Respondent applied to the Superior Court for a writ of evocation to be issued against an arbitral award which held that the educators employed by appellant had no acquired right to free meals except, as provided for by art. 5 of Appendix "B" of the collective agreement, for meals they are called upon to have with the children in the exercise of their duties. Before the agreement was signed, the educators were not paying for their meals, whether they ate with the children or not. The arbitrator dismissed respondent's grievance as the parties had covered the question of meals for educators in art. 5 of Appendix "B", which had the effect of excluding the application of art. 25 of the collective agreement regarding acquired privileges. This article provided that "Employees who presently benefit from advantages or privileges superior to those provided in the present agreement shall continue to so benefit for the duration of [the] agreement". The Superior Court held that the interpretation given to the collective agreement was manifestly unreasonable and authorized a writ of evocation to be issued. The Court of Appeal affirmed the judgment.
Held: The appeal should be dismissed.
The Superior Court properly authorized the writ of evocation to be issued: the arbitrator's interpretation is one which cannot reasonably be supported by the language of the agreement itself. Indeed, art. 5 of Appendix "B" could not be an obstacle to application of art. 25 of the agreement. On the contrary, preserving the "advantages or privileges superior" to those provided in the collective agreement is precisely what is covered by art. 25. No one would argue that the right enjoyed by the educators previously, that of receiving a free meal whether they ate with the children or not, is not a greater privilege than what is now granted by the agreement.
Counsel for the appellant urged this Court to look at the agreement as a whole and to conclude that the result arrived at by the arbitrator can be supported on the basis of art. 23.01 of the agreement. He suggested that this Court should come to a conclusion opposite to that which the arbitrator would have arrived at on the basis of art. 23.01. If the Court complied with the suggestion of appellant it would simply be usurping the functions of the arbitrator.
Cases Cited
Jewish Convalescent Hospital v. Syndicat national des employés de l’Hôpital juif pour convalescents, [1975] S.A.G. 183; Weredale House v. Syndicat canadien de la Fonction publique, section locale 1511, December 15, 1977 (A. Rousseau, arbitrator); United Steelworkers of America, Local 4589 v. Bombardier‑‑M.L.W. Ltée, [1980] 1 S.C.R. 905, referred to; Union des employés de service (local 298 F.T.Q.) v. Résidence Chambly, February 10, 1975 (M. Brière, arbitrator), distinguished.
APPEAL from a judgment of the Quebec Court of Appeal1, affirming a judgment of the Superior Court2, authorizing a writ of evocation to be issued. Appeal dismissed.
1 C.A. Mtl., No. 500‑09‑001644‑814, October 21, 1982.
2 C.S. Mtl., No. 500‑05‑013202‑815, December 3, 1981.
H. Laddie Schnaiberg, Q.C., for the appellant.
Louis‑Claude Trudel, for the respondent.
English version of the judgment of the Court delivered by
1. Chouinard J.‑‑The arbitral award on the grievance which gave rise to this appeal held that the educators employed by appellant have no acquired right to free meals, except for meals which they are called upon to have with the children in the exercise of their duties.
2. A judgment of the Superior Court authorized a writ of evocation to be issued against this award. That judgment was unanimously affirmed by the Court of Appeal, which simply held that it had not been shown there was any error in the judgment affecting the outcome of the case.
3. The applicable provisions which the arbitrator had to consider are art. 23.01 of the collective agreement, relating to meals, art. 25 dealing with acquired rights and art. 5 of Appendix "B" applicable to educators, which also relates to meals. These articles are as follows.
ARTICLE 23‑‑BOARD, LODGING, LOCKER ROOM AND CHANGING ROOM
23.01 The Employer shall provide the employee with suitable meals, priced per item, but the cost of a full meal may not exceed:
breakfast: $0.70
dinner: $1.00
supper: $1.00
The employee may bring his lunch and eat it in a suitable place designed for that purpose by the Employer.
It is understood that there shall be no acquired right for those employees who have been paying less than $0.70 for breakfast or less than $1.00 for dinner and supper.
In those institutions where higher rates were in force prior to the signing of the present agreement, these higher rates shall continue to apply during the term of this agreement for all employees of these institutions.
ARTICLE 25‑‑ACQUIRED PRIVILEGES
Employees who presently benefit from advantages or privileges superior to those provided in the present agreement shall continue to so benefit for the duration of this collective labour agreement.
APPENDIX "B" (ACAQ)
SPECIAL CONDITIONS FOR EDUCATORS
The present appendix shall apply to the educators in the employ of the establishments members of the Association of Reception Centres of Quebec (ACAQ).
The provisions of the present collective agreement shall apply insofar as they are not otherwise modified by the present appendix to the educators who are employees in the sense of the said agreement.
CLAUSE 5‑‑MEALS
A meal shall be provided without charge to the educator who is called upon in the exercise of his duties to have a meal with the children.
4. On the evidence the arbitrator concluded:
[TRANSLATION] It was proven that long before the collective agreement was signed [...] educators were not paying for their meals, whether they ate with the children or not.
5. The arbitrator nonetheless held that educators did not have an acquired right in the sense of "advantages or privileges superior to those provided in the present agreement". Yet, under art. 5 of Appendix "B", the educators are only entitled to a free meal when they are called upon to have their meals with the children in the exercise of their duties.
6. The arbitrator relied on an arbitral award by M. Brière, now a judge of the Labour Court, in Union des employés de service (local 298 F.T.Q.) v. Résidence Chambly, dated February 10, 1975. In particular, he relied on the following passage from M. Brière's award:
[TRANSLATION] The provision of a free meal is a right governed by an unambiguous article of the agreement, and observance of this right by the employer cannot be regarded as recognition of a "superior" privilege. For this reason it is not possible to conclude that it is an acquired right, and article 25 cannot be applied here.
The employer is therefore under no duty to maintain free meals when the conditions specified in article 5 no longer apply.
7. It has to be recognized, however, that the facts in Résidence Chambly were quite different from those in the case at bar. The Résidence Chambly educators were never entitled to free meals, unless they were called upon to have their meals with the children. They therefore enjoyed no privileges superior to those provided in the new agreement. As they were no longer called upon to have their meals with the children, the collective agreement did not apply, and as they had no acquired right to a free meal, the arbitrator dismissed the grievance.
8. In the case at bar, on the other hand, it was established that long before the collective agreement was signed, educators were not paying for their meals, whether they ate with the children or not.
9. Wrongly relying on Résidence Chambly, the arbitrator wrote:
[TRANSLATION] I would add that as the parties have negotiated the question of meals for educators and covered it in an article of the agreement, this has the effect of excluding the application of article 25 to this question.
10. On the contrary, this is in my view precisely what is covered by art. 25, namely preserving the "advantages or privileges superior to those provided in the present agreement". What is dealt with by art. 5 of Appendix "B" is the right to a free meal when the educator is called upon to have his meals with the children in the exercise of his duties. No one would argue that the right enjoyed by the educator previously, that of receiving a free meal, whether he ate with the children or not, is not a greater privilege.
11. The Superior Court judge accordingly concluded that the arbitrator's interpretation was manifestly unreasonable, that is, the terms of the collective agreement did not reasonably support it. (See inter alia United Steelworkers of America, Local 4589 v. Bombardier‑‑M.L.W. Ltée, [1980] 1 S.C.R. 905, at p. 910.)
12. The Superior Court judge wrote:
[TRANSLATION] The Court must assume at this stage that long before June 6, 1979, the date on which the parties agreed to be bound by the collective agreement [...] all educators employed by the mis en cause, the Miriam Home, were entitled to free meals even if they were not called upon to have their meals with the children in the exercise of their duties.
...
The Court does not have to decide the merits of the grievance, and is careful not to do so; however, one must look at the facts: as worded, article 5 of Appendix "B" could not be an obstacle to application of article 25 of the collective agreement. The fact that this question of meals was negotiated and was "covered [...] in an article of the agreement" [...] is not a reason why article 25 cannot apply: on the contrary, article 25 can and must be applied only to advantages or privileges greater than those specified in the agreement. It would be difficult to argue that the advantage of a free meal given in the agreement to an educator who, in the exercise of his duties, is called upon to have his meal with the children, was not specified in the agreement: it is stated expressly.
13. However, the Superior Court judge concluded with the following passage:
[TRANSLATION] As an obiter, we would add that if respondent had based his award solely on the interpretation he gave to article 23.01 [...] we would not have authorized the writ to be issued, since this interpretation is not unreasonable even though in doing so respondent relied on the award of his colleague Brière, who did not have to decide a similar matter.
14. This produced the confusion surrounding the case.
15. On first reading, this passage seems to mean that if the arbitrator had based his decision to dismiss the grievance not on art. 5 of Appendix "B", but on art. 23.01 of the agreement, the interpretation would not have been unreasonable. In that case, the judge would have dismissed the application for evocation.
16. This is the basis for appellant's argument that the judge should not have intervened, since the agreement taken as a whole, considering not only art. 5 of Appendix "B" but art. 23.01 as well, supported the interpretation given by the arbitrator, namely that the educators had no acquired right. Appellant relied on the penultimate paragraph of art. 23.01, which I reproduce again:
It is understood that there shall be no acquired right for those employees who have been paying less than $0.70 for breakfast or less than $1.00 for dinner and supper.
17. Appellant submitted that employees who were paying nothing at all were paying, to use the language of the agreement, less than $0.70 or $1.00, as the case may be. This it argued is a reasonable interpretation, and was recognized by the Superior Court judge as such. Accordingly, the authorization to issue the writ of evocation should have been denied.
18. Reading more carefully, however, it will be seen that the Superior Court judge misunderstood the interpretation given by the arbitrator to art. 23.01. The arbitrator wrote:
[TRANSLATION] Had there been no article 5 of Appendix "B" of the collective agreement, I would have agreed with the arbitrators Rousseau and Frumkin, but that is not the case.
19. In Jewish Convalescent Hospital v. Syndicat national des employés de l’Hôpital juif pour convalescents, [1975] S.A.G. 183, the arbitrator Frumkin had to decide whether the employees of the hospital were entitled to a free meal when they worked at night. In fact, as the result of a decision of the employer they had been obliged to pay for their meals, and the collective agreement only said: [TRANSLATION] "The employer shall also serve a meal at night". Relying on the general practice and custom existing with regard to gratuities in the institution, the arbitrator concluded that they were entitled to this meal.
20. As for the arbitrator Rousseau he made an award in Weredale House v. Syndicat canadien de la Fonction publique, section locale 1511, on December 15, 1977. The arbitrator Rousseau held that art. 23.01 was not a bar to an acquired right preserved by art. 25. These provisions were in all respects similar to those at issue here. In particular, he wrote:
[TRANSLATION] Does the third paragraph of article 23.01 have the effect of barring such a right? In its very wording ("It is understood that there shall be no acquired right"), that paragraph represents an exception to article 25, and that exception must be given a strict and even a limiting interpretation.
Stricto sensu, employees who were paying nothing at all cannot be treated in the same way as employees who were paying lower prices: in wording the exception, the negotiating parties could have included the situation of employees who were paying nothing; I would be adding to the collective agreement by making a connection which the language of the exception does not appear to authorize.
21. "Had there been no article 5 of Appendix `B'", the arbitrator would have agreed with the arbitrators Frumkin and Rousseau. By his interpretation of art. 23.01, therefore, he would logically have held that it did not have the effect of excluding art. 25 and he would have allowed rather than dismissed the grievance.
22. This was submitted by respondent when it wrote in its submission:
[TRANSLATION] It is therefore clear that the mis en cause arbitrator in any case did not accept the interpretation suggested by appellant of the foregoing paragraph of article 23.01: quite the contrary. The result is that if the arbitrator had not erred as to the meaning of article 25, he would probably have allowed the grievance rather than dismiss it.
23. I consider that in such a case no account should be taken of the obiter of the Superior Court judge, which is based on an erroneous understanding of an equally obscure passage from the arbitral award.
24. The arbitral award must be taken as it stands, that is essentially a decision to dismiss the grievance on the ground that "as the parties have negotiated the question of meals for educators and covered it in an article of the agreement, this has the effect of excluding the application of article 25 to this question". For the reasons already stated, I agree with the Superior Court judge, who was affirmed by the Court of Appeal, that such an interpretation is one which cannot reasonably be supported by the language of the collective agreement.
25. Counsel for the appellant did not try to support the arbitral award on the basis of art. 5 of Appendix "B". Rather, he urged this Court to look at the agreement as a whole and to conclude that the result arrived at by the arbitrator can be supported on the basis of art. 23.01, as he argued at the outset and at every stage of the proceedings. He urged this Court to come to a conclusion opposite to that which the arbitrator would have arrived at on the basis of art. 23.01.
26. In my opinion, if this Court complied with the suggestion of counsel for the appellant it would simply be usurping the functions of the arbitrator.
27. In principle, if an arbitral award is quashed there should be a new hearing at which appellant can again rely on art. 23.01.
28. For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Schnaiberg, Schnaiberg & Skolnik, Montréal.
Solicitors for the respondent: Trudel, Nadeau, Lesage, Cleary, Ménard et Associés, Montréal.
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