June 01, 2018
Hilton, Doyon, Mainville
Appeal from a judgment of the Superior Court on judicial review of an interlocutory arbitral award. Allowed.
The union representing the police officers of the Ville de Montréal challenged the constitutional validity of the Act to foster the financial health and sustainability of municipal defined benefit pension plans (CQLR, c. S-2.1.1) alleging that it is contrary to the Canadian Charter of Rights and Freedoms (R.S.C. 1985, app. II, No. 44, Schedule B, Part I). The arbitrator appointed under the Act granted the union’s application to stay the proceedings until the Superior Court rules on the constitutional issue. That decision was quashed by the Superior Court on judicial review.
The Act to foster the financial health and sustainability of municipal defined benefit pension plans explicitly confers jurisdiction on arbitrators to rule on questions of law and their own jurisdiction. Arbitrators are also presumed to have jurisdiction to apply the Charter to issues raised in the performance of acts within their jurisdiction. They nevertheless retain the discretionary power not to rule on such issues when they are the subject of an action before a court of original general jurisdiction and deem it preferable to let that court decide those questions. Their discretionary power must be exercised in accordance with the criteria set out in Manitoba (A. G.) v. Metropolitan Stores Ltd. (S.C. Can., 1987-03-05), SOQUIJ AZ-87111016, J.E. 87-396, D.T.E. 87T-322,  D.L.Q. 235 (sum.),  1 S.C.R. 110, i.e., a serious question, irreparable harm, and the balance of convenience, which includes the public interest. In weighing the balance of convenience, arbitrators must assume that the legislative measure is directed to the public good and serves a valid public purpose. Stays are granted only in clear cases. The arbitrator’s specific mandate combined with the presumption that the Act to foster the financial health and sustainability of municipal defined benefit pension plans is directed to the public good and serves a public purpose, weighs strongly against a stay when the application for a stay is based on a constitutional remedy.
The arbitrator’s finding to stay the arbitration is reasonable because the issue of the application of the Act to foster the financial health and sustainability of municipal defined benefit pension plans to the Montreal police pension plan is serious. It is clearly not a pension plan “established by a municipal body”. The evidence on the irreparable harm that the police officers would sustain was accepted by the arbitrator. The balance of convenience favours them.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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