Vauclair, Marcotte, Healy

Appeal from a judgment of the Superior Court granting an application for judicial review of an arbitral award in pension plan matters. Dismissed, with dissenting reasons.

On February 7, 2018, the appellant submitted an application for redemption of service to her employer for periods of absence without pay arising from cyclical layoffs related to the nature of her position. The employer sent this application to the respondent on February 19, 2018. The respondent rejected the application for redemption due to non-compliance with the time limit of February 14, 2018, under section 76 of the An Act respecting the implementation of recommendations of the pension committee of certain public sector pension plans and amending various legislative provisions (SQ 2018, c. 4). Seized with an application for reexamination, the impleaded arbitrator concluded that the notion of [translation] "impossible to act" applied to the appellant’s file and ordered the respondent to process the application for redemption of service. The Superior Court concluded that the arbitrator had rendered an unreasonable decision by failing to characterize the legal nature of the time limit set out at section 76 of the Act before applying the notion of [translation] “impossible to act” under article 2904 of the Civil Code of Québec (SQ 1991, c. 64). Having determined that it was a term for forfeiture, the judge reversed the arbitrator’s decision and upheld the respondent’s decision rejecting the application for redemption of service.

The appellant incorrectly claims that the wording of section 76 of the Act is not characteristic of a term for forfeiture in the absence of clear, precise and unambiguous language. A time limit may be one of forfeiture even if the legislature does not use this word in the provision at issue. In this case, the arbitrator did not find any ambiguity or lack of clarity in the wording of section 76. Moreover, the shortness of the time limit provided in this provision weighs in favour of characterizing it as a term for forfeiture.

The arbitrator’s decision to apply the notion of [translation] “impossible to act” did not arise from the characterization of the time limit as a prescriptive period, but rather from his disagreement with the legislature’s approach of setting a term for forfeiture and thus impeding participants’ right to avail themselves of the application for redemption heretofore allowed. The arbitrator does not have a discretionary power allowing him to amend the wording of the Act to make a term for forfeiture more flexible.

The Superior Court judgment determining that the arbitral award is unreasonable does not contain a reviewable error. The judge also did not commit a reviewable error in characterizing the time limit herself rather than referring the matter back to the arbitrator. It was a question of law to which there was but one possible answer and the appellant had the opportunity to plead before both the Superior Court and this Court that, in her view, it was a prescriptive period.

Vauclair, J.A. is of the view that the arbitrator characterized the time limit set out in the Act as being a prescriptive period before applying the notion of “impossible to act” to the appellant’s case. He considers that the decision was not unreasonable, even if another decision-maker could have come to a different conclusion.

Legislation interpreted: section 76 of the An Act respecting the implementation of recommendations of the pension committee of certain public sector pension plans and amending various legislative provisions

Text of the decision: http://citoyens.soquij.qc.ca