Law in Quebec

Relations between the Quebec government and the province’s main legal players have been rife with tension over the past year. Besides enacting a number of bills that critics assert undermine judicial and institutional independence of the courts, the Quebec government has been accused of underfinancing the justice system. It also has been — and still is — at odds with the Quebec Judicial Council over the linguistic requirements of judicial candidates, has had long-standing skirmishes with the former Court of Quebec chief judge Lucie Rondeau over new work schedules, and has been beset with strained labour relations with legal aid lawyers, private sector lawyers who take on legal aid mandates and court support staff.

More legal actors, besides Quebec’s Crown prosecutors, have joined the fray over the past two weeks, with Quebec’s 400 adjudicators considering launching pressure tactics to bolster demands for a new dispute settlement system since they have no right to strike or arbitration. They are also threatening to turn to the courts to preserve their judicial independence.

UNEASY LABOUR RELATIONS

Quebec Crown prosecutors have long had strained labour relations with the provincial government. In 2011, after bitter negotiations, Quebec’s Crown prosecutors agreed to forgo their right to strike in exchange for a two-stage negotiation process. A system was introduced for determining the remuneration of Crown prosecutors that is akin to the remuneration process of the Court of Quebec judges. Every four years, an independent three-member remuneration committee assesses a slew of factors and then draws up a report with its recommendations. The report is then submitted to the government which in turn is tabled before the National Assembly. The government may then make recommendations to the National Assembly over the merits of the report’s recommendations, and the National Assembly may pass a resolution approving, amending or rejecting the recommendations.

The second part of the bargaining process deals with normative conditions. Under that process, if the provincial government and the Crown prosecutors fail to see eye-to-eye, the matter is sent to an arbitrator appointed by both parties. The arbitrator in turn submits a report to the government, which must approve, amend or reject all or part of the arbitrator’s recommendations. Under the _Act respecting the process for determining the remuneration of criminal and penal prosecuting attorneys and respecting their collective bargaining plan_ (Act), the government must make public its decision and the reasons on which it is based.

Quebec Crown prosecutors, upset with the provincial government’s resolutions, have instigated legal proceedings on both fronts. “This is my second set of negotiations, and it is extremely difficult to negotiate with the government, with the Treasury Board,” said Michaud. “They don’t want to give anything. Beyond salaries, that is working conditions, conditions that will ensure that employees will want to come to work, that won’t cost the government a fortune, but that will provide quality of life — we’re having a hard time getting them.”

In 2018, a disagreement arose between the three-member remuneration committee, with two of them recommending increases of up to 19.25 per cent over four years, and the minority member suggesting a 10 per cent increase over four years, without indexation. The government opted to follow the recommendation issued by the minority member, a decision that Quebec Crown prosecutors challenged. On June 2023, the Quebec Appeal Court in Assoc. des procureurs aux poursuites criminelles et pénales c. Procureur général du Québec, 2023 QCCA 775, upheld a lower court decision and dismissed the association’s application for judicial review.

“It is difficult to accept the argument that the Government was disrespectful to the Committee when it chose to follow five of the Committee’s six recommendations and followed the recommendation of the dissenting member on the issue in dispute,” said Appeal Court Justice Mark Schrager in a unanimous decision. The association, the exclusive bargaining representative of Quebec’s Crown prosecutors, filed in September an application for leave to appeal before the Supreme Court of Canada.

More recently still, the association was at loggerheads with the government over normative conditions. After negotiations from January 2023 to May 2023 stalled, a mediator was appointed followed by an arbitrator. Pierre Laplante, the arbitrator, submitted his recommendations to the government at the end of this past September.

But the government changed and rejected many of the recommendations issued by Laplante, said Michaud. “The justification I was given was that for the sake of government coherence if other government professionals do not benefit from these measures, we won’t either,” said Michaud. “That’s not in the end a good justification.”

SEEKING JUDICIAL REVIEW

The association lodged an application at the tail end of November seeking judicial review before Superior Court, asserting that the government’s decision to modify and reject recommendations made by the arbitrator is not a reasonable decision within the meaning of the Supreme Court’s landmark decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

The association maintains that the arbitration held by Laplante is an interest arbitration as opposed to a grievance arbitration. Interest arbitration is a way for the parties to submit their differences to an arbitrator who will determine what the working conditions are while grievance arbitration is a tribunal that settles disagreements on how to apply an agreement, explained Finn Makela, a labour law professor at the Université de Sherbrooke.

But even though the Act makes reference to an arbitrator and the scheme has all the appearances of being an interest arbitration, it is not because the government may approve, amend or reject all or part of the arbitrator’s recommendations, said Makela. In short, it is the government which has the final say, not the arbitrator as is almost always the case.

“In every other regime other than the Crown prosecutors, the arbitrator’s decision is binding,” noted Makela. “That’s the whole nature of arbitration. But what’s particular and unusual about this situation is that you have a labour arbitrator who’s rendered a decision, and the association is not seeking judicial review of the arbitrator’s decision, but rather a judicial review of the government’s decision not to follow the arbitrator’s decision. And that, I’ve not seen before.”

Even Michaud implicitly agrees that the mechanism that was established is not per se an interest arbitration. “The government can, by law, reject, amend or accept it in its entirety,” said Michaud. “What we are saying is that the government’s decision is unreasonable.”

The legal labour landscape has changed dramatically since 2011, points out Makela. In its precedent-setting decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the majority of the Supreme Court held that in cases where strikes are limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations, such as arbitration, that binds both the state and the party it is negotiating with, added Makela.

“Here you have this system that was adopted four years before Saskatchewan Federation of Labour, and none of the decisions, whether they’re rendered by the so-called arbitrator, who’s actually not a real arbitrator, or this pay and benefits committee, neither of them render binding decisions. They render recommendations that then go to the National Assembly.”

Michaud is clear. If the association loses its cases, it will once again go before the courts to challenge the constitutionality of its bargaining framework and possibly even look at regaining its right to strike.

“That’s something we didn’t want and still don’t,” said Michaud. “It’s a shame because we don’t want to do that as it will be detrimental to the public. But we will have no choice but to act in this way, because we would have been forced by the government to go all the way.”

Tensions between Crown prosecutors and the Quebec government are unlikely to ease. The association is now waiting for the independent three-member remuneration committee to table its report for the years 2023-2027.