General Truck Drivers Union, Local 938, et al. v. Hoar Transport Co. Ltd., [1969] SCR 634

Supreme Court of Canada

General Truck Drivers Union, Local 938, et al. v. Hoar Transport Co. Ltd., [1969] S.C.R. 634

Date: 1969-04-22

General Truck Drivers Union, Local 938, Paul C. Weiler, Stanley T. Bullock and F. William Murray (Plaintiffs) Appellants;

and

Hoar Transport Company Limited (Defendant) Respondent.

1969: February 12; 1969: April 22.

Present: Cartwright C.J. and Martland, Judson, Ritchie and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour relations—Collective agreement—Union and company nominees failing to select chairman of arbitration board—Union nominee failing until after prescribed period to request appointment of chairman by Minister—Grievance deemed to have been withdrawn if “grievance has not been processed by the grievor, his representatives or agents” in accordance with time limit—Whether board had jurisdiction to consider merits of grievance.

The appellant union, dissatisfied with the respondent company’s rejection of a discharge grievance, indicated that it wished to proceed to arbitration, as was provided for in their collective bargaining agreement. Appointments of a union nominee and a company nominee to the board of arbitration were made within the time limits stipulated by art. 6.7 of the collective agreement. However, this article also provided that the appointees were to select a chairman within fifteen days of their appointment and that if they failed to do so, then the “aggrieved party’s appointee must request in writing within five (5) calendar days,” the Minister of Labour to name a chairman. It was not until after the prescribed period that the union’s nominee B wrote to the Minister requesting that a chairman be appointed. This was done, and later the question was raised as to whether the board of arbitration had jurisdiction to consider the merits of the discharge grievance where there was clearly a failure on the part of the aggrieved party’s appointee to comply with the time limit stipulated in art. 6.7.

The board, by a majority, held that it had jurisdiction to hear and determine the grievance. An application by the respondent to quash the proceedings by way of certiorari and for an order to prohibit further proceedings was dismissed. On appeal the Court of Appeal, by a majority, reversed this decision. With leave, an appeal from the judgment of the Court of Appeal was then brought to this Court.

Held (Spence J. dissenting): The appeal should be dismissed.

Per Cartwright C.J. and Martland, Judson and Ritchie JJ.: Article 6.8 of the agreement provided that if at any time during the carrying out of the steps laid down in art. 6.7 “the grievance has not been processed by the grievor, his representatives or agents in accordance with the time limit as prescribed, the grievance shall be deemed to have been withdrawn”. B was well out of time when he wrote to the Minister requesting the appointment of a chairman. He was the

[Page 635]

“aggrieved party’s appointee” for this purpose. He was the only person who could make the request on behalf of the grievor, and he made it as representative of, or as agent of, the grievor. There was no conflict between this position and the quasi-judicial function which he later assumed upon the board being fully constituted.

Articles 6.7 and 6.8 were integral provisions of the agreement. They created obligations of a basic nature and the parties to the agreement were obliged to adhere to them.

Per Spence J., dissenting: The scheme of the collective agreement was that although there could be an employee’s grievance that grievance had to be espoused by the union and, therefore, the notice of intention to arbitrate referred to in art. 6.7 which was required to contain the name of the aggrieved party’s appointee to the board of arbitration required that the union, if it were processing either a union grievance or an employee grievance, was the party who should appoint to the board of arbitration. Article 6.8, however, did not refer to the aggrieved party’s appointee but to the grievor, his representatives, or agents. Upon this consideration alone, it was apparent that the default of the union’s appointee under art. 6.7 could not be the default of the grievor or the grievor’s representatives or agents under art. 6.8.

Furthermore, even if B were the grievor’s appointee not an “aggrieved party’s appointee” under art. 6.7, he was not the “grievor’s representative or agent” within art. 6.8. The function and character of a member of a board of arbitration was exactly opposite to that of a representative or agent. It was of the essence of his duty that such a member must act impartially and under such duty he could not be a representative or agent of anyone whether that party appointed him or not.

[Union Carbide Canada Ltd. v. Weiler et al., [1968] S.C.R. 966; Port Arthur Shipbuilding Co. v. Arthurs et al., [1969] S.C.R. 85, applied.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from an order of Stark J. dismissing an application for an order of certiorari and prohibition. Appeal dismissed, Spence J. dissenting.

Aubrey E. Golden, for the appellants.

W.Z. Estey, Q.C., for the respondent.

The judgment of Cartwright C.J. and Martland, Judson and Ritchie JJ. was delivered by

JUDSON J.:—The appellant, General Truck Drivers Union, Local 938, hereinafter referred to as “the Union”, and the respondent are parties to a collective agreement which contains provisions for the orderly settlement of

[Page 636]

grievances finally terminating, if necessary, in binding arbitration. The Union, dissatisfied with the respondent’s rejection of a discharge grievance, indicated that it wished to proceed to arbitration, and on November 10, 1966, it appointed appellant Bullock as its nominee to the board of arbitration. On November 16, 1966, the respondent appointed appellant Murray as its nominee.

These appointments were within the time limits stipulated by art. 6.7 of the collective agreement. However, this article also provided that the appointees were to select a chairman within fifteen days of their appointment and that if they failed to do so, then the “aggrieved party’s appointee must request in writing within five (5) calendar days,” the Minister of Labour for the Province of Ontario to name a chairman. The appellants failed to agree upon a chairman and Bullock did not write to the Minister within the prescribed period. Indeed, it was not until January 4, 1967, that Bullock discussed the matter with Murray and then wrote to the Minister requesting that a chairman be appointed. This was done, and the question in this appeal is whether the board of arbitration had jurisdiction to consider the merits of the discharge grievance where there was clearly a failure on the part of the aggrieved party’s appointee to comply with the time limit stipulated in art. 6.7.

The board, by a majority, held that it had jurisdiction to hear and determine the grievance. The respondent’s motion to quash the proceedings by way of certiorari and for an order to prohibit further proceedings was dismissed by Stark J. But on appeal the Court of Appeal, by a majority, reversed this decision. I fully agree with the majority reasons delivered in the Court of Appeal.

Article 6.8 provides that if at any time during the carrying out of the steps laid down in art. 6.7 “the grievance has not been processed by the grievor, his representatives, or agents in accordance with the time limit as prescribed, the grievance shall be deemed to have been withdrawn”. Bullock was well out of time when he wrote to the Minister of Labour for the Province of Ontario requesting the appointment of a chairman. He was the “aggrieved party’s appointee” for this purpose. He was the only person who could make the request on behalf of the grievor, and he made it as representative of, or as agent of,

[Page 637]

the grievor. There is no conflict between this position and his quasi-judicial function. He assumes the latter only at a later stage in the proceedings; that is, upon the board being fully constituted.

The board of arbitration is bound by the terms of the collective agreement. Articles 6.7 and 6.8 are integral provisions of the agreement. They create obligations of a basic nature and the parties to the agreement are obliged to adhere to them. The board of arbitration cannot ignore or dilute the force of these obligations, nor change their purport by means of amendment or substitution. This was the view taken by this Court in the recent decisions of Union Carbide Canada Ltd. v. Weiler et al.[2], and Port Arthur Shipbuilding Co. v. Arthurs et al.[3], and these decisions determine the disposition of this appeal.

I would dismiss the appeal with costs.

SPENCE J. (dissenting):—I have had the opportunity of reading the reasons of my brother Judson and I need not repeat the circumstances which have been outlined with such detail in his reasons.

I am in agreement that the board of arbitration is bound by the terms of the collective agreement and that arts. 6.7 and 6.8 are integral provisions of the agreement creating an obligation of a basic nature and that the parties to the agreement are obliged to adhere to them.

I am also of the opinion that s. 86 of the Ontario Labour Relations Act, R.S.O. 1960, c. 202, does not permit the board of arbitration to ignore the exact provisions of the collective agreement and that the failure to comply with such provisions is no mere “technical irregularity”. Indeed, counsel for the appellant declined to urge such a submission on this Court.

With respect, however, I cannot accept the view that, when Mr. Bullock, the aggrieved party’s appointee, failed to request the Minister of Labour to name a chairman within five days after the expiry of the time for the two arbitrators to agree on the appointment, such an action resulted in the grievance being deemed to have been withdrawn. The majority of the Court of Appeal were of

[Page 638]

the opinion that such a result was wrought by the provisions of art. 6.8 of the collective agreement. That provision, so far as it is relevant, is as follows:

If at any time during the above mentioned steps the grievance has not been processed by the grievor, his representatives, or agents in accordance with the time limit as prescribed, the grievance shall be deemed to have been withdrawn…

I note that the default which is to have this very serious result is the default of the “grievor, his representatives or agents”. The default in the present case was that of Mr. Bullock. Mr. Bullock was the exact person upon whom the duty rested in that he was “the aggrieved party’s appointee” under the provisions of art. 6.7 of the collective agreement. If it had been intended to have included the arbitrator who was appointed by the grievor amongst those whose default would result in the grievance being deemed to have been withdrawn, it would have been extremely easy to have repeated in art. 6.8 the same exact words “the aggrieved party’s appointee” as had been set out in art. 6.7 rather than have left the question open as to whether such aggrieved party’s appointee could be included in the general words “his representatives or agents”.

In art. 6.7, three kinds of grievances are outlined:

1. an employee grievance,

2. a member company grievance,

3. a union grievance.

There would seem to be no doubt that the present case is concerned with an employee grievance. I am, however, doubtful that “the aggrieved party’s appointee” is the employee’s appointee. Although the collective agreement does bear a definition of member companies and of employees, it bears no definition of the word “party”. The individual employees were not signators of the collective agreement. Throughout the whole of the various paragraphs of art. 6, there is consistent reference to the “aggrieved employee” and to the “grieving employee” but nowhere is the employee referred to as a “party”. Moreover, art. 6.3 provides:

During any such steps of the grievance procedure, after the grievance has been received in writing the grieving employee must be accompanied by one steward and/or business agent.

[Page 639]

This all leads me to believe that the scheme of the collective agreement was that although there could be an employee’s grievance that grievance had to be espoused by the union and that, therefore, the notice of intention to arbitrate referred to in art. 6.7 which was required to contain the name of the aggrieved party’s appointee to the board of arbitration required that the union, if it were processing either a union grievance or an employee grievance, was the party who should appoint to the board of arbitration. Article 6.8, however, does not refer to the aggrieved party’s appointee but to the grievor, his representatives, or agents. Upon this consideration alone, it is apparent that the default of the union’s appointee under art. 6.7 cannot be the default of the grievor or the grievor’s representatives or agents under art. 6.8.

I am, however, further of the opinion that art. 6.8 need not be interpreted as causing the grievance to be deemed to be withdrawn even if art. 6.7 did provide that the notice should contain the name of the grievor’s appointee rather than “the aggrieved party’s appointee” as it does. I do not think so because I am of the opinion that the function and character of a member of a board of arbitration is exactly opposite to that of a representative or agent. It is of the essence of his duty that such a member must act impartially and under such duty he could not be a representative or agent of anyone whether that party appointed him or not.

It was the view of Aylesworth J.A., giving the judgment of the majority of the Court of Appeal for Ontario, that such appointee’s “quasi-judicial function of arbitration begins with the constitution of the board, not before, and the board, of course, cannot be constituted and cannot enter upon its functions until after the appointment of a chairman”. With respect, I am unable to agree with the view that the character of an arbitrator changes from that of an agent to that of an impartial adjudicator after a chairman has been appointed in the ordinary course by the act of that very member of the board and the board commences its deliberations. Any such mystical translation of functions is unnecessary for the proper conception of the position and duty of an arbitrator.

In Veritas Shipping Corporation v. Anglo-Canadian Cement, Ltd.[4], Mr. Justice McNair considered an appli-

[Page 640]

cation to remove one Wallersteiner from a board of arbitration. The arbitration was one provided for by a clause in the charter-party which clause called on each party, i.e., the owners and charterers, to nominate a member of the board. The charterer purported to nominate its own managing director as the arbitrator and, in fact, Dr. Wallersteiner, as such managing director of the charterer, actually executed the document appointing himself the arbitrator. The submission made by the shipowners was that Dr. Wallersteiner had misconducted himself in the arbitration in appointing himself, having been managing director of the charterer. McNair J. said at p. 77:

I am quite satisfied that it would be quite wrong for him to be allowed to continue to act as arbitrator in a dispute of this nature. It is quite true that under the clause, if the two arbitrators disagree and the matter is referred to the umpire for his decision, the arbitrators, according to the customary way in which these matters are dealt with in the City of London, may if they so wish act as advocates. They need not do so but there is nothing wrong in them doing so. Until that moment arrives, the arbitrators must not only act judicially and show no bias at all but must also appear to be in a position to act judicially and without any bias.

Therefore, it was McNair J.’s view that so soon as the arbitrator was appointed his judicial and impartial function became operative. In the present case, for the same reasons, Mr. Bullock’s judicial and impartial function became operative so soon as he was appointed as the aggrieved party’s appointee to the board. In fact, the very act of choosing the chairman of the board was a duty he was required to perform judicially and without bias.

I am, therefore, of the opinion that, as I have said, even if Mr. Bullock were the grievor’s appointee not an “aggrieved party’s appointee” under art. 6.7, he was not the “grievor’s representative or agent” within art. 6.8.

I am assisted in coming to this conclusion by the circumstance, referred to by Mr. Justice Laskin in his dissenting judgment in the Court of Appeal for Ontario, that the words “the grievor, his representatives or agents” in art. 6.8 have ample subject-matter in art. 6 to which the words might refer other than the aggrieved party’s appointee. Throughout it and the preceding articles of the agreement, many examples of representative or agent character of

[Page 641]

either the member company or the union are given. Any one of those representatives or agents could be “the grievor, his representatives or agents” in art. 6.8.

For these reasons, I would allow the appeal with costs in this Court and in the Court of Appeal and restore the judgment of Stark J., dismissing the motion for certiorari with costs.

Appeal dismissed with costs, SPENCE J. dissenting.

Solicitor for the appellants: Aubrey E. Golden, Toronto.

Solicitors for the respondent: Robertson, Lane, Perrett, Frankish & Estey, Toronto.