City of Lévis v Fraternité: What Does It Mean to Be Pragmatic and Functional?
Last Thursday, the Supreme Court of Canada (“SCC”) released their judgment in City of Lévis v Fraternité des policiers de Lévis Inc. and Danny Belleau, 2007 SCC 14. After reviewing the judgment two points come immediately to mind: first, the entire SCC found it offensive that a labour arbitrator would overturn a dismissal and reinstate a police officer who had pleaded guilty to a series of serious criminal offences. Second, and more importantly for those of us who get excited about administrative law, there continues to be little predictability in the application of the pragmatic and functional approach.
After an “incident” in December 2000, Officer Belleau pled guilty to threatening to cause death or bodily harm, assaulting his wife, three counts of storing a firearm in a careless manner, and failing to comply with a condition of his undertaking. Following a disciplinary investigation by the Director of public security, Mr. Belleau’s employment with the Lévis police force was terminated. Belleau and the Lévis police association filed a grievance to contest his dismissal.
The arbitrator was faced with two seemingly contrasting statutes: on one hand, s. 116 of the Cities and Towns Act, RSQ, c C-19, provides that any person who is convicted of an offence which is punishable by at least one year imprisonment is disqualified from municipal employment for five years. This disqualification applies provided that the offence in question is connected to the employment. In Belleau’s case, due to the special nature of policing, such a disqualification would be automatic. In contrast, s. 119 of the Police Act, RSQ, c P-13.1, provides that in similar circumstances the sanction will be dismissal unless the police officer shows that specific circumstances justify another sanction.
The arbitrator considered the firearms offences were technical in nature, that Belleau was intoxicated on the date of the offences, and that he had been facing family and alcohol problems. The arbitrator determined that these constituted circumstances within the meaning of s. 119 and reinstated him without pay (therefore Mr. Belleau’s 16 months off without pay served as his suspension). This finding was overturned by a Québec trial court but restored by the Québec Court of Appeal.
The SCC faced three main issues. First, they had to determine the appropriate standards of review to apply in assessing the arbitrator’s decisions. Second, based on the standard(s) selected the SCC had to assess whether the arbitrator had appropriately determined that a conflict existed between the two statutes and that the Police Act rather than the Cities and Towns Act applied to Belleau. Lastly, the SCC had to address whether the arbitrator had appropriately applied an exception within the Police Act to reinstate the police officer.
The SCC Judgment(s)
All seven justices agreed on the proper outcome of this appeal – the decision of the arbitrator to reinstate Mr. Belleau was unsustainable and his dismissal must be restored. Yet the SCC released three concurring judgments in this case, with the contention between them centering on how to reconcile the administrative law issues.
The majority judgment, written by Justice Bastarache, severed the two questions faced by the arbitrator and used two different standards of review: correctness and reasonableness simpliciter. In the first concurring judgment, Justices Deschamps and Fish agreed that the standard on the first question was correctness but disagreed on its application, holding that there was no conflict and both statutory provisions could be applied concurrently.
In a second concurring judgment, Justice Abella disagreed that the two questions could be severed and that two different standards of review could be applied. Instead, she applied one deferential standard to the entire decision of the arbitrator. Therefore, after applying a pragmatic and functional approach, the judgments could not agree on either how to apply the standard of review or the outcome of applying that standard!
The majority held that the question of whether a conflict existed between the two statutes and if so, which statute should prevail in this case, was a question of pure law outside the expertise of the labour arbitrator. Therefore, the appropriate standard of review was correctness. However, the decision about whether s. 119 of the Police Act applied to Mr. Belleau was a question of mixed fact and law and required the balancing of the competing interests of the officer, the municipality, and the community as a whole. Yet, several factors pulled the standard away from one of the strictest deference (Police Act is an external statute thus narrowing the arbitrator’s discretion and the question maintains a significant legal component) and the majority settled on reasonableness simpliciter.
In contrast, Justice Abella held that the question of whether to apply s. 119 of the Police Act should not be severed from how to apply it. Citing concerns that “routine segmentation of such mandates” may lead to an “unduly interventionist approach more reminiscent of the ‘wrong question’ or ‘preliminary [or] collateral matter’ doctrines” Justice Abella held that the arbitrators decision should be reviewed as a whole.
Justice Abella’s concerns are reminiscent of Justice LeBel’s words of caution in his concurring judgment in Toronto v CUPE, Local 79,  3 SCR 77. In that case the majority also carved off a segment of the arbitrator’s decision in order to apply a correctness standard. Justice Lebel was also weary of the court veering from the general rule that arbitrator decisions should be treated as an integrated whole and stated that in practice, the pragmatic and functional approach should be applied only once.
Respecting the intent of elected officials in establishing expertise administrative bodies to adjudicate disputes which involve the balancing of competing interests was the reason the courts moved towards a pragmatic and functional approach in the first place. Yet, as is evidenced by the judgments in this case we are no closer to a clear message from the SCC on how to apply these standards in a manner that would create the predictability and efficiency for which we have all been waiting.
Despite the clear result, the path is as confusing as ever!