Date: 20070515
Docket: T-2126-06
Citation: 2007 FC 517
Ottawa, Ontario, May 15,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
I.M.P. GROUP LIMITED,
AEROSPACE DIVISION (COMOX)
Applicant
and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This
application involves a labour dispute between the Applicant, I.M.P. Group
Limited, Aerospace Division (Comox), a division of I.M.P. Group Limited
(IMP or the Employer), and certain of its employees whose bargaining agent is
the Respondent, the Public Service Alliance of Canada, UNDE Local 1018 (PSAC or
the Union). The Applicant seeks judicial review of the interest arbitration
award of Arbitrator Vincent L. Ready, dated May 24, 2006.
[2] IMP is a federal undertaking by reason of its aviation
and aerospace operations. Accordingly, for labour relations purposes, it is
governed by the provisions of the Canada Labour Code, R.S.C. 1985, c.
L-2 (the Code).
2. Factual
Background
[3] I begin by
outlining the history that gave rise to this application.
[4] On July 7,
2003, PSAC was certified under the Code as the bargaining agent for IMP
employees working at CFB Comox, Hanger 14, Lazo, British
Columbia with the exception of the Site Manager, Deputy Site Manager and Crew
Chief positions. Between October 20, 2003 and December 3, 2003, the parties
unsuccessfully attempted to negotiate a first collective agreement. Eventually,
the Union and the
Employer entered into an arbitration agreement whereby the remaining items in
dispute would be decided by way of a final and binding interest arbitration
(the Arbitration Agreement).
[5] Pursuant to
the Arbitration Agreement, which is specifically authorized by subsection 79(1)
of the Code, Mr. Vincent Ready was appointed to decide the remaining
terms of the parties’ first collective agreement. The following sets out the
chronological sequence of events.
- Award #1:
Following an oral hearing on August 12, 2004, Arbitrator Ready published
an arbitration award on September 17, 2004 (Award #1) in which he ruled on
the issues in dispute between the parties, save for one item (the addition
of the Crew Chief and Training Instructor positions to the bargaining
unit) which was the subject of another proceeding before the Canada Industrial
Relations Board (the CIRB). In his Award #1, Arbitrator Ready retained
jurisdiction as an interest arbitrator to settle the terms and conditions
in the event that any of these positions were found to be in the
bargaining unit. In addition, Arbitrator Ready, on his own motion, stated
that he retained jurisdiction to resolve any issues arising out of the
implementation of Award #1.
- Award #2: On
October 1, 2004, the CIRB held that the Crew Chief position was to be
included in the bargaining unit. As a result of the inclusion of the Crew
Chief position in the bargaining unit, Arbitrator Ready received and
considered submissions on the Crew Chief’s wage rate. On December 20,
2004, Arbitrator Ready issued a further arbitration award (Award #2),
addressing the issues of the Crew Chief’s wage rate, and several other
issues.
- Award #3: On
January 27, 2005, the Union wrote to Arbitrator Ready requesting that he
reconsider the wage rates for the Crew Chief position and order that the
wage grid be made retroactive. After consideration of submissions, on
March 15, 2005, Arbitrator Ready issued a further arbitration award on the
issues of the Crew Chief’s correct wage rate and on retroactivity (Award
#3).
- Collective
Agreement: Based on the three arbitration awards of Arbitrator
Ready, the Union and the Employer prepared and signed their
first collective agreement on March 15, 2005 (the Collective Agreement).
The Collective Agreement contains a grievance procedure (Grievance
Procedure).
- Grievance: Soon
after the signing of the Collective Agreement, the parties realized that
they differed significantly in their understanding of Arbitrator Ready’s
award with respect to Crew Chief premiums and acting pay. A group
grievance was filed by the Union on April 7, 2005.
- PSAC Approach
to Arbitrator Ready: The parties agreed on a grievance
arbitrator to hear the arbitration (Mr. Brian Foley) and were in the
process of negotiating dates for the arbitration when, on January 5, 2006,
the Union requested that, even though grievances had been filed on the
issues of the Crew Chief’s premium pay and retroactive pay, Arbitrator
Ready nevertheless rule on these matters.
- Award #4: By
letter dated February 8, 2006, Arbitrator Ready informed the parties of
his conclusion that the matters fell within the ambit of implementation of
his previous awards and requested written submissions from the parties on
the issues. After further submissions, on May 24, 2006, Arbitrator Ready
issued an arbitration award (Award #4) in which he again dismissed the
Employer’s objections to his jurisdiction. Further, he ordered that the
Applicant’s Crew Chiefs be paid premiums and ordered that acting pay be
paid retroactively, for all hours where an employee performs the duties
and responsibilities of a higher position, without a waiting period.
[6] It is Award
#4 that is the subject of this judicial review.
3. Issues
[7] This
dispute revolves around the authority of Arbitrator Ready to issue Award #4,
given that the Collective Agreement was in place. As I understand the
submissions, the Employer does not, in this application, address the merits of
Award #4. Thus, the determinative issue is:
Was Arbitrator Ready functus officio
once the Collective Agreement was signed or was he able to rely on one of the
exceptions to functus officio?
4. Jurisdiction of the Federal Court
[8] Since the Federal Court
does not often deal with labour disputes of this nature, I turn to the
jurisdiction of the Federal Court to hear this application. Jurisdiction
pursuant to s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7,
depends on whether the body which made the decision obtains its source of
jurisdiction and powers from an Act of Parliament. In this case, Mr. Ready
purports to exercise his authority under s. 79 of the Code. That
provision states that:
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79. (1) Despite any
other provision of this Part, an employer and a bargaining agent may agree in
writing, as part of a collective agreement or otherwise, to refer any matter
respecting the renewal or revision of a collective agreement or the entering
into of a new collective agreement to a person or body for final and binding
determination.
(2) The agreement suspends the right to strike or lockout and
constitutes an undertaking to implement the determination.
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79. (1) Par dérogation aux autres
dispositions de la présente partie, l’employeur et l’agent négociateur
peuvent convenir par écrit, notamment dans une convention collective, de
soumettre toute question liée au renouvellement ou à la révision d’une
convention collective, ou à la conclusion d’une nouvelle convention
collective à une personne ou un organisme pour décision définitive et
exécutoire.
(2) L’entente suspend le droit de grève ou de lock-out et
constitue l’engagement de mettre en oeuvre la décision.
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[9] In this case, the
parties had proceeded to finalize the terms of their collective agreement
through the use of what is commonly referred to as “interest arbitration”,
pursuant to s. 79 of the Code. The parties agree that the Federal Court
has jurisdiction to judicially review the decision of Mr. Ready.
[10] It is interesting and,
in this case, very relevant to note that the Code explicitly excludes
Federal Court jurisdiction for some arbitration decisions made under the Code.
Sections 56 to 69 of the Code, which deal with the “Content and
Interpretation of Collective Agreements”, provide a comprehensive scheme for
dealing with issues that arise under existing collective agreements. This
includes provisions that deal with the role and appointment of arbitrators to
settle “any difference that arises between parties to a collective agreement”
(s. 57). Subsection 58(3) provides that:
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58. (3) For
the purposes of the Federal Courts 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.
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58. (3) Pour l’application de la Loi sur les Cours fédérales,
l’arbitre nommé en application d’une convention collective et le conseil
d’arbitrage ne constituent pas un office fédéral au sens de cette loi.
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[11] Thus, if the parties had
proceeded with arbitration of their differences under the terms of their Collective
Agreement, the decision of the arbitrator would not be reviewable by the
Federal Court. A provincial superior court would have had jurisdiction. This
type of arbitration is often referred to as “grievance arbitration” or “rights
arbitration”. (For a description of the difference between these two types of
arbitration, see Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1
S.C.R. 539, [2003] S.C.J. No. 28 at para. 53.)
5. Arbitrator Ready’s decision to assume
authority for Award #4
[12] I turn now to the
decision in question in this application. As noted earlier, the dispute about
Crew Chief premiums and retroactive pay arose subsequent to the execution of
the Collective Agreement. The Union
asked Arbitrator Ready to rule on these issues.
[13] The opposition of the
Employer to the authority of Arbitrator Ready to issue Award #4 was made very
clear to Arbitrator Ready in written submissions. The initial response, dated
February 8, 2006, from Arbitrator Ready was simply that “both of these matters
fall within the ambit of implementation of my awards” and were, hence, “within
my jurisdiction”. An expanded explanation of this response was contained in
Award #4:
While
[the February 8, 2006] ruling provides a full and complete answer to the
Employer’s submission, I will take the time to elaborate further that the
matters being brought before me in this case are “clarification” issues
relating to the implementation of the awards dated September 17 and December
20, 2004 and March 15, 2005.
The
matter of Crew Chief premiums finds roots in my ruling in the latter two
decisions [Award #2 and Award #3] that:
In
addition to the wage rates set out above, I award that the applicable premiums
be paid.
The
present dispute relates to what was intended by “applicable premiums”. The
resolution of that dispute falls squarely within my retained jurisdiction as an
interest arbitrator.
Turning
to the matter of the retroactive pay/acting pay, I dealt with these issues in
my September 17, 2004 award [. . .]
In
addition to expressly retaining jurisdiction, again the issue in dispute here
is a matter of clarification of the above as it relates to the timing and
payment of acting pay.
6. Analysis
6.1 Standard of Review
[14] The jurisprudence is
clear that, in assessing Arbitrator Ready’s decision, I must conduct a
pragmatic and functional analysis to determine the appropriate standard of
review (in the area of labour relations, see, for example, Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
2004 SCC 23, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004]
S.C.J. No. 2 at para.15). As stated by Justice Major in Voice, above at
para. 15, “The purpose is to ascertain the extent of judicial review that the
legislature intended for a particular decision of the administrative tribunal”.
[15] The pragmatic and
functional approach involves the consideration of four contextual factors: (1)
the presence or absence of a privative clause or statutory right of appeal; (2)
the expertise of the tribunal relative to that of the reviewing court on the
issue in question; (3) the purposes of the legislation and the provision in
particular; and (4) the nature of the question -- law, fact or mixed law and
fact.
[16] The requirement that a
pragmatic and functional analysis be undertaken in every case emphasizes the
importance of identifying the particular question at issue in the decision
under review in any given case (Sketchley v. Canada (Attorney General),
2005 FCA 404, 263 D.L.R. (4th) 113, 344 N.R. 257, [2005] F.C.J. No.
2056 at para. 50 (F.C.A.) (QL)). In this case, the determinative question in
issue is whether, given the existence of the Collective Agreement between the
parties, Arbitrator Ready was functus officio. I note that this is a
threshold question. If Arbitrator Ready was functus officio, he was
without authority to consider the correct interpretation of the provisions of
his earlier awards on the matters of the Crew Chiefs’ premiums and retroactive
pay.
(a) Privative Clause
[17] There is no privative
clause in the Code with respect to the decision of a “person or body”
selected under s. 79(1) of the Code. Nevertheless, the words “final and
binding determination”, in s. 79(1), appear to suggest some degree of
deference.
[18] With respect to the use
of the words “final and binding”, I note that such language was considered by
the Supreme Court in Voice Construction, above at paras. 25-26, where
the words “final and binding” were included in the collective agreement and the
word “final” was used in a relevant statutory provision. In Justice Major’s
view, these provisions did not constitute full privative protection; however,
he stated that “they suggest that increased consideration be given to the
decisions of labour arbitrators” (at paras. 25-26).
[19] For purposes of my
analysis, it is significant that a “person or body” performing an arbitration
under s. 79 is not included in the definition of “arbitrator” under the Code
(s. 3). Section 58 of the Code applies to an arbitrator, as defined in
the Code, and provides as follows:
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58. (1) Every order or
decision of an arbitrator or arbitration board is final and shall not be
questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any
court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain
an arbitrator or arbitration board in any of their proceedings under this
Part.
(3) For the purposes of the Federal Courts 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.
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58. (1) Les ordonnances ou décisions d’un
conseil d’arbitrage ou d’un arbitre sont définitives et ne peuvent être ni
contestées ni révisées par voie judiciaire.
(2) Il n’est admis aucun recours ou décision judiciaire —
notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant
à contester, réviser, empêcher ou limiter l’action d’un arbitre ou d’un
conseil d’arbitrage exercée dans le cadre de la présente partie.
(3) Pour l’application de la Loi sur les Cours
fédérales, l’arbitre nommé en application d’une convention collective et
le conseil d’arbitrage ne constituent pas un office fédéral au sens de cette
loi.
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[20] Thus, while the decision
of an “arbitrator” is protected by a very strong privative clause, no similar
privative clause is in place for Arbitrator Ready.
[21] The failure to include a
privative clause for decisions by a “person or body” under s. 79 must be
presumed to have been an intentional omission by Parliament (Ruth Sullivan,
Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths Canada
Ltd. 2002) at 162-163).
[22] Thus, I conclude that
the lack of a privative clause indicates that less deference is owed to a
“person or body” acting pursuant to s. 79.
(b) Expertise
[23] There is no question
that Arbitrator Ready is extremely well-qualified and experienced in labour
relations matters. As typified by the comments of Justice Major in Voice
Construction, above at para. 27, arbitrators, “who function within the
special sphere of labour relations, are likely, in that field to have more
experience and expertise in interpreting collective agreements”. However, the
question in this case is not one that, in my view, relies on Arbitrator Ready’s
expertise in labour negotiations. In addressing the threshold question of
whether or not he retained the authority to issue Award #4, I believe that the
Court is in as good a position as Arbitrator Ready. This suggests less
deference.
(c) Purpose of the
legislation and s. 79 of the Code
[24] In general, the purpose
of the Code is to foster good industrial relations between unionized
employees and their employers. In the particular context of this application,
s. 79 provides the parties with a mechanism for finalizing a collective
agreement. The role of the “person or body”, acting under s. 79, is to resolve
a two-party dispute. This is not an example of “polycentric” decision. This
does not suggest an increased level of deference.
(d) Nature of question
[25] The final factor relates to the nature of the question. Is
this a question of law, of fact, or of mixed fact and law? The issue of
whether Arbitrator Ready was entitled to rely on the exception to functus
officio is a question of mixed fact and law. It is mixed fact and law
because he must apply the general principles of functus officio to the
particular facts of this case.
[26] In dealing
with the issue of whether an interest arbitration board’s supplemental award
gave effect to its intent manifest in the earlier main award, the Nova Scotia
Court of Appeal pointed out that this question was at the fact intensive end of
the spectrum of questions of mixed law and fact (Capital District Health
Authority v. Nova Scotia Government and General Employees Union, 2006 NSCA
85, [2006] N.S.J. NO. 281 at para. 50 (N.S.C.A.) (QL)). Thus, the Nova Scotia
Court of Appeal found that this supports giving some deference to interest
arbitration board (Capital District, above at para. 50). However, I note
that the Court in Capital District was not faced with a completed
collective agreement. Thus, in this case, while acknowledging that there is
some factual content to the decision, my view is that the question is more
heavily weighted to a question of law.
[27] In conclusion on the
issue of standard of review, I find that the decision of Arbitrator Ready on
the question of whether he was functus is reviewable on a standard of
correctness.
[28] My conclusion is
consistent with the views of Justice LeBel in Isidore Garon Ltée v. Tremblay,
2006 SCC 2, 262 D.L.R. (4th) 385, 344 N.R. 1, [2006] S.C.J.
No. 3 at para. 90. Speaking for the minority (the majority not expressing a
view on the standard of review) and without conducting a pragmatic and
functional analysis, Justice LeBel stated that:
This
appeal raises the question of whether the arbitrator had the power to apply
arts. 2091 and 2092 C.C.Q. to decide the grievances. This is a question
of law relating to the arbitrator’s jurisdiction. Accordingly . . . the
applicable standard of review is correctness. [Citations omitted.]
6.2 Principles of Functus Officio
[29] The rule described as functus
officio is intended to provide finality to decisions. In general, once a
tribunal – be it a court or administrative tribunal – has rendered its
decision, it cannot reopen the matter.
[30] The leading case dealing
with this legal rule in the context of administrative decision makers is Chandler v.
Alberta Association of Architects, [1989] 2 S.C.R. 848, 62 D.L.R. (4th)
577, 99 N.R. 277. The Supreme Court affirmed that an administrative tribunal
may only reopen a decision if authorized by statute or if there was an error in
expressing the “manifest intention” of the court (Chandler at 860,
citing Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934]
S.C.R. 186). Justice Sopinka, speaking for the majority at paras. 21-23,
provided the following rationale and guidance:
[In the context of administrative
tribunals, the principle of functus officio] is based, however, on the policy ground
which favours finality of proceedings rather than the rule which was developed
with respect to formal judgments of a court whose decision was subject to a
full appeal. For this reason I am of the opinion that its application must be
more flexible and less formalistic in respect to the decisions of
administrative tribunals which are subject to appeal only on a point of law.
Justice may require the reopening of administrative proceedings in order to
provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be
strictly applied where there are indications in the enabling statute that a
decision can be reopened in order to enable the tribunal to discharge the
function committed to it by enabling legislation. […]
Furthermore, if the tribunal has failed
to dispose of an issue which is fairly raised by the proceedings and of which
the tribunal is empowered by its enabling statute to dispose, it ought to be
allowed to complete its statutory task. If, however, the administrative entity
is empowered to dispose of a matter by one or more specified remedies or by
alternative remedies, the fact that one is selected does not entitle it to
reopen proceedings to make another or further selection. Nor will reserving the
right to do so preserve the continuing jurisdiction of the tribunal unless a
power to make provisional or interim orders has been conferred on it by
statute. […]
[31] In
sum, the rule of functus officio must be applied with some flexibility
to ensure that justice is done between the parties. This, in my view, requires
a review of the circumstances surrounding the role and function of Arbitrator
Ready. I will begin with the basic question of the mandate (under statute and
the Arbitration Agreement) of Arbitrator Ready. I will then consider the role
of the Grievance Procedure in the Collective Agreement. Finally, I will
consider whether, in spite of the analysis, Arbitrator Ready should be
permitted to provide the parties with Award #4 on the basis of the “manifest intention”
exception to the rule of functus officio.
6.3 Mandate of Arbitrator Ready
[32] The authority of
Arbitrator Ready arises from the provisions of the Code and of the
Arbitration Agreement. Although referred to by the parties and in these reasons
as “arbitrator”, Arbitrator Ready is not an “arbitrator” as defined in the Code;
rather, he is a “person” who has been selected by the parties for the limited
purpose defined by s. 79(1) of the Code.
[33] In my view, there are a
number of factors that arise from the Code, the Arbitration Agreement
and the actions of the parties that support a conclusion that the role of
Arbitrator Ready was completed as of the signing of the Collective Agreement.
The basis of my conclusion is based on three such factors:
- The intent of the Arbitration Agreement as
indicated by the parties and recognized by Arbitrator Ready; and
- The lack of agreement by the Employer to
the continued mandate beyond the Collective Agreement.
None of these relevant factors were considered
by Arbitrator Ready in reaching his decision to issue Award #4.
[34] Pursuant to s. 79(1) of
the Code, an employer and a bargaining unit may agree in writing “to
refer any matter respecting the renewal or revision of a collective agreement
or the entering into of a new collective agreement to a person or body
for final and binding determination” [emphasis added]. Under this provision,
Arbitrator Ready’s authority was directed to the entering into of the first
collective agreement between the parties. On its face, s. 79(1) indicates that
the mandate of the “person or body” selected is limited to the entering into of
the collective agreement. It follows that, once the collective agreement has
been signed by the parties, his mandate expires.
[35] I also note that s. 79
provides a voluntary process; neither party is obligated to pursue this avenue
to resolve their dispute. Thus, it is important that any interpretation of the
interest arbitrator’s authority does not extend beyond that agreed to by the
parties.
[36] I turn now to the
Arbitration Agreement dated March 4, 2004. There is no reference whatsoever in
this agreement to a “collective agreement”. The closest that I have are the two
recital clauses that provide as follows:
WHEREAS
the parties are unable to resolve certain issues arising from collective
bargaining.
AND
WHEREAS the parties have agreed that there will be final determination of the
remaining issues in dispute by binding arbitration.
[37] The clauses of the
agreement focus on the procedure to be followed for this “binding arbitration”
and do not address when the mandate of Arbitrator Ready is to end. However, the
lack of reference to the Collective Agreement does not, in my view, leave the
arbitration mandate open-ended. Arbitrator Ready, in Award #1, clearly
describes his task as follows:
On
July 30, 2003, the Public Service Alliance of Canada (PSAC) served I.M.P. with
Notice to Bargain. The parties met in Comox, British Columbia on October 20-28 and
December 1-3, 2003 for the purposes of negotiating a first Collective
Agreement. Although substantial progress was made on a number of matters, the
parties were not able to reach an agreement on all outstanding issues.
The
parties participated in conciliation sessions from March 2-4, 2004. At the
conclusion of this process, the parties were still far apart on wages and other
matters. They agreed to proceed by interest arbitration to settle the
outstanding issues. These are now before me.
[38] Arbitrator Ready left
open the possibility of further arbitration awards in Award #1 where he stated,
“I shall retain jurisdiction to resolve any issue(s) arising out of the
implementation of this award.” Using this self-proclaimed authority, Arbitrator
Ready proceeded to deal with further questions on the Crew Chief Position and
the retroactive wages and to issue Award #2 and Award #3, the substance of
which were incorporated into the Collective Agreement. Neither party disputed
the authority of Arbitrator Ready to continue his role up to the time that the
Collective Agreement was signed. However, once the Collective Agreement was in
place, it is obvious that the Employer was of the view that the tasks defined
by s. 79(1) of the Code and the Arbitration Agreement had been
completed. In effect, there was no agreement for the continued actions by
Arbitrator Ready; it is therefore arguable that none existed. Nor could
Arbitrator Ready’s claim of continued jurisdiction protect Award #4 if he was
otherwise functus. As noted above, Chandler makes it clear that reserving a right to
render further decisions does not necessarily preserve jurisdiction.
[39] Finally, I note that,
upon Arbitrator Ready’s interpretation, his authority would never end. Once
again, that cannot have been the intention of the parties to the Arbitration
Agreement or of s. 79(1) of the Code.
[40] In conclusion on this
point:
- s. 79(1) of the Code limits the
mandate of Arbitrator Ready to resolving disputes prior to the entering
into of the collective agreement;
- the intent of the parties to the
Arbitration Agreement was for Arbitrator Ready to finalize a Collective
Agreement, which task was completed upon its signing; and
- there was no consent by the parties to
allow Arbitrator Ready to provide “clarification” once the Collective
Agreement was signed.
[41] Accordingly, when
Arbitrator Ready determined that he was not functus and that he could
exercise his authority in respect of these alleged matters of “clarification”,
he erred. In light of these factors, Arbitrator Ready was without authority to
issue Award #4.
6.4 Arbitration Provisions of the
Collective Agreement
[42] While the principles of functus
officio are flexible, I do not believe that the flexibility can reasonably
be applied to the circumstances of this application. Beyond the factors that
point to an end to Arbitrator Ready’s mandate once the Collective Agreement was
in place, there are broad policy and contextual factors that militate against
continued authority.
[43] The Union submits: “If there is a
dispute over what the Collective Agreement meant, who better than the person
who created it?” I acknowledge that Adjudicator Ready has the background
knowledge to undertake the task that he performed. But, the fact that he could
provide an interpretation of terms of the Collective Agreement does not mean
that he was correct to impose his interpretation upon the parties as part of
the exercise of his mandate under the Arbitration Agreement. In my view,
Arbitrator Ready’s earlier role in assisting the parties in finalizing the
Collective Agreement is simply insufficient justification for assuming a
continued authority over its interpretation. The main impediment to the Union’s
argument is the presence of a grievance procedure in the Collective Agreement.
[44] In general, the
substantive rights and obligations of an employer and bargaining unit are set
out in a collective agreement. Of course, not everything is set out in a
collective agreement. For instance, the agreement usually does not define the
general law concepts upon which the agreement is based; recourse to general law
principles is relevant for the purposes of interpreting the conditions of
employment contained in the agreement (Isidore Garon, above at para.
28). However, where a collective agreement provides for a mechanism for
interpreting the terms of the agreement, that is where the parties should first
go to resolve their disputes. Only if the agreement does not provide a
mechanism for resolving a particular matter or question should the parties
resort to alternative means. I see no reason why an interest arbitrator’s
authority should change merely because the interest arbitrator had the
knowledge to provide an interpretation of the provisions of the Collective
Agreement.
[45] In light of this
overview of the role of a collective agreement, there are three main problems
with the decision by Arbitrator Ready to continue his authority beyond the
signing of the Collective Agreement:
- The codification of a grievance procedure
in the Collective Agreement;
- The potential for conflicting or
duplicative decisions on the substance of the dispute; and
- The potential for duplication of and
conflicting decisions due to judicial oversight by two different courts.
[46] The first problem with
Arbitrator Ready’s decision is that he fails to have regard to the existence
and terms of the Grievance Procedure in the Collective Agreement. There is no
question that the issues addressed by Arbitrator Ready could have been
addressed through the application of Article 29 of the Collective Agreement -
the Grievance Procedure.
[47] Of particular relevance
to this application, under Article 29.01, the parties recognize that grievances
may arise “by the interpretation or application of . . . a provision of this
Agreement”. The final step of the Grievance Procedure is set out in Article
29.08 and 29.09 of the Collective Agreement, which state as follows:
29.08 If the grievance is not
satisfactorily settled at Level 3, the grievance may be referred to
arbitration, within fifteen (15) working days after the decision received at
Level 3.
29.09
The parties agree
that grievances will be heard by a single arbitrator who will be mutually
agreed upon by the parties. If mutual agreement is not reached by the parties
to choose a single arbitrator within thirty (30) calendar days from the date
that either party receives notification of a wish to proceed to arbitration,
the Minister of Labour shall be asked to appoint an arbitrator. This
appointment shall be accepted by both parties.
The
Arbitrator has all the powers granted to arbitrators under the Canada Labour
Code, in addition to any powers which are contained in this Agreement but shall
not have the authority to alter or amend any of the provisions of this
Agreement nor to substitute any new provisions in lieu thereof, nor to render
any decision contrary to the terms and provisions to this Agreement, nor to
increase or decrease wages.
The
Employer and the Union shall each pay one half of the
remuneration and expenses of the Arbitrator and each party shall bear its own
expenses of every arbitration. The decision of the Arbitrator will be binding
on both parties.
[48] Indeed, the parties had
already proceeded through the levels of grievance provided for in the
Collective Agreement and had gone so far as to select a grievance arbitrator.
Arbitrator Foley was ready, willing and able to conduct the grievance
arbitration; all that was left was for the parties to agree to hearing dates.
In oral argument before me, counsel for the Union did not disagree that the
Union could have proceeded to have its rights determined on the same issues
through the grievance procedures in the Collective Agreement.
[49] The consequences of the
assumption of authority in circumstances such as these are readily apparent. First,
there is the appearance of “arbitrator shopping”; that cannot have been the
intent of the Arbitration Agreement or the Collective Agreement.
[50] There is also the
possibility of two different – and possibly conflicting – outcomes. This
situation could arise as follows. Although the Employer has agreed, for the
time being, to a stay of the grievance arbitration, let us assume that either
the Employer or the Union does not agree with the
interpretation of the Collective Agreement provided by Arbitrator Ready with
respect to the issues in question. The unsuccessful party could take the
position that it still has a grievance that has arisen “by interpretation or
application of a provision of this Agreement” (Article 29.01(a)(ii)). In such a
situation, I cannot see how a party to the Collective Agreement could refuse to
follow the Grievance Procedure with final resort to arbitration as set out in
Articles 29.08 and 29.09 of the Collective Agreement. Thus, even with Award #4
in place, I am not persuaded that the Employer would be precluded from
accessing the Grievance Procedure under the Collective Agreement. By assuming
authority for Award #4, Arbitrator Ready has put in motion the possibility of
conflicting awards and a duplicative process. Surely, that cannot have been the
intent of the Arbitration Agreement.
[51] Further, there is the
question of judicial oversight. As noted earlier, the Federal Court only has
jurisdiction to review decisions of interest arbitrators. Once the Collective
Agreement is in place and grievances are commenced, the Supreme Court of
British Columbia would be the forum for judicial review. By pursuing
arbitration under the Arbitration Agreement rather than under the Collective
Agreement, the possibility of conflicting or, at best, duplicative judicial
decisions exists. Surely, that cannot have been the intent of the parties. Even
if it had been the intent, it is a serious abuse of scarce judicial resources.
[52] The Union relies on the
decision of the Nova Scotia Court of Appeal in Capital District Health
Authority
v. Nova Scotia
Government and General Employees Union, above. In that
decision, the Court held that an interest arbitration board was not functus
officio, even though it had issued an earlier award. The Court concluded, at
para. 61, as follows:
In my view, the board reasonably
concluded that the language in the main award by which it described eligibility
for catch-up increases did not give effect to the manifest intent of that
award. Having made that finding, the board was entitled under the relevant
legal principles to issue its supplemental award to clarify this issue, as it
did.
In other words, the board was not functus.
[53] The
key distinction between the situations faced by the Court in Capital
District Health Authority and that before me is the existence of the
Collective Agreement. In Capital District Health Authority, there was no
collective agreement referred to. The principles relied on by the Nova Scotia
Court of Appeal could, arguably, have applied to the issuance of Awards #2 and
#3 which were completed prior to the execution of the Collective Agreement. In
my view, however, the decision in Capital District Health Authority does
not assist the Union with respect to the decision to issue Award #4
after the signing of the Collective Agreement.
[54] In
summary on this matter, I conclude that the circumstances of this case preclude
the application of an exception to the rule of functus officio,
primarily due to:
- The existence of
the Grievance Procedure in the Collective Agreement; and
- The potential for
conflicting arbitration and judicial decisions.
6.5 Manifest Intention
[55] As noted above, a
tribunal may rely on an exception to the functus rule “where there has
been error in expressing the manifest intention of the court” (Chandler, above). It was on this
basis that the court in Capital District Health Authority permitted a
further interest arbitration award.
[56] In
this case, the Union argues that Award #4 falls within the “manifest intention”
exception to the rule of functus. I do not agree.
[57] Whether there has been
an error in expressing the “manifest intention” of Arbitrator Ready must be
determined on the facts of this case.
[58] After
considering the circumstances of this application, I am of the view that there was no
“manifest” error to be corrected. The Collective Agreement, as signed,
addresses the issues of the Crew Chief’s premium pay and retroactive pay. Further, there appears
to be no argument that the Collective Agreement, as far as it went with respect
to the issues, was a misrepresentation of the earlier awards. Rather, as
acknowledged in Award #4, Arbitrator Ready was providing clarification of
issues that he had already addressed in Awards #2 and #3. Nowhere in his
reasons does he state that the Collective Agreement did not express his
manifest intention. In effect, he was augmenting his reasons. This type of
correction does not, in my view, fall within the exceptions to the rule of functus
officio.
[59] Also important to this question
is the fact that the parties felt that they had enough information upon which
to conclude the Collective Agreement. Since the parties did finalize a
Collective Agreement after Award #3, we cannot say that they were prevented
from implementing the arbitration decisions contemplated by the Arbitration
Agreement. Just because, subsequently, the parties found that they did not
agree on the interpretation of the terms of the Collective Agreement does not
mean that the Collective Agreement did not express the manifest intention of
Arbitrator Ready.
[60] Even if I assume that
the clarification undertaken by Arbitrator Ready rose to the level of “manifest
intention”, I would still conclude that Arbitrator Ready was functus
after the signing of the Collective Agreement. A determination of Arbitrator
Ready’s continued authority must be made only after consideration of all of the
circumstances. In the face of a reasonable interpretation of s. 79(1) of the Code,
the Arbitration Agreement and the Collective Agreement, this is a situation
where the principle of functus should apply.
7. Conclusion
[61] For these reasons, I
conclude that Arbitrator Ready was not correct in assuming authority to issue
Award #4. Once the awards were crystallized in the Collective Agreement,
Arbitrator Ready’s job was done. The application for judicial review will be
allowed, with costs to IMP, and Award #4 quashed.
[62] As described earlier,
the Union is not without
recourse: they may still pursue their grievance through the terms of the
Collective Agreement.
ORDER
THIS COURT ORDERS that:
- The application for judicial review is
allowed, with costs to the Applicant; and
- Award #4 of
Arbitrator Ready is set aside.
“Judith A. Snider”
____________________________
Judge
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