Galloway Lumber Co. Ltd. v. Labour Relations Board of British Columbia, [1965] SCR 222

Supreme Court of Canada

Galloway Lumber Co. Ltd. v. Labour Relations Board of British Columbia, [1965] S.C.R. 222

Date: 1965-01-26

Galloway Lumber Co. Ltd Appellant;

and

The Labour Relations Board Of British Columbia And International Woodworkers Of America Local No. 1-405 Respondents.

1964: October 26, 27; 1965: January 26.

Present: Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Labour—Arbitration—Appointment of arbitrator by Labour Relations Board—Application for writ of certiorari to quash appointment—Labour Relations Act, R.S.B.C. 1960, c. 205, s. 22(3)(a) [enacted 1961 (B.C.), c.S1,s.17(b)].

In the matter of the dismissal of one G, the respondent union by a letter of February 21, 1962, advised the appellant company that it was going to proceed to arbitration in compliance with the provisions of a collective agreement and in a further letter of February 27th it notified the company as to the name and address of its nominee on the arbitration board. On February 28th, upon instructions of the appellant, its solicitors wrote to the union taking the position that the union's letter of February 21st did not comply with the provisions of the collective agreement in that it neither set out the question to be arbitrated nor gave the name and address of the union's nominee as arbitrator.

On May 28th, the respondent Labour Relations Board notified the appellant of its contention that it had been requested to appoint an arbitrator to be the appellant's member of an arbitration board and that it intended to consider the matter at a Board meeting on June 12th. Despite the appellant's objections that the grievance had been abandoned pursuant to the provisions of the collective agreement, the

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Board determined that the dispute between the company and the union was arbitrable and on June 21st again requested the company to nominate its arbitrator. When the company did not do so the Board, purporting to act under s. 22(3) of the Labour Relations Act, R.S.B.C. 1960, c. 205, nominated an arbitrator. An application by the company for a writ of certiorari to quash the appointment was dismissed and, on appeal, the judgment of the trial judge was affirmed by a majority decision of the Court of Appeal. The company then appealed to this Court.

Held: The appeal should be dismissed.

Per Martland, Judson and Ritchie JJ.: Section 22(3) (a) of the Labour Relations Act gave the Board power to appoint an arbitrator if in its opinion the question was arbitrable. The appellant's argument that the Board had to come to a correct decision on this question before it could make the appointment and that the correctness of the decision was reviewable by way of certiorari was rejected. The Board's jurisdiction did not depend upon whether or not a Court might think its opinion to be erroneous. There was nothing "collateral" or "preliminary" or "jurisdictional" about this question; it was "of the very essence" of the inquiry. Further, there could be no ground here for judicial review based on an opinion of error in statutory interpretation or an exercise of power beyond that conferred by the statute.

The Board made the decision which it alone had the power to make. It was made within the assigned area of the exercise of the power. It was final and not reviewable.

Per Hall and Spence JJ.: The determination of the Labour Relations Board that the question was arbitrable was at least a quasi-judicial decision and such determination was reviewable on certiorari. Jarvis v. Associated Medical Services Inc. (1962), 35 D.L.R. (2d) 375, affirmed [1964] S.C.R. 497, referred to.

Upon such a review, however, the conclusion was reached that the decision of the Board was correct. The appellant's argument that the grievance had been abandoned failed. The union's letter of February 27th was dispatched within the time limited by the provisions of the collective agreement, and reading the union's previous letter of February 21st together with a letter of G, dated February 12, 1962, in which he had set out his grievance, there was no doubt that the question to be arbitrated was sufficiently set out in writing.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal from an order of Maclean J. dismissing an application for certiorari to quash an appointment of an arbitrator. Appeal dismissed.

D. McK. Brown, Q.C., for the appellant.

H. E. Hutcheon, for the respondent Union.

A. W. Mercer, for the respondent Board.

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

JUDSON J.:—Throughout these proceedings the appellant company has pressed two objections to the appointment of an arbitrator by the Labour Relations Board. First, it says that a complaint in writing from an employee that his dismissal is wrongful is not a notification of any cause to be arbitrated under the collective bargaining agreement because something equivalent to a bill of particulars ought to have been delivered. This is more than the technicalities of common law pleading ever required at any time in a case of this kind. The objection is entirely without merit.

The second objection that the grievance had been abandoned is equally technical. There was evidence on which the Board could act that the third step in the grievance was not completed until February 13, 1962. Then followed the union's letter of February 21st that they were going to arbitration, and the registered letter of February 27th naming their arbitrator. The collective agreement provides that the notice may be given by registered mail. There was, therefore, evidence before the Board on which it could find, as it must have done, that the union had complied with the grievance procedure. The company's submission of the truism that by contract law an offer is effective only when it is communicated to the offerer does not establish reviewable error under the terms of this agreement.

By s. 22(3) (a) of the Labour Relations Act, R.S.B.C. 1960, c. 205, as amended by 1961 (B.C.), c. 31, the Board has power to appoint an arbitrator "if in its opinion the question is arbitrable". The company's argument before this Court was based on the dissenting reasons delivered in the Court of Appeal that the Board must come to a correct decision on this question before it can make the appointment and that the correctness of the decision is reviewable by way* of certiorari.

With respect, the Board's jurisdiction does not depend upon whether or not a Court may think its opinion to be erroneous. There is nothing "collateral" or "preliminary" or "jurisdictional" about this question. To continue with the established vocabulary in this branch of the law, it is "of the very essence" of the inquiry. Further, there can be no ground here for judicial review based on an opinion of error

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in statutory interpretation or an exercise of power beyond that conferred by the statute.

It is undisputed that there was a complaint of wrongful dismissal and a demand for the appointment of an arbitrator. Power to appoint an arbitrator in these circumstances belongs to the Board "if in its opinion the question is arbitrable". The company's argument wishes to change this language to read "if in the opinion of the Board, which will be supported by a Court asserting a power of review, the question is arbitrable". I happen to think that the Board's decision in this case was correct but that opinion has nothing to do with my task. The Board made the decision which it alone had the power to make. It was made within the assigned area of the exercise of the power. It is final and not reviewable.

I would dismiss the appeal with costs in favour of International Woodworkers of America, Local No. 1-405. There should be no award of costs to or against the Labour Relations Board in this Court.

The judgment of Hall and Spence JJ. was delivered by

SPENCE J.:—This is an appeal from the judgment of the Court of Appeal for British Columbia[2] pronounced on March 11, 1964, dismissing an appeal from the order of Maclean J. made on February 19, 1963, whereby the application of the appellant Galloway Lumber Co. Ltd. for a writ of certiorari was dismissed.

By a collective agreement between the appellant and the International Woodworkers of America, Local No. 1-405, made in August 1960, it was provided, inter alia:

ARTICLE XV—GRIEVANCE PROCEDURE

Section 1:

The Company and the Union mutually agree that, when a grievance arises in the plant or camp coming under the terms of this Agreement, it shall be dealt with without stoppage of work, in the following manner:

Step 1:	The individual employee, with or without a job steward, shall first take up the matter with the foreman in charge of the work within fourteen (14) calendar days.
Step 2:	If a satisfactory settlement is not then reached, it shall be reduced to writing by both parties, when the same employee and the Committee shall take up the grievance with the superintendent or the personnel officer, or both, as designated by the Company. If desired, the Union business agent shall accompany the Committee.

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Step 3:	If the grievance is not then satisfactorily solved, it shall be referred to an authorized representative of the Union and the Management.
Step 4:	If a satisfactory settlement is not then reached, it shall be dealt with by arbitration, hereinafter provided.

Section 2:

If a grievance has not advanced to the next stage under Step 2, 3 or 4, within fourteen (14) days after completion of the preceding stage, then the grievance shall be deemed to be abandoned, and all rights of recourse to the grievance procedure shall be at an end. Where the Union is not able to observe this time limit by reason of the absence of the Aggrieved Employee or the Committee from camp the said time limit shall not apply. The Union shall be bound to proceed in such a case as quickly as may be reasonably possible.

Section 3:

Grievance meeting shall, except in cases of emergency, and whenever possible, be held out of working hours.

ARTICLE XVII—ARBITRATION

Section 2:

(a) In the case of a dispute arising regarding the discharge of an employee or the failure to re-hire an employee under this Agreement, which the Parties are unable to settle between themselves as set out in Article XV, the matter shall be determined by arbitration in the following manner:

Either Party may notify the other Party in writing, by registered mail, of the question or questions to be arbitrated, and the name and address of its chosen representative for the Arbitration Board. After receiving such notice and statement the other Party shall, within five (5) days, appoint an Arbitrator and give notice in writing of such appointment and the name and address of its Arbitrator. If the two Arbitrators appointed by the Parties fail to agree upon a Chairman within five (5) days, they, or either one of them, shall forthwith request the Labour Relations Board of British Columbia to appoint a Chairman.

(b) The decision of the Arbitration Board shall be by majority vote and all decisions regarding discharge or failure to rehire employees which have been referred to arbitration will be final and binding upon the Parties of the First and Second Parts.

(c) If any Arbitration Board finds that an Employee has been unjustly suspended or discharged such Employee shall be reinstated with all his rights and privileges preserved under the terms of this Agreement. The Arbitration Board shall further make the determination of the amount of lost pay, if any, to be paid to the Employee.

Section 3:

The Parties of the First and Second Parts will each bear the expense and charges of its representatives on any Arbitration Board, and shall bear in equal proportions the expenses and allowances of the Chairman or Sole Arbitrator, as the case may be, and the stenographic and secretarial expense, and rent.

Section 4:

Any arbitration to be held hereunder shall be held at such place as may be decided by the Board.

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Such grievance procedure was instituted by one Gorrie by his letter of February 12, 1962. On that day, a meeting in compliance with step 3, supra, was convened but the representatives of the appellant refused to reinstate Gorrie at such meeting.

On the next day, the representative of the respondent union telephoned to the president of the appellant company and sought to have the latter reconsider his decision of the previous day but his effort was in vain.

On February 21st, the respondent union forwarded to the appellant company a registered letter which read:

Mr. Henry Nelson,

Manager,

Galloway Lumber Company Ltd.,

Galloway, B.C.

Dear Sir:

In the matter of the discharge of Mr. Earl Gorrie, please be advised that Local 1-405 International Woodworkers of America, AFL-CIO-CLC are going to proceed to Arbitration, in compliance with ARTICLE XV STEP 4 and as provided for under ARTICLE XVII Section 2(a) of the 1960-1962 Master Agreement.

You will be notified shortly the name and address of the Union's chosen representative for the Arbitration Board.

Yours truly,

"Art Damstrom"

Art E. Damstrom,

President,

International Woodworkers

of America,

Local 1-405.

and on February 27th forwarded a further letter which read:

Mr. Henry Nelson,

Manager,

Galloway Lumber Co. Ltd.,

Galloway, B.C.

Dear Sir:

Further to my letter of February 21st, 1962, please be advised that Mr. John A. McNiven, 517 East Broadway, Vancouver, B.C., has been chosen as a Union nominee on the Arbitration Board in the matter of the discharge of Mr. Earl Gorrie.

Yours truly,

LOCAL 1-405, I.W.A.,

"Art Damstrom"

A. Damstrom,

President.

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This letter was received by the appellant company on February 28th. On the same day, upon the instructions of the appellant company, its solicitors wrote to the union taking the position that the union's letter of February 21st supra, did not comply with the provisions of art. XVII of the collective agreement in that it neither set out the question to be arbitrated nor gave the name and address of the union's nominee as arbitrator.

On May 28th, the respondent Labour Relations Board notified the appellant company of its contention that it had been requested to appoint an arbitrator to be its member of the arbitration board and that it intended to consider the matter at the Board meeting on June 12th. Despite the appellant company's objections that the grievance had been abandoned pursuant to art. XV of the collective agreement the Labour Relations Board determined that the dispute between the appellant company and the respondent union was arbitrable and on June 21st again requested the company to nominate its arbitrator. When the company did not do so the Labour Relations Board by its Notice of Appointment dated July 17, 1962, purporting to act under s. 22(3) of the Labour Relations Act, nominated George Haddad to act as a member of the arbitration board. This application for certiorari followed.

Section 22(3) of the Labour Relations Act, R.S.B.C. 1960, c. 205, as amended by 1961 (B.C.), c. 31, provides:

22. (3) Where the provision required or prescribed under this section provides for the appointment of a board of arbitration or other body,

(a) if either party to the collective agreement within five days of the written notice from the other party of the appointment of his member or members fails or neglects to appoint a member or members, the Labour Relations Board may, if in its opinion the question is arbitrable, appoint a person or persons it deems fit for such purpose, and such person or persons is or are deemed to be appointed by the said party; and

(b) if the appointed members, within five days from the date of the appointment of the last appointed member, fail to agree upon a person to act as Chairman, and any one of the members has been appointed under clause (a), the Minister may appoint a Chairman.

The respondent Labour Relations Board submits that the finding by that Board that the question was arbitrable and the consequent appointment of an arbitrator when the company failed to do so were merely exercises of administrative power and neither judicial nor quasi-judicial acts so that no certiorari lay therefrom.

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This submission seems to be the one which found favour before the Court of Appeal of British Columbia. Davey J.A., giving the majority judgment in that Court, said:

The appointment of the arbitrator is not a matter of jurisdiction, but the exercise of a mere power. The appointment of the arbitrator only completes the membership of the arbitration board and enables it to function if it truly has jurisdiction. The appointment of the arbitrator is in effect no different from the appointment of a chairman of the Labour Relations Board under s. 22(3) (b) of the Act. The consequences end with the appointment; it does not clothe the arbitration board with jurisdiction to decide the question, if in law it has none. All counsel agree that the question of the jurisdiction of the arbitration board remains for the proper tribunal to determine, untrammelled by the Labour Relations Board's opinion; that is to say, in this case by the ordinary courts of law. That is my conclusion and the opinion expressed by Professor Carrothers in his work on "Labour Arbitration in Canada", p. 27.

Since the opinion of the Labour Relations Board that the question is arbitrable binds no one, and decides nothing, but merely leads in the discretion of the Labour Relations Board to the appointment of an arbitrator so that the arbitration board may function if the question is truly arbitrable, it is not a judicial or quasi judicial act that can be reviewed by certiorari.

With respect, I am unable to agree. It may well be that the appointment itself is a purely administrative act. But before the Labour Relations Board may make the appointment it must determine "if in its opinion the question is arbitrable". This entails a consideration and interpretation of the collective agreement. If the grievance has not advanced to the next stage within 14 days after completion of the preceding stage the grievance was "deemed to be abandoned" by the terms of art. XV, s. 2, of the collective agreement. If the grievance were abandoned, then there could be no question to be arbitrated. The determination therefore was a judicial question not merely an administrative one.

Moreover, the opinion of the Labour Relations Board that the question was arbitrable cannot be described as one which "binds no one and decides nothing". Section 2 of art. XVII of the collective agreement would become operative upon the Labour Relations Board's appointment, an arbitration would proceed, the decision in the words of s. 2(b) of the article would be final, and the parties to the arbitration by the provisions of s. 3 of the article would have to bear the cost equally. Even if it were open to the arbitration board to hold after a hearing that the question were not arbitrable, upon which I express no opinion, the

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determination by the Labour Relations Board that it were would have required the appellant company to engage in the arbitration proceedings and incur the necessary costs thereof.

Being of the opinion that the determination of the Labour Relations Board that the question was arbitrable was at least a quasi-judicial decision, I am strongly of the opinion that such determination may be reviewed in the Courts. I adopt the language of Aylesworth J.A. in giving the judgment of the Court of Appeal for Ontario in Jarvis v. Associated Medical Services Inc. et al[3]. at p. 379:

…it is trite to observe that the Board cannot by an erroneous interpretation of any section or sections of the Act confer upon itself a jurisdiction which it otherwise would not have.

That judgment was affirmed in this Court[4], and both Cartwright J. at p. 502 and I in my reasons at p. 520, although dissenting on another issue, expressed strongly the view that a judicial or quasi-judicial decision of an administrative board delimiting its field of jurisdiction was reviewable on certiorari.

Upon such a review, however, I have come to the conclusion that the decision of the Labour Relations Board was correct. Article XV of the collective agreement in s. 2 provided that if the grievance had not advanced to the next stage within 14 days after completion of the preceding stage it should be deemed to have been abandoned.

Step 3 of the said s. 1 of art. XV read as follows:

If the grievance is not then satisfactorily solved, it shall be referred to an authorized representative of the Union and the Management.

Counsel for the appellant has proceeded throughout upon the basis that step 3 was completed when Mr. Damstrom, the president of the local of the union, and Mr. H. Nelson, the manager of the appellant company, met and conferred on February 12, 1962. At the close of that meeting there was, however, no formal entry made setting out the result thereof and I cannot see why the telephone conversation between the same two men on the next day, February 13,

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1962, cannot be considered a continuation of step 3 so that step 3 did not terminate until the latter date. On the 14th day thereafter, i.e., the 27th of February, and within the time limited by s. 2 of art. XV, Mr. Damstrom dispatched to Mr. Nelson the letter which I have recited above. In that letter Mr. Damstrom gives the name and address of the union's nominee to the arbitration board. In my view, this disposes of one of the two bases of the appellant company's argument that the grievance had been abandoned. The second objection was that the registered letter dated February 21, 1962, which I have quoted above, did not contain the statement of the questions to be arbitrated. That letter read in part: "In the matter of the discharge of Earl Gorrie …" Gorrie's first letter of February 12th had set out his grievance in writing as follows:

"That I was fired from my job without proper cause."

Reading those two documents together, I have no doubt that the question to be arbitrated was sufficiently set out in writing. I am of the opinion that in the matter of labour relations and arbitration thereon to take a narrow, technical and pedantic view of the procedure is to defeat the purpose for which the statute was enacted.

For these reasons, I would dismiss the appeal with costs in favour of International Woodworkers of America, Local No. 1-405. There should be no award of costs to or against the Labour Relations Board in this Court.

Appeal dismissed with costs.

Solicitors for the appellant: Russel & DuMoulin, Vancouver.

Solicitors for the respondent, Labour Relations Board of British Columbia: Paine, Edmonds, Mercer & Williams, Vancouver.

Solicitors for the respondent, International Woodworkers of America, Local No. 1-405: Shakespeare & Hutcheon, Vancouver.