Bargaining hard is not always bargaining in bad faith: Quebec court

Labour relations board should have considered all negotiations, not just salary talks, appeal court says in overturning decision

The Quebec Court of Appeal has rejected a motion for leave to appeal a Superior Court ruling that had quashed a decision of the provincial labour relations board (CRT). The CRT had determined the Government of Quebec had negotiated in bad faith during the 2003-2005 collective bargaining round with the public and parapublic sectors.

In January 2012, the CRT handed down the decision Association des juristes de l’État, in which, after 72 days of hearings, it determined the government and its representatives had, by remaining inflexible on salary issues throughout the bargaining process, failed to negotiate in good faith during the bargaining round with the public and parapublic sectors. The bargaining round ended with the passage of An Act respecting the conditions of employment in the public sector. At the judicial review stage, the Superior Court quashed the CRT’s decision, sending the matter back to the CRT so that another commissioner could rule on the complaints alleging that the government had negotiated in bad faith.

After determining the CRT decision was subject to the reasonableness standard of judicial review, the Court of Appeal reiterated the principle holding that firm or hard bargaining is not necessarily bargaining in bad faith. To arrive at a finding of bad faith, it is necessary to find, in the light of all collective negotiations and the real objectives of the party complained against, that the party complained against was only surface bargaining in order to destroy the bargaining relationship. The core of the Court of Appeal’s reasoning reads as follows (translation):

“The mere fact of holding firmly to one’s position when negotiating a collective agreement does not mean that one is acting in bad faith. More is needed and it is necessary to show that there was only surface bargaining aimed at destroying the collective bargaining relationship. In the case at issue, such bad faith can only be proven by considering all negotiations and management side’s real objectives.”

In light of this principle, the Court of Appeal determined the CRT should have taken all negotiations into consideration — not just the salary component — and given some thought to the motivation behind the government’s firm position on the total payroll increase — something it did not do. Such an omission justified the Superior Court’s intervention.

The Court of Appeal concluded by stating the question that will have to be answered by the new member of the CRT (translation): “Was this a matter of a hard-line position arising from a budgetary framework that was reasonable in light of the province’s financial situation, or a strategy aimed at destroying the collective bargaining relationship?”

Notes for employers

Although this ruling does not decide the case on merits, it does clarify the distinction between hard bargaining and bargaining in bad faith. It focuses the debate for the CRT, which will likely have to consider this matter again while carrying out a comprehensive assessment of the evidence to determine whether the government’s position was reasonable given the economic and budgetary conditions prevailing at the time of the 2003-2005 bargaining round with the public and parapublic sectors.

For more information see:

Québec c. Garant, 2013 CarswellQue 2837 (Que. C.A.).
Québec c. Garant, 2013 CarswellQue 71 (Que. S.C.).
Assoc. des juristes de l'État c. Québec (Direction des relations professionnelles, Conseil du trésor), 2012 CarswellQue 551 (Que. Lab. Rel. Bd.).

Philippe Levac is an associate with Norton Rose Fulbright in Montreal practicing employment and labour law. He can be reached at (514) 847-6023 or [email protected].

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