Association of Radio and Television Employees of Canada (CUPE-CLC) v. Canadian Broadcasting Corporation, [1975] 1 SCR 118

Supreme Court of Canada

Association of Radio and Television Employees of Canada (CUPE-CLC) v. Canadian Broadcasting Corporation, [1975] 1 S.C.R. 118

Date: 1973-10-02

Association of Radio and Television Employees of Canada (CUPE-CLC) Appellant;

and

Canadian Broadcasting Corporation Respondent.

1973: March 26, 27; 1973: October 2.

Present: Fauteux C.J. and Abbott, Martland, Judson, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Labour relations—Union grievance submitted to arbitration—Remedy ordered by arbitration board—Condition imposed for which no basis in collective agreement—Whether board acted in excess of powers.

Courts—Jurisdiction—Application to provincial Court to set aside award of arbitration board—Board not “a federal board, commission or other tribunal”—Inapplicability of ss. 18 and 28 of Federal Court Act, 1970 (Can.), c. 1 [now R.S.C. 1970, c. 10 (2nd Supp.)]

The appellant and respondent were parties to a collective agreement which included provisions to preserve the right of staff announcers, employees of the respondent, to compete with free-lance announcers for programme positions. The respondent engaged two free-lance announcers to host two “hot line” radio series. No notice of the availability of these positions was given to staff announcers and no auditions were held. The appellant filed a grievance and a board of arbitration found that the respondent had violated the collective agreement. The board ordered that (a) the respondent was to carry out the terms of the agreement by immediately giving notice of and providing an opportunity for all staff announcers to audition for the positions, and (b) the staff announcers were not to be measured nor were they to compete against the free-lance announcers. An application by the respondent for an order setting aside the arbitration award on the ground that the award was made in excess of the board’s jurisdiction was refused. The respondent successfully appealed to the Court of Appeal, which held that the board’s award had the effect of changing the provisions of the collective agreement and was therefore in contravention of art. 82 of the agreement. From the Court

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of Appeal’s decision the appellant, with leave, appealed to this Court.

Held (Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Curiam: The Manitoba Court of Queen’s Bench had jurisdiction to entertain the respondent’s motion. The board of arbitration was not “a federal board, commission or other tribunal”, within the definition of these words in s. 2(g) of the Federal Court Act, 1970 (Can.), c. 1, and, therefore, ss. 18 and 28 of that Act which give the Trial Division of the Federal Court and the Federal Court of Appeal jurisdiction to review decisions of such tribunals, to the exclusion of provincial Courts where the case falls within those sections, did not apply.

Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318; Re International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379; R. v. National Joint Council for the Craft of Dental Technicians, [1953] 1 Q.B. 704; Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, referred to.

Per Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ.: The remedy granted by the board in respect of the grievance purported, in para. (a), to be a requirement that the respondent carry out the terms of the collective agreement, which is akin to an order for specific performance, but in para. (b) it imposed a condition, in respect of the competition, for which there was no basis in the collective agreement. It ordered the holding of a competition which that agreement did not require.

The Board had no power to order any remedy which was not contemplated, either expressly or impliedly, by the agreement itself. Its order was not one which required the respondent to put the appellant in the position it should have been, save for the breach, by requiring the respondent to perform its contract. It required the respondent to do something other than what it was, by contract, obligated to do. In making the direction contained in para. (b) of the award it acted in excess of its powers.

Per Spence and Laskin JJ., dissenting: Awards of labour-management boards of arbitration are not appealable under the labour relations legislation of Manitoba or under the federal labour relations legisla-

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tion which was that applicable in this case. If reviewable at all under procedures to that end, it is for want of jurisdiction or error of law. There was no want of jurisdiction in this case. Error of law there might be if the board had no remedial authority at all in the circumstances of the grievance. But it was conceded that it had remedial power. The remedy that the board applied had a rational relation to the violation and was an effective way of dealing with it in the particular circumstances.

[Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, applied; Re Polymer Corporation and Oil, Chemical and Atomic Workers International Union, Local 16-14 (1961), 26 D.L.R. (2d) 609, affirmed [1962] S.C.R. 338, sub nom. Imbleau et al. v. Laskin et al., distinguished]

APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal from a judgment of Dickson J. Appeal dismissed, Spence and Laskin JJ. dissenting.

M. Myers, Q.C., for the appellant.

A.S. Dewar, Q.C., and M. Sali, for the respondent.

The judgment of Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ. was delivered by

MARTLAND J.—The appellant and respondent are parties to a collective agreement which includes provisions to preserve the right of staff announcers, employees of the respondent, to compete with free-lance announcers for programme positions. The collective agreement provides:

24.3 The Corporation fully values the staff announcers’ contribution to programs. Staff announcers share participation in program performance, writing and production. Staff announcers will be encouraged to negotiate secondment to programs or program departments where a specialist and expanded role will serve program needs. This is a

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recognized Corporation attitude and the practice will be encouraged in the fields of sports, public affairs, features, music, news, outside broadcasts, variety and drama, by way of example, not limitation…

24.3.1 In addition, the Corporation retains a staff of supervisory and other specialists in the areas of outside broadcasts, special events and news who may be given preference in assignments of such nature. However, the Corporation intends to preserve the right of announcers to contribute in these areas.

24.3.2 Subject to the limitations specified in Article 24.3.1, the Corporation guarantees to announcers the right of equal opportunity to compete, based on talent and ability…

25.1 In order to ensure the continued use of staff announcers in the areas specified in Article 24.3, the Corporation shall give notice of and shall provide an opportunity for announcers to audition, either by personal interview, on microphone or on camera…

On September 3, 1970, the respondent engaged two free-lance announcers to host, in Winnipeg, two “hot line” radio series called “Up to Now” and “Talk Back”. No notice of the availability of these positions was given to staff announcers and no auditions were held. On October 20, 1970, the appellant filed a grievance alleging that the respondent had hired the free-lance announcers without notice to staff announcers and without opportunity to audition contrary to arts. 25 and 24.3.2 of the collective agreement. The free-lance announcers’ contracts expired on June 26 and July 3, 1971.

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The grievance was submitted to arbitration and hearings were held on February 10, 1971. While the grievance was before the board, the respondent began planning for extensions of the shows in question. Notices of audition were posted this time, but none of the staff announcers applied for fear of prejudicing the outcome of the grievance which was before the arbitration board. As there was no response to these notices, the respondent engaged the two freelance announcers to continue the shows. These extension contracts were executed in June 1971.

On June 30, 1971, the majority award of the arbitration board was pronounced. The board found that the respondent had violated art. 25 and art. 24.3.2 of the collective agreement and ordered:

(a) That the Corporation carry out the terms of the Collective Agreement by immediately giving notice of and providing an opportunity for all Staff Announcers in the Bargaining Unit to audition for the positions to which Haslam and Harvard (the free-lance announcers) were appointed, in accordance with Article 25 and all other relevant provisions of the Agreement.

(b) That the Staff Announcers shall not be measured or compete against Haslam and Harvard, and the most suited of the Staff Announcers shall be entitled to take over the positions assigned to Haslam and Harvard unless the Corporation concludes after the requisite auditions that no Staff Announcer has the talent and ability for the said positions.

On October 15, 1971, the respondent applied to the Court of Queen’s Bench for an order setting aside the arbitration award on the ground that the award was made in excess of the board’s jurisdiction.

The contention of the respondent on this application was that the powers of the board to grant a remedy were limited to those specifically defined in art. 82 of the collective agreement, which reads as follows:

82 The Arbitration Board shall not have the power to change, modify, extend or amend the provisions of this Agreement or to award costs

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or damages against either party, but it shall have the power to direct, if it thinks proper, that any employee who has been wrongfully suspended, discharged or otherwise disciplined shall be reinstated with pay, in whole or in part, and with any other benefit under this Agreement which may have been lost, or the Board may direct that a discharged employee be reinstated without pay. A majority decision of the Board shall constitute the award.

This submission was not accepted, and the application was refused. The respondent successfully appealed to the Court of Appeal, which held that the board’s award had the effect of changing the provisions of the collective agreement and was in contravention of art. 82. The position of the Court of Appeal is set out in the following passage from its reasons:

With great respect to the opinion of Dickson J., ex officio, we are of the view that the challenged portion of the award did indeed go beyond the Board’s jurisdiction. The right which the agreement conferred upon announcers of the C.B.C. was “the right of equal opportunity to compete, based on talent and ability”. It was the right of equal opportunity, not one of preferred opportunity. It entitled the announcers to meet all competitors on an equal footing. Conversely, it entitled C.B.C. to bring forward all competitors who might be available, and have them compete against the announcers on an equal footing. The award of the arbitrators, however, now changes the area of competition by excluding therefrom two particular individuals, namely, Haslam and Harvard. In so doing it changes the provisions of the agreement. But the Arbitration Board is expressly declared under Article 82 not to have the power to change the provisions of the agreement. To do what it has no power to do is to act beyond its jurisdiction. An error of that kind, affecting as it does the jurisdiction of the Board, is properly reviewable by the Court.

From this decision the appellant has, with leave, appealed to this Court. It was contended that the board’s award did not involve any change in the provisions of the agreement, but that it was granting an appropriate remedy for what was an admitted violation of the agreement. It was urged that without the elimination

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of Haslam and Harvard from the competition the relief granted would be ineffective, because the respondent, in order to vindicate its previous action, would select them, and that the board was entitled to fashion a remedy to meet the situation.

The issue for determination is, therefore, the scope of the board’s powers in formulating a remedy for an admitted violation of the agreement.

The decision of this Court in Port Arthur Shipbuilding Company v. Arthurs[2], affirmed the proposition that the powers of a board of arbitration in a labour dispute must be determined from the provisions of the collective agreement. It is there, and only there, that the powers of the board are defined.

The appellant placed substantial reliance upon the decision in Re Polymer Corporation and Oil, Chemical and Atomic Workers International Union, Local 16-14[3], a judgment of McRuer C.J.H.C., which was adopted in this Court on appeal[4], at p. 342. In that case a board of arbitration, having determined that a no-strike clause in a collective agreement had been breached, awarded damages to compensate for such breach. Its right to do so was confirmed in the judgment of McRuer C.J.H.C. and, ultimately, by this Court. There was no specific power to award damages spelled out in the collective agreement, but it was held that the question whether the party which had broken the agreement should pay damages, and in what amount, was a dispute or grievance covered by the agreement. Article VI of the agreement provided that:

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Any dispute arising between the Company and the Union regarding the administration, interpretation, alleged violation, or application of this Agreement may be submitted in writing by either party as Step No. 3 of the Grievance Procedure.

Article VII provided that:

7.01. Both parties to this Agreement agree that any alleged misinterpretation or violation of the provisions of this Agreement, including any grievance which has been carried through the prescribed steps of the Grievance Procedure outlined in Article VI and which has not been settled, will be referred to a Board of Arbitration at the written request of either of the parties…

The reasons for the judgment are stated in the following passage, at pp. 614 and 615:

Article 6.05 is in the broadest terms. It covers in express language any dispute arising between the company and the Union regarding an alleged violation of the agreement. This clause, read with Article 7.01, makes it clear that if this were an ordinary commercial contract any dispute regarding the alleged violation of the agreement would be the proper subject of arbitration and unquestionably on the authority of the Heyman case ([1942] A.C. 356) the question as to whether a party who had broken a term of the contract should pay damages and in what amount, would be such a dispute. This agreement comes clearly within the language used by Viscount Simon, L.C., at p. 366.

However, a collective agreement is different in some aspects from an ordinary commercial contract. In the first place, it is an agreement between a labour union and the employer of its members and that raises the question of the power to award damages against the Union. This I shall discuss later. In the second place, it is not that sort of contract that can be terminated by repudiation by one party merely because the other party has broken one of its terms. Under the statute “all differences between the parties” must be settled without stoppage of work. I think this aspect of the matter raises a stronger inference that the matter of damages for breach of the agreement should be assessed by the Board of Arbitration than in the case of a mere commercial contract. It was not argued that if the employer breached the agreement with respect to pay for overtime, for example, an arbitration board would not

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have power to award just compensation to the employees that had suffered by the breach. A breach of the agreement is a “grievance” to be dealt with and disposed of by an award of the arbitrators.

My conclusion is that unless there is force in the argument that the Board cannot award damages against the Union because it is not a legal entity, I think it must be taken that it has the same jurisdiction with respect to damages suffered by the employer as by the employees.

The conclusion in that case was that, although the awarding of damages was not, in express terms, stated in the agreement as being a power of the board of arbitration, the loss sustained as a result of a breach of the agreement was a part of a “dispute” regarding an “alleged violation” of the agreement.

The object of awarding damages for breach of contract is to put the injured party into the position in which he would have been had the contract been performed. What the board of arbitration sought to do in the Polymer case was to put the injured party into that position. Its authority to do so was found, implicitly, though not expressly, in the collective agreement.

The law of contract, as a result of the development of the equitable remedy of specific performance, also recognizes, in certain cases, the right of an injured party to a contract to compel the other party to perform the agreement which he has made.

In the present case, unlike the Polymer case, art. 82 of the collective agreement specifically precluded the board from awarding costs or damages against either party. That article is the only one in the agreement which deals with the powers of the board on an arbitration. Article 79 of the agreement, which is one of the articles dealing with the various steps involved in “Grievance Procedure”, provides only that, if a grievance has not been resolved as a result of the prior steps, either party may “refer the grievance to final and binding arbitration”.

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The remedy granted by the board in respect of the grievance purported, in para. (a), to be a requirement that the respondent carry out the terms of the collective agreement, which is akin to an order for specific performance, but in para. (b) it imposed a condition, in respect of the competition, for which there was no basis in the collective agreement. It ordered the holding of a competition which that agreement did not require.

In my opinion the board had no power to order any remedy which was not contemplated, either expressly or impliedly, by the agreement itself. Its order was not one which required the respondent to put the appellant in the position in which it should have been, save for the breach, by requiring the respondent to perform its contract. It required the respondent to do something other than what it was, by contract, obligated to do. In making the direction contained in para. (b) of the award it acted in excess of its powers.

I am in agreement with the reasons of my brother Laskin maintaining the jurisdiction of the Court of Queen’s Bench of Manitoba to deal with the application which was made to it by the respondent.

I would dismiss this appeal with costs.

The judgment of Spence and Laskin JJ. was delivered by

LASKIN J. (dissenting)—This case concerns the remedial powers of labour-management arbitrators. It originated in a motion by the respondent corporation to set aside the award of a board of arbitration under a collective agreement. Dickson J.A., sitting ex officio as a member of the Court of Queen’s Bench of Manitoba, dismissed the motion. The Manitoba Court of Appeal reversed on the sole ground that the effective remedial portion of the award “went beyond the [arbitration] board’s juris-

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diction”. My opinion is that Dickson J.A. was right and the Court of Appeal was wrong.

The issue in this Court is narrow. It is so for three reasons. First, the corporation stands as an admitted violator of the collective agreement; second, the board of arbitration was properly invested with jurisdiction to hear and determine the grievance out of which the Court proceedings emerged; and, third, counsel for the corporation conceded that the board had remedial authority beyond merely declaring that a violation of the collective agreement had occurred. Although (in his language) it could have awarded specific performance, he submitted that this was impractical in the circumstances.

Awards of labour-management boards of arbitration are not appealable under the labour relations legislation of Manitoba or under the federal labour relations legislation which was that applicable in this case. If reviewable at all under procedures to that end, it is for want of jurisdiction or error of law. In my vocabulary, there was no want of jurisdiction in this case. Error of law there might be if the board had no remedial authority at all in the circumstances of the grievance. But it is conceded that it had remedial power. Error of law becomes, therefore, a very elusive matter when it is reduced to a calculation whether the board’s remedy was too strong for a Court to countenance. I need not say whether I would have administered the same relief. It is enough, in my view, that the board could apply a remedy and (I am prepared to add) the remedy has a rational relation to the violation and is an effective way of dealing with it in the particular circumstances. Courts ought not, save in cases of obvious error, to interfere with the domestic administration of collective agreements by adjudicative agencies constituted under such agreements. Legislatures have, it seems to me, made this point in requiring machinery for the final and binding settlement of grievances respecting alleged violations of col-

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lective agreements. Moreover, it is not as if the members of the board of arbitration in this case were uninformed persons. All three were lawyers and, even if this certifies only to experience, all three were Queen’s counsel.

It is my view that this Court has already accepted the principle that Courts should play only a limited role in reviewing the awards of labour-management boards of arbitration: see International Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co. Ltd.[5] There, the issue was whether a board of arbitration had committed a reviewable error in its construction of a substantive provision of a collective agreement. Here there is an even narrower question involved. It does not easily lend itself to error of law classification, any more than did the comparable question in the Polymer case[6], once the principle is accepted that a labour board of arbitration has remedial powers, unless expressly excluded or confined, in relation to the particular matter of substance which is before it.

I turn to the facts which are not in dispute so far as they relate to the issue in this Court. Under the collective agreement between the corporation and the appellant union, staff announcers were entitled to “the right of equal opportunity to compete, based on talent and ability” for certain assignments as specified in art. 24.3.2 of the collective agreement. This involved giving an audition to those competing, be they outside announcers or staff announcers, as prescribed by art. 25. I note particularly the stipulation of art. 25.3 that “in the administration of the audition policy, the Corporation

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recognizes its responsibilities to provide work opportunities for its staff announcers in the areas concerned.” The corporation assigned two persons, Harvard and Haslam, who were not staff announcers, to two “hot line” programmes (which were assignments within arts. 24 and 25) without affording to staff announcers an opportunity to audition. The union lodged a grievance which ultimately went to arbitration under the collective agreement. The arbitration board was unanimous that there had been a violation of the collective agreement by the corporation. A majority of the board decreed remedial relief as follows:

(a) That the Corporation carry out the terms of the Collective Agreement by immediately giving notice of and providing an opportunity for all Staff Announcers in the Bargaining Unit to audition for the positions to which Haslam and Harvard were appointed, in accordance with Article 25 and all other relevant provisions of the Agreement.

(b) That the Staff Announcers shall not be measured or compete against Haslam and Harvard, and the most suited of the Staff Announcers shall be entitled to take over the positions assigned to Haslam and Harvard unless the Corporation concludes after the requisite auditions that no Staff Announcer has the talent and ability for the said positions.

The corporation’s nominee dissented, holding that the terms of the collective agreement precluded specific performance and that, in any event, he was not convinced that the remedy sought by the union (which was that set out in para. (b) above) was an effective one.

No objection was taken in this Court nor, apparently, in the Manitoba Court of Appeal, to para. (a) of the remedial direction. It is para. (b) that was attacked as being unauthorized. There is much to be said for one of the grounds of the decision of Dickson J.A. that the corporation should fail because its position before him was

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that the board of arbitration could only grant declaratory relief. That position was abandoned by the corporation, at least in this Court. The Court of Appeal found that the challenged direction in para. (b) was in the teeth of art. 82 of the collective agreement. There is a fallacy in its reasoning. The fallacy lies in the fact that it confuses the issue of the proper interpretation and application of arts. 24 and 25 with the remedy appropriate to a breach of those articles.

Article 82 reads as follows:

The Arbitration Board shall not have the power to change, modify, extend or amend the provisions of this Agreement or to award costs or damages against either party, but it shall have the power to direct, if it thinks proper, that any employee who has been wrongfully suspended, discharged or otherwise disciplined shall be reinstated with pay, in whole or in part, and with any other benefit under this Agreement which may have been lost, or the Board may direct that a discharged employee be reinstated without pay. A majority decision of the Board shall constitute the award.

I agree with Dickson J.A. on his interpretation of this article. There is no basis for any contention that in its substantive determination the board of arbitration in any way changed or extended the terms of the collective agreement. The exclusion of the remedies of damages or costs, qualified by the exception in the case of wrongful discharge, suspension or discipline of an employee, left the board of arbitration free to apply other remedies in other cases. That is the plain sense of the Polymer case, supra.

If the grievance in the present case could have been pursued on a quia timet basis, before Harvard and Haslam had been improperly assigned to the particular shows, the board of arbitration would have been in a clear position to require strict compliance with arts. 24 and 25. The staff announcers could then have been given an equal opportunity to compete with the two outside men and with any others aspiring to

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the work. On the other hand, if the shows were of such limited duration as not to survive beyond the date of the arbitration decision, let alone any further time involved in Court proceedings (and this was in fact the case so far as Harvard was concerned when Dickson J. A, gave his reasons), the union would be left without any remedy, since damages could not be awarded. By seeking to salvage some work opportunity for staff announcers in the light of the corporation’s violation of its obligations, the board of arbitration acted reasonably in the circumstances. Indeed, it still left open the possibility of engaging Haslam if no staff announcer proved adquate to the assignment.

Since damages are excluded, it would cost the violator nothing if the relief in this case was necessarily limited by the substantive terms that were violated. That would make it simply declaratory. So long as it was not expressly excluded by the terms of the collective agreement, the particular remedy, reflected in paras. (a) and (b) above, was a matter for the board of arbitration if it had remedial authority. As to this, I have already referred to the Polymer case, supra, and to the principle which underlies it. I have referred also to the concession of counsel for the corporation that remedial authority resided in the board which was not limited to an innocuous declaration. I do not understand counsel’s submission that specific performance would be impractical in the circumstnaces, unless this had reference to Harvard’s concluded assignment, and possibly also to the ending of that of Haslam by the time a final Court decision was rendered. I would add, lest it be thought that this was overlooked, that neither Harvard nor Haslam can urge against the union any rights that they may have against the corporation. The board’s direction in para. (b) is not a matter of a wrongful preference to staff announcers under an erroneous interpretation of the collective agreement (which is what the Court of Appeal said), but rather the application of redress to staff announcers wrongly prejud-

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iced by the corporation’s violation of the collective agreement.

I would allow the appeal, set aside the judgment of the Manitoba Court of Appeal and restore the judgment of Dickson J.A. The appellant union should have its costs throughout.

At the opening of this appeal, this Court invited counsel to address it on the jurisdiction of the Manitoba Court of Queen’s Bench to entertain the corporation’s motion. The reason for this concern lay principally in the fact that the motion was launched after the Federal Court Act, 1970 (Can.), c. 1, was brought into force. Sections 18 and 28 of that Act give the Trial Division of the Federal Court and the Federal Court of Appeal jurisdiction to review decisions of “a federal board, commission or other tribunal”, to the exclusion of provincial Courts where the case falls within those sections. If the board of arbitration in the present case was “a federal board, commission or other tribunal”, then undoubtedly there would have been no jurisdiction in the Manitoba Courts to entertain the motion to set aside its award. Another aspect of concern about the jurisdiction of the Manitoba Courts lay in the reach of this Court’s decision in Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663.[7]

It does not appear that either of these points was taken or argued before Dickson J.A. sitting at first instance or before the Manitoba Court of Appeal. For the reasons that follow, I do not think that they oust the jurisdiction of the Manitoba Courts in this case.

The principal issue, whether the Federal Court Act ousted their jurisdiction, turns

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squarely on whether the board of arbitration was “a federal board, commission or other authority”, within the definition of these words in s. 2(g) of the Federal Court Act. The definition is as follows:

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867.

In my opinion, the “jurisdiction or powers” of the board of arbitration were not conferred by or under an Act of the Parliament of Canada. They came from the collective agreement. The Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152, as it stood when the relevant collective agreement was executed between the parties, provided only, in s. 19 thereof, that every collective agreement contain a provision “for final settlement without stoppage of work, by arbitration or otherwise, of all differences… concerning its meaning or violation”; and failing such a provision the Canada Labour Relations Board was required to prescribe one, as a term of the collective agreement, upon application by either party to the agreement. I cannot regard the bare direction for a provision for final settlement of all differences as to the meaning or violation of the terms of a collective agreement as bringing any instrument for such settlement, be it a board of arbitration as in this case or some other agency, within the category of the public tribunals which are envisaged by the definition in s. 2(g).

I am not put in any doubt as to the correctness of this view by the subsequent amendment of the Canada Labour Code, of which the

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Industrial Relations and Disputes Investigation Act became part in R.S.C. 1970, c. L-1. Section 156(3) of 1972 (Can.), c. 18, provides that “for the purposes of the Federal Court Act, an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act”. This amendment forecloses contention on the matter, but it cannot be taken as an assertion by Parliament that a different position prevailed without it.

The conclusion to which I have come is irrespective of whether the board of arbitration is a statutory tribunal to which certiorari, or the analogous remedy of a motion to quash or to set aside, lies. I agree with the submission of counsel that whether or not certiorari or some like remedy applies to awards of the board is not a test of the supervening jurisdiction of the Federal Courts under ss. 18 and 28. There is, however, some affinity between these questions because the characterization of a board of arbitration as a statutory tribunal, one to which parties are by statute compelled to resort, has been made the test of whether the prerogative writs of certiorari, mandamus and prohibition lie to a board of arbitration.

The Ontario Court of Appeal brought this issue to the fore in Re International Nickel Co. of Canada Ltd. and Rivando[8]. It held that the effect of the provincial labour relations legislation, which at the time did no more than require final and binding settlement by arbitration of differences as to the interpretation, application, administration or violation of collective agreements, was to make boards of arbitration established under such agreements statutory tribunals whose decisions were reviewable on certiorari. It could not be said that boards of arbitration

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under the then Ontario legislation had their statutory powers and duties conferred by that legislation. Yet this was one of the tests of subjection to certiorari which was mentioned by Lord Goddard in Regina v. National Joint Council for the Craft of Dental Technicians[9], upon which the Court in the Rivando case relied.

In the Howe Sound case, supra, this Court held that the Rivando decision was inapplicable to an arbitration board established under a collective agreement and in pursuance of a statutory requirement that collective agreement differences be submitted to final and conclusive settlement “by arbitration or otherwise”. The phrase “by arbitration or otherwise” (in contrast to the Ontario provision which requires final settlement “by arbitration only”) is found in the Manitoba labour relations statute and is in the relevant provision, now s. 125 of the Canada Labour Code. It appears, therefore, that whether or not the Rivando case was correctly decided on its facts and on the legislation with which it dealt, this Court was not prepared to hold that legislation requiring finality of decision on collective agreement differences “by arbitration or otherwise” gave the character of a statutory tribunal (to which certiorari would lie) to a board of arbitration established under a collective agreement. However, the Court in the Howe Sound case did go on to say that the fact that certiorari would not lie did not mean that review under the common law or under a general arbitration statute was precluded.

This latter point was restated and expanded by this Court in Port Arthur Shipbuilding Co. v.

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Arthurs[10], at pp.94-95. The effect of what was said there is to deny homage to technicality, and to make it clear that where the proceedings to review a decision of a board of arbitration are by way of a motion to quash or to set aside the award, dispensing with the issue of a writ of certiorari, it matters not whether the board of arbitration is or is not a statutory tribunal in any strict sense. I agree with this view of the issue and would add that it would be equally resolved by the bringing of an action for a declaration. Having regard to the form of the proceedings in the present case, it is unnecessary to consider whether the board of arbitration was a statutory tribunal in the Rivando sense or was a non-statutory tribunal in the Howe Sound sense. In either case, there was jurisdiction in the Manitoba Court of Queen’s Bench.

The notice of motion by which the proceedings in this case was begun was an originating notice for an order that the award herein be set aside. It was hence a proper proceeding by which to seek review.

Appeal dismissed with costs, SPENCE and LASKIN JJ. dissenting.

Solicitors for the appellant: Pollock, Nurgitz, Skwark, Bromley & Myers, Winnipeg.

Solicitors for the respondent: Thompson, Dewar, Sweatman, Winnipeg.