This article first appeared on Urbas Arbitral, here.
In Syndicat des employés du CISSSMO, section locale 3247 v. Murray, 2021 QCCS 459, Madam Justice Suzanne Courchesne annulled an award rendered by a physician arbitrator appointed by a third party pursuant to a process set out in the parties’ agreement to arbitrate but who, despite demands to recuse himself, issued a decision on the merits of the dispute without addressing the demands for recusal. The parties’ agreement omitted any express mention of the physician arbitrator’s authority to recuse himself or any grant of such authority to another. Courchesne J. observed that the physician arbitrator, performing a quasi-judicial function, was subject to the impartiality and independence obligation and rules of procedural fairness and had both the jurisdiction and obligation to decide first on the grounds of his recusal. Courchesne J. held that the parties ought to have instructed the physician arbitrator on the rules governing a motion for recusal but did not. Despite that omission, by refusing to decide on the motion for recusal or by implicitly dismissing it without reasons, the physician arbitrator omitted to exercise his jurisdiction and breached the rules of procedural fairness. Courchesne J. annulled the award and ordered the parties to resume the arbitration before another physician arbitrator.
On April 30, 2019 a union, Syndicat des employés du CISSMO, section locale 3247 (“Union”), and an employer, Centre Intégré de Santé et de Services Sociaux de la Montérégie-ouest (“Employer”), jointly initiated the arbitration process set out in their collective agreement (“Collective Agreement”) to resolve a dispute involving an employee’s disability. The Collective Agreement included the parties’ agreement to arbitrate disputes involving an employee’s disability but limited to a discrete number of issues: the existence, absence or cessation of an employee’s disability and the Employer’s decisions requiring the employee to undertake, prolong or cease rehabilitation.
The arbitration would be presided by a sole arbitrator chosen by agreement of the Employer and the Union or, failing agreement, by the registry officer (“Greffier”) on the health and social services arbitral tribunal. The latter’s choice would be made from a list of physician arbitrators compiled further to the Collective Agreement. The choice of physician arbitrator would be made in a rolling sequence from those physicians having the relevant speciality raised by the disability and by geographical sector applicable to the employee.
Adhering to the process set out in the Collective Agreement, the Greffier on May 8, 2019 designated a particular physician arbitrator from the list (“Arbitrator”). The same day the Union objected to the designation. The Union pointed out that the Arbitrator was a member of a particular health clinic which had, in the preceding years, provided expert services for the Employer. The Union argued that, as a result, the Arbitrator lacked the independence and impartiality to serve as a physician arbitrator for the dispute. The Union required that the Greffier designate another physician having no direct or indirect business ties with the Employer.
The Employer objected to the Union’s request and on May 10, 2019 the Greffier confirmed that it would not change the designation already made given that the Arbitrator had been named in compliance with the provisions of the Collective Agreement.
The Union submitted a May 13, 2019 motion for recusal to the Greffier and the Arbitrator in which it identified having a reasonable concern regarding the Arbitrator’s partiality and that, in the best interests of procedural justice, the Arbitrator should recuse himself.
On May 15, 2019 the Greffier maintained its designation of the Arbitrator and the Employer transmitted to the Arbitrator the employee’s file and confirmed the scope of the issue to be decided.
On May 22, 2019 the Union reiterated its request that the Arbitrator recuse himself and to provide a reasoned decision on that request. In its request, the Union repeated the facts on which it based its concerns and added that the health clinic of which the Arbitrator was a member collected sixteen (16) percent of its annual expertise budget from the Employer.
The Employer responded on May 28, 2019, requiring that the Arbitrator keep his appointment. It argued that the appointment had followed the procedure set out in the negotiated Collective Agreement and that to recuse himself would create an important precedent. The Employer added that, as a physician, the Arbitrator was able to act within the terms of his ethical obligations and perform his mandate with all impartiality.
On June 5, 2019, the Arbitrator examined the employee and issued his report (“Decision”). In his Decision, the Arbitrator does not rule on the motion for recusal and makes no mention of it.
On July 12, 2019, the Union applied to the Superior Court for judicial review of the Decision, seeking to annul the Decision. The Union argued that (i) by omitting to rule on the motion for recusal, the Arbitrator had refused to exercise his jurisdiction and (ii) his omission to decide and to reason his decision was breach of procedural fairness which justified annulling the Decision. The Employer argued that the Arbitrator had no authority or jurisdiction to decide on his own recusal and therefore did not breach the rules of natural justice.
Standard of review – Courchesne J. declined to characterize her involvement a judicial review. The application before her concerned the lead up to the arbitral process and the appointment of the Arbitrator which the Collective Agreement expressly set out and the Decision had no decision to review. She observed that the Decision was totally silent on the motion for recusal and dealt only with the employee’s disability. The Arbitrator had ignored the motion, dismissed it without providing reasons or perhaps considered that it was not up to him to issue a decision on the motion.
Despite the parties’ agreement that the standard of review was correctness, Courchesne J. referred to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, holding that she need not engage in judicial review with a particular standard of review because there is no examination to undertake of a decision on the merits.
“ Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”.
Instead, Courchesne J. identified two (2) issues.
(i) did the Arbitrator have jurisdiction to decide on the motion for recusal; and,
(ii) if so, by omitting to decide on the motion for recusal or implicitly dismissing it without providing reasons in support of that decision, did the Arbitrator breach procedural fairness?
(i) Arbitrator’s jurisdiction – Courchesne J. elaborated on the arbitration process contained in the Collective Agreement, setting out at para. 23 of her reasons key elements including the limited scope of the disputes subject to arbitration and the obligation of the physician arbitrator to decide, subject to ethical obligations, between the employee’s treating physician and the physician designated by the Employer and the final and binding nature of the decision.
Courchesne J. likened the Arbitrator’s task to that of a grievance arbitrator but having a more specialized niche. The Collective Agreement provided neither the Employer nor the Union to right to expand on the Arbitrator’s limited scope of decision making focused on disputes regarding an employee’s disability or to add to questions.
The Collective Agreement set out the Greffier’s authority to appoint an arbitrator, in case of disagreement. The authority to demand an arbitrator recuse himself or herself appears nowhere in the Collective Agreement or any mention of a grant of such authority to another decision maker to take such decision.
That said, Courchesne J. observed that the physician arbitrator exercises a quasi-judicial function which could be assimilated to that of a grievance arbitrator. The physician arbitrator’s decision is final, without appeal and binds the parties. The Collective Agreement sets out a procedural framework for the arbitration and provides for submissions by the parties, albeit without an oral hearing.
[informal translation] ‘ Since the physician arbitrator performs a quasi-judicial function, he is subject to the impartiality and independence obligation. That latter obligation constitutes a key element in the judicial or arbitral process. He is also subject to the rules of procedural fairness.
 As a result, it rests on the physician arbitrator, like any decision maker, to decide first on the grounds of his recusal. He has the jurisdiction to do so and must respond, in compliance with the rules of procedural fairness to which he is subject ’.
As authority for her statement that the physician arbitrator’s impartiality and independence obligation is a key element of the judicial or arbitral process, Courchesne J. referred to 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), 1996 CanLII 153 (SCC),  3 SCR 919 and Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC),  1 SCR 495.
(ii) Motion for recusal – Deciding a motion for recusal requires an analysis applying a test of a reasonable apprehension of bias regarding which the criteria must be provided to the physician arbitrator in the motion for recusal. Syndicat des cols bleus regroupés de Montréal, section locale 301 v. Pointe-Claire (Ville de), 2011 QCCA 1000 and Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII),  2 SCR 624 para. 28.
Courchesne J. held that the parties ought to have instructed the Arbitrator on the rules governing a motion for recusal but did not. Despite that omission, by refusing to decide on the motion for recusal or by implicitly dismissing it without reasons, the Arbitrator omitted to exercise his jurisdiction. In so doing, he breached the rule of procedural fairness and the Decision must be annulled as a result.
Courchesne J. annulled the Decision and ordered that the parties resume the arbitration process before another physician arbitrator.
urbitral notes – First, for a recent Arbitration Matters note on similar format of arbitration by a medical specialist, see “Québec – no second opinion on issue determined by award issued by physician arbitrator – #408”.
In Rivain v. La Capitale assureur de l’administration publique Inc. (La Capitale, assurances et services financiers), 2020 QCCS 3936, Mr. Justice Christian Immer declined to order parties to re-arbitrate an issue determined by a physician arbitrator under an insurance policy. That policy submitted medical disputes to arbitration before a physician and subjected awards to the typical three (3) post-award options available to arbitral parties: compliance, homologation, annulment. Immer J. did determine that the policy anticipated a 4th option, namely a subsequent arbitration before another medical specialist if the 1st arbitrator determined that the medical dispute fell within that other medical speciality. Immer J. also noted that, despite the complexity of the facts, a court was better placed to determine the jurisdictional issue, rather than defer to a first determination by the arbitrator, as the request to refer the parties to arbitration raised principally a question of law.
Second, Courchesne J. referred to the following passage of Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII),  2 SCR 624 when identifying the key components of a motion for recusal.
“ The duty of impartiality ranks among the fundamental obligations of the courts. The Canadian Charter of Rights and Freedoms recognizes the right of any person charged with an offence to be tried by an independent and impartial tribunal (s. 11(d)). In the matters which fall within the legislative jurisdiction of Quebec, s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, recognizes the right to a fair hearing by an independent and impartial tribunal as a fundamental human right. The concept of impartiality refers to the decision‑maker’s state of mind (Valente v. The Queen, 1985 CanLII 25 (SCC),  2 S.C.R. 673, at p. 685, per Le Dain J.). The decision‑maker must approach the issue submitted to him or her with an open mind, not influenced by personal interests or outside pressure. It is not sufficient that the decision‑maker be impartial in his or her own mind, internally, to the satisfaction of his or her own conscience. It is also necessary that the decision‑maker appear impartial in the objective view of a reasonable and well‑informed observer (Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),  1 S.C.R. 369, at p. 394, per de Grandpré J.; also : Bell Canada v. Canadian Telephone Employees Association,  1 S.C.R. 884, 2003 SCC 36, at para. 17, per McLachlin C.J. and Bastarache J.). The duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative justice”.
This article first appeared in the weekly Securities Arbitration Alert of 22 July 2021 and is reposted here with permission. Amicus Briefs have begun to be filed in Servotronics, where...By George Friedman