Supreme Court Judgments

Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793

City of Montreal                                                                                Appellant

v.

Canadian Union of Public Employees, Local 301                             Respondent

and

Conseil des services essentiels                                                         Mis en cause

Indexed as:  Canadian Union of Public Employees, Local 301 v. Montreal (City)

File No.:  24761.

1996:  November 5; 1997:  March 27.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Labour law ‑‑ Essential services ‑‑ Union instructing certain municipal employees to refuse to work overtime for duration of holiday weekend ‑‑ Conseil des services essentiels ordering employees to report to work if requested by employer and ordering union representatives to take all necessary steps to ensure employees did so ‑‑  Council order suspending collective agreement provision allowing employees to refuse to work overtime without giving reason ‑‑ Whether council exceeded jurisdiction in making order ‑‑ Whether order patently unreasonable.

Judicial review ‑‑ Standard of review ‑‑ Conseil des services essentiels.

Administrative law ‑‑ Natural justice ‑‑ Transcript of hearing ‑‑ Conseil des services essentiels ‑‑ Council making remedial order preventing certain municipal employees from collectively refusing to work overtime for duration of holiday weekend ‑‑ Council failing to make machine recording of hearing giving rise to order ‑‑ Whether resulting lack of transcript of hearing violates rules of natural justice.

The appellant City requested the intervention of the Conseil des services essentiels (the “Council”), alleging that the respondent union had instructed the City’s blue collar employees to refuse to work overtime for the duration of a holiday weekend.  Under their collective agreement with the City, the union members have the right to refuse to work overtime without giving a reason.  The Council held a public hearing at which witness testimony and argument by legal representatives on behalf of both parties were heard.  Owing either to human or mechanical error, the hearing was not taped.  The Council ordered the union to take all necessary measures to ensure that its blue collar members reported to work and fulfilled their usual duties, whether in regularly scheduled or overtime hours, as requested by the employer.  The employees were similarly ordered to report to work if requested by the employer, again for regular hours or overtime.  The union filed a motion for judicial review of the Council’s decision. The Council then conveyed its written reasons to the parties.  It found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of the Quebec Labour Code were established.  These provisions authorize the making of orders to ensure the maintenance of services to which the public is entitled where there exists a concerted action, other than a strike or slowdown, which is related to a labour conflict and either is currently or has the potential of prejudicing these services.  The union filed an amended motion for review of the Council’s decision, on the grounds that the tribunal had interpreted the law and the evidence in a patently unreasonable manner.  The motion was dismissed by a Superior Court judge, who further held that the absence of a recording of the proceedings before the Council constituted neither a miscarriage of justice nor a failure to observe the principles of natural justice.  The Court of Appeal overturned the judgment, granted the union’s motion for review, and quashed the Council’s order.  It found that in ordering the suspension of a provision of the collective agreement, the Council had exercised a remedial power not conferred upon it, thereby committing a jurisdictional error.

Held:  The appeal should be allowed.

To ascertain whether the question facing the Council was one which the legislature intended it to decide, a pragmatic and functional interpretation of the  enabling statute is required, one which considers the wording, purpose and underlying reasons of the legislation in creating the tribunal, as well as the tribunal’s expertise and the problem before it.  The Quebec Labour Code establishes and governs a system of collective bargaining and constructive settlement of disputes between employers and employees in the province.  A special regime is established for employees in “the public services” and “the public and parapublic sectors”, and the Council is created and granted various functions and remedial powers essential to the implementation of the special regime.  The need for this specialized body is evident: when public employees strike, the pressure exerted on the employer is not largely financial, as in the private sector, but rather arises from the disruption of services upon which society depends for the daily activities of its members.  While the public, through its elected representatives, has chosen to sustain a certain level of disruption in order to extend the same rights to public employees as are available to other workers, this cannot be unlimited.  The government must balance the right to strike against other entitlements and needs such as those established in human rights and social legislation.  The health and safety of the greater populace will always take priority over the workers’ and/or employers’ interests in achieving a fair and equitable settling of the terms of employment.  In addition to the penalties attached to illegal strikes and other contraventions of the Code, which fall within the jurisdiction of the Labour Court, the legislation has granted the Council broad powers to make orders which maintain the public’s ongoing access to fundamental services.  Unlike the labour relations tribunals in, inter alia, other provinces, the Council’s role is not to resolve the labour conflict or protect the collective bargaining rights of the parties to the labour dispute but, given a conflict’s existence, to ensure the protection of the public from consequences of this dispute which their elected representatives have chosen not to tolerate.

The Court of Appeal erred in finding that the order made by the Council constituted an excess of jurisdiction.  The issue before the Council was one which lies logically at the heart of its specialized jurisdiction stricto sensu.  The task faced by the Council was the fashioning of an effective order to secure the provision of services to which the public is entitled.  When faced with a concerted action which is or threatens to be prejudicial to services to which the public is entitled, the Council is authorized to fashion an order which is required and reasonable in the circumstances to secure the maintenance of these services.  Clearly, this is the very type of problem this permanent, specialised body is intended to remedy.

In the presence of a strongly worded privative clause such as the one in s. 139 of the Labour Code, where the factual and legal aspects of the problem facing the tribunal place the question squarely within its sphere of expertise, the tribunal’s decision will stand unless it is patently unreasonable.  The strong connection between the problem before the Council and both its specialized expertise and the statutory regime which guides and protects its decisions provides ample indication of the need for curial deference upon review.  The order at issue here represents a rationally supportable interpretation by the Council of its remedial provisions.  Where a right gained through collective bargaining is exercised collectively for the purposes of applying illegal pressure tactics, preventive action to maintain public services will necessarily suspend the exercise of this right, by the individuals involved in the conflict, for these ends. Given the broad powers in s. 111.17 of the Code to make orders targeting any persons or groups of persons involved in the conflict, the Council clearly had the power to target the union both through its representatives and its individual members. It is also logical to encompass the individual union members who participate in the illegal action in case the union delegates refuse to withdraw their instruction. There is a rational connection between the source of the prejudice and the order forbidding the union representatives and individuals to refuse overtime for the purposes of collectively pressuring the employer to accede to the union’s wishes. Moreover, only those involved in the conflict were prevented from exercising their individual rights in this manner.  The order in this case was also not only consistent with the objectives of the Code in creating these remedial provisions, but was tailored specifically to fulfill them in the circumstances.   The order restricts the right to refuse overtime only where it is for the purposes of illicit pressure tactics related to labour conflict and only for the period of the concerted action identified by the Council.  The principles governing contempt proceedings support a finding that the order is not patently unreasonable.

The Council’s failure to make a machine recording of the hearing did not violate the rules of natural justice.  The Code does not require a recording of hearings before the Council.  In the absence of any express statutory requirements, the traditional common law requirements for a record of an administrative tribunal’s proceedings include the document which initiated the proceedings and the document containing the tribunal’s adjudication. Neither the reasons for the ruling nor evidence presented at the hearing have been considered necessary elements of the record to be presented to the superior tribunal upon appeal or review. Moreover, administrative bodies are normally under no obligation to make verbatim transcripts or recordings of their proceedings.  In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice.  Here the affidavit evidence provided in conjunction with the application for judicial revew provided a more than adequate record for reviewing the factual findings of the Council to determine whether the union’s claim was grounded.

Cases Cited

Distinguished:  Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; referred to:  Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Syndicat canadien de la fonction publique v. Conseil des services essentiels, [1989] R.J.Q. 2648; Syndicat des chauffeurs de la Société de transport de la Ville de Laval v. Conseil des services essentiels, [1995] R.D.J. 597; Communauté urbaine de Montréal v. Fraternité des policiers et policières de la Communauté urbaine de Montréal inc., [1995] R.J.Q. 2549; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R 644; National Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R. 269; Syndicat du transport de Montréal v. Conseil des services essentiels, Sup. Ct. Mtl., No. 500‑05‑000353‑902, February 8, 1990; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; Hydro‑Québec et Syndicat canadien de la fonction publique, section locale 957, C.S.E. 88‑1691/3c, July 14, 1989; Hydro‑Québec et Syndicat canadien de la fonction publique, section locale 1500, C.S.E. 88‑1691/3c, July 11, 1989; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388; Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232; Rhéaume v. Canada (1992), 153 N.R. 270; Cameron v. National Parole Board, [1993] B.C.J. No. 1630 (QL); Desjardins v. National Parole Board (1989), 29 F.T.R. 38; R. v. Hayes, [1989] 1 S.C.R. 44; Cahoon v. Conseil de la Corporation des Ingénieurs, [1972] R.P. 209; Beaudry v. Fournier, D.T.E. 94T‑433; C.I.L. Inc. v. Plante, [1983] T.T. 121; Spécialités Jones Ltée v. Langlois, [1981] T.T. 143; Unicast Canada ltée v. Léveillé, D.T.E. 91T‑879; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.

Statutes and Regulations Cited

Act respecting health services and social services, R.S.Q., c. S‑4.2, s. 5.

Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2.

Canada Labour Code , R.S.C., 1985, c. L‑2 , ss. 91 , 93 , 99(2) .

Canadian Charter of Rights and Freedoms .

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 50 et seq., 834, 846.

Labour Code, R.S.Q., c. C‑27, ss. 1 “lock‑out”, “strike”, 20.2, 52 to 58, 106, 107, 109, 111.0.3, 111.0.4, 111.0.6, 111.0.13, 111.0.15, 111.0.17, 111.0.18, 111.0.19, 111.0.20, 111.0.21, 111.0.23, 111.0.24, 111.0.25, 111.1, 111.10, 111.11, 111.12, 111.14, 111.16, 111.17, 111.18, 111.19, 111.20, 139.

Public Service Act, R.S.Q., c. F‑3.1.1.

Authors Cited

Bernier, Jean, et Madeleine Lemieux.  «La grève et les services essentiels au Québec». Dans J. Bernier, dir., Grèves et services essentiels.  Sainte‑Foy: Presses de l’Université Laval, 1994, 205.

Dubé, Jean‑Louis, et Pierre Gingras, «Historique et problématique du régime de négociation collective dans le secteur de la santé et des services sociaux» (1991), 21 R.D.U.S. 519.

Dussault, René, and Louis Borgeat.  Administrative Law: A Treatise, vol. 4, 2nd ed. Translated by Donald Breen.  Toronto: Carswell, 1990.

Gagnon, Robert P.  Le droit du travail du Québec: pratiques et théories, 3^e éd.  Cowansville, Qué.:   Yvon Blais, 1996.

Gagnon, Robert P., Louis LeBel et Pierre Verge. Droit du travail, 2^e éd.  Sainte‑Foy: Presses de l’Université Laval, 1991.

Jones, David Phillip, and Anne S. de Villars.  Principles of Administrative Law, 2nd ed.  Scarborough, Ont.:  Carswell, 1994.

Lemelin, Maurice.  Les négociations collectives dans les secteurs public et parapublic: expérience québécoise et regard sur l’extérieur.  Montréal: Agence d’ARC, 1984.

Macaulay, Robert W., and James L. H. Sprague.  Hearings Before Administrative Tribunals.  Scarborough, Ont.: Carswell, 1995.

APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 1050, allowing the union’s appeal from the dismissal by the Superior Court of its motion for judicial review of a decision of the Conseil des services essentiels.  Appeal allowed.

Diane Lafond, for the appellant.

Jacques Lamoureux and Yves Morin, for the respondent.

Sylvain Lussier, for the mis en cause.

//L’Heureux-Dubé J.//

The judgment of the Court was delivered by

1                                   L’Heureux-Dubé J. -- This appeal raises two issues. The first is whether the Conseil des services essentiels -- an administrative tribunal created by provisions of the Quebec Labour Code, R.S.Q., c. C-27 -- exceeded its jurisdiction in making a remedial order preventing certain employees of the appellant from collectively refusing to work overtime for the duration of a holiday weekend. The second issue concerns the failure by the Conseil des services essentiels to make a machine recording of the hearing which gave rise to the order. This Court must determine whether the resulting lack of a transcript of that hearing violates the rules of natural justice.

2                                   At the outset,  reference to the relevant statutory and collective agreement  provisions and a review of the facts and judgments are in order.

I.  Relevant Statutory and Collective Agreement Provisions

3                                   Labour Code, R.S.Q., c. C-27

DIVISION IV

REMEDIAL POWERS

111.16.       In public services and in the public and parapublic sectors, the Conseil des services essentiels, of its own initiative or at the request of an interested person, may inquire into a lock-out, a strike or a slowdown that is contrary to law or during which the essential services provided for in a list or agreement are not rendered.

                                                                   . . .

111.17.       The council, if it considers that the conflict is or is likely to be prejudicial to a service to which the public is entitled or that the essential services provided for in a list or agreement are not rendered during a strike, may, after giving the parties the opportunity to submit their views, make an order to ensure that a service to which the public is entitled is available, or require compliance with the law, a collective agreement or an agreement or list on essential services.

The council may

(1) enjoin any person involved in the conflict or any category of these persons it determines to do what is required to comply with the first paragraph of this section, or abstain from doing anything in contravention thereof;

(2) require from any person involved in the conflict to remedy any act or omission done or made in contravention of the law, of an agreement or of a list;

(3) order in respect of a person or group of persons involved in a conflict, taking into consideration the conduct of the parties, the application of the measures of redress it considers best appropriate, including the establishment of a fund for the benefit of the users of the service that has been adversely affected, and the terms and conditions governing the administration and use of that fund;

(4) order every person involved in the conflict to do or abstain from doing anything that it considers reasonable in the circumstances in view of maintaining services for the public;

(5) order, where that is the case, that the grievance or arbitration procedure under a collective agreement be accelerated;

(6) order a party to make known publicly its intention to comply with the order of the council.  

111.18.       The council may, in the same manner, exercise the powers conferred on it by sections 111.16 and 111.17, if, in the course of a conflict, it considers that a concerted action other than a strike or a slowdown is or is likely to be prejudicial to a service to which the public is entitled.

111.20.       The council may file a true copy of an order made under section 111.17 at the office of the prothonotary of the Superior Court of the district in which the public service or agency involved is situated.

Every order filed under the first paragraph has the same force and effect as if it were a judgment of the Superior Court. 

139.     Except on a question of jurisdiction and except when the Court is sitting in penal matters, no extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure (chapter C-25) shall be exercised and no injunction granted against an arbitrator, the Conseil des services essentiels, a certification agent, a labour commissioner or the Court acting in their  official capacities.

Collective Agreement between the City of Montreal and the Canadian Union of Public Employees, Local 301 for the period from January 1, 1992 to December 31, 1992

[translation]

7.10  Distribution of Overtime

                                                                   . . .

d)    Refusal of overtime

The incumbent employee who refuses or neglects to do overtime work when required, whether for the purposes of paragraph a) or paragraph b), is considered as having provided this overtime work. Employees whose rights are prejudiced by the principle set out in this paragraph can claim lost wages.

e)    Shortage of Candidates

In the case of a shortage of candidates for the work to be done in overtime hours for the purposes of paragraphs a) and b), this overtime is to be offered in turn, by section, to the incumbent employees who are registered on the eligibility list pursuant to article 19, subject to their being sufficiently competent to do this overtime work.

For the driver-operators assigned in the regions, further to the use of the mechanisms established in article 7, in the event of a shortage, the City will offer the overtime hours by turn among the driver-operators in the order of their general seniority as driver-operators. Subsequently, the City will offer the overtime to the employees whose names appear on the eligibility list and who hold the necessary licences.  

Review Powers of the Superior Court of Quebec

Code of Civil Procedure, R.S.Q., c. C-25

846.     The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:

(1) when there is want or excess of jurisdiction;

(2) when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;

(3) when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;

(4) when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.

However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.

It is under this provision that the case was evoked before the Quebec Superior Court.

II.  Facts and Judgments

4                                   On September 2, 1994, the appellant  (the “City”)  requested the intervention of the Conseil des services essentiels (the “Council”) in a situation which threatened to prejudice the provision of certain public services. The City alleged that the respondent Union had instructed the City’s “blue collar” employees to refuse to work overtime for the duration of the Labour Day weekend, that is, from 3:30 p.m. on September 2 to  7:30 a.m. on September 6.  According to the City, these pressure tactics related to conflict over the imposition on these employees of three days of non-paid holidays pursuant to Bill 102. These employees had not yet acquired the right to strike.  Earlier that day, the City had written to the Union representatives asking them to put an end to these pressure tactics and indicating its intention to approach the Council if no response was immediately forthcoming.

5                                   The Council held a public hearing that evening at which witness testimony and argument by legal representatives on behalf of both parties were heard. The City’s witnesses described a variety of public services which would be interrupted in the event of a concerted refusal to work overtime.  The Union undertook to ensure that the public’s health and safety would not be affected during the weekend.  Owing either to personal or mechanical error, the hearing was not taped.  For this reason, no transcript of the proceedings is available.  That evening, the Council delivered a written decision consisting of an  order with reasons to follow. The Council ordered the Union, and certain representatives and delegates of the Union, to take all necessary measures to ensure that the blue-collar members of the Union reported to work and fulfilled their usual duties, whether in regularly scheduled or overtime hours, as requested by the employer.  The employees were similarly ordered to report to work if requested by the employer, again for regular hours or overtime.  It is noteworthy that pursuant to article 7.10 of their collective agreement with the City, the Union members have the right to refuse to work overtime without giving a reason.

6                                   On September 2, 1994 this order was filed at the office of the prothonotary of the Quebec Superior Court pursuant to s. 111.20 of the Code. On September 3 and 7, the City filed two successful motions to institute contempt of court proceedings. The City alleged that Union representatives and members had ignored the order and a concerted refusal to work overtime had taken place. On September 30, 1994, the Union filed an application for juicial review of the Council’s decision pursuant to art. 846 of the Quebec Code of Civil Procedure (“C.C.P.”). On October 6, 1994, subsequent to the filing of this motion, the Council conveyed its written reasons to the parties. On October 13, 1994, the Union filed an amended motion for review which was dismissed by a judge of the Superior Court on October 19, 1994.  This decision was successfully appealed to the Court of Appeal, which rendered its decision on April 3, 1995: [1995] R.J.Q. 1050. 

Order and Decision of the Conseil des services essentiels

7                                   The relevant excerpts of the order made on September 2, 1994, are as follows:

[translation]

 WHEREAS the parties are bound by a collective agreement which is in force until December 31, 1994.

WHEREAS there exists a conflict between the parties.

WHEREAS there exists a concerted action within the meaning of section 111.18 of the Labour Code which consists of a refusal to work overtime and of an incitement of the employees to leave their work.

WHEREAS this concerted action is prejudicial to the service to which the public is entitled.

WHEREAS the role of the union, its officers and representatives in this concerted action has been  clearly established.

WHEREAS the Conseil has given the parties the opportunity to present their views.

WHEREAS there exists an emergency.

ON THE BASIS OF WRITTEN REASONS WHICH WILL BE CONVEYED TO THE PARTIES AT A LATER DATE, THE CONSEIL DES SERVICES ESSENTIELS MAKES THE FOLLOWING ORDERS:

ORDERS the Canadian Union of Public Employees, Local 301, its agents, representatives, officers and employees to take all necessary measures to ensure the presence at work and performance of their usual duties on the part of all union members, where the employer requests their presence, whether during  regular or overtime hours.

ORDERS the Canadian Union of Public Employees, Local 301, its agents, representatives, officers and employees to take all necessary measures to ensure that each person who is required to report to  work, whether for regular or overtime hours, may do so without being prevented in any manner whatsoever.

. . . [These two orders are repeated but addressed specifically, by name, to various representatives of the Union.]

ORDERS all employees who are members of the Canadian Union of Public Employees, Local 301, to report to work if requested by the employer, whether for regular or overtime hours.  

DECLARES that this order comes into force immediately and remains in force until the Union has legally acquired the right to strike.

DECLARES that this order will be filed at the office of the prothonotary of the Superior Court of the District of Montreal.

RESERVES its jurisdiction to make any other order it deems necessary.

8                                   In the written reasons which followed on October 6, 1994, the Council’s president, Madeleine Lemieux, began by noting the similarity between the present inquiry and one which had taken place before the July long weekend of that year. The July hearing had concerned a concerted refusal to work overtime in response to a Union instruction which arose in relation to conflict over the application of Bill 102 to the Union’s members. The order made in this appeal was identical to that which followed the earlier hearing.

9                                   In its reasons in the current inquiry, the Council made a number of factual findings based on the testimony it had heard. The employer had described a number of public services which would be or risked being disturbed by the refusal to work overtime. These included: weekend recreational activities, a delay in the opening of public arenas and hockey training camps, garbage pick-up in public parks, loss of plants and flowers at public gardens due to lack of watering, special construction projects, telephone and other communication services including emergency telephone calls, emergency repairs of the rides at an amusement park, emergency repairs in the case of power failure or water shortage, certain aspects of garbage collection and disposal, and the provision of security guards. Witnesses from each of these public service sectors further testified that a Union delegate had informed the employer’s representatives  that there would be no overtime workers to effect these duties. The Council observed that the respondent Union had admitted to the overtime embargo, but had claimed that the lack of employees would not affect the health or safety of the public.

10                               On the basis of this evidence, the Council found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of the Code were established. These provisions authorize the making of orders to ensure the maintenance of services to which the public is entitled where there exists a concerted action, other than a strike or slowdown, which is related to a labour conflict and either is currently or has the potential of prejudicing these services.  The Council noted the difference between their role during times of legal strike, which is to ensure “essential services” for the health and safety of the public, and their role during times of illegal collective action, which is the broader duty to protect all public services. It held that the Union’s withdrawal from the employer of the performance of work upon which the latter could normally rely constituted a strike. The strike was an illegal one, as none of the Labour Code’s requirements had been fulfilled. As such, the Council held that it had the power to intervene, by making the order that it had.

Superior Court

11                               The respondent Union filed an amended motion for judicial review of the Council’s decision, on the grounds that the tribunal had interpreted the law and the evidence in a patently unreasonable manner. The motion was dismissed by Guthrie J. In his view, the Quebec Court of Appeal decision in Syndicat canadien de la fonction publique v. Conseil des services essentiels, [1989] R.J.Q. 2648, at pp. 2653-54, had established that ss. 111.17 and 111.18 authorize not only orders mandating compliance with the collective agreement, law, or essential services list, but also, more generally, the maintenance of public services. Guthrie J. found that the evidence before the Council supported its finding that there was a concerted action, the refusal to work overtime, which would likely prejudice services to which the public is entitled.  In his opinion, as s. 139 of the Code contains a strong privative clause protecting the decisions of the Council, the court  could only intervene where the appreciation of the evidence constituted a patently unreasonable error of law.  This was not the case.

12                               Guthrie J. further held that the absence of a recording of the proceedings before the Council constituted neither a miscarriage of justice nor a failure to observe the principles of natural justice. Had it been, he stated on the basis of Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 593, the order would  not be subject to the same nullity as if the Council had exceeded its jurisdiction. Relying on jurisprudence of this Court and the Quebec Court of Appeal, he finally observed that the standard of review for the order was a stringent one. The order  must be clearly unreasonable, abusive, or arbitrary for the court to intervene. As the order had none of these characteristics he dismissed the motion.

Court of Appeal (Rothman, Deschamps and Otis JJ.A.)

13                               The respondent Union appealed the dismissal of its motion to the Court of Appeal on two alternate grounds: first, in ordering the suspension of a provision of the collective agreement, the Council had exercised a remedial power not conferred upon it, thereby committing a jurisdictional error; and second, the Council had violated the rules of natural justice, by virtue of holding a hearing without making a machine recording thereof. The appeal was allowed on the first ground for the following two reasons. 

14                               First, the order abrogated a key provision of the collective agreement, namely, the right to refuse overtime. The Court of Appeal concluded that the legislator had not empowered the Council to interfere with the provisions of a collective agreement except in the particular instance described in s. 111.17, viz. to modify or accelerate grievance or arbitration procedures. Relying upon this Court’s decision in Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412 (“Acadie”), the Court of Appeal held that general provisions authorizing orders by such a board cannot support an unlimited intrusion in the collective bargaining process.  The Council’s express authority to intervene in a grievance or arbitration is an exceptional power.  The remedial powers of the Council are otherwise limited by the requirements of respect of the Code and the collective agreement, reasonableness, and necessity.

15                               Second, the order was broader than was required in that it prevented all employees from refusing overtime, without ensuring a connection between the refusal and a concerted action likely to prejudice public services. The Court of Appeal observed that the excessive nature of the order became evident if one considered that an employee could not refuse to work overtime for good reason without facing a contempt charge before which he or she would have to justify the refusal. As the order did not link the prohibition of refusing overtime directly to the concerted action, it had the effect of temporarily suspending an individual right in the collective agreement. This it could not do.  The Court of Appeal found that the decision clearly exceeded the powers granted the Council and, as such, constituted a jurisdictional error which was reviewable on a correctness standard.  As a result, it overturned the judgment of the court of first instance, granted the motion for review, and quashed the order of the Council. The City had cited a number of participants in the Union-directed  refusal to work overtime for contempt of the order.  The judgment of the Court of Appeal removed the basis for these charges.

III.  Issues

16                               In disposing of this appeal, the following two issues must be addressed:

1.  Does the remedial order made by the Council constitute an excess of jurisdiction?

2.  Does the absence of a machine recording and thus transcript of the hearing before the Council constitute a denial of the respondent’s rights to natural justice?

IV.  Analysis

1.  The Order

A.  Remedial Jurisdiction of the Council

17                                      In deciding whether the Council has exceeded its jurisdiction, this Court must first determine whether the problem addressed by the tribunal fell within the exclusive and specialized jurisdiction granted it by the legislature. In other words, did the Council, in determining the appropriate order in this case, act within its jurisdiction stricto sensu?  This Court has repeatedly stated that the courts should proceed cautiously when faced with the task of assessing the jurisdiction of an administrative tribunal. These bodies play a very important and special role in regulating social, economic, and political activities and relationships within an increasingly complex society. The administrative tribunal, with its specialized expertise, accumulated experience, and sensitivity as regards problems which arise in a particular field, is essential to the effective and fair implementation of state policy aimed at addressing these concerns.  While the courts have maintained the  important role of ensuring that these bodies limit their activity to those powers entrusted to them by the legislature, we must be careful to avoid unduly limiting the jurisdiction of such a body, thereby negating its specialized expertise and interfering with its intended functions.  

18                                      For this reason, while this Court has maintained that tribunals must correctly interpret statutory provisions which grant and limit their jurisdiction if they wish to escape judicial review, curial intervention must also respect the limits intended by the legislature.  As Dickson J., as he then was, warned in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“CUPE”), at p. 233:

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.

Dickson J. was concerned that a court’s determination of what it characterizes as a question going to a tribunal’s jurisdiction stricto sensu may, in reality, decide a question which would “lie logically at the heart of the specialized jurisdiction confided to the Board” (p. 236).  To address this concern, the CUPE decision established the principle of curial deference in judicial review of administrative decision-making which continues to inform the jurisprudence of this Court.

19                               In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, subsequent to various attempts to articulate the difference between questions going to jurisdiction and those falling within the specialized competence of an administrative body,  this Court established a “pragmatic and functional” approach  which continues to be the authoritative method for  determining this issue.  In Bibeault, writing for the Court,  Beetz J. explained that the question to be asked is whether the legislator intended the issue to be within the tribunal’s jurisdiction. In this context, a “pragmatic and functional” interpretation of the enabling statute is required. Beetz J. directed courts to consider the following factors in undertaking this task: a) the wording of the enactment conferring jurisdiction on the tribunal; b) the purpose of the statute in creating the tribunal; c) the reason for the tribunal’s existence; d) the area of expertise of the tribunal’s members; and e) the nature of the problem before the tribunal. He also emphasized that the functional and pragmatic approach for determining the legislator’s intent should be applied equally to questions which, at first blush, appear to limit a tribunal’s jurisdiction.

20                               Our initial task in disposing of this ground of review is thus to ascertain whether the question facing the Conseil des services essentiels was one which the legislature intended it to decide.  Our pragmatic and functional interpretation of the remedial provisions of Quebec’s Labour Code which were exercised by the Council begins with an examination of the wording of these provisions.  These sections will be difficult to interpret, however, without background knowledge of both the special schemes governing collective bargaining for “public” employees and the related duties of the Council to which these provisions refer.  For this reason, I will begin with a brief overview of these regimes as they are situated in the general structure of the Code.

21                               Speaking generally, the Quebec Labour Code establishes and governs a system of collective bargaining and constructive settlement of disputes between employers and employees in the province, as defined in the Code’s initial chapter. Chapter II creates the right of employees to belong to the employee association of their choice, such as a union.  These provisions set out a scheme whereby a particular association will be certified to represent the employees in a local bargaining unit and establishes the powers of labour commissioners and the Labour Court to oversee this process.  The certified employee association is then empowered to negotiate a collective agreement with the employer on behalf of the employees it represents.  The process of collective bargaining and the content of the agreement are regulated by the provisions in Chapter III of the Code. Chapter IV establishes the functions and powers of labour arbitrators in the conclusion and enforcement of collective agreements.  While arbitration is generally optional for disputes arising over the conclusion of terms of a collective agreement, grievances which arise during the period of a collective agreement must be submitted to an arbitrator.

22                               Finally, Chapter V establishes the conditions under which the economic pressure tactics of a “strike” by employees or “lock-out” by an employer can be legally used. As defined under s. 1, a “strike” represents “the concerted cessation of work by a group of employees” while a “lock-out” involves an employer’s refusal “to give work to a group of his employees in order to compel them, or the employees of another employer, to accept certain conditions of employment”.  In short, strikes cannot be declared until the right to strike has been established:   s. 106; and are forbidden during the period of a collective agreement:  s. 107.  The acquisition of the right to strike is contingent upon the passing of a waiting period during which the parties are expected to negotiate in good faith, and, in some cases, take part in conciliation:  ss. 52 through 58. Only certified employee associations may obtain this right:  s. 106.  A majority vote of the association’s members in the affected bargaining unit authorizing the strike is a  further formal requirement for the legal exercise of this right:  s. 20.2.  The right of an employer to “lock-out” employees arises upon the employee association’s acquisition of the right to strike:  s. 109.  

23                               Against this background scheme governing labour relations, Chapter V.1 establishes a special regime for employees in “the public services” and “the public and parapublic sectors”.  For the purposes of this judgment, when referring to both groups together I will use the term “public employees”,  although, as will be shown, there are distinctions between the two.  As a general rule, the rights, obligations, and procedures created by the provisions of the Code to govern the collective bargaining process apply to these two general categories of employees. The special provisions will take precedence, however, in the event of a conflict between their requirements and those of the remainder of the Code:  ss. 111.0.15 and 111.1, respectively. The Conseil des services essentiels is created in this Chapter and granted various functions and remedial powers essential to the implementation of the special regimes contained within it.

24                               The first category addressed in this chapter, “public services”, is defined by a list of various services of fundamental importance to the daily living of members of the public. These range from municipal corporations and intermunicipal agencies to telephone, transportation, and ambulance services.  As Robert Gagnon has commented, it is the nature of the service which links these and qualifies them as public as opposed to the status of the provider of the service.  Indeed, some are offered by  private, for-profit corporations: Le droit du travail du Québec: pratiques et théories (3rd ed. 1996), at p. 393; see also: R. Gagnon, L. LeBel and P. Verge, Droit du Travail (2nd ed. 1991), at p. 587.

25                               The sections of the Code which govern “public service” employees render their right to strike contingent upon not only the usual requirements, but also a prior commitment to maintaining essential services for the public. These employees may generally obtain the right to strike in the same manner as other employees governed by the Code provided they also give seven juridical days’ notice to the Minister of Labour:  ss. 111.0.15 and 111.0.23. Under the special regime, however, where the government is of the opinion that a strike in these services will endanger the public’s health or safety, it may order that the parties maintain essential services:  s. 111.0.17. In such cases, an agreement on the part of the parties to the conflict as to the essential services to be provided or, where not achievable, a list prepared by the employee association, must be forwarded to the Council before a strike may either be declared or continued, s. 111.0.18.  The Council must assess whether the list is sufficient to ensure the health and safety of the public. Where it finds the services insufficient, it must report its findings to the government and to the public:  ss. 111.0.19, 111.0.20, and 111.0.21. Before doing so, however, the Council may provide mediation and/or recommendations to assist the parties in achieving an adequate agreement or list:  ss. 111.0.18 and 111.0.19. The government may suspend the right to strike where the list, agreement, or services actually rendered are considered insufficient to ensure protection of public’s health and safety:  s. 111.0.24.  The Attorney General has the further recourse of an injunction from the Superior Court if the employee association violates the suspension:  s. 111.0.25.

26                               The other category covered by Chapter V.1 consists of “public and parapublic sectors”. These include government employees appointed or remunerated pursuant to the Public Service Act, R.S.Q., c. F-3.1.1, as well as the colleges, school boards, and health and social services establishments contemplated in the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R-8.2. In view of the special schemes of collective bargaining established in these enactments, congruence between them and the Code are assured by codal provisions targeting these sectors. Certain restrictions on the right to strike for employees in these sectors are also imposed in the Code:  ss. 111.11 and 111.14. Moreover, where a strike involves a health or social services establishment, a list/agreement regime to ensure essential services, similar to that for public services, is automatically imposed and subject to the final approval of the Council:  ss. 111.10 to 111.12. The Council’s role in this aspect of the scheme is therefore more determinative  than in the scheme governing “public services”. 

27                               This description of the regimes governing “public” employees  provides the necessary context in which to interpret the remedial powers which the Council may exercise in the event of labour conflict involving them,  as enumerated in ss. 111.16 to 111.20. Under s. 111.16, the Council acquires the power to inquire into a strike, lock-out or slow-down which is contrary to the law or during which essential services designated in a list or agreement are not provided, and to attempt to resolve the problem through mediation. Section 111.17, when viewed in light of the preceding overview, establishes the further and broader powers of the Council to protect the public from two types of interference caused by labour conflict involving public employees. According to the first paragraph of this section, the first of these situations occurs where a conflict is considered to be or likely to be “prejudicial to a service to which the public is entitled”. The second will arise where a list or agreement of essential services for the period of an otherwise legal strike is not being respected. To remedy the consequences of these two categories of labour conflict, the Council is generally empowered to make any of a variety of orders, ranging from one which ensures the availability of the service to which the public is entitled, to ones mandating compliance with a collective agreement, the law, or the list or agreement on essential services.

28                               Further definition of the Council’s jurisdiction in this regard is provided by a list of six general types of orders which may be made to achieve the ends of the first paragraph of s. 111.17. The first of these establishes the general power of the Council to enjoin any person or category of persons involved in the conflict “to do what is required to comply with the first paragraph of this section”, or, alternatively, to abstain from any activity in contravention thereof. The second and third allow the Council to order persons or categories of persons involved in the conflict to repair the consequences of acts or omissions in contravention of the law, or of an agreement or list, through the measures the Council believes appropriate. The fourth allows the Council to order every person involved in the conflict to do or abstain from doing anything which the Council considers reasonable in the circumstances to ensure maintenance of services for the public. The fifth and sixth grant the specific powers to order the acceleration of a grievance or arbitration procedure and to order a public statement by a party to the conflict of its intention to comply with the order, respectively. Under s. 111.18, the Council is expressly empowered to intervene, on the basis of ss. 111.16 and 111.17, in cases of concerted action connected to labour conflict, other than a strike or slowdown, which is nonetheless prejudicial or likely to be prejudicial to services to which the public is entitled.

29                               The first four broadly worded and flexible options listed in s. 111.17 grant the Council the power to determine the requisite and appropriate intervention to prevent or stop prejudice to public services as well as the reparation of prejudice once occasioned. Once the Council has determined the existence of circumstances described in the opening paragraph, the appropriate injunctive or reparative response is left to the Council to fashion as required by the context. The final two types of orders are not as directly linked to stopping or remedying the conflict’s immediate effect on the public. The fifth appears to have the goal of facilitating the resolution of the conflict itself while the sixth is aimed at providing assurance to the public that the disturbance will be stopped.    

30                               In my opinion, the structure and wording of the remedial provisions indicate the legislator’s intention that the Council is to play a pivotal role in ensuring the public’s ongoing access to services during times of labour conflict in the sectors targeted by this Chapter. Where an employee association has acquired the right to strike and concluded a sufficient list or agreement for essential services, compliance with this list or agreement may be ordered. In other instances, where the conflict threatens or interferes with services to which the public is entitled, as determined by the Council,  the legislator has clearly opted for a flexible determination, one which reflects the context and circumstances surrounding the conflict and the stage at which the parties are in acquiring the right to strike or lock-out. This determination is to be made by an administrative body, the Council. 

31                               Thus, the wording of the remedial provisions leads me to conclude that the Council is intended to determine the appropriate remedial orders in the circumstances. Our analysis does not end here, however. Other factors are essential to achieving a functional and pragmatic interpretation of enabling legislation: the purpose of the statute and reasons of the legislator in creating this tribunal, its field of expertise, and, finally, the problem before it.  

32                               The need for this specialized body, and thus the purpose it serves in the Code, become evident if we consider the unique consequences of extending the rights to bargain collectively and to strike to employees in public services or in the public and parapublic sectors. When “public” employees strike, the pressure exerted on the employer is not largely financial, as in the private sector, but rather arises from the disruption of services upon which society depends for the daily activities of its members. While consumers may simply go to another source for goods and services provided by private enterprise, alternatives to the services targeted by the special regimes may be unavailable or very difficult and expensive to obtain.  In many cases a strike may save the state money in its disruption for a period of time of services which it must normally provide: M. Lemelin, Les négociations collectives dans les secteurs public et parapublic: expérience québécoise et regard sur l’extérieur (1984), at pp. 5-7 and 225-26; see also: J.-L. Dubé and P. Gingras, “Historique et problématique du régime de négociation collective dans le secteur de la santé et des services sociaux” (1991), 21 R.D.U.S. 519, at pp. 546-48.

33                               While the public, through its elected representatives, has chosen to sustain a certain level of disruption in order to extend the same rights to public employees as are available to other workers, this cannot be unlimited. The government must balance the right to strike against other entitlements and needs such as those established in human rights and social legislation. By way of example, the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and the Canadian Charter of Rights and Freedoms  ensure basic freedoms as well as the rights to life, security of the person, physical integrity, and equality without discrimination. Section 5 of the Act respecting health services and social services, R.S.Q., c. S-4.2, guarantees the further statutory rights to continuous, appropriate and personalized health and social services in the province. See also: Lemelin, supra, at pp.  225-26; Dubé and Gingras, supra, at pp. 550-51.

34                               The health and safety of the greater populace will thus always take priority over the workers’ and/or employers’ interests in achieving a fair and equitable settling of the terms of employment. Where these parties are willing to provide advance assurance that these basic public interests will be protected, some disruption of services will be tolerated. However, where the parties fail to do so or otherwise fail to respect the requirements for the legal exercise of pressure tactics, the public will not tolerate interference with fundamental services as a means for parties to a labour dispute to acquire concessions from one another. For this reason, in addition to the penalties attached to illegal strikes and other contraventions of the Code, which are enforced by the Labour Court, the Council has been granted broad powers to make orders which maintain the public’s ongoing access to these services.

35                               It is important to note the difference between the role of the Conseil des services essentiels and that of the labour relations tribunal in, inter alia, other provinces. The part of the Code which creates and grants powers to the Council represents a significant departure from the balance of the Code, which parallels labour relations legislation in, inter alia, other provinces.  As the Council both explained in its reasons and argued as mis en cause, its role is not to resolve the labour conflict or protect the collective bargaining rights of the parties to the labour dispute. This responsibility falls to the labour commissioners, arbitrators and Labour Court. Rather, given a conflict’s existence, the Council’s role is to ensure the protection of the public from consequences of this dispute which their representatives have chosen not to tolerate. This conclusion is supported by recent jurisprudence of the Quebec Court of Appeal:  Syndicat canadien de la fonction publique v. Conseil des services essentiels, supra, at p. 2657; Syndicat des chauffeurs de la Société de transport de la Ville de Laval v. Conseil des services essentiels, [1995] R.D.J. 597; Communauté urbaine de Montréal v. Fraternité des policiers et policières de la Communauté urbaine de Montréal inc., [1995] R.J.Q. 2549. This function is necessary if “public employees” are to have the right to strike and to bargain collectively.

36                               Recourse to a specialized tribunal with broad remedial powers is not the only means of achieving this purpose, of course. Other provinces, inter alia, have established a whole range of mechanisms to protect the public from the consequences of labour conflict involving “public” services and employees: see Lemelin, supra, at pp. 308-17. Indeed, the Quebec government has long maintained the recourses of withholding or removing the right to strike, Superior Court injunction, and Special Act of the legislature ordering a return to work or the conclusion of a collective agreement on specified terms: Lemelin, supra, at pp. 229-51; Dubé and Gingras, supra, at pp. 523-43.

37                               The need for a specialized and independent tribunal becomes evident, however, if we consider the well-documented history of two decades of intense labour conflict which followed the public employees’ acquisition of the right to strike in the mid-sixties. Attempts by the government during this period to protect the public from excessive interference with public services through Special Bills and injunctions drew criticism from the public and the parties involved in the disputes in these sectors. These measures were viewed as both contributing to the conflict and largely ineffective, given the Union members’ common disregard for the sanctions imposed. The creation of the Council in 1982 represents an effort to respond to these criticisms: Lemelin, supra, at pp. 244-46. As Proulx J.A., writing for the Quebec Court of Appeal, explained in Fraternité des policiers et policières, supra,  at p. 2557:

[translation] Before the Council was created in 1982, a number of mechanisms had been set up by the legislator to ensure that essential services were maintained in the event of a public sector strike. . . . The failure of the mechanisms that preceded the Council to determine what were essential services led, through a number of amendments to the Labour Code, to the creation in 1982 of a “specialized and permanent” institution [citing J. Bernier and M. Lemieux, “La grève et les services essentiels au Québec” in J. Bernier, Grèves et services essentiels (1994), at p. 215] responsible for maintaining essential public services:  the “Conseil des services essentiels”.  While the Council’s role at that time can be said to have been limited to public services, that role was expanded in 1985.  It can be inferred from the new statutory provisions of 1982 that its role did not extend to a public service in respect of which there was no right to strike.  It must be pointed out, however,  that from the time of the Council’s creation, the law conferred a role of sensitization, information, mediation and recommendation on it.

38                               Just three years later, in 1985, the Council was given the further responsibility of implementing the essential services scheme affecting certain employees in the public and parapublic sectors and was also granted the broad remedial powers at issue in this appeal.  No longer limited to its roles of “sensitization, information, mediation, and recommendation”, the Council now plays a pivotal role in enforcing the ongoing access by the public to services provided by these employers: Fraternité des policiers et policières, supra,  per Proulx J.A., at p. 2557. Proulx J.A. describes the subsequent creation of the remedial provisions at issue in this appeal in the following terms, at p. 2557:

[translation] Then in 1985, just three years later, the Parliament effected a major change in policy, through a reform that extended the Council’s jurisdiction and broadened its powers, by enacting Division IV, “Remedial Powers”.

39                               The extension of the Council’s role thus represented a significant change in the policy of the Quebec government. Jean Bernier and Madeleine Lemieux have called the legislature’s choice in establishing this role for the Council a “déjudiciarisation” (de-judicializing) of labour relations in the public services and sectors:  “La grève et les services essentiels au Québec” in J. Bernier, ed., Grèves et services essentiels (1994), 205, at p. 223:

[translation] The legislator also had another unequivocal objective:  to “de-judicialize” on labour relations in public services and the public sector.  Until then, labour disputes had involved extensive judicial proceedings, such as injunctions, citations for contempt and criminal prosecutions, all of which were taken in the ordinary courts.  All these disputes would now be within the jurisdiction of an administrative tribunal.

The evolution of this body and its responsibilities indicates a clear choice by the legislator to establish a permanent, proactive mechanism which is sensitive to the circumstances and concerns of the various parties yet ensures, on an ongoing basis, that parties in these sectors limit themselves to the legal pressure tactics available to them under the Code.

40                               The provisions of the Code which establish the Council’s membership and basic mode of functioning support this interpretation of the legislator’s intention. They create a body with sensitivity to the problems in labour relations involving “public” employees and expertise in the implementation of legislative mechanisms to protect public services. The Council consists of eight members appointed by the government. Apart from the president and vice-president, two members are chosen in consultation with representative employee associations, two in consultation with employer associations, and the final two after conferring with organizations which represent the interests of citizens affected by interruption of services:  s. 111.0.3.   The president and vice-president sit for a maximum of five years while the other members sit for three years:  s. 111.0.4. The members must not take other work and are paid while in office:  ss. 111.0.4 and 111.0.6.  In carrying out their duties, they are supported by professional services:  s. 111.0.13. 

41                               Not only is the Council representative of the various perspectives on the issues it is authorized to address, it sits permanently and is involved on an ongoing basis in the implementation of the regimes governing “public” employees.  These provisions reveal the Council to be a specialized body eminently capable of ensuring both the balanced determination of the essential services to be rendered during a legal strike and the fashioning of fair and effective injunctive and reparative measures in cases of illegal actions arising from labour conflict.

42                               This tribunal, the regimes it implements, and its broad remedial powers constitute a system of collective bargaining for “public” employees which was specially developed by the legislator to protect the public on an ongoing basis from unwarranted interference with services upon which they depend. The legislator has clearly opted for a flexible, proactive mechanism which provides optimum protection for the public and facilitation of the use of legal means and regulated pressure tactics to resolve disputes. The effectiveness of this system depends upon the Council’s power to make decisions and orders which are sensitive to the circumstances involved and reflective of the mechanisms established in the Code. Given this description, the final question to be answered is whether the issue before this tribunal was one which lies logically at the heart of its specialized jurisdiction.

43                               In describing the problem before the Council for the purposes of this appeal,  we must remain mindful that the finding that a collective refusal to work overtime will constitute the requisite concerted action for s. 111.18 was not challenged before the Court of Appeal. The ground of review advanced by the respondent was that the Council did not have the jurisdiction to make the type of order it did, namely, one which temporarily suspends an individual right in a collective agreement. Thus, the task faced by the Council was the fashioning of an effective order to secure the provision of services to which the public is entitled.

44                               On the basis of this Court’s decision in Acadie, supra,  the Court of Appeal characterized the Council’s remedial provisions as jurisdiction-limiting. The order was therefore subjected to review by the court on a correctness standard.  This application of the case law regarding jurisdictional questions was in error. As I have stated, this Court’s decision in Bibeault, supra, mandates the application of a pragmatic and functional approach to interpreting the enabling legislation. This approach must be applied even to those provisions which appear to limit a tribunal’s jurisdiction. Failure to use this method of analysis led the Court of Appeal to reach an incorrect result in assessing whether the Council’s determination of the appropriate order in this case constituted a jurisdictional question.

45                               Upon considering the various factors relevant to this analysis, I conclude that the making of the order in question falls squarely within the intended jurisdiction stricto sensu of the Council. When faced with a concerted action which is or threatens to be prejudicial to services to which the public is entitled, the Council is authorized to fashion an order which is required and reasonable in the circumstances to secure the maintenance of these services.  Clearly, this is the very type of problem this permanent, specialised body is intended to remedy. Were a court to treat this as a jurisdictional issue, the inevitable result would be to usurp the powers intended for the Council and to ignore its raison d’être. To review the order in this manner would fly in the face of the legislator’s choice to address such problems through a context-sensitive, case-by-case determination of the appropriate intervention. I conclude that the Court of Appeal erred in characterizing the Council’s order as a jurisdictional error.

46                               My conclusion that the determination of the appropriate order in this case fell within the specialized jurisdiction of the Council is consistent with the recent decision of this Court in  Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369. In that case, writing for the majority, and after applying the Bibeault test, Cory J. held that the decision of the Canada Labour Relations Board to make a remedial order (in this case, one which interfered substantially with the free collective bargaining process) fell within its specialized jurisdiction. The Board had ordered the employer to tender a tentative agreement and the parties to negotiate outstanding issues, subject to binding mediation if necessary. The provision in question, s. 99(2)  of the Canada Labour Code , R.S.C., 1985, c. L-2 , establishes the Board’s powers to make remedial orders in the event of the contravention of certain provisions of this Code. This subsection is phrased in broad terms similar to those of the remedial provisions at issue in this appeal. A majority of this Court held that once the Board had found a contravention of a targeted section, the fashioning of the appropriate order fell within its jurisdiction. The order was found to be subject to review only on the grounds that it constituted a patently unreasonable exercise of the remedial powers granted under s.  99(2).

47                                As I have stated, the Court of Appeal erred in relying upon the decision in  Acadie,supra, to determine whether the question of the appropriate order is a jurisdictional question.  Upon applying the Bibeault analysis, I have reached a different result from the Court of Appeal. My conclusion does not contradict or affect this Court’s decision in Acadie, however. In my opinion, that case does not support the conclusions drawn by the Court of Appeal. Granted, Acadie is of some relevance to the case before us, in its recognition that a concerted exercise of the individual right to refuse overtime is a reasonable interpretation of what constitutes an illegal strike. Nonetheless, it may be distinguished from the case at bar on two significant points. First, the remedial provisions which were engaged in that case upon a finding of the existence of an illegal strike, ss. 91  and 93  of the Canada Labour Code  (formerly ss. 182  and 183.1), differ greatly from the remedial powers at issue in this appeal. The Canada Labour Code  lists specific orders which can be made, all of which target the illegal action itself. In Quebec’s code, the Council’s remedial powers are much more flexibly and broadly worded and have the further purpose of protecting public services.

48                               Second, the part of the order which was quashed in Acadie was not that which prohibited the exercise of the individual right to refuse overtime. Indeed, this element of the order was upheld as it was expressly allowed under the remedial provision for illegal strikes. Rather, this Court quashed the part of the order which sought to resolve, through accelerated grievance arbitration,  the conflict which gave rise to the illegal action. The Court held that such an exercise of the Board’s powers could not be supported on the legislation as the order was not limited to a remedial prohibition of the illegal activity. Indeed, it represented an attempt to remove the source of the conflict in a manner which contradicted the principle of free collective bargaining by the parties which underlies the Canada Labour Code . As the Court of Appeal  observed in this appeal, this type of intervention has been expressly authorized for the Council. In my opinion, however, its inclusion is not counter-indicative of the Council’s power to make an order which suspends the right of some employees to refuse overtime without justification. Rather, it indicates the distinction I have identified between the role of the Labour Relations Board in, inter alia, other provinces -- which is to support free collective bargaining -- and that of the Council, which is to protect the public’s access to services.

49                               For the above reasons, in my opinion, the Court of Appeal ’s application of the decision in Acadie, supra, to the facts of this case was also in error. The making of the remedial order clearly falls within the Council’s stricto sensu jurisdiction.  

B.  Patent Unreasonableness

50                               A more extensive interpretation of the Council’s jurisdiction requires asking whether the Council, without exceeding this jurisdiction, could address the problem it was requested to resolve. To answer this question, one must consider the nature of the tribunal, the statutory and policy-related reasons for its existence, and the type of problem before it in the particular case:  Bibeault, supra. Since, in this case, we are dealing with an administrative tribunal acting within its jurisdiction stricto sensu, and judicial review of its decision is sought (as opposed to an appeal of its order), the only remaining question is whether the Council exceeded its jurisdiction in making an order that is “patently unreasonable”.  In my view, for the following reasons, the Council remained within its jurisdiction in making the remedial order at issue in this appeal. 

51                               It is useful to recall at this point that the Council is a specialized tribunal protected by the strongly worded privative clause in s. 139.  This provision shields  the decisions of not only the Council, but also the certification agents, labour commissioners and Labour Court, from review or appeal except on questions going to jurisdiction. Clearly, the legislator intended the Council to receive the same protection from curial intervention as the other administrative decision-makers created under the Code, decision-makers in the field of labour relations and, therefore,  traditionally granted a broad measure of deference:  see CUPE, supra.  In addition, the Council is a permanent body with the specialized expertise and sensitivity needed to assess the effect of labour conflict on public services and to ensure that employees and unions not exceed the Code’s limits on their collective action. The determination of both the potential prejudice to public services and the most effective means of remedying it is a largely factual one to which the courts may contribute little upon review. The Council must also administer complicated regimes governing the acquisition of the right to strike by  “public employees” and has established a jurisprudence in this regard.

52                               In the presence of a strongly worded privative clause, where the factual and legal aspects of the problem facing the tribunal place the question squarely within its sphere of expertise, this Court has consistently found that the tribunal’s decision will stand unless it is “patently unreasonable”. This principle has been affirmed in a recent case before this Court: Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, and is consistent with the line of this Court’s jurisprudence which has addressed the principles for determining the appropriate standard of review: see CUPE, supra; Bibeault, supra.   The strong connection between the problem before the Council and both its specialized expertise and the statutory regime which guides and protects its decisions provides ample indication of the need for a very high threshold of review.

53                               As this Court has stated repeatedly, in assessing whether administrative action is patently unreasonable, the goal is not to review the decision or action on its merits but rather to determine whether it is patently unreasonable, given the statutory provisions governing the particular body and the evidence before it. To determine whether the tribunal’s interpretation of a legislative provision is reviewable, the Court must ask itself the following question:

. . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

See CUPE, supra, at p. 237. McLachlin J. writing for the majority in Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R 644, at p. 669, further explained that:

Only where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. 

54                               How does one assess the reasonableness of a remedial order, such as the one at issue in this appeal? Guidance in this task is provided by the decision of the majority of this Court in Royal Oak, supra. As I stated above, the remedial provision at issue in that case was s. 99(2)  of the Canada Labour Code . This provision authorizes the Canada Labour Relations Board:

[f]or the purpose of ensuring the fulfilment of the objectives of this Part  ... by order, [to] require an employer or a trade union to do or refrain from doing any thing that it is equitable to require . . . in order to remedy or counteract any consequence of the contravention [of certain codal provisions] or failure to comply that is adverse to the fulfilment of those objectives. [Emphasis added.]

55                                      As I have already indicated, the interpretation of this provision was found to fall within the jurisdiction stricto sensu of the Board. In addressing the rational basis of the order, Cory J., writing for the majority, arrived at four situations where the order would be patently unreasonable. These included: 1) where the remedy was punitive in nature; 2) where the remedy granted infringes the Charter; 3) where there is no rational connection between the breach, its consequences, and the remedy; and 4) where the remedy is inconsistent with the objects and purposes of the Code. With the exception of the Charter infringement, which could apply to any administrative order, each of these limits finds its roots in the language of the provision itself, as indicated by the portions of the s. 99(2) which are emphasized in the extract provided above.  It is interesting to note that these text-based limits correspond with a pre-Bibeault decision of this Court which interpreted this provision, National Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R. 269, as cited by Cory J. in Royal Oak,  supra, at p. 403.   

56                               The provision at issue in Royal Oak has a very different purpose from the remedial provisions exercised by the Council in this appeal. At the same time, the Court is faced with a similar task in the two cases -- how to determine whether an order made pursuant to broadly and flexibly worded powers is sufficiently reasonable to escape review. In my opinion, the approach applied in Royal Oak of assessing the order in light of the principled limits evident in the wording of the enabling provisions is suitable for the case before us.

57                               The Council relied upon the first and fourth options in s. 111.17 to make an order with the purpose of maintaining services for the public. In my view, the following emphasized phrases in this section demonstrate the principles which should guide the Council in exercising these powers:

111.17. The council, if it considers that the conflict is or is likely to be prejudicial to a service to which the public is entitled or that the essential services provided for in a list or agreement are not rendered during a strike, may, after giving the parties the opportunity to submit their views, make an order to ensure that a service to which the public is entitled is available, or require compliance with the law, a collective agreement or an agreement or list on essential services.

The council may

(1) enjoin any person involved in the conflict or any category of these persons it determines to do what is required to comply with the first paragraph of this section, or abstain from doing anything in contravention thereof;

                                                                   . . .

(4) order every person involved in the conflict to do or abstain from doing anything that it considers reasonable in the circumstances in view of maintaining services for the public; [Emphasis added.]

58                               The above excerpts reveal to me two situations where an order aimed at maintaining services for the public would be patently unreasonable: a) the people targeted are not involved in the labour conflict; b) there is no rational connection between the action ordered or prohibited and the maintenance of the public services which were found to be threatened or prejudiced. I note that, as was stated in Royal Oak,  supra, where an order is found to violate the Charter, it would also necessarily fail the “patent unreasonableness” test. As the constitutional validity of the order in this case has not been challenged, however,  I need not address this issue.     

59                               I also note the existence of the further “limits” of necessity and reasonableness in the first and fourth options, respectively. The Court of Appeal  emphasized these terms in deciding whether the order had been correctly made.  In my opinion, these are not helpful in reviewing the order under the test of patent unreasonableness, which, of course, was not the one used by the Court of Appeal . The assessment of reasonableness and necessity will be a contextual, fact-dependent determination. This wording serves more as an indication of the important role of the Council’s sensitivity and expertise than as appropriate limits to be applied by a reviewing court.  Otherwise, a review for patent unreasonableness could all too easily become an avenue for the court’s substitution of its own view of the appropriate remedial action in the circumstances.

60                               The respondent has challenged the rational connection between an order which prohibits individual employees from exercising their individual right to refuse overtime and the concerted action which formed the source of the prejudice to the public. The respondent further argues that the suspension of a provision of the collective agreement contradicts the objectives of the Code, which are to support the free collective bargaining process and respect for the collective agreement. While the Court of Appeal did not address the reasonableness of the order, it nonetheless concluded that an order made by the Council could not suspend a provision of the collective agreement.

61                               I find the respondent’s arguments and Court of Appeal ’s conclusion on these points unconvincing.  The source of the likely prejudice to public services in this case was a concerted exercise of an individual right in the collective agreement for a defined period. According to the factual findings of the Council, the collective refusal to work overtime threatened to cause serious  disturbances to public services, to the point of creating emergency conditions. The order states the findings of the Council as regards the concerted action and the emergency conditions it would cause. Based on these findings and the Council’s resultant remedial jurisdiction, it then orders the Union to withdraw the instruction, to refrain from preventing the employees from attending work, and to take measures to ensure their attendance. It further orders the employees themselves to report to work as requested by the employer.

62                               Where a right gained through collective bargaining is exercised collectively for the purposes of applying illegal pressure tactics, preventive action to maintain public services will necessarily suspend the exercise of this right, by the individuals involved in the conflict, for these ends. Given the broad powers in s. 111.17 to make orders targeting any persons or groups of persons involved in the conflict, the Council clearly had the power to target the Union both through its representatives and its individual members.   It  is also logical to encompass the individual Union members who participate in the illegal action in case the Union delegates refuse to withdraw their instruction. I find there to be a rational connection between the source of the prejudice and the order forbidding the Union representatives and individuals to refuse overtime for the purposes of collectively pressuring the employer to accede to the Union’s wishes. Moreover, only those involved in the conflict were prevented from exercising their individual rights in this manner.  The order by the Council falls into neither of the two situations which I have identified as constituting a patently unreasonable error.

63                               This type of order is also consistent with the objectives of the Code in creating these remedial provisions. As has already been stated, the purpose of the Council is not to facilitate the collective bargaining process, but rather to ensure that labour disputes involving  “public employees” not unduly interfere with services to which the public is entitled. The order in this case was not only consistent with these objectives, it was tailored specifically to fulfill them in the circumstances. This situation differs greatly from that in Royal Oak, supra, where the remedial provision dictated that the order further the general purposes of the Canadian Code, viz. the promotion of industrial peace through free collective bargaining.  

64                               I therefore conclude that the order represents a rationally supportable interpretation by the Council of its remedial provisions. In so doing, I have, as I think I should, interpreted the order in a global, purposive manner consistent with the intent of the legislature and of the Council. In my view, the order restricts the right to refuse overtime only where it is for the purposes of illicit pressure tactics related to labour conflict and only for the period of the concerted action identified by the Council.  The preamble of “whereas” statements allows such an interpretation. Our task is not to determine whether this Court would have made the order in these terms, but rather whether it constitutes a patently unreasonable exercise of the Council’s remedial powers.  I do not find the order to be patently unreasonable given the adequate guidance provided by its opening statements.  As Macerola J. of the Quebec Superior Court stated in Syndicat du transport de Montréal v. Conseil des services essentiels, Sup. Ct. Mtl., No. 500-05-000353-902, February 8, 1990, after recognizing that the order in question was not as clearly worded as it could have been:

[translation] However, any order must be read in light of the way in which it was delivered. . . .

It must also be realized that the order is the conclusion of the reasons set out in the decision and that, as such, they together form an integral part of the decision and the justification therefor.

65                               Nonetheless, both the Court of Appeal and the respondent have identified a danger which may arise from carelessly wording such orders. The Council’s order in this case might have been interpreted by the employer or employees as allowing the City to insist on overtime hours from all “blue-collar” employees, at its behest, regardless of any potential reason for refusing, and for the entire period preceding the acquisition of the right to strike. This would involve a direct temporary suspension of a right in the collective agreement, even in the absence of participation in a concerted action, and may arguably not have withstood review even on the most deferent standard. 

66                               The respondent also argues that, in consequence, individuals who had no involvement in the concerted action could be cited for contempt of court were they to refuse overtime for personal reasons. According to the respondent, the principle that contempt of court is strictissimi juris should render such an order invalid, citing, inter alia, this Court’s decision in Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065. I do not agree. As Gonthier J., writing for the majority, explained in that decision, this principle has led the courts to develop a number of additional strict procedural rules for contempt hearings to ensure that the penalty not be unfairly applied. For example, where the legal effect of an order is difficult to determine, the respondent is to be given the benefit of the doubt. Furthermore, the applicant for a motion for contempt must prove the other party’s intent to contravene the order beyond a reasonable doubt: Vidéotron, at p. 1077, per Gonthier J.  My dissenting opinion in Vidéotron, which related to applying strict procedural entitlements to contempt proceedings involving purely private disputes, is of no concern in the case before us given the public nature of the Council’s order.

67                               In any event, in my opinion the principle that contempt of court is  strictissimi juris would actually serve to ensure that the quasi-penal sanctions pursuant to art. 50 et seq. C.C.P. for breaching the order will only target the Union representatives and those employees who participated in the overtime ban. Only these individuals can know the legal effect of their refusal to respect the order and/or to report to work, given the opening statements of the order linking it to the concerted action. Moreover, the applicant on a motion for contempt bears the burden of proving intent to contravene the order beyond a reasonable doubt. Thus, I would not find the order invalid in the basis of this principle. The principles governing contempt proceedings support a finding that the order is not patently unreasonable.

68                               That being said, the problems relating to interpretation, and thus further litigation, could be avoided through more careful attention to the wording of such  orders. In the future, I would suggest that the duration of the order, the targeted action, and the targeted employees be stated as clearly as possible. In this case, the Council would have done well to indicate that the order would last only as long as the concerted action prejudicing public services and that the employees were prohibited from refusing to work overtime for the purposes of participating in the concerted action. At the very most, such an order would interfere with an employee’s right to provide no justification for a refusal of overtime hours for the period of the collective action. An employee should be able to avoid being summoned for a contempt hearing by giving the reason for the overtime refusal at the time the employee is asked to work. He or she may choose not to do so as the employer will still have to prove beyond a reasonable doubt that the employee intended to contravene the order, that is, to participate in the unlawful concerted action. 

69                               This Court has long recognized that ordering employees to report to work as required under the collective agreement is a valid exercise of remedial powers relating to a declaration of an illegal strike: International Brotherhood of Electrical Workers, Local Union 2085  v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628. I also observe, once again, that in Acadie, supra, the part of the order which ordered both the union and the individual employees to cease the ban on overtime was upheld. There is no reason to disturb the jurisprudence of the Council allowing orders of this nature. See: Hydro-Québec et Syndicat canadien de la fonction publique, section locale 957, C.S.E. 88-1691/3c, July 14, 1989; Hydro-Québec et Syndicat canadien de la fonction publique, section locale 1500, C.S.E. 88-1691/3c, July 11, 1989.

70                               In conclusion, the Court of Appeal  erred in finding that the order made by the Council constituted an excess of jurisdiction. The decision as to the appropriate remedial action to ensure protection of public services is one which falls squarely within the specialized jurisdiction of the Council. The order targeting not only the Union instruction to refuse overtime and the Union representatives who made it, but also individual employees who participated in the concerted action, represents a reasonable exercise of the remedial powers granted the Council. Guthrie J. correctly found that the decision and order fell within the specialized jurisdiction stricto sensu of the Council and were not patently unreasonable. 

71                               On appeal from the judgment of Guthrie J., however, the respondent had advanced an alternative ground of review which was not addressed by the Court of Appeal . The respondent has reiterated the argument before this Court that the failure of the Council to make a machine recording of the hearing violated the rules of natural justice. It is to this issue that I now turn.

2.  Natural Justice and the Recording of Administrative Hearings

72                               In addition to challenging the remedial jurisdiction of the Council before the Court of Appeal , the respondent argued that the lack of a machine recording of the Council’s hearing violated the rules of natural justice. It claimed that the trial judge had erred in rejecting this ground of review. At the outset of the hearing before the Council, the respondent had asked whether the proceedings would be recorded and was answered in the affirmative. Owing to either human error or machine malfunction, the events of the hearing were not recorded, however. While the Code does not require a recording of hearings before the Council, it is their practice to do so. With no transcript of the hearing, the argument goes, the respondent is unable to advance potential grounds of review. It claims that the rules of natural justice require a verbatim record of the proceedings before the Council and asks that a rehearing of the case by the Council be ordered. 

73                               To address this specific issue, one must start with the basic principles underlying “natural justice”. Justice Dussault and Professor Borgeat describe the concept in the following terms:

It is not an easy task for the purposes of judicial review of the legality of administrative action to delimit the notion of natural justice with any precision. It embodies the “basic principles of fair procedure which are an indispensable concept and the basis of the safeguards of individual rights in our judicial system”, but has been described as a concept  “sadly lacking in precision” and “not easy to define”. . . .

Nonetheless, the concept of natural justice does contain two fundamental universally recognized principles: first, that no man be condemned unheard (audi alteram partem), and second, that no man be judge in his own cause (nemo judex in sua causa).

(Administrative Law: A Treatise (2nd ed. 1990), vol. 4, at pp. 244-45.) 

74                               The question that arises in this appeal relates to the first principle. We are asked to determine whether the procedural requirements for a fair hearing in this context include the duty to make a recording of the proceedings. As Justice Dussault and Professor Borgeat explain, the scope and content of one’s right to a fair hearing are determined and developed at common law. These determinations are made on a case-by-case basis through an appreciation of the factual context and the statutory regime governing the administrative body:  Dussault and Borgeat, supra, at pp. 246-47 and 276-77; see also 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, per L’Heureux-Dubé J. The scope of the duty is not at issue in this appeal, for the Council held a full hearing as required by statute. Rather, we must determine the content of the duty in this context. The question to be answered is whether the principles of natural justice require the Council to make a verbatim record of proceedings before it.

75                               In the absence of any express statutory requirements, the traditional common law requirements for a record of an administrative tribunal’s proceedings include the document which initiated the proceedings and the document containing the tribunal’s adjudication. Neither the reasons for the ruling, nor evidence presented at the hearing, have been considered necessary elements of the record to be presented to the superior tribunal upon appeal or review. Moreover, administrative bodies are normally under no obligation to make verbatim transcripts or recordings of their proceedings:  D. Jones and A. de Villars,  Principles of Administrative Law (2nd ed. 1994), at pp. 375-76.

76                               Some deviation from this traditional approach has been evident in the jurisprudence of lower courts. Most notably, in Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388, the Federal Court of Appeal found that as the lack of a transcript of a hearing before the Refugee Division of the Immigration and Refugee Board prejudiced the appellant in advancing an appeal of that decision, it constituted a denial of natural justice. The Federal Court of Appeal expressly disapproved of this decision in subsequent cases, however: Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232, followed in Rhéaume v. Canada (1992), 153 N.R. 270. In Kandiah, the Federal Court of Appeal acknowledged the concern underlying the  decision in Tung, that is, that an applicant may be deprived of his or her grounds of review or appeal given an absence of a transcript of what transpired at the impugned hearing. It held, however, that if the decision facing the court could be made on the basis of evidence established through other means, the principles of natural justice would not be infringed. The reviewing court should refrain from quashing the administrative order in such cases. This decision has been considered authoritative in the academic commentary on this issue: R. W. Macaulay and J. L. H. Sprague, Hearings Before Administrative Tribunals (1995), at p. 12-98.

77                               Even in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a “serious possibility” of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review: Cameron v. National Parole Board, [1993] B.C.J. No. 1630 (S.C.), which follows Desjardins v. National Parole Board (1989), 29 F.T.R. 38. These decisions are compatible with the test developed by this Court in the criminal context in R. v. Hayes, [1989] 1 S.C.R. 44. As I stated for the majority, at p. 48:

A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal.

This approach is not wholly inconsistent with the decision in Cahoon v. Conseil de la Corporation des Ingénieurs, [1972] R.P. 209, a case upon which the respondent also relies. That case involved an appeal on the merits to the Board of the Corporation of Engineers from a decision of the Corporation’s disciplinary committee. While the Quebec Court of Appeal discouraged reviewing courts from evaluating the effect of the gaps in the record on the outcome of hearing, the transcript was found to deprive the appellant of a full and fair hearing of his appeal by the Board on the basis that it was [translation] “seriously defective”.

78                               The respondent has also relied upon jurisprudence of the Labour Court in Quebec where the absence of a complete verbatim transcript of the inquiry made by the administrative body appealed from was found to deny the appellant the rights to natural justice and a full and fair hearing: Beaudry v. Fournier, Judge Bernard Prud’homme, Labour Ct. Mtl., No. 500-28-000165-93, March 3, 1994, D.T.E. 94T-433; C.I.L. Inc. v. Plante, [1983] T.T. 121; Spécialités Jones Ltée v. Langlois,  [1981] T.T. 143; Unicast Canada ltée v. Léveillé, Associate Chief Judge Bernard Lesage, Labour Ct. Mtl.,  No. 500-28-000062-919, June 27, 1991, D.T.E. 91T-879. These cases all involved regimes with a broad statutory right of appeal to an appellate administrative tribunal on the merits of the initial decision, but no statutory right to a recording of the inquiry.

79                               In my view, the above jurisprudence of the Labour Court is not inconsistent with the principles enunciated in Kandiah, supra. In each case, as the Labour Court expressly acknowledged, the appeal turned on the appellate tribunal’s review of the findings of fact and weighing of the evidence, which would be impossible without a complete record of the testimony at the initial inquiry. Such cases would likely fall within the exception mentioned in Kandiah, supra, as no other means of reproducing all of the evidence before the commission of inquiry would be readily available. This would substantially interfere with an appellate tribunal’s ability to review the initial decision on its merits.

80                               In my view, the decisions in Kandiah and Hayes, supra, provide an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal’s hearing. In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result. They also avoid the unnecessary encumbrance of administrative proceedings and needless repetition of a fact-finding inquiry long after the events in question have passed.

81                               In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice.  Where the statute does mandate a recording, however,  natural justice may require a transcript. As such a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must be shown to raise a “serious possibility” of the denial of a ground of appeal or review before a new hearing will be ordered. These principles ensure the fairness of the administrative decision-making process while recognizing the need for flexibility in applying these concepts in the administrative context.  

82                               The question we must therefore answer in the case at bar is whether the respondent was denied a ground of review by virtue of the absence of a recording of the hearing before the Council. In its affidavit to support its application for judicial review, and in its argument before this Court, the respondent had made the following challenges to the factual findings of the Council: a) there is no evidence of a connection between the pressure tactics of the blue-collar employees and conflict over Bill 102; b) there is no evidence of the Union instruction to refuse overtime; and c) certain of the findings of the tribunal as to the effects of a lack of overtime workers on public services are in error. On the basis of these challenges, the respondent argues that there is a complete absence of evidence for an essential element of the circumstances which give rise to the Council’s remedial jurisdiction, namely, a concerted action in response to a labour conflict. The ground of review which the respondent alleges to be denied, given the absence of a transcript of the hearing, is that there is a lack of evidence supporting an essential element of the tribunal’s decision. According to the respondent, the lack of a record of the evidence renders it impossible to advance this ground of review, thereby constituting a denial of the principles of natural justice.

83                               As I have stated, in the absence of a statutory right to a recorded hearing,  a party’s rights to natural justice will only be infringed where the court has an inadequate record upon which to base its decision. In the case on appeal, the respondent claims that there is a complete lack of evidence for an essential element under s. 111.18, namely, the presence of a concerted action related to labour conflict. In determining whether this ground of review may be denied in the absence of a transcript, it is appropriate to refer to the other means before the Court of learning what went on at the hearing. In the case on appeal, affidavits alleging the factual inconsistencies listed above were filed by the respondent in support of its application for judicial review. However, in response to these, the Council filed affidavits of the various individuals whose testimony provided the evidence upon which it relied in its adjudication. These affidavits demonstrate that all of the essential elements of the s. 111.18 determination were accounted for in the testimony. The only exception is the link between the pressure tactics and the conflict over Bill 102. Nonetheless, the existence of pressure tactics alone are indicative of some conflict and the Council had noted the similarity between the circumstances in this case and those of a work stoppage earlier that year in relation to the conflict over the Bill. Moreover, each affidavit submitted by the Council clearly states that the Union representative acknowledged issuing a directive to refuse overtime.

84                               In my opinion, the respondent has failed to establish that the record before the reviewing judge in this case provided an inadequate basis for its decision. This would require more than the unsubstantiated allegations made by the respondent. It is not enough simply to claim that there was no evidence for a particular finding when the other party can provide a sworn affidavit as to the truthfulness of the testimony referred to in the tribunal’s reasons. The respondent in this case would have had to provide some basis for rejecting the witnesses’ testimony as recorded in the Council’s affidavits or describe evidence which was rejected or ignored. I note that the respondent did not pursue cross-examination on the affidavits presented by the Council in response to the application for judicial review.

85                               We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852.  Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal’s findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal’s decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. 

86                               The affidavit evidence provided in conjunction with the application for judicial review provided a more than adequate record for reviewing the factual findings of the Council to determine whether the respondent’s claim was grounded. Where a tribunal’s jurisdiction or respect for procedural fairness is subject to review pursuant to art. 846 C.C.P., affidavits setting out the facts supporting the motion must be filed:  art. 834 C.C.P. In cases involving judicial review on jurisdictional matters, these documents will often provide an appropriate means of providing the necessary record for the court’s determination. 

87                               I conclude from the foregoing, as did Guthrie J., that the respondent has not been denied natural justice by the lack of a recording of the hearing before the Council. The reviewing judge had an adequate record to determine the grounds of review advanced by the respondent.

V.  Conclusion and Disposition

88                               The Council acted within its jurisdiction stricto sensu in making the order at issue in this appeal. The order was not patently unreasonable in that it reflected a rational construction of the remedial provisions upon which it was based. Furthermore, the reviewing judge did not err in finding that the lack of a machine recording of the hearing before the Council failed to constitute a violation of the rules of natural justice. He had an adequate record on which to base his disposition of the grounds of review advanced by the respondent.

89                               On the basis of the foregoing reasons and interpretation of the Council’s order, I would allow the appeal, set aside the judgment of the Court of Appeal , reinstate the judgment of Guthrie J., and dismiss the application for judicial review of the Council’s decision and order, the whole with costs throughout.  

Appeal allowed with costs.

Solicitors for the appellant:  Jalbert, Séguin, Verdon, Caron, Mahoney, Montréal.

Solicitors for the respondent:  Lamoureux, Morin, Lamoureux, Longueuil.

Solicitors for the mis en cause:  Desjardins Ducharme Stein Monast, Montréal.