Supreme Court of Canada
Lemieux Bélanger v. Commissaires d’Écoles pour la Municipalité de St-Gervais, [1970] S.C.R. 948
Date: 1970-11-23
Dame Gisèle Lemieux Bélanger (Plaintiff) Appellant;
and
Les Commissaires d’Écoles pour la Municipalité de St-Gervais, comté de Bellechasse (Defendant) Respondent.
1970: October 23; 1970: November 23.
Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Labour—Education law—Teacher—Notice of intention not to re-engage—Council of arbitration holding that teacher continued to be employed—Action for salary—Total inscription in law—Nullity of notice—Education Act, R.S.Q. 1941, c. 59, ss. 221, 232, 233, amended by 10-11 Eliz. II, c. 19, s. 14—Act respecting municipal and school corporations and their employees, (1949), 13 Geo. VI, c. 26.
In May 1964, the respondent gave the appellant, a teacher who had been employed by it for more than two years preceding the school year 1963-64, a notice under s. 232(1) of the Education Act, as amended, that it did not intend to re-engage her. Being dissatisfied with the reasons subsequently given, the appellant submitted her complaint to arbitration. The council of arbitration held that her complaint was justified. When the respondent refused to re-employ her, the appellant took an action claiming her full salary for the school year 1964-65. A total inscription in law was rejected by the trial judge who accepted the interpretation given to the Act as amended, by the council of arbitration that a notice given by a school board to a teacher to whom s. 232(2) of the Act applies without due cause is null and of no effect so that the teacher continues to be in the employment of the school board. The Court of Appeal reversed the trial judge and concluded that a school board cannot be forced to re-engage a teacher whom it deems unsuitable. The teacher appealed to this Court.
Held: The appeal should be allowed.
The interpretation given to s. 232, as amended, by the Court of Appeal is much too narrow, and if adhered to virtually negatives any benefit which the Legislature must have intended to confer on
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teachers who come within its provisions. The interpretation placed upon the section by the trial judge is to be preferred as giving some real meaning and purpose to the amendment.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of McNicoll J. Appeal allowed.
Ubald Désilets, Q.C., and Henri Grondin, for the plaintiff, appellant.
Jacques Flynn, Q.C., for the defendant, respondent.
The judgment of the Court was delivered by
HALL J.—This appeal turns on the interpretation to be given to s. 232 of the Education Act of the Province of Quebec. The section, prior to July 6, 1963, read:
School boards, after having decided by resolution at a meeting regularly held not to re‑engage for the following year a teacher already in their service, shall, before the 1st of June preceding the expiration of the engagement of such teacher, notify him in writing of their intention to terminate the said engagement; but need not in such notice assign any cause therefor.
It was amended by 10-11 Eliz. II, c. 19, by adding thereto two paragraphs as follows:
However, in the case of a teacher whom they have re-engaged after eight or more months of service during each of the two preceding school years, they shall, at his written and personal request, give him in writing the reasons upon which their decision is based.
No right of action shall result from reasons so given in good faith but the teacher may submit his complaint to arbitration according to the collective agreement governing the parties or, failing such agreement or if it makes no provision therefor, according to the Act respecting municipal and school corporations and their employees (13 George VI, chapter 26).
The appellant was a teacher who had been employed by respondent for more than two years preceding the school year 1963-64 and was, therefore, a teacher to whom the amendment of 10-11 Eliz. II applied.
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On May 12, 1964, respondent gave appellant notice under s. 232 (1) that it did not intend to reengage her. No reasons were given. Appellant, in accordance with s. 232(2), made a demand in writing of respondent to give her in writing the reasons upon which their decision not to re-engage her was based. The respondent replied, giving its reasons on August 24, 1964. Appellant, being dissatisfied, submitted her complaint to arbitration under the provisions of the Act respecting municipal and school corporations and their employees (13 Geo. VI, c. 26).
The council of arbitration was set up in December 1964 and on February 15, 1965, the council of arbitration made its award. It held that respondent had failed to show any sufficient reason for terminating appellant’s engagement, concluding as follows:
[TRANSLATION] 1. The May 12, 1964 notice of termination received by the petitioner is declared illegal, null and void;
2. The petitioner, Mrs. Gisèle Lemieux Bélanger, did not cease to be in respondent’s employ, and continued to be so employed for the 1964-1965 school year;
3. The petitioner will continue to be available to teach for respondent to the extent that she will be at respondent’s disposition for teaching and will accept, if her services are required, to establish her place of residence in or close to the territorial limits of respondent;
4. The council of arbitration consequently declares and orders that the school municipality of St-Gervais Bellechasse should now pay to the petitioner the stipend or salary commensurate with her level of competence and her years of teaching, in short the salary it would have paid her if she had continued to teach;
5. The petitioner must continue to offer and furnish to respondent her services as a teacher, as requested, failing which she shall not receive her stipend or salary for the period of actual non-availability.
Respondent refused to re-employ appellant. She thereupon took action in August 1965, claiming her full salary for the school year 1964-65. Respondent made a total inscription in law, alleging that the council of arbitration had ex-
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ceeded its powers in rendering its decision. The parties agreed that the decision on the inscription in law would determine the result of the action. If s. 232, as amended, is interpreted as contended for by appellant, she is entitled to judgment for the amount of $3,000 which was the stipulated salary for the school year 1964-65.
The difficulty here arises from the fact that the Education Act is silent as to a teacher’s recourse in the event his complaint is found to be justified by a council of arbitration such as occurred in the case at bar.
The interpretation given to the Act as amended, by the council of arbitration and accepted by the learned trial judge, McNicoll J., is that a notice given by a school board to a teacher to whom s. 232(2) applies without due cause is null and of no effect so that the teacher continues to be in the employment of the school board. Respondent, on its part, claims that a school board cannot be forced to keep or reengage a teacher and that the teacher’s recourse is limited to an action for damages. Respondent relies on s. 233 of the Education Act which reads:
Any teacher who has not received the notification mentioned in section 232 shall be deemed to be re-engaged for the following school year, for the same school and upon the same terms, unless one of the causes specified in paragraph 2 of section 221 may be invoked against him.
2. Except in the case provided for in subsection 1 of this section, no school board need employ a teacher whom they deem unsuitable.
Appellant contends that s. 233(2) does not apply to teachers who, like her, are covered by the second and third paragraphs of s. 232, as amended.
In the Court of Appeal[2], Montgomery J., with whom Owen and Choquette JJ. concurred, said:
In my opinion, the law is unclear, there being an apparent conflict between sec. 232 as amended and sec. 233(2), and we must therefore seek to deter-
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mine the intention of the Legislature by interpretation. The consequence of the interpretation for which Respondent contends is that, once a teacher has had two years of continuous service as defined by the second paragraph of the amended sec. 232, the school board must continue to re-engage him unless it has reasons for not doing so that would be found sufficient by a council of arbitration. Sec. 232 as amended does not attempt to define what might be considered a sufficient reason. Presumably any of the causes specified in para. 2 of sec. 221 (now sec. 203) would be deemed sufficient. We are not called upon to decide whether the causes that would justify a board’s refusal to re-engage a teacher may be broader than those set forth in sec. 221(2) for dismissing a teacher.
and concluded:
In my opinion, if it had been the intention of the Legislature to give to teachers having two years’ service such complete security of tenure that their engagements become in effect permanent up to pensionable age, it would have said so in clear and unmistakable terms. I therefore consider that we should adopt Appellant’s interpretation and conclude that a school board cannot be forced to re-engage a teacher whom it deems unsuitable.
In my view the interpretation given to s. 232, as amended, by the Court of Appeal is much too narrow, and if adhered to virtually negatives any benefit which the Legislature must have intended to confer on teachers who come within its provisions; in other words, the proceedings by way of a council of arbitration would be illusory to a teacher except to the extent that the award might serve as an employment reference if the interpretation of the Court of Appeal prevails. I am of opinion that the interpretation placed upon s. 232, as amended, by the learned trial judge is to be preferred as giving some real meaning and purpose to the amendment and it is the interpretation placed upon the section by Letarte J. in La Commission scolaire de Levis v. Dionne et autres et Dame Boulay[3], and by Laroche J. in La Commission des Ecoles Catholiques de Shawinigan v. Roy et autres et Dame Jacques et autres[4].
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I would, accordingly, allow the appeal and restore the judgment of the Superior Court with costs here and in the Court of Appeal.
Appeal allowed with costs.
Solicitors for the plaintiff, appellant: Désilets, Grondin, LeBel, Morin & Bilodeau, Quebec.
Solicitors for the defendant, respondent: Flynn, Rivard, Jacques, Cimon, Lessard & Lemay, Quebec.