Executive Summary: Key Legal and Evidentiary Issues

• Legality of a unilateral service-loan (prêt de service) agreement for a unionized psychologist concluded directly between two CISSS and the employee, without union involvement, and its impact on the union’s monopoly of representation
• Scope of “entrave aux activités d’une association de salariés” under article 12 al. 1 of the Québec Code du travail when an employer negotiates individual working conditions outside the collective bargaining framework
• Extent of an employer’s residual management rights (droit de direction) in the absence of express collective agreement provisions on service-loan arrangements and whether these rights justify bypassing the union
• Standard of review and methodology for judicial review of TAT decisions (reasonableness, per Vavilov and Mason), and whether the Superior Court properly applied that framework to the TAT’s analysis of entrave and intent (imprudence grave)
• Jurisdictional boundary between the Tribunal administratif du travail and grievance arbitrators when examination or interpretation of a collective agreement is necessary to decide an article 12 Code du travail complaint
• Weight to be given to consistent TAT jurisprudence and prior Superior Court approvals of findings of entrave in similar service-loan scenarios when assessing the reasonableness of the TAT’s decision

Facts of the case

The Alliance du personnel professionnel et technique de la santé et des services sociaux (APPTS) is the certified bargaining agent for a unit of technicians and health and social services professionals employed by the Centre intégré de santé et de services sociaux (CISSS) de la Montérégie-Ouest, including psychologists. Their relationship is governed by a collective agreement that does not expressly regulate service-loan (prêt de service) arrangements for employees. In mid-2023, CISSS de l’Abitibi-Témiscamingue faced acute staffing shortages and approached CISSS de la Montérégie-Ouest seeking temporary professional support so it could maintain care and services in its region. In August 2023, the two CISSS and a psychologist who was part of the APPTS bargaining unit concluded a service-loan agreement under which the psychologist’s services were lent to CISSS Abitibi-Témiscamingue from 13 to 20 August 2023. Under this arrangement, the receiving CISSS would manage the psychologist during that period in an establishment not covered by the APPTS certification. CISSS de la Montérégie-Ouest remained the employer of record and responsible for paying her salary, but CISSS Abitibi-Témiscamingue was to reimburse all related costs. The agreement required the psychologist to comply with all policies, directives, regulations and codes in force at CISSS Abitibi-Témiscamingue. It also mentioned the collective agreement applicable to CISSS de la Montérégie-Ouest and stated that the parties undertook to respect it, while providing that administrative or disciplinary issues would be dealt with by both CISSS. The psychologist retained her employment relationship and seniority with CISSS de la Montérégie-Ouest and would return to her position after the assignment. The union was not involved in negotiating or approving this service-loan agreement and learned of its existence only on 22 August 2023, after the assignment had ended.

Union grievances and complaint for interference

On 23 August 2023, the APPTS filed a grievance alleging that the agreement infringed its monopoly of representation and breached the collective agreement, and seeking a declaration of invalidity. Two days later, it filed a complaint before the Tribunal administratif du travail (TAT) alleging interference with the activities of an association of employees, contrary to article 12, alinéa 1 of the Code du travail. The union claimed that the CISSS had violated its exclusive representational role by secretly concluding an agreement that altered the working conditions of a unionized psychologist without union involvement, and sought a declaration of interference and $1,000 in punitive damages.

The TAT’s decision: finding of interference but no punitive damages

In December 2023, the TAT partly upheld the union’s complaint. It began by recalling that article 12 al. 1 C.t. is designed to protect freedom of association and union autonomy within the union’s monopoly of representation, and that “entrave” (hindering) covers a broad range of conduct that obstructs union activity. The TAT reiterated that an offence of interference requires a culpable intent, which may consist of deliberate conduct or serious imprudence by an employer who could not reasonably ignore the consequences of its acts. Referring to Supreme Court jurisprudence, including Noël, the TAT emphasized the employer’s obligation to negotiate unionized employees’ working conditions with the certified association, and recognized that the service-loan had an impact on convention-based conditions such as seniority, transfers and the maintenance of the employment relationship, all areas where the APPTS remained the exclusive interlocutor. The TAT rejected the employer’s position that it was simply exercising its managerial rights by signing the agreement, and refused to minimize the interference on the basis of the short, one-week duration of the loan. It stressed that article 12 captures both minor and major infringements. The TAT found that the employer had sought to bypass the union by negotiating directly with the employee and creating a parallel individual contract that did not respect the modalities established in the collective agreement, thereby undermining the union’s representational mission and directly breaching its monopoly of representation. At the same time, the TAT dismissed the claim for punitive damages. In light of the urgent context—a public health employer responding to a pressing staffing crisis at another CISSS—it found that awarding punitive damages was not necessary to deter recurrence of the impugned conduct.

Judicial review before the Superior Court

In January 2024, the CISSS de la Montérégie-Ouest sought judicial review in the Superior Court, attacking the TAT decision on multiple fronts. It argued that the TAT failed to adequately address and reason through the employer’s representations; misinterpreted the collective agreement and exceeded its jurisdiction by stepping into the role of a grievance arbitrator; insufficiently explained how the agreement violated the union’s monopoly of representation; wrongly concluded there was an intention to interfere; improperly required negotiation with the union whenever a service-loan was contemplated; and issued an order that had not been specifically requested or fully argued. In May 2025, the Superior Court judge allowed the application, quashed the TAT’s decision and dismissed the union’s complaint. Relying on the Supreme Court’s decision in S.C.F.P. c. Société des Alcools du N.-B., the judge held that the TAT’s interpretation of “entrave” could not reasonably be grounded in the wording of article 12 al. 1 C.t. The judge saw no anti-union animus in a health-care institution helping another, possibly understaffed, institution in a remote region and questioned why, if the collective agreement did not mandate such assistance, the employer would need to negotiate a one-week service-loan contract with the union. The judge further held that there was no freestanding duty, absent legislation or contractual language, to respect the union’s monopoly of representation in the way asserted by APPTS, and found Noël inapplicable because it involved conditions of work expressly covered by a collective agreement, whereas here the agreement was silent on service-loans. The Superior Court criticized the TAT for failing to engage with an arbitral award invoked by the employer, which it considered closely analogous, and preferred to distinguish a Superior Court judgment from the CISSS du Bas-Saint-Laurent case that had endorsed TAT findings of interference in a service-loan context. Finally, because a grievance contesting the same agreement was already pending, the judge concluded that the TAT should have left the matter to arbitration rather than using article 12 C.t. to pronounce on the agreement’s validity. On this view, by concluding that the service-loan breached the collective agreement, the TAT had strayed beyond its specialized jurisdiction and into the exclusive domain of grievance arbitration.

Appeal to the Court of Appeal and the applicable standard of review

The APPTS appealed, arguing that the Superior Court applied the wrong methodology under Vavilov and Mason. Instead of treating the TAT’s decision as the starting point and asking whether it was justified in light of the factual and legal constraints, the judge had substituted his own view of the merits. The union contended that the TAT’s reasoning on both interference and jurisdiction was reasonable and fully justified, and that the court of first instance had effectively re-decided the case. The CISSS responded that the Superior Court had correctly found the TAT’s interference finding to be unreasonable, insisting that article 12 al. 1 C.t. was never intended to curtail legitimate managerial authority and that, in any event, concluding a brief, good-faith service-loan to help a shortage-stricken institution could not reasonably be deemed “serious imprudence.” It also maintained that the TAT had overstepped its material jurisdiction by effectively determining that the agreement contravened the collective agreement, a matter it said belonged uniquely to the grievance arbitrator. The Court of Appeal began by clarifying that, on appeal from a judgment in judicial review, the standard applicable to the reviewing judge’s choice and application of the standard of review is correctness. The appellate court therefore had to step into the shoes of the Superior Court and directly assess the TAT’s decision, applying the reasonableness standard to that administrative decision. Under Vavilov and Mason, a decision can be unreasonable either because its internal logic is fundamentally flawed, or because it fails to grapple adequately with the key factual and legal constraints bearing on the issue.

The Court of Appeal’s assessment of interference and employer intent

The Court of Appeal found that the TAT’s reasons displayed a coherent, rational chain of analysis and contained no decisive logical flaw. The real question was whether the TAT’s conclusions were justified in light of the governing statutory regime, interpretation principles, the evidentiary record, and the tribunal’s own prior decisions. Turning first to article 12 al. 1 C.t., the Court underscored that it prohibits employers from hindering the activities of an association of employees and that those activities are structured around the core principle of the union’s monopoly of representation. Drawing on the Supreme Court’s decisions in Bisaillon and Noël, the Court emphasized that this monopoly prevents any direct bargaining between employer and individual employees and extends beyond the four corners of the collective agreement to “all aspects” of the employer-employee relationship, including conditions of work not expressly mentioned in the agreement. Thus, any negotiation of working conditions—whether or not textually specified in the collective agreement—must necessarily be conducted through the certified union. Against that backdrop, the TAT’s two key premises were, in the Court’s view, unassailable: that collective representation lies at the heart of “the activities of an association of employees” for purposes of article 12; and that individualized negotiation of a unionized employee’s working conditions, including those not expressly codified in the agreement, infringes the union’s statutory monopoly of representation, which flows from legislation and certification, not from the collective agreement itself. The employer’s reliance on its residual management rights was therefore misplaced. Although the collective agreement was silent on service-loans as such, the agreement at issue had clear knock-on effects on seniority, transfers, unpaid leaves and other convention-regulated matters, so it was inaccurate to characterize the entire subject-matter as lying wholly outside the negotiated framework. The Court found that the TAT’s reasoning—that the service-loan could not be insulated from the reach of the collective agreement and union representation simply by labelling it a managerial decision—was entirely compatible with the applicable legal and factual constraints. As for the required element of culpable intent, the Court accepted the well-established standard that “entrave” can rest on serious imprudence by an employer that cannot reasonably plead ignorance of the consequences of its conduct. Applying that test to the facts—namely, a unilateral, undisclosed agreement directly with an individual unionized psychologist that modified aspects of her working conditions and was negotiated outside the union framework—the TAT’s conclusion that the CISSS could not ignore the impact on the union’s monopoly of representation raised no reviewable error. This was a mixed question of fact and law, and no palpable and overriding error had been shown. The Court also stressed that the TAT’s conclusion on interference aligned with a consistent line of its own decisions dealing with similar service-loan arrangements and with several Superior Court rulings that had already upheld such findings of entrave. This consistent administrative and judicial treatment formed part of the “legal constraints” the TAT had appropriately taken into account and reinforced the reasonableness of its decision.

Jurisdiction of the TAT versus grievance arbitration

On the jurisdictional argument, the Court of Appeal endorsed the union’s position. Under its constitutive statute, the TAT has exclusive jurisdiction to adjudicate complaints alleging violations of article 12 al. 1 C.t. The need to consider or even interpret provisions of a collective agreement in order to decide whether interference has occurred does not alter the essential nature of the dispute or divest the TAT of competence. The Court pointed to established TAT case law confirming that the tribunal may refer to and interpret collective agreement clauses as part of its analysis of an article 12 complaint, including in the specific context of service-loan agreements. This body of jurisprudence, grounded in the statutory grant of jurisdiction, confirmed that there was no conflict of jurisdiction with grievance arbitrators merely because collective agreement issues were in play.

Final outcome and financial consequences

In the result, the Court of Appeal held that the Superior Court erred in characterizing the TAT’s decision as unreasonable and in concluding that the tribunal had strayed beyond its jurisdiction. The appellate court allowed the APPTS’s appeal, set aside the 6 May 2025 Superior Court judgment and substituted conclusions dismissing the employer’s application for judicial review, with costs. This had the effect of restoring the TAT’s original decision: the service-loan agreement was treated as an unlawful interference with the union’s activities under article 12 al. 1 C.t., but the union’s request for $1,000 in punitive damages remained dismissed. Accordingly, the successful party in the appeal is the Alliance du personnel professionnel et technique de la santé et des services sociaux. The court also awarded “frais de justice” (costs) in its favour, but the judgment does not specify a numerical amount, which would be determined in accordance with the applicable tariff or taxation process. There is therefore no precisely stated total monetary award or quantified damages in the decision beyond this unquantified costs order, and the exact amount ordered in favour of the successful party cannot be determined from the text of the judgment.