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HEALTH CARE PROFESSIONALS - Doctors - Remuneration and professional fees - Administrative agreement

Thursday, July 27, 2017 @ 1:42 PM  

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Appeal by the Attorney General of Quebec from a judgment of the Quebec Court of Appeal affirming a decision allowing the respondent’s application for judicial review of a decision of the council of arbitration. The appeal concerned the reasonableness of an arbitration award made in the context of a specialized collective bargaining scheme, namely the scheme for medical specialists and the government of Quebec under the Health Insurance Act (Act). The award dealt with the very concept of a dispute and with standing to submit such a dispute to a council of arbitration under the Act and the Accord cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance maladie (Framework Agreement). The respondent, Guérin, was a radiologist. He wished to contest by way of arbitration a joint decision of the Ministère de la Santé et des Services sociaux (Ministère) and the Fédération des médecins spécialistes du Québec (Fédération) (collectively, “negotiating parties”) to refuse to declare that the laboratories he represented were eligible to receive a digitization fee for the years 2009 through 2011. The council of arbitration decided that Guérin’s objection could not give rise to an arbitrable dispute under the Act and the Framework Agreement and that, in any event, only the Fédération would have had standing to submit such a dispute. Further to a motion for judicial review, the Superior Court and the majority of the Court of Appeal both found that the council’s decision was unreasonable, concluding that it was open to Guérin under the Act to submit his dispute to the council of arbitration.

HELD: Appeal allowed. The courts below were right to apply the reasonableness standard of review. When an arbitrator interpreted his or her enabling legislation to determine whether a dispute was arbitrable, applying the reasonableness standard undermined neither the rule of law nor the other constitutional bases of judicial review. In contrast, the effect of applying the correctness standard by erroneously characterizing such a question as a true question of jurisdiction would be to undermine the presumption in favour of the reasonableness standard that had been consistently recognized and endorsed by the Supreme Court of Canada in numerous cases. In considering the motion for judicial review, the Superior Court and the Court of Appeal were limited to determining whether the arbitration award was reasonable, including in relation to the subject matter of the dispute. The motion judge and the majority of the Court of Appeal were in error in instead reformulating the subject matter to find that the dispute related to the interpretation and application of the conditions for eligibility for recognition and to Guérin’s standing. By altering the issue in this way, they failed to show the council of arbitration the deference they owed it. Given that the negotiating parties chose to reserve for themselves the full discretion to decide on and designate the laboratories that would be eligible to receive the digitization fee, the arbitrator’s decision that this dispute was not one that could be submitted to arbitration under the Act was reasonable. The arbitrator correctly concluded that if he were to rule on the dispute, the effect would be to alter the negotiated content of the Protocole concernant la radiologie diagnostique by stripping the negotiating parties of their exclusive discretion under it. The determination of whether the dispute was arbitrable could not be limited to consideration of s. 54 of the Act alone. It was also reasonable for the arbitrator to conclude that Guérin did not have standing to submit the notice of dispute to the council of arbitration. His decision was justified having regard to the Fédération’s monopoly of representation. It was also justified by the fact that no provision of either the Framework Agreement or the Act entitled a medical specialist to submit a dispute directly to a council of arbitration other than where the Régie de l’assurance maladie du Québec had refused a payment or in a case involving a professional services contract with a health institution. Guérin was not without recourse. The courts would have jurisdiction if he were to allege that the Fédération had not properly discharged its duty of representation. The courts below accordingly erred in intervening to overturn the arbitration award. The decision of the counsel of arbitration was restored.

Quebec (Attorney General) v. Guérin, [2017] S.C.J. No. 42, Supreme Court of Canada, B. McLachlin C.J. and A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., July 27, 2017. Digest No. TLD-July242017016SCC