Executive Summary: Key Legal and Evidentiary Issues

• Scope of a grievance arbitrator’s jurisdiction where the dispute concerns repayment of a government-funded bursary tied to a training-and-employment program rather than a classic condition of employment under the collective agreement
• Characterisation of the one-year minimum availability and repayment undertakings in the “Programme de bourses” documents as potential “conditions de travail” that ought not to have been negotiated individually without union involvement
• Reasonableness of the arbitrator’s failure to address the union’s principal argument on the validity of the availability clause, while instead grounding his reasoning in the Public Health Act framework and the pandemic context
• Use and interpretation of extrinsic policy instruments (Ministry “Cadre de référence” and “Foire aux questions”) to determine when a bursary recipient must reimburse funds after probationary termination
• Procedural fairness breach where the arbitrator decided the substantive issue (no repayment) based on alleged absence of fault without ever hearing evidence or submissions on the union’s expressly “reserved” subsidiary argument
• Appropriate judicial remedy on review of an interlocutory arbitral decision, including whether to preserve the arbitrator’s ruling on jurisdiction or remit all issues, competence included, to a new arbitrator

Factual background

The case arises out of a pandemic-era initiative by the Québec government to address severe staffing shortages in long-term care and seniors’ facilities. In June 2020, the Ministry of Health and Social Services created a bursary and accelerated training scheme, the “Programme de bourses pour l’attestation d’études professionnelles en soutien aux soins d’assistance en établissement de santé” (the Programme), offering a three-month alternating work-study course leading to an attestation of vocational studies for beneficiary attendants. Successful candidates received a bursary of 9,210 $, paid by the establishment with which they were matched, in exchange for a commitment to be available to work for a minimum of one year after training in line with local staffing needs.
Ms. Alessandra Aimone enrolled in this Programme and, on 14 June 2020, signed an engagement form with the Centre intégré universitaire de santé et de services sociaux du Centre-Ouest-de-l’île-de-Montréal (CIUSSS). That form stated that if she failed to meet the one-year availability commitment or did not complete its duration, she agreed to notify the establishment and to reimburse either the entire bursary or a prorated amount based on time worked.
On 17 September 2020, the employer confirmed her conditional hiring as a unionized employee as of 22 October 2020. The hiring letter referenced the applicable CSN collective agreement, including a 45-day probation period, and specified that for the one-year commitment tied to the bursary she would be considered for shifts in line with her stated availability and the conventions collectives locales. On 26 November 2020, before the end of that probation, the employer terminated her employment for failing probation, and HR informed her that arrangements would follow regarding reimbursement of the bursary. A subsequent email on 15 December 2020 demanded repayment of 8,293.50 $, which Ms. Aimone neither acknowledged nor paid.

The grievance and the framed legal issues

The union filed a grievance on 7 October 2021, challenging only the financial claim for reimbursement of the bursary; it did not contest the probationary dismissal itself. In written “Admissions” filed for arbitration, the parties sharply defined the preliminary and principal issues to be decided in a first phase.
The employer intended to raise a preliminary objection to the arbitrator’s jurisdiction, arguing the dispute did not concern any condition of employment found in the collective agreement. In its view, the grievance targeted only repayment of a bursary obtained under an engagement toward the Ministry before Ms. Aimone became an employee and part of the bargaining unit. Because the dispute was said to arise from a pre-employment, extra-collective arrangement, the employer maintained that a grievance arbitrator lacked jurisdiction.
The union disagreed and articulated its main substantive theory: the clause in the individual engagement form requiring one-year availability was, in substance, a “condition de travail” that ought not to have been negotiated outside the collective bargaining framework and without union participation. On this reasoning, the availability and repayment obligations were invalid as unilaterally imposed working conditions. In a subsidiary argument, the union further claimed that even if the clause were valid, Ms. Aimone had not breached it because it was the employer that unilaterally ended her employment during probation. She therefore could not be said to have failed her one-year availability commitment and should not be obliged to reimburse the bursary.
The parties agreed that, at a first stage, the arbitrator would decide the employer’s jurisdictional objection and the union’s principal attack on the validity of the one-year availability provision. They explicitly reserved their right to lead evidence and make submissions later on the subsidiary argument concerning the effect of a probationary termination on the repayment obligation.

The arbitral decision and policy instruments

In a decision dated 6 May 2023 but circulated to the parties on 5 May 2024, the arbitrator dismissed the employer’s jurisdictional objection, declared himself competent to decide the dispute, and held that Ms. Aimone did not have to reimburse any part of the bursary.
On jurisdiction, the arbitrator relied on the Supreme Court’s Weber and Parry Sound line of authorities, concluding that the “litige au fond relève de la convention collective” because it resulted from the end of Ms. Aimone’s employment. He also reasoned that, in the pandemic context, the government could establish the Programme under the Public Health Act, effectively bypassing the usual labour-relations processes, and noted that unions had not challenged the creation of the Programme or related measures.
The arbitrator did not, however, engage with the union’s principal argument that the one-year availability clause was an invalid condition of employment because it had been negotiated individually rather than through the union. Instead, to resolve the repayment issue, he turned to extrinsic policy documents issued by the Ministry: a “Cadre de référence” governing the Programme, and a “Foire aux questions” specifically addressing reimbursement scenarios.
The Cadre de référence stated that where an establishment ends an employee’s probationary period, the candidate is not required to repay the bursary, because the decision to end the employment relationship does not originate from the candidate. The FAQ, however, qualified that position by indicating that when an employer’s decision to terminate stems from the candidate’s “agissements fautifs”, the candidate must reimburse amounts paid up to the date of the contract’s termination on a prorated basis. Having reviewed these documents, the arbitrator concluded that no evidence of misconduct by Ms. Aimone had been shown and therefore, applying the Ministry’s interpretive framework, decided she owed no reimbursement.

Standards of review before the Superior Court

Both the CIUSSS and the union sought judicial review in the Superior Court of Québec. The employer attacked the arbitrator’s findings on jurisdiction and on the merits, while the union, despite having obtained a substantively favourable result for its member, brought a de bene esse review to challenge the reasonableness of the arbitrator’s reasons but asked the Court to uphold his conclusion that he had jurisdiction.
The Superior Court first confirmed that the presumptive standard for reviewing administrative merits is reasonableness, per the Supreme Court’s framework in Vavilov: the reviewing court focuses on the decision’s justification, transparency, and intelligibility, intervening when the reasoning is internally incoherent or detached from the legal and factual constraints. For alleged breaches of procedural fairness, the applicable standard is correctness, with no deference, as the reviewing court must determine whether a fair process was followed, considering the nature of the decision, the rights at stake, and the consequences for the parties.
Applying these principles, the Court held that reasonableness governed review of the arbitrator’s rulings on his own jurisdiction and on the substantive repayment question, and correctness governed the alleged violation of procedural fairness.

Reasonableness of the arbitrator’s jurisdictional ruling

On the jurisdiction point, the Court examined whether the arbitrator’s conclusion that he had authority to decide the grievance was supported by a coherent rationale. The arbitrator had tersely dismissed the employer’s preliminary objection and, in doing so, also mistakenly recorded that the union itself had raised an objection to his competence, when in fact the union had always asserted he did have jurisdiction.
In its analysis, the Superior Court underscored that the central role of reasons under the reasonableness standard is to show a logical, transparent path from the issues and evidence to the result. A bare or conclusory statement of jurisdiction does not suffice, and a decision that may fall within the range of acceptable outcomes cannot be upheld if grounded on inadequate or faulty reasoning. Here, the arbitrator’s justification for jurisdiction was limited and opaque. He referred generically to Weber and Parry Sound and to the pandemic-driven establishment of the Programme, but did not seriously grapple with the employer’s argument that the claim flowed from a pre-employment, extra-collective engagement with the Ministry, nor did he provide a clear explanation tying the bursary repayment dispute back to specific rights or obligations arising under the collective agreement.
The Court noted that both parties had advanced substantial arguments on whether the grievance “resulted from” the collective agreement, and that the issue was not straightforward. However, the arbitrator’s reasons did not sufficiently expose any detailed analysis of that question, so the reviewing court could not meaningfully assess how he had resolved the competing characterisations of the dispute. Because the rationality and justification of the decision on jurisdiction were not adequately demonstrated, the Court held that this aspect of the arbitral decision was unreasonable.

Reasonableness of the arbitral decision on the merits

Turning to the merits, the Court focused in particular on the arbitrator’s omission to address the union’s principal legal argument: that the availability and repayment undertakings constituted a condition of work that could not validly be imposed via an individual contract outside the collective bargaining framework. The arbitrator instead built his analysis around the Public Health Act and the Programme’s policy documents, despite neither party having relied on the statute as the legal basis for validating or invalidating the clause.
The Superior Court highlighted that an arbitrator’s failure to grapple meaningfully with a party’s central arguments is a strong indicator of unreasonableness. In this case, the key challenge to the repayment clause—the alleged invalidity of a unilaterally negotiated condition of employment—was simply not analyzed. The arbitrator instead imported a legislative and policy context that the parties had not pleaded and treated the Programme as a government initiative that could override “usual” labour-relations rules, without explaining how that squared with the union’s monopolistic representation rights. This silence on the core legal theory advanced by the union, coupled with reliance on an uninvoked statutory framework, rendered the arbitrator’s reasoning on the merits unreasonable.

Procedural fairness and the handling of the subsidiary argument

The parties agreed in the arbitration admissions that only two issues would be decided at the preliminary, interlocutory stage: the employer’s objection to jurisdiction and the union’s main argument about the invalidity of the one-year availability clause. They expressly reserved the right to present evidence and argument later on the union’s subsidiary contention that the probationary dismissal did not trigger any breach of the availability obligation, and hence no duty to reimburse.
From December 2022 to March 2023, the parties accordingly submitted written representations to the arbitrator only on the jurisdictional and principal validity questions. Nonetheless, in May 2024 the arbitrator issued a decision decisively resolving the entire repayment dispute, stating that no proof of misconduct by Ms. Aimone had been adduced and concluding that she owed nothing, without ever having convened a hearing or receiving evidence or submissions on the subsidiary issue.
The Superior Court accepted the parties’ joint position that this sequence amounted to a serious procedural error. The arbitrator’s assertion that there was no evidence of misconduct rested on a record that had never been developed on that question because the parties had been told—and had agreed—that it would be addressed only at a later phase. By deciding the case as a whole, including the subsidiary argument, without notifying the parties of his intention to do so or giving them the promised opportunity to be heard, the arbitrator breached the audi alteram partem rule and failed to ensure a fair process. This violation of procedural fairness justified quashing his conclusion that the worker was not required to reimburse any amount.

Remedy and outcome on judicial review

On remedy, the Court considered the evolving jurisprudence discouraging premature judicial review of interlocutory administrative decisions, including arbitral rulings on preliminary objections. As a general rule, parties are expected to wait for a final decision before seeking review, save in exceptional instances such as manifest lack of jurisdiction or interlocutory rulings that cause irreparable prejudice or grave breaches of natural justice.
In this case, however, the arbitrator had not merely decided a preliminary point but had effectively disposed of the entire monetary claim without a full evidentiary hearing, in a manner that both parties agreed violated procedural fairness. The Superior Court noted the opacity of the reasons on jurisdiction and the seriousness of the arguments on both sides of that question. It concluded that it would not be appropriate to preserve any portion of the arbitrator’s ruling, including on competence, for the future. Nor was this a case of clearly manifest lack of jurisdiction that would justify directing the outcome on that issue for the new arbitrator.
Accordingly, the Court granted the employer’s judicial review application in full and allowed the union’s de bene esse application in part. It annulled the arbitrator’s conclusions rejecting the employer’s preliminary objection and affirming his own jurisdiction, as well as his conclusion that Ms. Aimone did not have to reimburse the 8,293.50 $ demanded by the CIUSSS. The Court remitted the entire dispute to a different grievance arbitrator to hear evidence and arguments afresh on all issues, including jurisdiction, and directed that this be done without any costs order between the parties. In practical terms, both the employer and the union achieved partial success in having the flawed arbitration award set aside and the matter reopened, but no party obtained a definitive ruling on whether the bursary must be repaid, and no monetary award, damages, or costs were ordered in anyone’s favour; the total amount, if any, that may ultimately be granted will depend on the outcome of the new arbitration and cannot presently be determined.