Executive Summary: Key Legal and Evidentiary Issues

• Scope of judicial review over a grievance arbitrator’s award, applying the Vavilov reasonableness standard to a disciplinary decision in a unionized workplace.
• Characterization of the employee’s conduct as serious negligence rather than a “faute grave” or fault lourde, despite significant contamination losses to the employer.
• Interpretation and application of collective agreement clauses 12.1 and 12.2 on progressive discipline and the limited exception allowing departure from that progression only in cases of “faute grave”.
• Assessment of whether the arbitrator’s reasons were adequately motivated and intelligible, particularly in distinguishing negligence from fault grave and in weighing aggravating and mitigating factors.
• Evaluation of the relevance of the financial and operational consequences of the incident to the gravity of the fault, versus the focus on the intensity of the misconduct itself.
• Determination that substituting a one-day unpaid suspension with a written verbal reprimand fell within the range of reasonable outcomes, leading to the dismissal of the employer’s judicial review and an award of costs to the union, with no specific monetary amount stated.

Factual background

Kerry (Canada) Inc. operates a facility specializing in the packaging of beverages intended for human consumption. Within this production environment, the employee, Richard Turmel, performed tasks involving a machine used to separate or skim milk as part of the company’s processing operations. On 4 January 2023, while carrying out his duties, the employee failed to follow established internal procedures. He connected a hose to the wrong location and then initiated the cleaning cycle of the equipment. Because of this incorrect hose connection, approximately 18,000 kilograms of milk were contaminated by cleaning chemicals. The incident caused the employer to lose a substantial quantity of product, required new supplies of raw material, and forced a temporary shutdown of one of the production lines.

Disciplinary measure and grievance

On 19 January 2023, the employer imposed a disciplinary measure on the employee in the form of a one-day suspension without pay. The letter of suspension set out the facts of the incident, which the union did not dispute, nor did it challenge the nature and scale of the losses suffered by the employer. On 6 February 2023, the union, Syndicat des salariés-es de l’agro-alimentaire de Ste-Claire (CSD), filed a grievance contesting the disciplinary measure and seeking the withdrawal of the sanction. The union argued that the employee’s conduct amounted to an unintentional error or inattention, rather than fault with a voluntary or malicious character, and maintained that, in such a context, an administrative response would have been more appropriate than disciplinary action. In the alternative, it submitted that, if discipline were justified, the one-day suspension was excessive and should be reduced.

The arbitral award

The matter proceeded before a grievance arbitrator, Me Patrice Boudreau. The arbitrator first framed his mandate under the applicable provisions of the Quebec Labour Code and under clause 11.2 of the collective agreement, emphasizing that he could not simply substitute the decision he personally considered best for that of the employer. He then analyzed the uncontested facts and turned to the legal characterization of the employee’s conduct. Distinguishing among error, negligence, and fault lourde (or malveillante), and relying on accepted arbitral definitions, the arbitrator concluded that the employee had committed a “sérieuse faute de négligence”. He found that the employee had not followed the procedures and methods he was expected to know and apply, both in making the hose connections and in starting the wash cycle, which allowed the cleaning solution to enter the line feeding the milk silo. At the same time, the arbitrator noted that there was no evidence of intentional or malicious conduct. This led him to classify the conduct as serious negligence, not as a deliberate, malicious, or grossly insouciant fault that would rise to the level of faute lourde or faute grave.

Interpretation of the collective agreement and progressive discipline

The arbitrator then turned to the convention collective, in particular articles 12.1 and 12.2, which govern disciplinary measures. Article 12.1 A) recognizes the employer’s right to reprimand, suspend, or dismiss an employee for just and sufficient cause, but expressly requires that disciplinary measures be applied with justice and equity, in a progressive and uniform manner, except in cases of “faute grave”. Article 12.1 B) sets out the range of disciplinary sanctions—verbal reprimand recorded in writing, written reprimand, suspension, and dismissal—and stipulates that the verbal reprimand recorded in writing is the first step in the disciplinary scale. Article 12.2 further provides that, as a rule, the employer must not impose a suspension or dismissal on an employee who has not previously received a verbal warning and a written reprimand for an offence of the same nature. Relying on these provisions and endorsing the interpretive approach previously adopted by another arbitrator, Me Dominique-Anne Roy, in a dispute involving the same parties, the arbitrator held that the collective agreement entrenches a clear principle of progressive discipline. Departing from that sequence—by moving directly to a suspension without prior verbal and written reprimands—is permitted only if the employer proves that the employee committed a fault grave. Because he had already concluded that the employee’s conduct amounted to serious negligence without intentional or malicious elements, the arbitrator found that the employer had not established a faute grave justifying a bypass of progressive discipline. He also considered both aggravating factors (including the employee’s long experience and the critical stage of the process at which the incident occurred) and mitigating factors (notably that this was a first offence and there was no proof of intentional or malicious conduct). In light of this analysis, he held that discipline was justified but that the sanction should be aligned with the first step of the progressive scale. The arbitrator therefore upheld the grievance in part, cancelling the one-day unpaid suspension and substituting a verbal reprimand recorded in writing.

Judicial review before the Superior Court

The employer commenced a judicial review (pourvoi en contrôle judiciaire) before the Superior Court of Québec, seeking to set aside the arbitral award. It raised two principal grounds. First, it argued that the arbitrator’s characterization of the employee’s conduct as negligence rather than fault grave was unreasonable, particularly given the scale of the contamination and the financial consequences. Second, it contended that the award was insufficiently reasoned and unintelligible, especially as regards the interpretation of the collective agreement and the conclusion that no fault grave had been established. Although both parties initially suggested that the correctness standard should apply, the Superior Court reviewed the matter under the reasonableness standard established by the Supreme Court of Canada in Vavilov. The Court recalled that there is a strong presumption of reasonableness review for administrative decisions, including arbitral awards, unless specific, limited categories of questions of law are engaged, none of which applied in this case. Under Vavilov, the reviewing court must examine both the reasoning and the outcome, showing deference to the specialized decision-maker and resisting any temptation to re-hear the case or to substitute its own preferred solution.

Assessment of the arbitral reasoning and interpretation

Applying this framework, the Superior Court held that the arbitrator’s classification of the conduct as serious negligence, but not fault grave, fell squarely within his expertise and within the range of reasonable outcomes. The concepts of error, negligence, and fault lourde exist along a continuum, and their application depends on the concrete factual circumstances. The Court emphasized that its role was not to reassess the evidence or to conduct a fresh analysis of the appropriate label, but to determine whether the arbitrator’s reasoning was coherent and defensible. The Court rejected the employer’s argument that the arbitrator had used language associated with fault grave when describing “sérieuse faute de négligence” and then contradicted himself in the disciplinary analysis. In the Court’s view, the arbitrator’s reasons showed that he distinguished clearly between serious negligence and a fault grave requiring proof of an intentional, malicious, or grossly insouciant element, which he found absent. The Court also dismissed the claim that the arbitrator had ignored the consequences of the incident. The award acknowledged the financial losses and disruption to production, and considered those consequences in both the qualification of the fault and the review of the sanction. The arbitrator simply concluded that, for the purposes of determining whether a fault grave existed, the emphasis lay on the intensity of the conduct rather than the magnitude of the resulting damage. This approach was not unreasonable. On the interpretation of articles 12.1 and 12.2, the Court found that the arbitrator’s reading—namely, that the employer is bound by progressive discipline and may deviate from it only in the presence of fault grave—is consistent with the text of the collective agreement and aligned with the prior decision of Me Roy. The alleged inconsistency or lack of explanation vis-à-vis that earlier award was not made out, and the reasons were found to be sufficiently intelligible and justified.

Outcome and implications

In the result, the Superior Court concluded that the arbitral decision was reasonable in both its characterization of the employee’s conduct and its interpretation and application of the collective agreement’s disciplinary provisions. The Court therefore dismissed the employer’s application for judicial review and left intact the arbitrator’s substitution of the one-day suspension without pay with a verbal reprimand recorded in writing. The judgment ordered that the judicial review be rejected with costs (frais de justice) in favour of the mis en cause, namely the union, Syndicat des salariés-es de l’agro-alimentaire de Ste-Claire (CSD), thereby confirming the union as the successful party in the proceeding. However, the decision does not specify a dollar figure for those costs or for any other monetary award or damages, so the exact total amount ordered in favour of the successful party cannot be determined from this judgment alone.