New Considerations For Public Sector Employers

The Supreme Court of Canada recently rendered its decision in Commission scolaire de Laval v. Syndicat de l'enseignement de la région de Laval, 2016 SCC 8, which clarified two important legal points for public sector employers.

First, the Court rejected the notion that a public sector committee that makes disciplinary decisions can refuse to provide evidence about its deliberations on the basis of "deliberative secrecy." The Court held that the relationship between public sector employers and employees is not public in nature, and that it was therefore reasonable for the arbitrator to order the members of the disciplinary committee to testify.

Second, the majority of the Court reaffirmed that the standard of a review of an arbitrator's decision is reasonableness, save in very limited circumstances where the question at issue is one of law, of "central importance to the legal system as a whole and [...] outside the decision maker's area of expertise." When an arbitrator interprets his or her home statute or makes an evidentiary or procedural decision, the standard of review is reasonableness.

Public sector employers should consequently be aware that (i) evidence pertaining to deliberations of an employment nature held in camera may be summoned by an arbitrator; and (ii) that such arbitral decisions will generally be shown deference by a reviewing court.

Written with the assistance of Stéphane Erickson, articling student in Ottawa

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