Supreme Court of Canada
Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245
Date: 1979-06-28
Douglas Aircraft Company of Canada Ltd. (Plaintiff) Appellant;
and
Andrew McConnell, Ray Hopkinson, Archie P. Wilson and AI Benjamin, on their own behalf and on behalf of all the other members of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1967 (Defendants) Respondents.
and
J.D. O’Shea, Q.C.
1978: November 7; 1979: June 28.
Present: Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Labour relations—Strike—”Sick-in” a strike—Grievance arbitration—Judicial review—Plant Chairman relieved of all production duties—Whether “employee”.
The four grievors, now respondents, were members of the union bargaining committee at appellant’s plant. The grievances were taken against the action of the appellant in discharging the grievors for their participation in a “sick-in”. Some of the appellant’s employees had been involved in a demonstration in support of the employees of the Artistic Woodworking Company, a dispute completely unrelated to Douglas Aircraft and Local 1967. Due to their involvement in the demonstration several Local 1967 members were late for work. One of them was Harbinson a member of the union bargaining committee and he during a meeting between management and that committee was called out to receive notice of his suspension for late arrival at work by reason of his participation in the Artistic dispute. During the meeting the respondent Wilson on hearing of Harbinson’s suspension indicated to the management personnel present: “If you discipline people for this, you are going to have troubles,” and thereupon he and the rest of the committee left the meeting. None of the other union committee members (who included the respondents Benjamin and McConnell) dissociated themselves from Wilson’s statement. That afternoon a number of employees were seen to leave earlier than the scheduled
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time. Wilson and Benjamin were seen speaking to employees after which the employees were seen to leave their work; Benjamin was heard to request some employees to stop work and leave. Subsequently Wilson was asked by a company officer if he was attempting to encourage a concerted illegal action and denied it. There were however rumours that union representatives were asking employees to book off sick the following day, October 2nd. The company called a meeting with the Union that day (October 2) and met with the bargaining committee on which Hopkinson had replaced the suspended Harbinson. On October 2 there was abnormal absenteeism at the plant with the heaviest concentration in the areas where the bargaining committee men worked. With the exception of Wilson, who by reason of his position had no production duties, all the bargaining committee were absent. The appellant responded by convening another meeting with union representatives and sending a notice of termination of employment to the respondent grievors because of the role played by them in the work interruption of October 2, 1973. The first grievance, that of Hill was heard by another arbitrator who reduced the penalty of discharge to four weeks suspension and ordered reinstatement. An application for judicial review was dismissed in Weekly Court (1974), 4 O.R. (2d) 521. The other four grievances were heard by J.D. O’Shea who dismissed them and an application to quash these four awards was granted in the Divisional Court (1976), 14 O.R. (2d) 1, 72 D.L.R. (3d) 453 whose decision was affirmed by the Ontario Court of Appeal (1977), 19 L.A.C. (2d) 237.
Held (Estey J. dissenting in part): The appeal should be allowed with respect to all the respondents.
Per Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.: As stated by Estey J. there was no error in the disposition by the arbitrator in relation to McConnell, Hopkinson and Benjamin whose discharge was a consequence of their participation in an illegal strike when they were members of the union bargaining committee appointed under the collective agreement. The appeal should also be dismissed with respect to the respondent Archie Wilson. The arbitrator correctly held that a distinction in wording between Article 8 of the agreement (dealing with the Plant Chairman) and Article 51 (dealing with the Union President) indicated on intention not to give the respective incumbents the same status. The latter is given “Leave of Absence” and becomes an employee of the Union, the former is only
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relieved of production duties for time spent on union duties albeit that in this case he was allowed full time for such union activities. Although Wilson’s activities were not a breach of duty to the Company because no such duty existed, they were misconduct which is another possible cause for which an employee may be dismissed and this in effect was what the arbitrator found. He mentioned “unlawfulness” and in light of ss. 63(1)(3), 67(1) of The Labour Relations Act, R.S.O. 1970, c. 232, Wilson could not claim to have been improperly disciplined for activities as Plant Chairman for which he was answerable only to the Union. By engaging in unlawful activity, he did something for which he could claim no immunity.
Per Estey J. dissenting in part: The case raised the difficult and fundamental question as to the scope for judicial review of a labour arbitration board’s decision. The board is not by the terms of The Labour Relations Act, R.S.O. 1970, c. 232 as amended protected from judicial review by certiorari or otherwise as is the Ontario Labour Relations Board established under that Act. The law of judicial review of inferior tribunals generally is applicable. The question was what limits to such judicial review are embodied by law. Adopting the reasoning of the Ontario Court of Appeal in R. v. Barber, [1968] 2 O.R. 245. The Court could proceed to determine the scope in the present case unhindered by any issue as to whether or not a specific question of law was referred to the statutory arbitrator. On a review of the authorities it is clear that all boards, are subject to the jurisdictional supervision of the Superior Court. A certiorari review of a statutory board free of a privative cloak brings with it the added ground of review for error on the face of the record. Such reviewable error exceeds a difference of opinion by the reviewing tribunal on an interpretative issue and falls short of an error resulting in an excess of its jurisdiction on the part of the board. Where the error in the award relates to the statute whose interpretation is required of the board in the course of determining the dispute the test is the same save that an error in law in statutory interpretation is not subject to the qualification that the assigned interpretation must be one which the words will not reasonably bear to permit review. Questions of admission and interpretation of evidence and procedure are all matters exclusively for the board as are all questions of fact. Unfairness, procedures contrary to natural justice, arbitrary conduct, refusal to discharge their function, fraud and bias in law are all matters that transcend the classification of error of law on the face of the record. They are jurisdictional and reviewable by certiorari or
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its equivalent with or without a privative clause.
In the present appeal as to the respondent Wilson, the company’s obligation to pay him salary, as Plant Chairman, is analogous to a fringe benefit to the members of the bargaining unit to be provided by the Company under the agreement. Wilson was not an employee of the Company in that he was chosen by the Union in accordance with the terms of the Agreement. The Company could not discharge him from that office.
To hold that Wilson had any duty toward the Company for which he was accountable in law would create a fundamental conflict of interest in his position. Such a concept is hostile to the basic principle of the rights of labour. The arbitrator’s decision is susceptible to attack on two grounds. First, there was in the award an indication of a possible grievance or action at law against the Union rather than grounds for a grievance discharge against Wilson personally. There was also some confusion as to the nature of Wilson’s duty to the members of the bargaining unit, owing to the terminology of Article 8. In interpreting Article 8, the learned arbitrator assigned to its terms a meaning which the words would not reasonably bear. Hence on the above principles the award is quashed.
As to the respondents Benjamin, McConnell and Hopkinson there were no errors of law or reviewable questions justifying a judicial review. A court in judicial review is not however a court sitting on an appeal and a court in the latter position might well have responded differently to the awards.
[Re Federation of Telephone Workers of British Columbia and British Columbia Telephone Co. (1971), 23 D.L.R. (3d) 18; Kent v. Elstob, [1802] 3 East 18; British Westinghouse Electric and Manufacturing Company, Limited v. Underground Electric Railways Company of London, Limited, [1912] A.C. 673; Howe Sound Company v. International Union of Mine, Mill & Smelter Workers (Canada), Local 663, [1962] S.C.R. 318; Port Arthur Shipbuilding Company v. Arthurs et al., [1969] S.C.R. 85; Hodgkinson v. Fernie and Another (1857), 3 C.B. (N.S.) 189; In the Matter of an Arbitration Between King and Duveen and Others, [1913] 2 K.B. 32; R. v. Barber et al., [1968] 2 O.R. 245; Government of Kelantan v. Duff Development Company Limited, [1923] A.C. 395; Re International Nickel Co.
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of Canada Ltd. and Rivando, [1956] O.R. 379; F.R. Absalom, Limited v. Great Western (London) Garden Village Society Limited, [1933] A.C. 592; Rex v. Nat. Bell Liquors Ltd., [1922] 2 A.C. 128; Rex v. Northumberland Compensation Tribunal, [1952] 1 K.B. 338; Re The Ontario Labour Relations Board et al., [1957] O.R. 316 referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario affirming without reasons, a judgment of the Divisional Court setting aside the the arbitrator’s award in the matter of employee grievances alleging unjust discharge.
G. Finlayson, Q.C., and T. Heintzman, for the appellant.
L.A. MacLean, Q.C., for the respondents.
The judgment of Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by
PIGEON J.—I have had the privilege of reading the reasons for judgment prepared for delivery by my brother Estey and I agree with him that there was no error in the dispositions made by the arbitrator in relation to respondents McConnell, Hopkinson and Benjamin whose discharge was a consequence of their participation in an illegal strike when they were members of the Union Bargaining Committee appointed under the collective agreement between the appellant Company and the Union.
With respect to respondent Archie Wilson I find myself unable to agree with Mr. Justice Estey’s view that the arbitrator was in error and, in the circumstances, I find it necessary to quote the essential part of the award on Wilson’s grievance in which the arbitrator sets forth his findings and reasons for dismissing it. This is as follows:
Having considered all the evidence and the very able representations of the parties I have no hesitation in finding that a great number of employees acted in concert on October 2nd and engaged in a work interruption known as a “sick-in” as a means of protesting the company’s action in disciplining employees who reported late for work because they were engaged in picketing
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Artistic Woodwork Company in support of the strike at that plant. This penalty had been announced on Friday, September 28th and I find that the absences on October 2nd did not result from a spontaneous reaction by employees but rather was a planned response to the company’s actions.
When assessing the grievor’s statements which were made on September 28th and October 1st and 2nd it would be improper to attempt to interpret them in isolation. The true meaning of what the grievor said must be determined in light of all the surrounding events of which the grievor had knowledge. For these reasons I am unable to find that his statements were as innocuous as counsel for the union suggested. In this regard I am unable to agree with the findings of Mr. Gorsky in the Hill grievance award. Although the grievor’s failure to testify cannot be construed as an admission of guilt in view of the fact that the onus rests on the company to establish just cause however in the absence of any explanation from the grievor, I must attach meaning to the words used by Mr. Wilson which would make his statements consistent with the events that took place. The statements made by the grievor are not only consistent with the unlawfulness of the acts complained of but to treat his statements as innocent remarks in light of all the surrounding circumstances would be naive to the extreme. Mr. Wilson was acknowledged to be a “hard nosed” union leader who was not adverse to the use of tough and at times abusive language. By repeating, without explanation, that there would be trouble if the company disciplined the Artistic Woodwork picketers who were late for work on September 26th and also by criticising the employees who reported for work on October 2nd the grievor clearly demonstrated, not only his support for the sick-in but his leadership in causing the unlawful activities. His participation was not merely passive. I find that the evidence clearly demonstrates his leadership in causing employees to contravene the collective agreement. In this regard the evidence in this case is distinguishable from the evidence in the Sunar Industries Case referred to above.
Although nothing can be inferred from the fact that the grievor did not testify, when considered in isolation, the failure of the grievor to testify permits me to draw inferences from the evidence before me, if that evidence is unexplained or qualified by evidence adduced through union witnesses. In the instant case I find that the company’s evidence was sufficiently strong and substantial so as to cast a duty of explanation on the grievor to rebut the conclusions and inferences which the company has suggested should be drawn from that evidence.
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I further find that the evidence established that the grievor played a role in the work interruption as alleged in the company’s reply to the grievance. That role, as established by the evidence, was more than a passive role. Usually a union official, by reason of his office, does not owe a higher duty to the employer than any other employee. Accordingly, if a union official is merely a passive participant in a work stoppage that is led by others, he normally should bear no greater responsibility than other employees who are merely passive participants. Again there is usually no responsibility on a union official to act as an arm of management. Such are not the facts in the instant case however. Rather than being a passive participant, I am satisfied that the grievor’s role was one of active leadership. As a union leader, his position of leadership within the bargaining unit made his actions in leading the sick-in more authoritative and therefore more culpable. Although it is obvious from Mr. Wilson’s remarks to the general foreman on October 2nd concerning certain employees who had reported for work that day that the sick-in was not as successful as he had wished it to be, it was apparently not the fault of any efforts the grievor had made to cause the sick-in to occur. In addition, the collective agreement in this matter is distinguishable from the collective agreement with which the Court was concerned in the British Columbia Telephone Company case cited above. In that case the Court found that there was no implied obligation on an employee who holds union office which is greater than on a rank and file employee. In the instant case, the parties have addressed themselves to the functions and responsibilities of the plant chairman. The plant chairman has no production functions to perform in common with other bargaining unit employees. His full time duties are directed to the administering of the collective agreement and in this he is responsible to the manager, labour relations, pursuant to the provisions of Article 8 of the collective agreement. Since he is paid by the company solely for administering the collective agreement as plant chairman, he must assume more responsibility for its proper and lawful administration than if he were not paid for this function. The company is entitled to look to the bargaining committee and particularly its chairman to deal with matters arising under the collective agreement. The bargaining committee as a whole and its chairman in particular frustrated the company’s efforts to enforce the provisions of the collective agreement on October 2nd and indeed the bargaining committee appeared to support the threat of trouble made by Mr. Wilson on February 28th since no member of the bargaining committee disassociated himself from Mr. Wilson’s remarks but on
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the contrary participated in the sick-in thereby enforcing the threat of trouble made by Mr. Wilson.
In view of the provisions of Article 8, even if Mr. Wilson’s participation in a work stoppage were merely passive his culpability would be greater than other employees. The extent of the benefits provided by the collective agreement for the position of any union office is usually a reliable guide to the degree of responsibility which flows to that position under the collective agreement. For this reason, if for no other, Mr. Wilson must bear the greatest responsibility for what occurred on October 2nd since he failed to demonstrate that he had actively attempted to enforce the provisions of the collective agreement at the direction of the manager of labour relations and to cause the members of the bargaining unit to do likewise. In this respect Mr. Kirkby was in a different position than Mr. Wilson. Mr. Kirkby was on a full time leave of absence from the bargaining unit for the duration of his term of office as president of the local union. He was not paid by the company. During his leave of absence he owed no duty to the company as an employee. His only duty was to the union. In this regard Mr. Kirkby’s duty to the company was similar to that of Mr. Fairchild, the international representative. If Mr. Kirkby was guilty of unlawful conduct the remedy would be within the jurisdiction of the Courts or by way of an application for leave to prosecute under the Ontario Labour Relations Act., in my view.
The first question I will consider arises out of the latter part of the last quoted paragraph. Was the arbitrator correct in holding that, although appointed by the Union as full time Plant Chairman of the Union Bargaining Committee and thereby relieved of any production duties, Wilson nevertheless remained an employee of the Company subject to dismissal for cause? In this respect consideration is to be given to the following provisions of the Collective Agreement which, among others, were quoted by the arbitrator at the beginning of the award.
UNION REPRESENTATION
Bargaining Committee
8. The Company acknowledges the right of the Union to select a Bargaining Committee of five (5) members of whom one (1) shall be the Chairman and one (1) the Skilled Trades Committeeman. The Company will recognize and bargain with the said committee on any matter properly arising from time to time during the
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continuance of the Agreement. The President, or in his absence the Vice-President, of the Local, will be ex officio members of the Committee if not elected thereto.
The Plant Chairman of the Union Bargaining Committee shall be known as the full time Plant Chairman. He shall be on a full time basis for the purpose of administering the Agreement in co-operation with the regular Stewards and Committeemen. He shall be allowed free access to the Company’s operations in the performance of his duties. He will be provided with an office and office facilities including desk, chair, telephone and filing cabinet, and he will be supplied with copies of Company forms concerning starts, lay-offs, discharges, releases, re-calls and changes in job classification. The Company will continue the present practice of providing Company forms involving transfers of employees.
The Vice-Chairman of the Union Bargaining Committee, or because of his unavailability, another designated representative of the Union Plant Committee shall substitute for the full time Plant Chairman should he be absent from the Plant.
The full time Plant Chairman or his substitute shall receive the rate of pay equal to the highest rate in the Bargaining Unit, and will be limited to forty (40) hours per week at straight time. He shall be responsible to the Manager, Labour Relations or his nominee.
When the Plant Chairman ceases to hold office, he shall be returned, consistent with his seniority, to the classification and to the department in which he was employed at the time of his selection as Plant Chairman, or to a job classification embracing comparable job duties to that which he held prior to his selection.
Zone Committeemen
9. The Company agrees that Union representation in each of the thirteen (13) geographical zones of the Bargaining Unit shall consist of one Zone Committeeman and two Shop Stewards. Zone Committeemen and Shop Stewards shall be elected or otherwise appointed from the employees in the geographical zone they are to represent. In addition, there will be one Skilled Trade Zone in the Bargaining Unit, represented by one Zone Committeeman and two Shop Stewards…
Stewards
10. If the number of employees in a geographical zone exceeds two hundred (200) in number, then the Union may add one (1) Shop Steward, and one (1) additional Shop Steward for each additional one hundred (100) employees added to the Zone. One of the said Stewards shall be known as the Chief Steward. The Chief Stew-
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ard shall be allowed four hours each Friday afternoon, on Company time, in order to consult with his fellow Stewards on matters related to the administration of the Agreement…
Performance of Regular Duties—Union Business
12. The Union recognizes and agrees that Stewards, Zone Committeemen and Members of the Bargaining Committee have regular duties to perform in connection with their employment and that only such time as is reasonably necessary will be consumed by such persons during working hours in order to attend to the business of administering the Agreement…
Union Business
13. Before leaving his regular duties on behalf of the Company to investigate or process a grievance or otherwise attend to the business of administering the Agreement, the Steward or Zone Committeeman must obtain the permission of his Foreman to do so, and before permission is granted, may be required to complete a form supplied by the Foreman indicating the nature of his business and the time anticipated to transact such business, it being understood that, if permission is granted and the Foreman’s permission will not be unreasonably withheld, the time in excess of such may, at the Company’s discretion, and after notice to the Union, be disallowed.
In accordance with this understanding, except as provided in Clause 23, the Company will compensate such employees for the time spent during their working hours in dealing with employee grievances at their regular rate of pay. The Company reserves the right to withhold payment if the Steward or Zone Committeeman does not conform to the accepted practice when dealing with grievances or if an unreasonable or abnormal amount of time is consumed in dealing with grievances. Any dispute arising from the above may be the subject of the Grievance Procedure.
I must also quote the provisions of the Collective Agreement under which, as the arbitrator noted, the local union president had been granted “Leave of Absence”. This is Article 51 as follows:
Union Leave of Absence
51. (a) An employee who is elected or appointed to a full time office with the International Union or Local 1967, will be granted Leave of Absence upon written application of the International Union or the senior officer of Local 1967 as the case may be. Such Leave of Absence shall be, upon request, extended and it is understood that the Company will receive written notice
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from the International Union or Local 1967 respectively to this effect.
(b) The International Union or Local 1967 agrees also to advise the Company in writing once annually of the names of those Douglas employees who are engaged in full time duties with the Union.
(c) Upon similar application, leave will be granted for periods up to ten (10) days to permit members of the Bargaining Unit to attend conventions, educational seminars or conferences called by the International Union or other Labour Councils. It is understood that not more than fifteen (15) members will be absent at one time under this clause and that applications for leave will be presented in writing as soon as possible—in any case not less than five (5) working days—in order that the Company may provide replacements, if necessary.
(d) It is understood that requests which exceed the numbers quoted above may be granted providing the individuals can be spared from production.
(e) If an employee returns to the Bargaining Unit from a full time office with the International Union, the return shall be to the former Job Classification or a Job Classification embracing comparable job duties to that which he held prior to leave of absence, providing such return does not result in a lay-off or bumping of an employee holding greater seniority.
(f) When an employee returns to the Bargaining Unit from a full time office with Local 1967, he shall be returned consistent with his seniority, to the classification and to the department in which he was employed at the time of his selection to such office, or to a Job Classification embracing comparable job duties to that which he held prior to his selection.
It appears to me that the arbitrator correctly held that the difference in wording between Article 8 and Article 51 indicated an intention not to give the Plant Chairman the same status as the Union President. The latter is given “Leave of Absence” and becomes an employee of the Union. The Plant Chairman is only relieved of production duties just as other committee members and stewards are for the time they are allowed to spend on “Union business” in “administering the Agreement” on “Company time” (See Art. 10, 12, 13). It is clear that stewards and committee members do not cease to be employees for the time devoted to such activities and it does not appear to me that
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it is otherwise for the Plant Chairman just because he is allowed full time for such activities rather than part time only. Where it was intended that union officials should cease to be “on Company time” it was clearly provided for “leave of absence”. This was not done for the Plant Chairman and, in this connection I would draw attention to the following provision in Appendix III, Letters of Intent, No 34. “Re: Union Business Practice”.
(13) In the event the Plant Chairman requires the presence of a zone committeeman and/or a Steward in his office, he will contact the Manager of Labour Relations or his designee, who will make the necessary arrangements as soon as possible.
The Chairman will have the responsibility to ensure that persons will not congregate nor spend excessive time in his office when they are given permission to be there.
It is argued that the duties of the Plant Chairman are to the Union, not to the Company and reference is made to the judgment in Re Federation of Telephone Workers of British Columbia and British Columbia Telephone Co. on which the Divisional Court relied. I do not disagree with that proposition and I accept that the Company could not complain of a breach of duty to it by Wilson because none existed. However, breach of duty, is not the only possible cause for which an employee may be dismissed, there is also misconduct. Although he did not use the word, this is clearly what the arbitrator found when he said:
The statements made by the grievor are not only consistent with the unlawfulness of the acts complained of but to treat his statements as innocent remarks in light of all the surrounding circumstances would be naive to the extreme… His participation was not merely passive. I find that the evidence clearly demonstrates his leadership in causing employees to contravene the collective agreement.
Concerning the “unlawfulness” mentioned by the arbitrator the following provisions of The
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Labour Relations Act (R.S.O. 1970, c. 232) should be noted.
63. (1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
…
(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.
…
67. (1) No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
In the light of these provisions, Wilson could not claim to have been improperly disciplined for activities as Plant Chairman for which he was answerable only to the Union. Those activities properly embraced only the “administering of the Agreement”. The instigation of a strike contrary to the provisions of the Agreement was completely outside the range of activities which could be considered as within the scope of the duties of the Plant Chairman. By engaging in this unlawful activity Wilson did something for which he could claim no immunity just as would be the case for any public official committing an illegal act while on public duty.
I do not find it necessary to comment on what the arbitrator said he would hold “if Mr. Wilson’s participation in a work stoppage were merely passive”. There is a clear finding of “active leadership” which cannot be challenged and, in my view, fully supports the conclusion reached by the arbitrator both as respects the cause of the disciplinary discharge and the severity of the penalty. What the situation would be otherwise is immaterial. I wish to make it clear that I am purposely refraining from any reference to decisions respecting the situation of labour union officials with respect to injunctions or cease and desist orders, what I am presently saying is intended to be limited to a consideration of the situation disclosed in the present case.
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In the result, I would allow the appeal with respect to all the respondents, set aside the judgments of the Courts below and restore the awards of the arbitrator. The appellant is entitled to its costs throughout against the respondent grievors.
The following reasons were delivered by
ESTEY J. (dissenting in part)—An arbitration resulting from an illegal work stoppage at the appellant’s plant in Malton comes to us by way of the Divisional Court of the High Court of Ontario whose judgment setting aside the arbitrator’s award was confirmed without reasons by the Ontario Court of Appeal. The arbitrator by agreement amongst counsel heard four grievance arbitrations consecutively and issued four separate awards although cross‑references, particularly with reference to the facts, appear in these awards.
The four grievors, now respondents, were four of five members of the union bargaining committee at the appellant’s plant. The fifth member of that committee, one William Hill, was the subject of another arbitration and I will refer to this later. In each case, the grievance is taken against the action of the appellant in discharging the grievors by reason of their participation in a “sick-in.” The facts can be briefly stated. On Wednesday, September 26, 1973 some of the appellant’s employees were involved in a demonstration in support of the employees of the Artistic Woodworking Company, which dispute was completely unrelated to any dealing between Douglas Aircraft and Local 1967. Due to their involvement in the Artistic dispute, five members of Local 1967, including one Harbinson, a member of the bargaining committee for Local 1967, reported late for work. On September 28, 1973, management representatives met with the union bargaining committee to deal with a grievance not connected with the issues now arising. In the course of the meeting, Harbinson was called out to meet his supervisor for the purpose of receiving notice of his suspension for late arrival at work by reason of participation in the Artistic dispute. During this meeting, the respondent Wilson, on hearing of Harbinson’s suspension, stated to the management personnel present: “If
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you discipline people for this, you are going to have troubles,” and thereupon Mr. Wilson and the rest of the committee left the meeting. The respondents Benjamin and McConnell did not dissociate themselves from Wilson’s statement, nor did the other remaining member of the committee, Mr. Hill. On the afternoon of September 28, a number of employees were seen to leave the appellant’s premises earlier than the scheduled termination of their work. The respondent Wilson and the respondent Benjamin were seen speaking to employees of the appellant in the plant after which the employees were seen to leave their work. The respondent Benjamin was heard to request some employees to stop work and leave. What ensued is summarized by J.D. O’Shea, Q.C., Arbitrator, in his award concerning the grievance of the respondent Wilson:
Mr. Nash contacted the guard house and requested that Mr. Wilson be asked to come to Mr. Birch’s office. When Wilson arrived, accompanied by Mr. Naples, a union steward, Mr. Birch asked if Mr. Wilson was attempting to encourage a concerted illegal action. This was denied by Mr. Wilson. The following Monday, October 1st, the plant was in full operation. However there were many rumours that union representatives were asking employees to book off sick the following day, October 2nd. The company called a meeting with the bargaining committee at 3.00 p.m. on October 1st. In attendance at this meeting were Messrs. Wilson, Benjamin, Hill, McConnell and Mr. Hopkinson (who replaced Mr. Harbinson as a member of the bargaining committee for the period of Mr. Harbinson’s suspension). Mr. Kirkby, the president of the local union was also in attendance. Kirkby was on a full time leave of absence for the term of his office as president. He was paid by the union and had no production duties to perform.
...
On October 2nd, there was an abnormal amount of absenteeism in the plant. The heaviest concentration of absenteeism was in the areas where the bargaining committeemen worked. With the exception of Mr. Wilson, all the bargaining committee were absent from work on October 2nd. By reason of his position, Mr. Wilson had no production duties on October 2nd.
The daily absences at the plant averaged 180 employees or less. However on October 2nd there were a total of 525 absences. The evidence also established that while three or four union officers might be absent on
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any given day, on October 2nd 66 officers or officials of the union were absent from work.
At about 8:20 a.m. on October 2nd the general foreman met Mr. Wilson in the plant. The general foreman expressed surprise at seeing Mr. Wilson in the plant at that time. Mr. Wilson replied that he was only there to see what was going on. Mr. Wilson then pointed to a couple of drivematic machine operators and said, “Look at the bastards, they can’t even look me straight in the face”. He then pointed to another employee and said, “That little Portuguese bastard was saying yesterday that we should all be out in the street, but he comes in to work today”. Mr. Wilson then made inquiries as to the number of operators and maintenance men who were to work.
At about 8:50 a.m. on October 2nd, Mr. Wilson telephoned the company and advised that the regular step 3 grievance meeting which was scheduled that day would have to be cancelled since all the bargaining committee and all the executive board were absent from work. Only one out of fourteen zone committeemen and two out of some forty-nine stewards were at work on October 2nd.
An employee also testified that Mr. Benjamin had approached him on October 1st and asked him and two other employees not to come into work the following day but to phone in and report that they were sick. The employee further testified that Mr. Benjamin had approached him and two other employees around 2:30 p.m. on Friday, September 28th and asked them “to get the hell out otherwise it would be rough on the guys already out”. The witness further testified that he had seen a number of employees punching out between 2:00 p.m. and 2:30 p.m. on Friday. After this time no work was accomplished because a lot of employees were standing around in small groups discussing the matter. The witness testified that he did not punch out as requested because he did not want to lose wages.
The appellant responded to these actions on the 2nd of October by convening a meeting with union representatives and sending a notice to each of the respondent grievors which stated in part as follows:
Further to our discussion of Tuesday, October 2nd, 1973 this will confirm that your employment has been terminated for the role you played in the work interruption of October 2nd, 1973.
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The Company response included other actions such as the suspension of the six-man executive committee of the union for varying periods from 5 to 23 days; the suspension of zone committeemen for 3 days; and the issuance to 47 union stewards of a final warning and to the rank and file employees, a warning.
Apparently the “sick-in” was the continuation or repetition of earlier episodes which had culminated in the incorporation into the collective agreement current in 1973 of an exchange of correspondence between the appellant and the international union to which the local, the bargaining agent of the grievors, belonged. These letters included one from the Staff Vice-President - Personnel of the Appellant’s parent company, McDonnell Douglas Corporation, to the Vice-President and Director, Aerospace Department, United Automobile Workers, dated November 12, 1971 which, after reciting (a) that the author of the letter regarded work-to-rule, slowdowns, etc. as violations of the law and (b) that, due to the competitive nature of the business in which the appellant is engaged, namely aircraft manufacturing, concerted work stoppages operated to the detriment of the Company and the job security of the employees, stated:
The Company, therefore, is prepared to take appropriate action against any individual or groups of individuals who lead, direct, participate or engage in such concerted activities either as a violation of the no-strike provisions of our agreement or under the applicable provisions of the Labour Relations Act, or both.
The letter continued:
This letter is directed to the attention of those appropriate personnel in your organization and represented by your organization, so all concerned will be aware that such violations will be infractions, on which the management intends to invoke immediate discipline.
The International Union replied and its letter is incorporated into the collective agreement as well. It reads in part:
...we will not condone any slowdowns, work stoppages or illegal strikes… [and] the International Union will not support any such action morally or financially if such action should occur.
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A similar exchange of letters between the appellant and the Vice-President and Director, U.A.W., Canada was likewise incorporated into the collective agreement. The letter from the appellant to D. McDermott, Vice-President and Director of U.A.W., Canada reads in part as follows:
We wish to reiterate however, the position also taken in negotiations that we intend to enforce the terms of the new Collective Agreement and prevent any repetition of the type of conduct set forth in the grievance. This enforcement may involve the discipline of employees including discharge and will of necessity result in more severe discipline being applied to any Union representatives involved. In as much as the Company should not suffer any damage as a result of any future breach of the Collective Agreement for which the Union has been responsible we will again look to the Union for recovery of any loss suffered through the filing of a Policy Grievance under the arbitration procedure provided by the Ontario Labour Relations Act.
It is our honest desire to improve Union/Management relations, but we wish to impress upon you our intention to ensure future compliance with the Collective Agreement.
Article 8 establishing the bargaining committee under the collective agreement is of considerable significance in these proceedings and I set it out in full.
8. The Company acknowledges the right of the Union to select a Bargaining Committee of five (5) members of whom one (1) shall be the Chairman and one (1) the Skilled Trades Committeeman. The Company will recognize and bargain with the said committee on any matter properly arising from time to time during the continuance of the Agreement. The President, or in his absence the Vice-President, of the Local, will be ex officio members of the Committee if not elected thereto.
The Plant Chairman of the Union Bargaining Committee shall be known as the full time Plant Chairman. He shall be on a full time basis for the purpose of administering the Agreement in co-operation with the regular Stewards and Committeemen. He shall be allowed free access to the Company’s operations in the performance of his duties. He will be provided with an office and office facilities including desk, chair, telephone and filing cabinet, and he will be supplied with copies of Company forms concerning starts, lay-offs, discharges, releases, re-calls and changes in job classification. The Company will continue the present practice
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of providing Company forms involving transfers of employees.
The Vice-Chairman of the Union Bargaining Committee, or because of his unavailability, another designated representative of the Union Plant Committee shall substitute for the full time Plant Chairman should he be absent from the Plant.
The full time Plant Chairman or his substitute shall receive the rate of pay equal to the highest rate in the Bargaining Unit, and will be limited to forty (40) hours per week at straight time. He shall be responsible to the Manager, Labour Relations or his nominee.
When the Plant Chairman ceases to hold office, he shall be returned, consistent with his seniority, to the classification and to the department in which he was employed at the time of his selection as Plant Chairman, or to a job classification embracing comparable job duties to that which he held prior to his selection.
The first grievance, that of Mr. William Hill, was heard by another arbitrator who reduced the penalty of discharge imposed by the appellant employer to a suspension of four weeks together with an order for reinstatement. An application for judicial review was dismissed in Weekly Court.
The four respondents fall into two categories so far as their activities during the events in question are concerned. Wilson and Benjamin took an active part in the sense that the evidence includes several references, some of which are noted above, where these respondents ordered, persuaded, directed or somehow attempted to cause employees either the cease work or to join the “sick-in”. The respondent Benjamin also absented himself from work on October 2, 1973. Wilson, of course, had no production duties to perform in the plant. The other group, being Messrs. Hopkinson and McConnell, are not the subject of any such evidence, their attachment to the events being as members of the union bargaining committee and their absence from work on October 2, 1973. They had full knowledge of the collective agreement and of the announced policy of the appellant as to its response in the event of work stoppages contrary to the agreement. They did not report for work on the 2nd of October. In the case of McConnell, he was present on the 28th of September when the
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respondent Wilson made his statement, quoted above, relating to the discipline of employees for participation in a demonstration at a plant in no way connected with that of the appellant. Hopkinson did not join the committee until after the meeting of the 28th of September.
The learned arbitrator dismissed all four grievances. The Divisional Court quashed the arbitrator’s decision. Osler J. for the court stated:
It may well be thought that in each case the conduct found by the arbitrator was sufficient to justify the penalty of discharge, even if it went no further than has been indicated above. The difficulty arises, however, because the arbitrator applied the provisions of the agreement and in particular the provisions of article 8 thereof, and concluded that there was a positive obligation resting upon members of the bargaining committee, (a) to disassociate themselves from the remarks made by other members indicating instigation or support of the sick-in, and (b) to attempt to bring the sick-in to a conclusion.
We are all of the view that no such interpretation can reasonably be placed upon the language of the agreement and in particular the language of the article mentioned.
This case raises the difficult and fundamental question as to the scope for judicial review of a labour arbitration board’s decision. Such an arbitration board is not, by the terms of The Labour Relations Act, R.S.O. 1970, c. 232 as amended, protected from judicial review by certiorari or otherwise as is the Ontario Labour Relations Board established under that Act, because the section in question, generally referred to as a privative clause, is limited to the Ontario Labour Relations Board. Vide s. 97, The Labour Relations Act. Thus we are here examining the award of a statutory tribunal through the eyes of a court sitting in judicial review which, by The Judicial Review Procedure Act, 1971 (Ont.), c. 48, s. 2, includes all the powers and judicial authority formerly exercised in an application for a writ of certiorari, and which judicial review is not reduced in scope by any applicable privative clause. That the tribunal in question is a labour arbitration board established under a collective agreement
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between private contracting parties is, in law, of no significance. The law of judicial review of inferior tribunals generally is applicable. The question is what limits to such judicial review are embodied by law.
The law in this field has developed over the centuries in a manner which reflects the growth of the forms of government and commerce. From our earliest judicial history, the courts of superior jurisdiction, such as the Divisional Court of Ontario, have exercised a supervisory power over inferior tribunals by means of the prerogative writs, including the writ of certiorari or the successor remedy established by the rules of the Supreme Court of Ontario. Such courts have for the past two centuries also exercised some supervisory control over non‑statutory tribunals, sometimes referred to as consensual boards, by a motion to set aside the award of the board, originally made in the proceedings taken to enforce the award in a court, but in modern times, by an application to the court to set aside the award. Kent v. Elstob; British Westinghouse Electric and Manufacturing Company, Limited v. Underground Electric Railways Company of London, Limited. The law relating to private arbitrations has greatly influenced the parallel development in the case of statutory tribunals whose awards were not protected by a privative clause especially in the area of labour relations arbitrations. In some provinces such tribunals are consensual, for example British Columbia (vide Howe Sound Company v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663 and in other provinces such as Ontario, such tribunals are statutory (vide Port Arthur Shipbuilding Company v. Arthurs et al.). By 1857 it was well settled that a consensual board’s decision could be set aside for fraud and by reason of an error of law appearing on the face of the record of the board. Hodgkinson v. Fernie
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and Another. It is also clear that in such a proceeding, a court would set aside an award where the arbitrator determined matters outside the area of his authority as described in the constituting contract. See Halsbury’s Laws of England, 4th ed., Vol. 2, p. 330, para. 622. Finally, there evolved the sub-rule, or at least a clarification of the old rule, in the judgment of Channell J. in In the Matter of an Arbitration Between King and Duveen and Others, at pp. 35-6:
It is no doubt a well-established principle of law that if a mistake of law appears on the face of the award of an arbitrator, that makes the award bad, and it can be set aside… but it is equally clear that if a specific question of law is submitted to an arbitrator for his decision, and he does decide it, the fact that the decision is erroneous does not make the award bad on its face so as to permit of its being set aside. Otherwise it would be futile ever to submit a question of law to an arbitrator.
In the case of R. v. Barber et al., Ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419, the Ontario Court of Appeal found that the rule applicable to the review of awards of consensual tribunals denying the courts authority to review the correctness in law of a decision on the very question of law specifically referred to the board, but at the same time permitting the court to review an error of law made by the consensual board with reference to material matters ‘arising but not specifically referred,’ does not apply to the review of a decision by a statutory board. This was so according to Jessup J.A. speaking on behalf of the court”… because in such cases the resort to arbitration is compulsory.” (at p. 248).
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This Court in Port Arthur (supra) adopted the ratio of the Ontario Court of Appeal in Re International Nickel Co. of Canada Ltd. and Rivando, and held that an arbitration pursuant to The Labour Relations Act (Ontario) is a statutory arbitration. However, this Court has not explicitly stated that the rule limiting judicial review in the situation where a specific question of law has been submitted to an arbitrator does not apply in the case of a statutory arbitrator. Such a decision may be implicit from the absence in decisions of this Court involving statutory tribunals, of any discussion with respect to whether or not a specific question of law had been referred to the arbitrator.
I make these comments in an attempt to bring some clarity to a very confusing area of law. I adopt the reasoning of the Ontario Court of Appeal with respect to this issue in Barber (supra), and proceed to determine the scope for judicial review in the case before me unhindered by any issue as to whether or not a specific question of law was referred to the statutory arbitrator. Through Rivando, supra, and Port Arthur in this Court, supra, this statutory route leads back to review by certiorari, which in our judicial history was never extended to consensual arbitrators, and likewise has never been limited or circumscribed by the rule as enunciated in Government of Kelantan v. Duff Development Company Limited, or as it may have been modified in its restatement in F.R. Absalom, Limited v. Great Western (London) Garden Village Society, Limited.
The supervisory power of the court over proceedings in inferior statutory tribunals, in the words of Lord Sumner, “goes to two points: one is the area of inferior jurisdiction and the qualifications and conditions of its exercises; the other is the observance of the law in the course of its exercise.” R. v. Nat. Bell Liquors Ltd. at p. 156. It must be noted as Lord Denning points out in R.
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v. Northumberland Compensation Tribunal, at p. 351 that certiorari is available only to quash an arbitration award for an error of law if that error appears on the face of the record. The use of certiorari to review decisions of statutory tribunals fell into disuse for about a century commencing in 1848 (presumably because of the advent of statutory rights of appeal from inferior tribunals and, in criminal law the incidence of certiorari fell off following the Summary Jurisdiction Act 1857 which reduced the practical effectiveness by limiting the scope of the reviewable record. As Lord Sumner stated: “The fact of the record ‘spoke’ no longer: it was the inscrutable face of a sphinx.” (R. v. Nat. Bell Liquors Ltd., supra, at p. 159)), but with the birth and rapid growth of the administrative body in the post-World War II era in the United Kingdom, the review of the determinations of statutory tribunals by certiorari revived on a large scale. (See Wade Administrative Law, 4 ed., pp. 262 and 273, and S.A. de Smith, Judicial Review of Administrative Action, 3 ed., p. 354.)
For many years there was a thinly disguised sense of rivalry between the traditional courts and the statutory tribunals, now generally referred to as administrative boards. Lord Hewart, then Chief Justice of England, reflected the view initially prevalent in some parts of the legal world when he wrote:
Between the “rule of law” and what is called “administrative law” (happily there is no English name for it) there is the sharpest possible contrast. One is substantially the opposite of the other… It is a system which is fundamentally opposed to the English conception of the “rule of law” especially as regards exemption from the jurisdiction of the ordinary legal tribunals, in the case of public officials acting in performance or purported performance of their official duties.
(The New Despotism, p. 37)
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The first comprehensive examination of the relationship between court and board in labour law in our country was undertaken by Roach J.A. in Re The Ontario Labour Relations Board, Bradley et al. and Canadian General Electric Co. Ltd., where the court was concerned with the decision of a statutory tribunal, the Labour Relations Board established under a statute containing a privative clause. The court started with a recital of the basic authority of a court acting through certiorari to review and to quash the decision of such a board:
In absence of a privative clause, the Court in certiorari proceedings, has power to examine the record returned to it by the inferior tribunal and if that record discloses error on the part of that tribunal, to quash its decision as having been made in error. Also, if it appears to the Court that the inferior tribunal acted beyond its jurisdiction then the Court has the power in certiorari proceedings to quash the decision of that tribunal as having been made without jurisdiction. However, where there is a privative clause, the Court is restricted to determining whether or not the inferior Court acted within the limits of its jurisdiction:
(at p. 333)
The court then proceeded to determine whether a decision that certain employees were properly included by the board in the bargaining unit as certified, was a decision in a collateral manner only and thus reviewable, or was a decision on the merits of the application and thus not reviewable; the former going to jurisdiction of the board and the latter to its exercise of jurisdiction. His Lordship phrased the test:
Where the matter is not collateral but constitutes part or the whole of the main issue which the inferior tribunal had to decide, the Court is limited to examining the record to determine whether there was any evidence before the inferior tribunal. I hasten to add, however, that the Court can do that only in the absence of a privative clause. If there is a privative clause in the Act creating the tribunal, the Court cannot do that.
(p. 335)
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The same court later addressed the problem of judicial review of an arbitration board constituted as in these proceedings and likewise without the presence of a privative clause restricting the ambit of review. The principle guiding a court in such a circumstance was stated on behalf of the court by Aylesworth J.A.:
I content myself by stating at once that upon a perusal and consideration of the agreement I find it impossible to say that it may not upon its very terms reasonably receive the interpretation and application given to it by a majority of the Board of Arbitration. It is immaterial whether or not the Court from whom an order of certiorari is sought agrees with the interpretation given to the agreement by an arbitrator; it is sufficient to defeat the application if it can be said that the interpretation given to the agreement by the arbitrator is one which the language of the agreement reasonably will bear. The Court has no appellate function to discharge with respect to the interpretation of the agreement except to decide whether or not the interpretation applied by the arbitrator is one which, as I have said, the language of the agreement reasonably will bear.
Re Canadian Westinghouse Co. Ltd. and Local 164 Draftsmen’s Association of Ontario [1962] O.R. 17 at pp. 19-20.
The development of the rules of review in the Ontario Court of Appeal was brought to its present state by its judgment in R. v. Barber et al., Ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419, supra, where the court was concerned with an application to quash an award of a labour arbitration board. Jessup J.A. stated the law as follows:
…where a matter of law referred to an arbitration board for determination is one of construction, error of law will not be found simply because the Court considers some other interpretation more apt if the interpretation of the language is one it will reasonably bear.
(p. 250)
Jessup J.A. concluded on the facts of the case that the errors of law led the board to act “without or in excess of jurisdiction by in effect amending the agreement.” (p. 254).
Boards of the type here involved have been the subject of appeals to this Court in Port Arthur
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Shipbuilding Company v. Harry W. Arthurs et al., (supra); Union Carbide Canada Limited v. Weiler et al.; General Truck Drivers Union, Local 938, et al. v. Hoar Transport Company Limited; Air-Care Ltd. v. United Steel Workers of America et al.; McLeod et al. v. Egan et al.; and The Board of Industrial Relations of the Province of Alberta and Sheet Metal Auto Body, Motor Mechanics, and Allied Production Workers, Local 414, Edmonton, Alberta v. Stedelbauer Chevrolet Oldsmobile Ltd. The basis for quashing an order of such a board has been variously stated as being a lack “of inherent power(s) to amend, modify or ignore the collective agreement” (Port Arthur, supra, at p. 96, per Judson J.; Hoar Transport, supra, at p. 637), a lack of jurisdiction or power to hear a grievance after an improper preliminary finding contrary to the terms of the collective agreement (Union Carbide, supra, at p. 970), and an excess of jurisdiction by doing that which is expressly forbidden in the agreement (Air‑Care Ltd., supra, at p. 7).
The standard of review established in this Court in the case of the statutory board sitting in the absence of a privative clause in the constituting statute, is that expressed in Stedelbauer, supra, wherein Martland J. stated:
In my opinion, such a review can be made, not only on a question of jurisdiction, but in respect of an error of law on the face of the record. That certiorari would issue to quash the decision of a statutory administrative tribunal for an error of law on the face of the record, although the error did not go to jurisdiction, was clearly stated in R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw. That case was referred to by Kerwin J. (as he then was) in Toronto Newspaper Guild v. Globe Printing Company.
(p. 143)
In McLeod v. Egan, supra, the majority, speaking through Martland J., quashed an award made
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in arbitration proceedings for “an error in law on the face of the award in respect of the legal requirements of s. 11(2) of the Employment Standards Act” (p. 524). The Court of Appeal had taken the view that in construing the collective agreement, the board had placed thereon an interpretation that the language “will reasonably bear.” The Chief Justice of Canada in concurring in the result reached by the majority concluded that the Court below had applied the test of “reasonableness” to the arbitrator’s interpretation of a statute and not to the interpretation of the collective agreement. In doing so, the error of construction with reference to a statute appears to have been treated as an error with reference to a collateral or jurisdictional matter, and hence reviewable but on a different branch of the Court’s authority.
This Court had occasion to discuss and apply the principles of judicial review, including review by motion to set aside, applicable to the awards of consensual tribunals in International Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co., Limited; Bell Canada v. Office and Professional Employees’ International Union, Local 131; Metropolitan Toronto Police Association et al. v. Metropolitan Toronto Board of Commissioners of Police; and Zeller’s (Western) Limited v. Retail, Wholesale and Department Store Union, Local 955 et al. The rule or principle of review in consensual circumstances has been expressed in different ways in these judgments, as for example in I.A.M.A.W., Flin Flon, supra, where the arbitrator’s decision was held to be beyond review because it did not amend the collective agreement and “whether right or wrong,… the board interpreted and did not amend the agreement. This being so, it did not exceed its jurisdiction and its award is valid.” (per Martland J. at p. 118) In Bell Canada, supra, the majority of the Court, the Chief Justice dissenting, concluded that the award was subject to quashing because it was not a reference for determination of a
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specific question of law, but rather was a reference to the board for the decision of a grievance arising under a collective agreement but which involved the determination by the arbitrator of a preliminary jurisdictional question and the arbitrator exceeded his jurisdiction by in effect amending the agreement (pp. 340-1). This Court, by a majority decision in the Toronto Police Association case, supra, determined at p. 656, per Martland J., that:
…there was no submission of a question of law to the arbitrator on the basis that his decision would be binding upon the parties and not subject to any review.
and later at pp. 657-8:
The question of law which arose in the arbitration came up in the course of the consideration of a grievance in the ordinary way under the provisions of the collective agreement… The arbitrator, in making a decision on the grievance put before him, was obligated to make a decision consistent with the agreement. Whether or not such a decision was or was not inconsistent with the agreement is clearly a question which could not be determined by the arbitrator himself.
Consequently, in my opinion, the form of submission made to the arbitrator, considered in the light of the defined restrictions on the arbitrator’s powers as contained in the agreement, cannot be considered as a reference of a specific question of law which the parties have agreed to accept as binding and which, in consequence, is not subject to review by reason of an error or law on the face of the award.
In the result, the award was quashed for an error in law on the face of the record. In a more recent contact with this issue, this Court in Zeller’s (Western) Limited, supra, declined to quash the award of a consensual board stating through Dickson J.:
If the board, upon entering the inquiry, is free of jurisdictional error and, in the course of the inquiry, acts in reasonable consonance with the powers which it may properly exercise under the statute or agreement from which its powers flow, the Court will respect both the autonomy and the conclusions of the board: International Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co. Ltd., [supra]
(at pp.380-1)
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This terminology would indicate an inclination to move in the direction of the pronouncements in Westinghouse, supra, and the Barber case, supra.
The spectrum of judicial review is completed by a bare reference to the restricted supervisory role of a court when faced with a privative clause (see Mrs. Barbara Jarvis v. Associated Medical Services, Incorporated; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association; and Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation). The only test in this category of judicial review is one of jurisdiction of the administrative tribunal. The structural jurisdiction of a board may not be enhanced by an error of law in the interpretation of the parent statute. Per Cartwright J. in Jarvis, supra, p. 502. The functional jurisdiction of the board may be destroyed in the course of the proceeding by a failure to meet the standards of natural justice and fairness. (Hoogendoorn v. Greening Metal Products and Screening Equipment Company and The United Steel Workers of America, Local 6266). This is not the complete catalogue of the grounds for such review as we are not here concerned with this category of arbitration.
What then are the applicable standards of review by a court of an award by a statutory tribunal in the absence of a privative clause. Omnipresent is the duty of the court to enforce the law. The administrative tribunal must perform its mandate from the legislature, no more no less. Beyond that statement, the scope of review is more elusive of description; within that statement, all operations of the administrative tribunal are reviewable. I see no need nor indeed basis in the law for the importation into the legislated world of dispute settlement by compulsory arbitration of the ancient rules which grew up around the contractual dispute and its resolution by private arbitration. There is no real or fictional abandonment of the right of access to the courts by the parties to
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the labour dispute and so the law relating to statutory entities and the review of their decisions by certiorari applies. It has been the law for centuries that such supervision includes review of all inferior statutory tribunals for error of law on the face of the record. What constitutes an error of law is the core of the problem. Within its assigned field, the board must remain supreme. Its decisions on issues of fact are beyond the judicial reach. Questions of procedure and evidence are likewise the exclusive province of the board save only where the conduct of the tribunal in relation to these and many other matters becomes unfair to a party in the sense of the traditions of natural justice which form such a vital part of our law. All the categories of review by certiorari and motion to set aside mentioned above bear some jurisdictional hue. Even the assignment of unreasonable meaning, in the words of the Ontario Court of Appeal, reflects this hue because the giving of an unreasonable meaning to words in a collective agreement would be to thereby alter the charter under which the parties agreed to work. The charter expressly denies the right of an arbitrator to amend the agreement by his award and so it comes back again to a jurisdictional issue in the broadest sense of that term. It is undoubtedly the trend in the application of judicial review, be it certiorari or a procedural or statutory equivalent, to limit the scope of review to matters of jurisdiction in the narrow sense and to those errors of law which approximate jurisdictional issues in the broadest sense. Historically, it has been said by the courts on occasion that the parties to an arbitration, however it might have been constituted, would not have contemplated that the arbitrator would, in the making of his award, fail to uphold the applicable general law of the community. While this is so, it is equally, and here more vitally true that the law of review has evolved, even in the absence of a privative clause, to a point of recognition of the purpose of contractually-rooted statutory arbitration: namely, the speedy, inexpensive and certain settlement of differences without interruption of the work of the parties. The scope of review only mirrors this purpose if it concerns itself only with matters of law which assume jurisdictional proportions and this I conclude to be the present state of
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the law of judicial review of such statutory tribunals.
The origin of the board here is consensual but, in its final form, statutory. It falls within the historic reach of certiorari. All boards, indeed all people and legal entities, are subject to the jurisdictional supervision of the Superior Court. A certiorari review of a statutory board free of a privative cloak, brings with it the added ground of review for error on the face of the record. Such error exceeds a difference of opinion by the reviewing tribunal on an interpretative issue and falls short of an error resulting in an excess of its jurisdiction on the part of the board. In the modern era of administrative law, such reviewable error as regards a contract must amount to an error relating to the construction of the constituting contract of such magnitude that the interpretation so adopted by the board may not be reasonably borne by the wording of the document in question, and hence such determination is beyond the contemplation of amount to an amendment of the constituting agreement. Such an error is beyond the authority given to the board in the charter or collective agreement. The arbitrator has indeed the right to be wrong, but not where the wrong amounts to an amendment of the charter itself. Hence the earlier observation that even in this element of error of law on the face of the record, the error must take on a jurisdictional aspect; thus something the parties did not bind themselves by contract not to challenge; something which expands or contracts the relationship between the parties beyond their reasonable contemplation.
Where the error in the award relates to the statute whose interpretation is required of the board in the course of determining the dispute, the test of reviewable error is of the same scope and
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type, with one important exception. The test is objective and an error in law in statutory interpretation is unsoftened by the qualification that the assigned interpretation must be one which the words will not reasonably bear. This is so because the parties are not in law deemed to have authorized the board to settle their differences contrary to the statutes of the community. A primary jurisdictional error arising on a misinterpretation of the parent or constituting statute is reviewable as a jurisdictional error as no error in the interpretation of such a statute may increase or diminish the jurisdiction of the board. On the other hand, questions of admission and interpretation of evidence and procedure are all matters assigned exclusively to the board as are all questions of fact. The parties are seeking and must be permitted to achieve a quick, effective and economical yet above all a fair method for the settlement of their grievances without interruption of work. Unfairness, the adoption of procedures contrary to natural justice, arbitrary conduct, refusal to discharge their function, fraud and bias in law, are all matters that transcend the classification of error in law on the face of the record. They are all jurisdictional in the fundamental sense of that term, and hence are reviewable through certiorari or its equivalent, with or without a privative clause. Such errors of law are not the same as but are equatable to the jurisdictional error which may arise from wrongful conclusions in statutory interpretation as in the Jarvis case, supra. Similarly, a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review.
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This discussion but points in outline the map of jurisdictional review, its scope and nature, but this is and must remain a remedy with adaptable flexibility. The administrative juridical mechanism itself is still growing and evolving. With it will grow and evolve the concomitant interrelationship between the administrative tribunal and the superior court, for whatever form the administrative board or agency takes on, the interest of the community will always require the supervision which will ensure to the community the first rule of an organized community, and that is that all inhabitants, legal and natural, must participate in the workings of the community within their assigned role or region. As Professor Wade has said in “Administrative Law”, supra, at p. 255:
If administrative tribunals and authorities could trespass uncontrollably outside their proper fields, there would no longer be order in the legal system. Order can be preserved only if jurisdictional demarcation disputes can always be carried to the regular courts of law, and so brought within a unified hierarchy of authority.
For at least a half a century the courts on the one hand and administrative tribunals on the other have sought to produce an interface or interrelationship which will promote the foregoing object of judicial review and at the same time promote and facilitate the response through administrative law to the community need for just yet speedy disposition of the great volume of industrial and commercial disputes arising in the field of labour relations. Hence the search for terminology with a clear and constant meaning, for procedures which will promote the interests of both court and board and through them the community in this rather complex field of political, social and legal relations.
The Award Re the Respondent Wilson
What then is the result on the application of this law to these arbitrations? The four grievors must, in my view, be treated in two different groups, the first group consisting only of the grievor Wilson, and the second group of the other three. I turn first to the grievor-respondent Wilson. Wilson is
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the “Plant Chairman” to use the words of Article 8, and as such he is the Chairman of the Union Bargaining Committee. By reason of Article 8 of the contract, the company is obligated to, and did in fact pay, Wilson according to the highest rate of pay in the bargaining unit calculated on the basis of a straight 40-hour work week. According to the agreement, when the Plant Chairman ceases to hold such office, he shall be reinstated consistent with his seniority to the classification in which he was employed when selected as Plant Chairman. By other terms of the collective agreement, the company is bound to provide the Plant Chairman with an office and certain specified office equipment, as well as information concerning “starts, lay-offs, discharges, releases, re-calls and changes in job classification”, as well as providing “Company forms involving transfers of employees”.
It is agreed that by reason of the terms of the collective agreement, Wilson, on being elected Chairman of the Union Bargaining Committee, was not required to perform any service to the Company in the plant or elsewhere. No doubt he had considerable duties and responsibilities to the union membership in the discharge of his duty as Plant Chairman, but neither Article 8, nor indeed any other part of the collective agreement, creates in Wilson any duty to perform any services for the Company. The agreement stipulates that the Plant Chairman shall receive “the rate of pay” specified in the agreement, and by implication obligates the Company to pay such moneys to Wilson. Neither by express term nor by any implication is this payment made by the Company to Wilson as Plant Chairman in compensation for any services rendered or to be rendered by Wilson to the Company as an employee; or indeed as Committee Chairman. If indeed such office involved a duty being owed by the Chairman to the Company, it would place the Chairman in a hopeless position of conflict, and even if such duties were hinted at in the agreement, a court would be loath to imply their presence. We are not troubled with any such consideration in this instance because the agreement clearly gives rise to no duty in Wilson to the Company to perform any services as an employee.
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Arbitration cases in the field of labour relations in the Province of Ontario have in the past indeed found that “special duties” arise in an employee over and above his duties as an employee where that employee holds a responsible office in the trade union or in the trade union structure recognized in the collective agreement. More recently, the flow is in the other direction, that is to say, a recognition that no duty arises in an employee to the employer by reason of union office over and above his duty arising in law as an employee. A helpful discussion of these cases is found in Canadian Labour Arbitration, Brown and Beatty, 1977, p. 375, which states in part as follows:
An issue which has arisen with some frequency, particularly in the context of an unlawful strike, is whether the officers of a union owe a higher duty to their employer than other members of the workforce and, accordingly, whether they may be liable to more severe disciplinary sanctions for engaging in similar acts of misconduct. Until recently, the vast majority of arbitrators had expressed the view without reservation that an employer could properly consider the fact that an employee was an officer of the union, had assumed certain unique responsibilities as a result of his office, and could therefore invoke more severe disciplinary sanctions against such a person for his misbehaviour. A minority of arbitrators, however, has argued that, while such persons may, by virtue of their position in the union, expose the union to certain liabilities as a result of their behaviour, it should not follow that they owe any additional or special personal obligations to the company over and above their normal responsibilities as employees.
In reviewing the arbitration of the related grievances by Hill concerning these same events at the appellant plant, Weatherston J., sitting in Weekly Court, in discussing this same problem, stated:
Union office creates a higher degree of responsibility, but does not create a new duty to the employer.
Re Douglas Aircraft Co. of Canada Ltd. and International Union, United Automobile Aerospace and Agricultural Implement Workers of America (1974), 48 D.L.R. (3d) 481 at p. 487.
In the case of Re Federation of Telephone Workers of British Columbia and British Columbia
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Telephone Co., Dohm J. in discussing a relationship or status similar to that of the respondent Wilson said:
It may be that this employee wronged his employer by not being loyal to his employer. It could also be said that he wronged his union by not advising the picketers that they were on an unlawful course which could have resulted in damages to the union. It may be that he did not act as a responsible trade union officer should act in the interests of his fellow workers. He could have been disciplined as an ordinary rank-and-file member and received a penalty commensurate with the degree of responsibility. These factors, however, are no basis for implying into the contract of service a special duty by reason of his being a union officer. In my view, there was no error in law on the face of the award and I accordingly dismiss the application. Although it was not urged before me, I would apply the same test above mentioned to the suggestion that this special duty could be implied by law into the collective agreement. I am of the opinion that union officers personally do not owe any special duty to the employer unless specific terms are arrived at in the collective agreement. Responsible union leadership, however, would seem to require, apart from any legal duty, that in the interests of the employer and the union, the leaders should see that the terms of the collective agreement are carried out and should give proper leadership to their fellow employees when the terms of the collective agreement are wrongly broken.
(pp. 20-1)
In my respectful view, the use of the words “duty” and “responsibility” tends to becloud the true relationship between the parties. The law has never recognized that a bargaining representative of a group of employees owed a duty in such a role to the employer. He may owe a duty to the community (but that we do not need to decide here), and he clearly owes a duty to his constituents, but the total fabric and structure of labour relations is predicated upon the integrity in law and in fact of the representatives of both sides to the bargaining process. That integrity is not promoted, and in fact would be defeated, if the law were to place in the representative of the employees a duty enforceable by the company, or indeed a duty, the failure to exercise which would expose the employee repre-
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sentative to punitive action of any kind by the company against the employee in his status as employee.
The obligation by the Company to provide a salary to the Plant Chairman under Article 8 is analogous to a fringe benefit to the members of the bargaining unit to be provided by the Company under the collective agreement. If the members of the bargaining unit wished to have a full-time spokesman or administrator acting in their interests in the administration of the agreement, such members would be obligated to provide the necessary income to enable their elected or selected representative to so serve them. Here the obligation to make such payment has been transferred by Article 8 from the union members to the Company, and hence the analogy to the payment by the Company of a fringe benefit to members of the bargaining unit. Gilbert E. Dwyer, in an article entitled ‘Employer-Paid “Union Time” Under the Federal Labor Laws’ (1961) 12 Labor Law Journal 236, at p. 242, stated as follows:
Is a union official or representative who performs no work for the employer an employee merely because he is carried on the payroll?
May employer payments to such an individual be reasonably regarded as compensation for service as an employee?
May employer payments to such an individual be reasonably regarded as made “by reason of his service as an employee?
As to the latter two questions, it is difficult to conceive of adequate union representation being equated with service to the employer.
The matter, however, does not end there. Since Wilson is not an employee of the Company in that he is chosen by the Union and put in office by selection by Union members in the manner prescribed by Article 8, the Company cannot discharge him from that office. He holds no other office. He is not an employee except in the sense that he has a residual right upon ceasing to hold such office to be returned to the classification from whence he came. This right cannot be the subject of unilateral destruction by the Company by
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reason of alleged misconduct by the Plant Chairman in the discharge of his office. In any case, it is abundantly clear that his status as an “employee” may not be the subject of disciplinary action by the Company, whatever other rights or consequences may flow from the alleged misconduct, and therefore the action taken by the Company on October 3rd, 1973 terminating his employment is a nullity. That notice stated in part:
Further to our telegram of Tuesday, October 2nd 1973 this will confirm that your employment has been terminated for the role you played in the work interruption of October 2nd, 1973.
Since this alleged termination is a nullity and thus has no effect on the status of Wilson under the collective agreement as Plant Chairman, and since he has no other status within reach of the Company’s disciplinary action, there is nothing which may serve as the ultimate basis for an award in response to the grievance filed by Wilson, and consequently, the award of the arbitrator in this circumstance should have reflected this nullity.
I must, however, deal with one sentence found in Article 8 which states as follows: “He [the Plant Chairman] shall be responsible to the Manager, Labour Relations, or his nominee”. It might be arguable that this sentence in isolation places some duty flowing from Wilson to the Manager, Labour Relations of the appellant-employee. As in the interpretation of contracts and statutes generally, however, sentences can rarely be construed in isolation, and almost always must be construed in the context and circumstances in which they are found in the entire document. If the Plant Chairman does indeed owe some duty to the employer for which he is accountable in law, he has, as I have already stated, a fundamental conflict of interest. In the field of labour relations, it is difficult to contemplate a situation where somehow, by implication, direct or indirect, an officer or representative of members of the bargaining unit may be rejected, discharged or interrupted in the course of performing his duties as a union representative within the four corners of the collective agreement. To construe the agreement otherwise would be to reduce the Bargaining Committee to a managerial
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puppet show because, in the fullness of time, their individual economic well-being will come to depend upon the maintenance of some relationship with management. This is, of course, fundamentally hostile to the basic concept of the rights of labour and indeed of the rights of management in the long term. Therefore, I have no difficulty in interpreting the above-quoted sentence to refer to an attachment of the Plant Chairman to the office of the Manager, Labour Relations for such administrative details as picking up the monthly or weekly remuneration prescribed by the agreement as his entitlement, arranging his return to plant duty when that time comes, etc. and I read no other significance into the sentence.
The Divisional Court, for the reasons set out above in the excerpt from the reasons of Osler J., quashed the award by reason of the adoption by the arbitrator of a construction of s. 8 of the collective agreement which its words would not reasonably bear. The arbitrator in doing so found Wilson under a duty to the company with reference to the administration of the collective agreement. If I had not concluded, as already stated, that Wilson was not subject to discharge by the company either for wrongfully withholding his services, which he did not do, or by reason of a breach of duty owed by Wilson to the company under the collective agreement, I would reach the same substantive conclusion as the Divisional Court. I would do so because of the attribution of the learned arbitrator to the grievor Wilson of a duty to the company in his labour relations role under the collective agreement. Because the award uses the words “responsibility” and “culpability” interchangeably with reference to the grievor’s liability or exposure to discharge as a penalty for breach of duty, it is not entirely clear as to what the “special relationship” between the company and Wilson is, nor the nature of the duty which thereby results. What is clear, however, is that the award includes the following statements with reference to the grievor Wilson:
His full time duties are directed to the administering of the collective agreement and in this he is responsible to
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the manager, labour relations, pursuant to the provisions of Article 8 of the collective agreement. Since he is paid by the company solely for administering the collective agreement as plant chairman, he must assume more responsibility for its proper and lawful administration than if he were not paid for this function.
and later in the award:
For this reason, if for no other, Mr. Wilson must bear the greatest responsibility for what occurred on October 2nd since he failed to demonstrate that he had actively attempted to enforce the provisions of the collective agreement at the direction of the manager of labour relations and to cause the members of the bargaining unit to do likewise.
The union President, Mr. Kirkby (who is not involved in these proceedings because he was not discharged by the company) was on leave of absence and was paid by the union and not by the company. The arbitrator, in pointing out the difference between Kirkby on the one hand and Wilson on the other in their relationship with the company, stated:
In this respect Mr. Kirkby was in a different position than Mr. Wilson. Mr. Kirkby was on a full time leave of absence from the bargaining unit for the duration of his term of office as president of the local union. He was not paid by the company. During his leave of absence he owed no duty to the company as an employee. His only duty was to the union.
After making the foregoing comments successively, though at different stages of the award, the disposition by the arbitrator concludes:
The grievor’s leadership position within the bargaining unit made his unlawful actions more culpable than employees who hold lesser positions of leadership within the bargaining unit. It is not the position within the union per se which causes responsibility to the company to attach to the grievor. It was his position as a leader of the bargaining unit members, which was recognized by the parties in the manner described above in the collective agreement that created the greater responsibility for his active role. Indeed, since Article 8 requires the company to deal with the bargaining committee when matters arise under the collective agreement, the company is entitled to rely on the members of the bargaining committee to share the responsibility to inform the
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members of the bargaining unit of the company’s position when such matters occur. This they failed to do.
Some of the above-quoted remarks by the arbitrator in fact indicate a possible basis for a grievance or an action at law against the union rather than grounds for a grievance discharge against Wilson personally. There also appears to be some confusion between a duty owed to the members of the bargaining unit by Wilson by reason of the chairmanship of the bargaining committee, with a possible duty to the company because of the terminology of s. 8. It is apparent in my view that in assessing the propriety of the company action and the penalty imposed by the company, the learned arbitrator has misinterpreted s. 8, and in so doing has assigned to the terms thereof a meaning which those words will not reasonably bear. Hence the award with respect to the grievor Wilson is subject to judicial review and should be quashed.
Second Group of Grievors
The grievances of the second group, namely the respondents Benjamin, McConnell and Hopkinson, were filed jointly with that of the respondent Wilson, and stated in part:
We protest the action of the Company for unjustly discharging us as members of Local 1967 U.A.W. Bargaining Committee and further protest the Company’s action in unjustly discharging us as employees. We request immediate re-instatement and full redress for all losses.
It is necessary to determine the arbitrator’s response to each of these three grievances in order to determine whether the awards, or any of them, are amenable to intervention on judicial review according to the principles discussed above. In all three awards the arbitrator found a withholding of services had occurred by personal participation in the sick-in. The issue before the arbitrator therefore reduced itself to a determination in each case whether, on the facts and circumstances, the penalty of discharge was appropriate in the sense of s. 19 of the collective agreement which provides in part:
The Arbitrator, however, in respect of a grievance involving a penalty, shall be entitled to modify such
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penalty as in the opinion of the Arbitrator is just and equitable.
It will be convenient to deal with each of these three awards separately for this purpose.
The Award Re the Respondent Benjamin
It should be noted that there is a limited cross-reference to the aforementioned Wilson award in these words:
In addition to the evidence concerning the general background of the dispute which is set out in the award in the Archie Wilson grievance…”
In discussing the position of the respondent Benjamin as a member of the Bargaining Committee, the arbitrator clearly had the terms of s. 8 of the collective agreement in mind although it is not the subject in this award of any specific reference. After finding that Benjamin had attempted during working hours to cause employees to violate the collective agreement, the award continued:
I do not intend to imply that Mr. Benjamin’s duties as a member of the bargaining committee are to be exercised as if he were an arm of management. This is clearly not the purpose or function of a member of a union bargaining committee. However, since the company pays the members of the bargaining committee while performing bargaining committee functions during working hours, the company is entitled to expect that such members will not take advantage of their position of leadership under the collective agreement by deliberately trying to cause employees to violate the collective agreement as was done by Mr. Benjamin. His duties as a member of the union bargaining committee in administering the collective agreement are to enforce and uphold the provisions of the collective agreement rather than to violate these provisions.
This excerpt must be read in the light of the balance of the award where the grievor’s “culpability” is compared to that of Wilson who held a “greater position of leadership under the collective agreement” and though “slightly less culpable than Wilson, the grievor must share a major portion of the responsibility for the work interruption…” The arbitrator concluded:
In my view his responsibility was such that his work record could not outweigh the seriousness of his offence, especially in light of the history of the relationship
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between the parties and the importance attached by the company to maintaining its production schedules.
I find no error in law in the construction of the applicable collective agreement provisions nor any other error in law, and certainly no attribution to the agreement which the words thereof would not reasonably bear. It might be that happier expressions could be employed to more sharply etch the distinction between “responsibility” for the grievor’s action or his “culpability” therefor on the one hand, and his duty to the company as an employee on the other hand. Such a differentiation between the grievor’s duty to the trade union as a member of the committee and his duty to the company as a production employee would have clarified the award but, in my view, this lack of clarity does not amount to a reviewable error of law. Neither is there any apparent reliance upon extraneous material which might involve a consideration of the fairness of the adjudication process as it applied to this grievance. In reviewing matters relevant to penalty, for example, the arbitrator observed:
…the company is entitled to search out the ringleaders and to impose reasonable discipline which is directed to avoiding future concerted activities of this kind.
Applying the rigours of the principles of judicial review to this award, I find no error in law which would support judicial intervention.
The Award Re the Respondent McConnell
Again there is but a limited cross-reference to the awards respecting the Wilson and Benjamin grievances relating to the terms of the agreement and the facts. This grievor was not the subject of any evidence of direct promotion of the ‘sick-in’ other than his own absence from work on the 2nd of October and his membership in the bargaining committee. The award reveals the arbitrator’s reasoning with respect to this respondent:
Although there was no direct evidence of the activities of the grievor, he must accept responsibility for the results that flowed from the concerted efforts made by Mr. Wilson and Mr. Benjamin and is deemed, in the
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absence of evidence to the contrary and in the circumstances of this case, to have acted in concert with the bargaining committee as a whole. Had the grievor disassociated himself from Mr. Wilson’s comments and actions on September 28th and had evidence been adduced to indicate that he was merely a passive participant, I might have been prepared to infer that his role in the work interruption was substantially different than was proved against both Mr. Wilson and Mr. Benjamin. Where members of a union bargaining committee are proved to have the necessary knowledge and act in concert to achieve an unlawful result, it is not unreasonable to find that the culpability of individual members of the committee flows to all members of the committee. This is especially true where it is difficult, if not impossible, to obtain detailed evidence of the activities of each and every member of such a committee. If I were to apply the criminal onus of proof I would be compelled to find that there was insufficient evidence to support the discharge of the grievor. However, I must apply the civil onus in this case.
As in the case of the award with reference to the respondent Benjamin, the arbitrator speaks in terms of “responsibility” and “culpability” which are, of course, common expressions in the assessment of penalty, civil and criminal. The award concludes:
The evidence in this case was sufficiently strong to impose an onus of explanation on the grievor. In view of this failure to testify I am of the view that it is not unreasonable to infer that he acted in concert with other members of the union bargaining committee to precipitate the sick-in which took place on October 2nd.
The grievor’s support of a work stoppage for this reason is one of the most serious offences that can be committed by an employee.
Apart from one paragraph in the McConnell award which is common to the Hopkinson award, no reviewable question of law arises in the award, and it is convenient to discuss that paragraph as it arises in the Hopkinson award.
The Award Re the Respondent Hopkinson
This award is likewise linked to that of the awards in respect of the respondents Wilson and Benjamin by a cross-reference regarding the “relevant provisions of the collective agreement and the facts of this case…” The arbitrator then estab-
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lished a more specific linkage between these grievors:
The role played by the grievor assumed greater importance because of his membership in the union bargaining committee, for the reasons referred to in the Wilson and Benjamin awards.
In considering this award it is necessary to remember that the respondent-grievor was not a member of the Union Bargaining Committee on the 28th of September but only joined it thereafter in replacement of the suspended member Harbinson.
The arbitrator found in essence that the committee acted in concert to induce breaches of the master and servant relationship between the company and its employees in the bargaining unit as that relationship is established under the collective agreement. The penalties awarded by the company the arbitrator found matched the grounds for discharge. He considered but did not accept the submission that the individual employment records of these grievors should have dictated a different penalty. The only question to be asked on the judicial review of such an award is whether the arbitrator has, in reaching his conclusion, committed an error of law apparent on the face of the record. (We are here not concerned with an allegation of lack of statutory or contractual jurisdiction to enter into the arbitration proceedings or any technical breach of jurisdictional structures during the conduct of the arbitration.)
I return to the paragraph common to the McConnell and Hopkinson awards to determine whether its content amounts to a reviewable error. The paragraph reads as follows:
In view of his responsibilities to the company under the collective agreement and his failure to properly explain his absence or otherwise adduce evidence to qualify or explain the part he played in the work stoppage, I am prepared to infer from the evidence before me that his role in the work interruption on October 2nd, was not merely passive.
As can be seen from the excerpts from the other awards, the arbitrator in scaling the penalties to the wrong, that is the cause for each discharge, sought out each grievor’s “responsibility” or “culpability” as a member of the bargaining committee. The arbitrator has not found cause for discharge
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because the grievor did something in addition to the withholding of services on the 2nd of October. He has stated, however, that the scale of penalty for such a wrong is influenced by such considerations as the prominent position the grievor enjoyed amongst members of the bargaining unit as a member of the plant bargaining committee. In short, the arbitrator considered the impact on the rank and file of the concerted withholding of services by members of the bargaining unit in a position of leadership.
The arbitrator has, however, said at one point in each of the McConnell and Hopkinson awards in the excerpt quoted above that the grievors had “responsibilities to the company.” This paragraph in these two awards is the only place where the preposition “to” has been associated with the “responsibilities” of the grievors; all other references refer to responsibilities “of” the grievors for their conduct, or culpability “for” individual actions. For example, the arbitrator concluded in the Hopkinson award:
I find on the evidence before me that the company had good reason to believe that the grievor acted in concert with the other members of the union bargaining committee and he must therefore accept his proper share of the responsibility for the work stoppage of October 2nd, 1973.
For the reasons stated with reference to the award in the respondent Wilson’s grievance, a collective agreement does not ordinarily establish bargaining duties in union representatives which are owed to the company over and above duties owed by them in common with the other members of the bargaining unit and which are distinct from duties owed by such representatives to the union and its membership. Any award, be it a finding of proper grounds for discharge or an award of penalty based on the finding of such a super-added duty of an employee, would be founded on an error of law arising out of a wrongful interpretation of the collective agreement unless that contract clearly so provided. Here s. 8 of the agreement does not so provide, and any such interpretation would, in my view, be unreasonable and would be beyond any meaning which the wording of s. 8 could reason-
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ably bear. Such an interpretation would therefore be a reviewable error of law.
I do not find on considering the terminology employed by the arbitrator in the whole of each of these two awards that he has misinterpreted, and applied such a meaning to, s. 8 so as to thereby, in effect, apply a penalty appropriate to two wrongs instead of one, namely the wrongful withholding of services. Courts must, in examining awards of arbitrators, particularly in the field of labour relations, do so in the awareness of the role of the arbitrator. Usually he is a technician of considerable expertise in a highly specialized field. His terminology will not always or perhaps ever be that of the traditional courts, nor should it be. Precision of conclusion is of course required, and the relationship between the conclusion and the contractual or statutory provisions will be closely scrutinized by the courts. Expressional latitude must, however, be accorded the arbitrator as he applies the law of the contract or the statute to the facts as he finds them. The parties have selected him specifically for this task. The state speaking through the statute requires that his decision be final and binding. The whole atmosphere of the industrial-commercial arena requires that such differences be quickly and fairly settled by this summary procedure, designed as it is to be economical of time and expense. Here the arbitrator has, on the silence of the grievors who neither called nor gave evidence, drawn inferences of fact and concluded that more than a passive role was played by these two grievors. From a technical, legal viewpoint, the expression “responsibility to the company” is no doubt unfortunate, but when read in the context of the whole of the two awards and the history of the relationship between the parties as revealed in the whole of the collective agreement and in all the circumstances of these proceedings, I cannot conclude that the arbitrator has thereby revealed an erroneous construction of s. 8 or any other term of the collective agreement of the magnitude of a reviewable error of law. It therefore cannot be said that he exercised his discretion as to the penalty assigned to these two grievors on any wrong basis in law and thus there is no error of law on the record authorizing judicial review.
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In the result therefore the award is quashed in respect of the principal union representative but the awards of the lesser members of the Committee are left intact. Let it therefore be said again for emphasis that the role of the court in judicial review is not that of a court sitting on an appeal. A court in the latter position might well respond differently to these awards. But the parties and the legislature selected the arbitrator and not the court to hear and dispose of these grievances, and the arbitrator must be left free to do so save only in those circumstances and according to the limiting rules of judicial review I have already discussed. I would therefore allow the appeal with respect to the respondent grievors Benjamin, McConnell and Hopkinson, and dismiss the appeal with respect to the respondent grievor Wilson, and accordingly the judgment of the courts below are set aside except with respect to the respondent Wilson and the award of the arbitrator restored in respect of all respondents other than the respondent Wilson.
By reason of the substantial success of the appellant, I would award to the appellant costs here and in the courts below against all respondents other than the respondents O’Shea and Wilson.
Appeal allowed as against all respondents, ESTEY J. dissenting in part.
Solicitors for the appellant: McCarthy & McCarthy, Toronto.
Solicitors for the respondents: Maclean & Chercover, Toronto.
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