Doyon, Savard, Rancourt
Appeal form a judgment of the Superior Court granting the application for judicial review of an arbitral award setting aside a dismissal. Dismissed, with dissenting reasons.
The employer criticized the arbitrator for refusing to admit into evidence a video showing the employee, then on sick leave, engaging in activities that were inconsistent with her state of health. The Superior Court agreed with the employer, finding that the arbitrator had erred in concluding that the employer did not have reasonable grounds to question the employee’s honesty and that admitting the recording into evidence would bring the administration of justice into disrepute.
The fact that the arbitrator had to apply values enshrined in the Charter of human rights and freedoms (CQLR, c. C-12), in this case the right to privacy, and a provision of the Civil Code of Québec (S.Q. 191, c. 64) (C.C.Q.) does not necessarily call for the application of the standard of correctness. The Superior Court’s error in this respect, however, is not determinative. While the arbitrator’s assessment of the employer’s motives may attract criticism, the analysis that led him to exclude the evidence does not meet the reasonableness standard. His reasoning automatically results in the exclusion of evidence as soon as interference with a fundamental right is established. It is a circular approach that obscures the second part of the analysis under art. 2858 C.C.Q. Instead, he should have applied the proportionality test (Mascouche (Ville de) c. Houle (C.A., 1999-07-28), SOUQIJ AZ-50066665, J.E. 99-1554. D.T.E. 99T-786,  R.J.Q. 1894). Moreover, this is not an award with incomplete reasons, but one where the only reason justifying the exclusion of the evidence is contrary to the legal rule. In this context, nothing implied can be given any import, and the case as a whole cannot be considered to assess the reasonableness of the result. Even if this were not the case, the reasonableness of the arbitrator’s conclusion is not apparent from the record.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca