May 08, 2017
Gagnon, Bélanger, Mainville
Appeal from a judgment of the Superior Court dismissing an application for judicial review of a judgment rendered by the Commission des relations du travail (CRT). Allowed, with dissenting reasons.
Applying the usual criteria applicable in fragmentation cases, the CRT refused to split the bargaining unit of professionals and allow the City’s lawyers to obtain certification as a separate unit. It rejected the argument that the City’s lawyers were in a conflict of interest. It also dismissed the allegations that the certified union breached its duty of representation. The Superior Court refused to intervene.
The applicable standard of review is that of reasonableness. The CRT considered the narrow issue of conflict of interest without addressing the broader ethical issues raised before it. The duty of loyalty applicable to lawyers has three aspects: the duty to avoid conflicts of interest, the duty of commitment to the client’s cause, and the duty of candour. The CRT had to rule on the possible conflict of loyalty caused by union solidarity within a general bargaining unit. It is not for the Court to decide this issue, but rather the Tribunal Administratif du Travail (TAT). Moreover, the fragmentation of a bargaining unit is granted only in exceptional cases when serious grounds have been established. The fragmentation criteria must be compatible with the right to freedom of association guaranteed by the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). Even if the issue of compatibility was not raised directly before the CRT, the CRT is nevertheless bound by the Constitution Act, 1982 (R.S.C. 1985, App. II, No. 44, Schedule B)). The case should therefore be referred back to the TAT, which succeeded the CRT, so that it may review the case having regard for the evolution of the constitutional right to freedom of association.
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