Executive Summary: Key Legal and Evidentiary Issues

• Scope of judicial review under the Vavilov reasonableness standard when supervising a grievance arbitration award concerning COVID-19 wage premiums.
• Whether the arbitrator’s interpretation of ministerial orders 2020-015 and 2020-023, limiting the 8% premium to hours worked in users’ homes, was a restrictive and impermissible reading of the text.
• Characterisation of “services de soutien à domicile” and whether work performed outside the patients’ homes (e.g., office or other locations) falls within the qualifying “milieu de travail” for the 8% premium.
• Allegation that the arbitrator exceeded her jurisdiction (ultra petita) by deciding on the method of calculating the premium (only for hours in the home) without that question allegedly being submitted by the parties.
• Assessment of whether procedural fairness and the audi alteram partem rule were respected, given APTS’s claim it had no chance to present full evidence and argument on the calculation method.
• Evaluation of the evidentiary record and contextual proof about the purpose of the premiums (to compensate increased COVID-19 exposure risk) and how that context supports limiting the premium to in-home work.

Facts of the case

The dispute arises out of exceptional measures adopted during the COVID-19 pandemic to ensure sufficient staff in Quebec’s health and social services network. In April 2020, the Minister of Health and Social Services issued two ministerial orders under the Public Health Act (Loi sur la santé publique, c. S-2.2). The first, Order 2020-015, created temporary wage premiums of 4% or 8% depending on the employee’s work setting. The second, Order 2020-023, amended that regime by adding “les services de soutien à domicile” (home support services) as a work setting qualifying for the 8% premium calculated “sur le salaire prévu à l’échelle de son titre d’emploi pour les heures travaillées dans ce milieu”. APTS is the union representing all technicians and professionals employed by the Centre intégré de santé et de services sociaux des Laurentides (CISSS des Laurentides), which oversees the public health and social services establishments in the Laurentides region. During the pandemic, various employees worked in different “centres d’activités”, and for purposes of the grievance the parties grouped employees into three blocs: Bloc 1, Bloc 2 and Bloc 3. Bloc 3 was later settled and fell outside the arbitration award; Bloc 1 employees were found not to provide home support services and their situation was not challenged on judicial review. The litigation concerns Bloc 2. These are employees who provide services in users’ homes but who are not administratively attached to the SAPA-SAD (Soutien à l’autonomie des personnes âgées – Soutien à domicile) program. On 23 July 2020, APTS filed a grievance contesting the employer’s refusal to pay certain employees the 8% premium for the period from 4 April 2020 to 14 May 2022. The union sought recognition that the Bloc 2 employees were entitled to the 8% premium for all of their working hours, not only when physically present in patients’ homes.

The arbitration decision and the COVID-19 premium regime

The grievance went before arbitrator Me Johanne Cavé. She had to interpret the two ministerial orders and the notion of “milieu de travail” and “services de soutien à domicile” in the context of the collective agreement, which itself did not define those expressions. The arbitrator began by ruling on evidentiary objections. APTS opposed the employer’s contextual evidence about how the orders were adopted and applied, arguing this would improperly interpret or amend the text of the orders. The arbitrator, however, admitted this evidence, explaining it was relevant not to rewrite the orders but to understand the factual and institutional context surrounding their adoption and implementation and to justify their scope. Relying on general principles of statutory interpretation and on prior arbitration jurisprudence, including an earlier APTS case involving the same 8% premium, she emphasised that the premium’s function was to compensate an “inconvénient” tied to increased COVID-19 exposure risk in certain work environments. In that earlier line of authority, the 8% premium was treated as a special measure requiring strict satisfaction of objective conditions before employees could benefit from it.

Having framed the purpose of the ministerial orders as addressing heightened risk in specific environments, the arbitrator determined that the premium attached to certain “milieux de travail” characterised by direct contact with patients or users in conditions not meeting the same protective standards as institutional health facilities. In that light, she concluded that for Bloc 2 the relevant “milieu de travail” was the user’s home. The evidence showed that these employees spent part of their time in users’ homes and part in other locations (offices, clinics, or other sites). Applying the language “prime de 8 % (…) pour les heures travaillées dans ce milieu”, and in line with the risk-based rationale, the arbitrator held that Bloc 2 employees were entitled to the 8% premium only for hours actually worked in the homes of users, not for all hours worked wherever they happened to be. She also referred to another arbitration (Centre d’accueil Saint-Joseph de Lévis) when determining the approach to calculating the premium pro rata to hours spent in the qualifying environment, distinguishing a different case (CISSS de la Gaspésie) where the factual and contextual matrix justified a broader understanding of “services de soutien à domicile”.

The judicial review application before the Superior Court

Unhappy with this outcome, APTS applied to the Superior Court for judicial review of the arbitration award, but only in respect of Bloc 2 and only as regards the limitation of the 8% premium to hours worked in users’ homes. APTS did not challenge the parts of the award dealing with Bloc 1, nor was Bloc 3 before the arbitrator due to the parties’ prior settlement. In its application, APTS advanced two main grounds. First, it argued that the arbitrator had adopted an unduly restrictive and unreasonable interpretation of the ministerial orders by effectively adding a condition that the work be physically performed in the user’s home. In the union’s view, the orders confer an 8% premium on employees working in “les services de soutien à domicile” as a service unit or program, so that any work performed in that service, regardless of location, should attract the premium. Second, APTS alleged that the arbitrator had ruled ultra petita and breached procedural fairness (including the audi alteram partem rule) by deciding on the method of calculating the premium—pro rata to hours spent in users’ homes—without that issue being squarely submitted by the parties or fully argued, and without the parties having a proper chance to adduce evidence and submissions on that calculation question.

The court’s analysis of the standard of review and interpretive approach

Both parties accepted that the applicable standard of review was reasonableness, as articulated by the Supreme Court of Canada in Canada (Citizenship and Immigration) v. Vavilov. The Superior Court confirmed this approach, noting the strong presumption of reasonableness review for administrative decisions, including labour arbitration awards, absent one of the recognised exceptions such as constitutional questions, general questions of law of central importance to the legal system, or explicit legislative direction to the contrary. Under that standard, the reviewing court does not ask what decision it would have made, nor does it conduct a de novo correctness analysis. Rather, it examines whether the decision, viewed in its particular context, is based on an internally coherent chain of reasoning and is justified, transparent and intelligible. The applicant bears the onus of demonstrating that the decision contains serious deficiencies such that it fails the requirements of justification, intelligibility and transparency. The Court recalled that an administrative decision need not address every argument, precedent or statutory provision in detail; imperfect drafting or even mediocre style does not automatically render the reasoning or result unreasonable as long as the essential logic and justification hold together.

Applying these principles, the Court considered the arbitrator’s handling of the ministerial orders. It accepted that the arbitrator had the power to interpret those orders as part of her mandate under the Code du travail. Given the collective agreement’s silence on the definition of “milieu de travail” and “services de soutien à domicile”, it was reasonable for her to turn to statutory interpretation principles and contextual evidence, rather than attempting to read new language into the collective agreement. The Court endorsed her reasoning that the 8% premium was specifically aimed at offsetting the particular disadvantages and heightened risk associated with providing care in environments such as users’ homes, where health-and-safety protections are not the same as in institutional settings. On that understanding, the Court found it reasonable to tie the premium to hours actually worked in that risk-laden environment, instead of all hours worked by an employee who happens to be in a home-support service more generally.

Findings on the alleged restrictive interpretation and ultra petita error

On the allegation of an unduly restrictive interpretation, the Court rejected APTS’s argument that the arbitrator had added conditions not found in the text of the orders. The crucial wording—“prime de 8 % (…) pour les heures travaillées dans ce milieu”—expressly links the premium to hours worked “in that setting”. Reading this together with the addition of “les services de soutien à domicile” as a qualifying setting, and in light of the risk-based purpose of the measure, the arbitrator’s conclusion that the qualifying setting is the user’s home was, in the Court’s view, a tenable and well-explained outcome. Far from being an artificial narrowing, it aligned with the list of other high-risk environments targeted by the 8% premium, all of which presuppose direct presence with clients or patients. Consequently, limiting the premium for Bloc 2 to hours actually spent in users’ homes was found to be a reasonable application of the orders to the facts.

Turning to the alleged ultra petita and breach of procedural fairness, the Court began by recalling that all administrative bodies are bound by basic fairness, which includes the prohibition against deciding beyond what the parties have put in issue where that would deny them an opportunity to be heard. APTS contended that the method of calculating the premium—pro rata to in-home hours—had never been placed before the arbitrator and that she should not have ruled on that point without inviting submissions and evidence. The Court disagreed. It observed that the grievance explicitly sought an order that the employer pay the 8% premium to all eligible employees, and that the arbitrator had properly identified the issue as whether the employees concerned performed work in the “services de soutien à domicile” within the meaning of the ministerial orders and thus had a right to the 8% premium during the relevant period. To answer that question, the arbitrator necessarily had to examine what counted as “services de soutien à domicile”, what environments those services encompassed, and how to link that definition to concrete hours of work. In addressing these aspects, the arbitrator relied openly on prior arbitration jurisprudence, including the Saint-Joseph de Lévis decision that APTS itself had cited, and carefully distinguished the CISSS de la Gaspésie award based on the factual record before her. Given that the scope of “services de soutien à domicile” and the entitlement to the premium were at the heart of the dispute, the manner of applying that entitlement to actual working time flowed logically from the issues the parties had raised.

The Court further noted that if a party omits, at the arbitration stage, to bring forward certain evidence or arguments in support of its theory of the case, it cannot later invoke a denial of procedural fairness at the judicial review stage on the basis that the arbitrator decided the matter on the existing record. Here, APTS had a full opportunity to present its case and to challenge the employer’s evidence and submissions; it was not taken by surprise by a wholly new issue. The decision on pro rata calculation was seen as an integral part of the arbitrator’s resolution of the main dispute, not as an extraneous determination beyond her remit. Accordingly, the Court held that there was no ultra petita ruling and no breach of audi alteram partem.

Overall outcome and financial consequences

In the final analysis, the Superior Court held that the arbitration award was grounded in a coherent and rational reasoning process, appropriately applied the interpretive framework for ministerial orders and emergency COVID-19 measures, and fell well within the range of acceptable outcomes under the reasonableness standard. The Court therefore dismissed the application for judicial review brought by APTS, confirmed the arbitration award rendered on 14 February 2024 in relation to grievance “2020-07-A317, Prime 8 % – COVID-19”, and ordered APTS to pay legal costs. The practical result is that the employer, CISSS des Laurentides, together with the original arbitration outcome, is the successful party, and the 8% COVID-19 premium remains payable to Bloc 2 employees only for hours worked in users’ homes rather than all hours worked. The judgment does not specify any exact amount for either the premium or the court costs; the total monetary award or costs in favour of the successful party cannot be determined from the decision and would depend on subsequent quantification and tariff application.