Executive Summary: Key legal and evidentiary issues

• Determination of whether essential services performed during a strike count toward employee seniority

• Interpretation of articles 110 and 111.0.23 of the Québec Labour Code in relation to collective agreement terms

• Validity of an arbitration decision recognizing seniority accrual during strike periods

• Scope of judicial review under the reasonableness standard

• Applicability of article 59 of the Québec Labour Code during essential services disputes

• Evaluation of whether the proposed appeal raised a question of principle warranting appellate review

Facts of the case

The McGill University Health Centre (CUSM) sought permission to appeal a Superior Court decision that upheld an arbitration award in favour of the Alliance du personnel professionnel et technique de la santé et des services sociaux (APTS). The background of the dispute involved a four-day legal strike in June 2021 by unionized health sector employees. Prior to the strike, the union and CUSM reached an agreement, ratified by the Tribunal administratif du travail (TAT), on maintaining essential services. The agreement outlined the percentage of work time required to ensure continuity of care, ranging between 50% and 90% depending on the unit.

During the strike, a full-time employee performed essential services as per the agreement. However, the CUSM refused to credit this employee’s work time toward her seniority under the collective agreement. The union filed a grievance, which the arbitrator allowed. The arbitrator held that under article 13.01 of the collective agreement and article 110 of the Québec Labour Code, seniority should accumulate even during strike periods when essential services are provided.

Arguments before the court

CUSM challenged the arbitration ruling through a judicial review, arguing that the arbitrator’s decision was irrational and failed to consider article 59 of the Labour Code, which it claimed would have suspended seniority accrual during the strike. The Superior Court dismissed the judicial review, finding the arbitrator’s decision reasonable and aligned with the legal framework.

CUSM then sought leave to appeal, asserting that the interpretation of article 59 posed a novel question of law worthy of appellate consideration. The union maintained that article 59 did not apply to public sector disputes over essential services, and that article 111.0.23 of the Code and the collective agreement governed the issue.

Outcome of the application

The Court of Appeal dismissed the application for leave to appeal. The judge found that the Superior Court had applied the correct standard of review and reasonably concluded that the arbitrator’s award was valid. The Court of Appeal determined that no question of principle or conflicting jurisprudence warranted an appeal. The employer’s argument that article 59 should override the collective agreement’s provisions on seniority was rejected.

As a result, the arbitration award stood, affirming that employees providing essential services during legal strike days are entitled to have this time credited toward seniority. The CUSM was ordered to pay costs.