The Res Judicata and Stare Decisis Rules in Grievance Arbitrations: Where Do We Stand?
On August 16, 2017 the Quebec Court of Appeal denied leave to appeal from a decision of the Superior Court rendered on June 21 2017, on a motion for judicial review brought by the Collège de Valleyfield (the “College”) of an arbitral award rendered on May 25, 2015 by Arbitrator Cloutier (the “Arbitrator”). The leave was denied on the grounds that while a question of principle was involved, i.e. the principle of res judicata, it did not constitute a new issue or an issue of law that has given rise to conflicting judicial decisions1. The matter does however raise two legal issues of interest to any employer that has to deal with a union:
- stare decisis
- res judicata
Having to cohabit, the employer and the union must continue to work side by side once a matter has been settled or a decision has been rendered. It is therefore not rare for the same issue to arise between them on more than one occasion. Thus, even after receiving an unfavourable arbitral award, an employer may deem it advisable, for reasons of sound management, to make the same decision again or take the same action that gave rise to the grievance, with the intention of distinguishing the situation on factual or other grounds, from the decision that was rendered, should another grievance be filed.
It is in such a context that the union in this case, the Syndicat des enseignantes et enseignants du collège de Valleyfield (the “Union”), raised both the stare decisis and res judicata rules before the arbitrator, arguing that they should be applied to decide the grievance in its favour. Let us briefly review these two concepts.
This rule is to the effect that courts of equal or superior rank within the same jurisdiction are bound by their own decisions, in order to avoid contradictory decisions on similar issues of fact and law.
This rule is set out in Article 2848 of the Civil Code of Québec, which creates an absolute presumption where the same parties are dealing with the same problem (“same cause”) as one disposed of by a final judgment that is binding on them (same object). The courts refer to this as the triple identity of parties, object and cause. This rule prevents a matter that has been finally litigated between two parties from being reopened.
College de Valleyfield: two decisions
In order to give students a better chance of passing a standardized French test, the College organized a French-language assistance centre for students where, until 2010, instruction was provided by qualified unionized teachers.
In 2010 the College continued to have this instruction provided by qualified teachers who were members of the Union, but it negotiated their remuneration with each teacher individually, without the participation of the Union.
The Union accordingly filed an initial grievance regarding the teachers’ remuneration. The arbitrator who heard the matter allowed the grievance, concluding that the College should have negotiated the teachers’ remuneration with the Union.
In 2013 the College created a new workshop to prepare students for the standardized French test, and arranged to have the instruction provided by a teacher who was not a member of the Union and who was remunerated at a rate different than that provided for in the collective agreement.
The Union accordingly filed a second grievance, seeking to prevent the College from having instruction provided by someone who was not a member of the bargaining unit2.
The Union raised a preliminary exception on the basis of res judicata in a bid to have the grievance decided without a lengthy and complete hearing of the facts of the situation.
The arbitrator’s decision on the second grievance
The Arbitrator first of all indicated that the mandate of every arbitrator is to dispose of a specific matter, i.e. that with which he or she is seized. He concluded that the rule of stare decisis does not apply to grievance arbitrations, in keeping with the prevailing line of case law confirmed by the Quebec Court of Appeal3. After considering the matter from the standpoint of res judicata, he allowed the Union’s grievance.
In doing so, the Arbitrator stated the following [TRANSLATION]:
 The final reason leading me to this conclusion is an eminently practical one. How could we, in real life, in a peaceful dispute resolution system such as grievance arbitration, tolerate a party wasting time, energy and money by re-litigating the same issue over and over again, ad infinitum, in the hope of one day finding an arbitrator who agrees with its argument? That makes no sense whatsoever.
In his analysis, considering that the Union was acting in both the first and second arbitrations as the agent representing the collective interests of all members of the bargaining unit, the Arbitrator concluded that the arbitrations involved the same parties.
Then, considering that the arbitrator of the initial grievance had decided that the College could not rely on its management rights to justify paying teachers who were members of the Union at a rate other than that provided in the collective agreement, the Arbitrator concluded that the College could not rely on that same right to assign the task of teaching language skills to teachers who were not members of the Union. The Arbitrator thus concluded that the two disputes had the same object.
Finally, as he considered that the cause of the two grievances was an attempt to avoid the application of the collective agreement, the Arbitrator concluded that the res judicata rule applied, thus concurring with the grounds for the preliminary exception raised by the Union, and accordingly allowed the grievance.
Application for judicial review
The College applied for judicial review of the Arbitrator’s decision. Superior Court Justice Castonguay ruled in favour of the College, overturning and annulling the arbitral award and referring the matter back to a new arbitrator. The Judge stated that a literal reading of the 2010 and 2013 grievances indicated that there were no identity of object nor cause, and he criticized the Arbitrator for engaging in a systemic review of the facts in order to allow him to arrive at the conclusion he wanted to reach. The Judge concluded by stating [TRANSLATION]:
 Using a preliminary exception as a smokescreen, the respondent arbitrator did not bother to analyze the grounds for the exception to dismiss, and proceeded to analyze the merits of the dispute. …
 What makes his decision unreasonable is the fact of having de facto decided the dispute between the parties, without the College having had the opportunity to be heard on the merits, by allowing himself to engage in a systemic reading, since a literal reading of the grievances and decisions would not have allowed him to conclude that the res judicata rule applied.4
On August 16, 2017 the Court of Appeal denied the Union’s motion for leave to appeal5.
The triple identity criterion must be clearly and patently satisfied in order for a party to be able to plead the res judicata rule. Thus, despite similarities inherent in various contentious situations that may arise between a union and an employer, only in exceptional cases will a party be in a position to seek the premature disposition of the dispute by pleading that rule. If any of the prescribed identities (parties, object and cause) are absent, the preliminary exception is doomed to fail, and the hearing on the merits must proceed.
1 Code of Civil Procedure, article 30(8) par. 1.
2 It should be noted here that the grounds for the second grievance were not the same as those for the initial grievance, which was based on the teachers’ remuneration.
3 Syndicat de l’enseignement de la région de Laval v. Commission scolaire de Laval, 2012 QCCA 827.
4 Collège de Valleyfield v. Cloutier, 2017 QCCS 2665.
5 Syndicat des enseignantes et enseignants du Collège de Valleyfield – CSN v. Collège de Valleyfield, 2017 QCCA 1245.