Isabelle v. Ontario Public Service Employees Union, [1981] 1 SCR 449

Supreme Court of Canada

Isabelle v. Ontario Public Service Employees Union, [1981] 1 S.C.R. 449

Date: 1981-05-11

Laurent Isabelle, Kenneth Hunter, Ronald Doyle, Murray Tait, Algonquin College of Applied Arts and Technology, Conestoga College of Applied Arts and Technology, Sault College of Applied Arts and Technology and Seneca College of Applied Arts and Technology (Plaintiffs) Appellants;

and

The Ontario Public Service Employees Union (Defendant) Respondent.

1981: April 2; 1981: May 11.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour law—Collective agreement—Arbitration—Enforcement—Statutory provision for collective agreement binding on province’s colleges—Award made against college not party to suit—Whether or not appellants bound by arbitration award—The Colleges Collective Bargaining Act, 1975, 1975 (Ont.), c. 74, s, 47(1), (5), (7).

The issue in this appeal arose out of contempt proceedings taken against four colleges and four officers of the respective colleges for failure to comply with the terms of an arbitration award. The award was made by an arbitration board constituted under a collective agreement between the Ontario Public Service Employees Union and the Ontario Council of Regents, a body statutorily authorized to bargain for all the colleges through centralized collective bargaining. One agreement binding on all the colleges was signed. The award and the grievance which led to it, however, did not relate to any of the appellants, but to Fanshawe College. After the union succeeded in the main in its grievance, it filed the award in the Ontario Supreme Court and sought appellants’ compliance. The union cited appellants for contempt when they refused to comply.

The trial judge accepted the argument that there was not only centralized bargaining but also centralized arbitration with all the colleges being bound, especially in respect of a policy grievance that concerned the interpretation of a term of the collective agreement. The award was declared to be binding on the appellants but

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the contempt proceedings were dismissed because the disobedience was not wilful and because the union had never before tried to bind all colleges by an award relating to one of them. The Ontario Court of Appeal dismissed appellants’ appeal without reasons.

Held: The appeal should be allowed.

The designation of the parties to the agreement as the Council on behalf of the colleges (with it being later referred to as the “College” or “Colleges”) and the union was not significant as far as the appeal was concerned. The Council played no role in an arbitration apart from being involved in a monthly review of the matters referred to arbitration and participating in the choice of arbitration board chairmen. The obligations in the agreement were laid principally on the colleges and the employees.

The agreement’s grievance procedure envisaged a college being involved by an individual or group or union grievance and provided for arbitration. The words “…the matter shall then by notice in writing given to the other party…”, however, did not mean the Council so as to involve all the colleges in any arbitration because the previous steps in the procedure engaged only officials of the college against which a grievance was lodged. Similarly, the provision that the arbitrator’s majority decision be binding “upon all parties concerned including the employees and the college”, did not imply the involvement of all colleges. The Council, while agent of the colleges for negotiating purposes, enjoyed a status as party with little functional reach in contrast to that of the union which played an active role in the operation and administration of the agreement. That the Council was bound by an arbitration decision, therefore, had little effect.

The appellant colleges were neither notified nor invited to participate in the arbitration of the grievance giving rise to these proceedings. Despite the Council’s participation in selecting the arbitration board chairman and in the monthly review the colleges could not be deemed encompassed by the arbitration.

APPEAL from a decision of the Court of Appeal for Ontario dismissing an appeal from the judgment of Callaghan J. declaring the arbitration award binding on appellants but dismissing contempt proceedings. Appeal allowed.

Douglas K. Gray, for the appellants.

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Ian Scott, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this case, which is here by leave of this Court, arises out of contempt proceedings taken against four colleges of applied arts and technology and against four officers of the respective colleges (the presidents of three of them and the director of personnel services of the fourth) for failure to comply with the terms of an arbitration award.

The unique feature of this case is that the award and the grievance which led to it did not immediately relate to any of the appellants but rather to another college of applied arts and technology, Fanshawe College. The merits of the award are not, as such, in dispute. It was made by an arbitration board constituted under a collective agreement between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union, recognized as the collective bargaining agent of all academic employees of some twenty-two colleges of applied arts and technology in Ontario. That agreement was made pursuant to The Colleges Collective Bargaining Act, 1975, 1975 (Ont.), c. 74.

Section 2(3) of the Act provides that the Ontario Council of Regents for Colleges of Applied Arts and Technology “shall have the exclusive responsibility for all negotiations on behalf of employers conducted under this Act”. There is in the Act a definition of “employer” (“means a board of governors of a college of applied arts and technology”) and of “employee” (“means a person employed by a board of governors of a college…in a position or classification that is within the academic staff bargaining unit or the support, staff bargaining unit set out in Schedules 1 and 2”). Provision is made in s. 4 of the Act for negotiations to be carried out in respect of any term or condition of employment put forward “by either party” except superannua-

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tion; and “party” is defined to mean “the Council or an employee organization”.

In short, the Act provides for centralized collective bargaining leading to one collective agreement governing all colleges and (in the present case) all their academic employees. The Ontario Council of Regents, statutorily authorized to bargain for all colleges, is constituted under The Ministry of Colleges and Universities Act, 1971, 1971 (Ont.), c. 66, s. 6, its members appointed by the provincial government. This Act also provides for the appointment of a board of governors for each college established pursuant to s. 6.

Section 47(1) of The Colleges Collective Bargaining Act, 1975, requires that every collective agreement shall provide for final and binding arbitration “of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable”. If an agreement does not so provide, then a clause to that end, as specified in s. 47(2) is deemed to be included in the agreement. In the present case, the parties did provide for final and binding arbitration as directed by s. 47(1). Their agreement provided for different classes of grievances which, unresolved, could end up in arbitration. These classes were (1) individual grievances; (2) group grievances; (3) union grievances; and (4) grievances by a college. The arbitration in the present case arose out of a union grievance lodged specifically against Fanshawe College. In the words of the arbitration award “[it was] a policy grievance relating to a number of issues concerning vacation pay and holiday entitlement”. The union succeeded in the main in its grievance, especially as it related to the allegedly improper fragmentation of vacations for members of the academic staff at Fanshawe College. Having filed the award in the office of the Registrar of the Supreme Court of Ontario, as provided by s. 47(6) of the Act, (“whereupon the decision shall be entered in the same way as a judgment or order of that court and

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is enforceable as such”), the union sought compliance therewith by the appellants and, that having been refused, it cited them for contempt.

What was urged before Callaghan J., before whom the contempt proceedings came, was that there was not only centralized bargaining but centralized arbitration, all colleges being bound by an award, especially in respect of a policy grievance respecting interpretation of terms of the collective agreement. This contention was accepted by the learned judge who held that the Council was bound by the particular interpretation and all the colleges through the Council. Holding, however, that the disobedience was not wilful and since the union had never before sought to bind all colleges by an award relating to one of them, he dismissed the contempt proceedings but made a declaration that the award was binding on the appellants. The Ontario Court of Appeal dismissed an appeal by the appellants without written reasons. I am constrained to say that this is a case in which reasons would have been very welcome.

There are a number of provisions of the collective agreement and of the governing statute to which reference is necessary for the proper disposition of this appeal. First, as to the statute. I have already referred to s. 47(1) which requires final and binding arbitration of specified differences “between an employer and the employee organization”. Two other provisions of s. 47 are germane, ss. 47(5) and (7). They are as follows:

47. …

(5) The decision of an arbitrator or of an arbitration board is final and binding upon the employer, employee organization and upon the employees covered by the agreement who are affected by the decision, and such employer, employee organization and employees shall do

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or refrain from doing anything required of them by the decision.

…

(7) The employer and employee organization shall each pay one-half the remuneration and expenses of the arbitrator or chairman of the board of arbitration referred to in this section and shall pay the remuneration and expenses of the person it appoints to such an arbitration board.

Second, as to the collective agreement. I observe, before considering its relevant terms, that s. 52(1) of the Act provides that an agreement is binding upon the Council, the employers and the employee organization that is a party to it and upon the employees in the bargaining unit covered by the agreement. Counsel for the respondent union directed attention to the designation of the parties to the agreement, being the Council on behalf of all colleges and the union, with the Council said to be “hereinafter referred to as the ‘College’ or ‘Colleges’”. I see nothing significant in this, so far as the issue in this appeal is concerned, because the obligations under the agreement are in the main laid upon the colleges and the employees. The Council has no managerial or administrative role in respect of the operation of colleges. It comes into the agreement under s. 9.04(a) which sets up a panel of persons from which a chairman of an arbitration board is to be chosen and which then goes on to provide as follows:

9.04(a)…

Representatives of the council and the Union shall meet monthly to review the matters referred to arbitration and agree to the assignment of a Chairman to hear each of the grievances. The Chairman shall be assigned either by agreement or, failing agreement, by lot. The parties may from time to time by mutual agreement add further names to such panel. Following selection of a Chairman, the College and the Union shall each appoint its arbitrator within ten days thereafter and forthwith notify the other party and the Chairman. However, if the College and Union mutually agree prior to selection of a Chairman to arbitration by a sole arbitrator, he shall be selected from the panel as in the case of a Chairman and the other provisions referring to an arbitration board shall appropriately apply.

…

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(c) The finding of the majority of the arbitrators as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College.

In context, the “parties concerned” in s. 9.04(c) would be the Council and the union but it is largely formalism in respect of the Council.

Apart from being involved in the monthly review and in participating in the choice of a chairman from the panel, the Council plays no other role. Individual and group grievances are addressed to the particular college and even a union grievance is, under s. 9.10, one based “on a difference directly with the College”. It is the particular college and the union which appoint arbitrators to sit with the chairman under s. 9.04(a); and under s. 9.04(e), it is the college and the union that share the fees and expenses of the chairman. It is fairly evident that the agreement is addressed to the respective colleges and the grievance procedure under it envisages that, generally, particular colleges will be involved either by an individual grievance or group grievance or union grievance.

Counsel for the respondent pointed to the terms of s. 9.03 of the agreement providing for a reference to arbitration if settlement is not reached in the previous stages of the grievance procedure. The words relied on are: “…the matter shall then, by notice in writing given to the other party within ten (10) days of the date of receipt by the grievôr of the decision of the College official at Step No. 2, be referred to arbitration as hereinafter provided”. The contention is that “the other party” means the Council, so as to involve all the colleges in any arbitration. I do not think that the context supports this view since both Step No. 1 and Step No. 2 engage officials of the college against which a grievance is lodged.

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An argument similar to that made by the respondent on s. 9.03 was addressed to s. 9.04(c) which makes the finding of the majority of the arbitrators final and binding “upon all parties concerned, including the employee(s) and the College”. This does not carry the respondent’s position very far. It may be said that, formally, the Council is bound by an arbitration award but this has no substantial effect unless the respondent’s assertion that all colleges are bound follows. In my view, it does not. I come back to the point mentioned earlier (and from which the respondent sought to draw comfort) that the Council is named as a party to the collective agreement, with the explanatory words “hereinafter referred to as the ‘College’ or ‘Colleges’”. However, the designation of the Council as a party is immediately followed by the words “with respect to and on behalf of Colleges of Applied Arts and Technology”. Having regard to the substantive terms of the collective agreement, this signifies to me that the Council is truly an agent, but only for the purpose of negotiating the rights and obligations of the collective agreement. Its status as a party has, as I have already noted, little functional reach. It is, in this respect, unlike the respondent union as the other party to the collective agreement; the respondent does have an active role in the operation and administration of the agreement, as do the employees, represented by the respondent.

I pass to another feature of the present case, strongly relied on by the appellants. It appears that the grievance out of which these proceedings arose was addressed only to Fanshawe College and that the appellant Colleges were neither notified of nor invited to participate in the arbitration. To this the respondent answers that the Council must be taken to know of the pending arbitration because of the monthly review meetings and its role in the selection of a chairman of the arbitration board. This, in my view, is hardly a ground for holding all the colleges must be deemed to have been encompassed in the arbitration arising out of a grievance addressed to Fanshawe College alone. Indeed, there were two previous arbitrations relating to vacation entitlement, involving two of the appellants, Conestoga College and Seneca College

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respectively, and in neither of those cases were any other colleges associated in the arbitrations. Nor did the respondent, the arbitration awards having gone against it, take the position that the awards bound it and all the other colleges.

I do not think it necessary to determine in this case whether want of natural justice is enough to defeat the contempt proceedings taken against the appellants. It would only be necessary to consider this on the assumption that there is centralized arbitration and I hold the view that there is no basis for such an assumption or for such a finding under the governing legislation and agreement. No doubt, there is some virtue in having all collective agreement interpretations binding on all those who are covered by the same collective agreement as employers, employees and their respective bargaining agents. However, the statute and the agreement itself recognize, by their terms, that differences will arise which do not necessarily engage all colleges and all their employees, and they have left grievances to be addressed to individual colleges, as was done here. Respondent conceded that in dismissal grievances, for example, there could hardly be occasion to involve all colleges with respect to dismissals involving employees of one only.

There is no hierarchy of adjudication in collective agreement arbitration and one arbitration board is not bound (unless the agreement or statute so provides) by an award and a particular interpretation given by another board which disposed of a similar issue in previous proceedings. I Even in terms of his position in this case, counsel for the respondent conceded that the issue decided in respect of Fanshawe College might be relitigated by a Council grievance. The collective agreement does not expressly provide for a grievance by the Council but, presumably, counsel means that all the colleges might combine to enforce arbitration intended to review a previous award or, at least, if only one of them brought proceedings it

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would seek to associate the other colleges in them.

Be that as it may, I do not see enough in the present collective agreement to support the respondent’s claim and, indeed the statute itself does not support it. It is, hence, unnecessary to deal with the argument of the appellants, under s. 49(2) of the governing Act, that there is inconsistency between the collective agreement and the Act with the result that the latter prevails.

I would, accordingly, allow the appeal, set aside the judgments below and dismiss the application, disallowing as well the declaration made at first instance. The appellants are entitled to costs throughout.

Appeal allowed with costs.

Solicitors for the appellants: Hicks, Morley, Hamilton, Stewart, Storie, Toronto.

Solicitors for the respondent: Cameron, Brewin and Scott, Toronto.