June 01, 2018
Hilton, Doyon, Mainville
Appeal from a judgment of the Superior Court allowing in part an application for judicial review of an interlocutory arbitral award. Dismissed.
Several associations of municipal sector employees 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 dismissed the union’s application to stay the proceedings until the Superior Court rules on the constitutional issue. That decision was upheld 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 they are of the view that it is preferable to let that court decide these issues. Their discretionary power must be exercised in accordance with the criteria set out 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. In this case, the unions did not adduce any evidence on the issue of irreparable harm or the balance of convenience. In the circumstances, it was not open to the arbitrator to stay the arbitration.
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