's interpretation of) the record but not by reference to anything the CLP actually said. Wagner J.A. also added the following curious paragraph:
[109]      Or, en l'espèce, en raison même de la nature des tâches exercées à l'occasion par l'appelante, l'affectation à d'autres tâches est par définition impossible, ce qui démontre le caractère singulier de l'interprétation prônée par l'appelante. Le dossier révèle que l'appelante n'a même jamais tenté d'exiger une réaffectation, ce constat devant sceller le sort de son recours.
The suggestion that D should have asked for re-assignment again attempts to bolster the CLP's reasoning with material from the record and flies in the face of the evidence: how could D have requested any re-assignment when the school board resolutely took the position that she had no rights whatsoever?

At present, the Supreme Court has an unfortunate tendency to step into the shoes of the administrative decision-maker in judicial review cases. It was evident again in Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31 last week and, once more, in today's decision.

A footnote on the composition of the Supreme Court of Canada panel. Only five judges sat on the appeal. It is extremely rare for a panel composed solely of common-law judges to hear an appeal from the Quebec Court of Appeal. Here, Wagner J. wrote the decision under appeal so obviously could not sit. At the time of the hearing, the ill-fated Nadon J. had withdrawn from hearing cases. LeBel J. was not on the Supreme Court panel either. Happily, civil law concepts were peripheral to the appeal, which focused on issues of public law. Nonetheless, it is problematic that the Supreme Court's cohort of judges is reduced, which gives rise to the risk that the Court will be shorthanded in future cases requiring civil-law expertise. The government has yet to name a replacement for Nadon J. With respect, it would be far more profitable for it and the Canadian legal system to go about naming a new judge rather than anonymously sniping about judicial decisions that displease it.

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