Toronto Police Association v. Board of Commissioners, [1975] 1 SCR 630

Supreme Court of Canada

Toronto Police Association v. Board of Commissioners, [1975] 1 S.C.R. 630

Date: 1974-04-29

The Metropolitan Toronto Police Association and Paul C. Weiler (Plaintiffs) Appellants;

and

The Metropolitan Toronto Board of Commissioners of Police (Defendant) Respondent.

1974: February 7, 8; 1974: April 29.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour relations—Arbitration—Collective agreement—Whether arbitrators award reviewable—Error of law on face of award.

Arbitration—Admission of extrinsic evidence—Right of arbitrator to consider such evidence—Right of arbitrator to rectify collective agreement.

The appellant Association as bargaining agent for members of the Metropolitan Toronto Police Force by letter advised the respondent Board that the employer appeared to be in violation of the collective agreement by reason of stopping the dues payroll deductions for six members of the Association. The six employees had some months previously been promoted from the rank of sergeant to that of inspector and had shortly after their promotions indicated to the Association their desire to resign membership. Under a prior collective agreement the rank of inspector had been included in the schedule A to the agreement and the agreement defined “member” as “a person holding rank or classification as set out in Schedule “A” to this agreement”. In the later collective agreement, in force at the time of the grievance, the rank of inspector was not included in Schedule “A”.

The Arbitrator felt that on the basis of ambiguity he was entitled to consider extrinsic evidence in order to construe the collective agreement and also that rectification of the agreement was appropriate to give effect to what he found to be the intention of the parties.

Held (Laskin C.J. and Spence J. dissenting): The appeal should be dismissed with costs.

Per Martland, Judson, Ritchie, Pigeon, Dickson and de Grandpré JJ.: In this case there was no submission of a question of law to the arbitrator on the basis that

[Page 631]

his decision would be binding on the parties and not subject to any review. 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 was obligated to make a decision consistent with that agreement. Whether or not such decision was or was not inconsistent is clearly a question which could not be determined by the arbitrator himself; consequently, the submission 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 had agreed to accept as binding and which is not subject to review by reason of an error of law on the face of the award.

Per Pigeon and Beetz JJ.: The arbitrator states that he was “strongly reinforced in his conclusion by consideration of the extrinsic evidence of the negotiating story”. He could not have reached his conclusion had he not relied on a document expressing proposals made in the course of negotiations. The use of this type of extrinsic evidence strikes at the relative security of the written form and would render finally drafted and executed agreements perpetually renegotiable.

Per Laskin C.J., dissenting: As a matter of construction within the literal limits of the two agreements the arbitrator concluded that the Association’s position was the more probable. There is here no reviewable error of law; there could only be a difference of opinion as to proper construction and that is not a reviewable matter. There being a non-reviewable basis for the decision there is no reason to intervene because there was a reviewable issue on another view of the matter. Even on the basis of ambiguity, which it was for the arbitrator to determine, there could be no objection to extrinsic evidence as such.

Per Spence J., dissenting: The power of a court to review a decision on a specific question of law by a consensual arbitrator is limited to such matters as bias and fraud and no court is entitled to consider a review based on a mistake in law on the face of the award.

[Government of Kelantan v. Duff Development Company Limited, [1923] A.C. 395; F.R. Absalom Limited v. Great Western (London) Garden Village Society, Limited, [1933] A.C. 592; Faubert and Watts

[Page 632]

v. Temagami Mining Co. Ltd., [1960] S.C.R. 235; City of Vancouver v. Brandram‑Henderson of B.C. Ltd., [1960] S.C.R. 539; Bell Canada v. Office and Professional Employees’ International Union, Local 131, [1974] S.C.R., 335 followed; Re King and Duveen, [1913] 2 K.B. 32 distinguished].

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of Hughes J. granting an order in lieu of certiorari to quash an arbitration award of the appellant Paul C. Weiler. Appeal dismissed with costs, Laskin C.J. and Spence J. dissenting.

Thomas E. Armstrong, for the appellants.

G.M. Mace, Q.C., and H.E.O. Doyle, for the respondent.

THE CHIEF JUSTICE (dissenting)—This is another in a series of cases calling upon this Court to resolve a dispute about the latitude permitted to consensual arbitrators, appointed under collective agreements, to construe such agreements without being guilty of reversible error. The case comes here by leave of this Court and involves an award of a single arbitrator, Professor Paul Weiler, which was quashed by Hughes J. of the Ontario Supreme Court in proceedings brought for that purpose. That learned judge treated the award as one by a statutory arbitrator. The Ontario Court of Appeal affirmed the quashing of the award on the basis that Professor Weiler was a consensual arbitrator. In this Court, the matters in question were treated on this same basis, counsel being agreed that it was the proper one.

The arbitrator was selected by the parties hereto to resolve a grievance lodged by the appellant Association in a letter of September 14, 1970 in which the Association alleged that the respondent Board had violated the collective

[Page 633]

agreement in force between the parties by stopping the payroll deductions of Association dues in respect of six persons who, upon their promotion in July, 1970 from the classification of sergeant to that of inspector, had sent in letters of resignation from membership in the Association and had claimed as a result to be no longer obliged to submit to deduction of Association dues.

Counsel for the parties were at one that the governing collective agreement between the parties consisted of two documents, called respectively the 1969 agreement and the amending agreement of 1970. Article 10 of the collective agreement as amended (I should note that art. 10 was not itself amended by the 1970 amending agreement) provided for the deduction of Association dues, inter alia, as follows:

(b) Members who were members of the Association on June 30th, 1969, shall be obliged to pay the prescribed dues to the Association as a condition of employment but shall not be obliged to pay any assessments levied by the Association on any of its members which may be in excess of the prescribed dues unless they remain as members of the Association.

The term “member” (the first word in clause (b) above is defined in art. 2(d) of the collective agreement as amended (and I note that art. 2 was not itself amended by the 1970 amending agreement) as follows:

(d) “member” means a person holding rank or classification as set out in Schedule A to this Agreement.

Schedule A to the 1969 agreement listed “sergeant” as one of the ranks or classifications and also listed “inspector”. The 1970 amending agreement also included a Schedule A which listed “sergeant” but not “inspector” as a rank or classification thereunder, and it is this omission and its significance that have been at the heart of the arbitration proceeding and of the proceedings in the Courts below.

[Page 634]

It is apparent to me that on one view of the grievance as lodged, it is immaterial that the classification of inspector was not included in Schedule A under the 1970 amending agreement. The six persons who were promoted to inspector in 1970 were sergeants in 1969, and were thus in a “member” classification under art. 2(d) and were members of the Association on June 30, 1969. They would, accordingly, come under the obligation of art. 10(b) to submit to a checkoff of Association dues during the term of the agreement as amended. That was not, however, how the grievance was dealt with either by the arbitrator or by the Courts below. What was put in issue was the question whether “inspectors” was a classification which was still within the collective agreement as amended so as to bring those within that class or, at least the six promoted persons who purported to resign, under the checkoff obligation.

It is clear to me, as it was clear to the arbitrator and as it was clear to the Courts below under the reasons they gave, that there were no disputed issues of fact upon which a finding had to be made by the arbitrator. There was only one issue and that was an issue of law whether the collective agreement embraced inspectors for checkoff purposes. Of course, it can be said that the issue was whether inspectors were in fact within the collective agreement for checkoff purposes but that would be to introduce a semantic muddle between fact and law in the present case; the fact, in this context, would be the result of construction of the agreement, nothing more being necessary to the determination of the application of the checkoff provision. I read the reasons of Arnup J.A., who spoke for the Ontario Court of Appeal in this case, as saying exactly that. After concluding that Professor Weiler was a consensual arbitrator, Arnup J.A. continued as follows:

[Page 635]

The next question, accordingly, is whether the award of a consensual arbitrator to whom a question of construction of an agreement is referred can be set aside, and if so, upon what grounds, and by what form of procedure.

The question of procedure was not a disputed matter here and, in any event, it has been settled by the judgments of this Court in Port Arthur Shipbuilding Co. v. Arthurs[2] at pp. 94-5, and Association of Radio and Television Employees of Canada v. C.B.C.[3]

The main question in this case is the scope of review (to be distinguished from appeal) open to a Court whose supervisory authority is invoked against an award of a consensual arbitrator to whom a question of construction has been referred. That was the view of the present case taken by the Ontario Court of Appeal, and, in my opinion, it was the correct view. I disagree, however, with that Court on its affirmative exercise of its supervisory authority to set aside Professor Weiler’s award.

The Court of Appeal, in accepting the distinction, which has come down from a line of English cases, between review where a question of law has been referred to a consensual arbitrator and review where a dispute has been so referred in which a question of law becomes material, and in determining (correctly in my opinion, as I have already stated) that the present case comes within the first mentioned class of cases, adopted as the law on the scope of review the statement of Lord Cave L.C. in Government of Kelantan v. Duff Development Co. Ltd.[4] at p. 409, which is as follows:

[Page 636]

No doubt an award may be set aside for an error of law appearing on the face of it; and no doubt a question of construction is (generally speaking) a question of law. But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the court only because the court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally—for instance, that he has decided on evidence which in law was not admissible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent of the court from the arbitrator’s conclusion on construction is not enough for that purpose.

This statement is not, of course, binding on this Court nor, if I may presume to say so, does it appear to me to be consonant with the authorities which established the principles upon which and the extent to which awards of consensual arbitrators are reviewable. I canvassed the history of the matter in my reasons in Bell Canada v. Office and Professional Employees’ International Union[5] at pp. 569 ff. The principles, as judge-made law, are not, of course, immutable, and Lord Cave’s version is cited with approval both in Halsbury, Vol. 2 (3rd ed. 1953), at p. 60, and in Russell on Arbitration (18th ed. 1970), at p. 360. Nonetheless, what he said, and what is relied on by the Ontario Court of Appeal here, was not adopted by this Court in Faubert and Watts v. Temagami Mining Co. Ltd.[6], where Kerwin C.J.C., speaking for the Court, stopped short of adopting the qualification put by Lord Cave on the non‑reviewability of a consensual arbitrator’s award where a specific question of law has been referred to him for decision.

In Faubert and Watts, this Court relied on F.R. Absalom Ltd. v. Great Western (London)

[Page 637]

Garden Village Society Ltd.[7], without mention of the earlier Kelantan case. In Absalom, Lord Russell spoke for the majority in reference to the distinction between the case where a dispute is referred to an arbitrator in the decision of which a question of law becomes material and the case where a specific question of law has been referred to him. Lord Russell mentioned in this latter connection Lord Cave’s addition in the Kelantan case, but not, it appears to me, with approval. This seems to me to be also the view taken by Lord Wright who wrote at length in the Absalom case and who, in quoting Lord Cave in Kelantan, stopped short of that part of the passage in Lord Cave’s reasons that spoke of review because of inadmissible evidence or improper principles of construction.

In Vancouver v. Brandram-Henderson of B.C. Ltd.[8], heard within a few days after this Court decided the Faubert and Watts case and by the same members of the Court, the issue concerned an arbitration award which clearly did not involve the reference of a specific question of law but rather the reference of a dispute as to the proper indemnity for damage to certain property. Kerwin C.J.C., in the course of his judgment in which Abbott and Judson JJ. concurred, did not find it necessary to advert to the distinction which is under review here, but Locke J., with whom Cartwright J. concurred and as well Abbott and Judson JJ., referred to the views of Lord Cave in the Kelantan case as to reviewability but without relating them in any way to the distinction to which I have already referred.

Locke J.’s reference to what Lord Cave said in Kelantan was preceded by a reference to

[Page 638]

Walford, Baker & Co. v. MacFie & Sons[9] where an award in respect of a dispute referred to arbitration under a certain contract was set aside for the legal misconduct of the arbitrator in founding his decision on another superseded contract between the parties, so that he had acted upon inadmissible evidence. Locke J. then said this:

In Kelantan Government v. Duff Development Co., Viscount Cave L.C. at p. 411 said that such an award might be set aside if it appeared on the face of it that the arbitrator had proceeded on evidence which was inadmissible or on wrong principles of construction, or had otherwise been guilty of some error in law.

It appears to me that Locke J. was considering reviewability of arbitration awards arising out of a general reference to arbitration, especially in view of his allusion to what Lord Cave said on p. 411 of his reasons in Kelantan supra, rather than to what Lord Cave said on p. 409.

The passage from p. 411, which is substantially in the words used by Locke J., just quoted, appears to me to be at odds with what Lord Cave said on p. 409 of the Kelantan case, being the passage quoted by the Ontario Court of Appeal in the present case. If it applies to cases where a question of construction alone is referred to a consensual arbitrator, it wipes out the distinction which has been under discussion; it certainly goes beyond the statement of principle on p. 409. Since Lord Cave had concluded in Kelantan that the reference there was a reference as to construction I am unable to appreciate how the distinction in the scope of review (according to what is referred to arbitration) retains any significance. This may very well have accounted for the way in which the House of Lords in Absalom dealt with his reasons; and as well for the preference of this Court in Faubert and Watts to rely on Absalom without any mention of Kelantan.

[Page 639]

The difficulty created by Lord Cave’s proposition on p. 411 of the Kelantan case (no less than that created by the passage on p. 409) has not gone unnoticed elsewhere. In Melbourne Harbour Trust Commissioners v. Hancock[10] at p. 251, Starke J. of the Australian High Court, speaking of the passage on p. 411 said this:

And what, may I ask is covered by the words “otherwise been guilty of some error in law”? Some day, no doubt, the passage will be elucidated but a decision can be reached in this case without endeavouring to expound the qualification…

More recently, in NSW Mining Co. Pty Ltd. v. Hartford Fire Ins. Co.[11], the High Court of Australia had occasion to consider the reviewability of an arbitration award and whether a specific question of law was involved. Only one of the Bench of five (Gibbs J.) referred to what Lord Cave said on p. 409 of the Kelantan judgment (there was no other reference to that case). In his reasons, Chief Justice Barwick had two significant things to say, as follows (at pp. 350 and 351):

In my opinion, the first question asked of the arbitrator was a specific question which involved seeking the arbitrator’s construction of the policy. It is nothing to the point, in my opinion, that the arbitrator may have had to find some facts or to take evidence about some facts in deciding his answer to the question. The nature of the question remains the same and it is the nature of the question which determines the matter….

I think the use of the word “specific” in this area of discussion is useful to indicate that the decision on the point of law is sought by the parties by the question submitted to the arbitrator. It contrasts the case to which I have referred where the question asked is asked on the footing of the proper meaning of the contract and not on the footing of the arbitrator’s decision as to the meaning of the contract. It neither means, in my opinion, that in all cases the question of law must be isolated in the submission

[Page 640]

nor that it must be isolated as a separate question. To my mind the right principle is, if upon the proper construction of the submission it is concluded that the parties by the language they have used have asked the arbitrator to decide for them a question of law, the resultant answer may not be set aside simply because the arbitrator has decided the question wrongly.

I adopt this view of the matter, although it is unnecessary to go this far in the present case. I would emphasize what I said in the Bell Canada case, namely, that under a self-governing regime established by a collective agreement under which the parties have their own executive and judicial machinery, there should be a minimum of interference with awards, especially when they evince, as does the one under challenge here, a conscientious exercise of conferred authority by elaboration of the reasons that moved the arbitrator to his decision. In my opinion, the parties, for whom the decisions of arbitrators are intended, are better served by awards that spell out the considerations and factors leading to the decisions than are awards that are bare of reasoning and state merely the issue submitted and the conclusion, or barely more than that.

There were three approaches by the arbitrator in the present case to the question which was put before him. First, he sought to construe the collective agreement as amended and in this connection he was entitled to bring into account the circumstances surrounding its making. Second, and admitting candidly that construction as such posed a difficulty, he was of the opinion that an approach on the basis of ambiguity was open and that, accordingly, he was entitled to bring in extrinsic evidence. Third, he invoked the principle of rectification, a matter that was not pressed in this Court and nothing need therefore be said about it.

As I read the judgments below, and especially that in the Court of Appeal, the arbitrator was faulted because he admitted extrinsic evidence on the basis of the existence of an ambiguity.

[Page 641]

Both Hughes J. at first instance and Arnup J.A. on appeal were of opinion that no ambiguity existed and hence that the arbitrator was guilty of reversible error in admitting extrinsic evidence. There is only one passage in the reasons of the Court of Appeal that deals with the question of construction and admission of extrinsic evidence and I quote it in full:

While Hughes J. was approaching the matter on a different basis (because he was asked to do so), I am nevertheless in complete agreement with his finding that there were clear and serious errors of law on the part of the arbitrator. Putting it in the language appropriate to attacks upon the award of a consensual arbitrator, this arbitrator proceeded illegally not only in the sense that he has decided on evidence which in law was not admissible, but also because he decided the referred question on principles of construction which the law does not countenance. I completely agree with Hughes J. that the agreements the arbitrator was required to consider were clear and unambiguous. Therefore, no extrinsic evidence was admissible in aid of their interpretation. Furthermore, the arbitrator erred in doing what he called “applying the principle of rectification” which I take to be a euphemism for “reading the document as if rectified”.

It seems to me that both Hughes J. and Arnup J.A. dealt with the question of the existence of an ambiguity as if it were a collateral or preliminary question on which they were entitled to substitute their opinion for that of the arbitrator. If the arbitrator’s view was one that he was entitled to take under the authority vested in him, then I can see nothing wrong in his resort to extrinsic evidence; the evidence error followed if his decision on the question of ambiguity was impeachable so that there was one error only not two. My opinion is simply that in dealing with the question of construction the arbitrator could deal with it as a matter of internal interpretation as well as on the basis of the existence of an ambiguity, if that was his alternative view. It was for him to assess what

[Page 642]

the situation demanded in respect of construction, and there is no suggestion that there would be error if, in applying rules of construction where an ambiguity exists, he resorted to extrinsic evidence. To adapt a formula applied in labour relations board cases, whether or not an ambiguity existed calling for the introduction of extrinsic evidence, was for the arbitrator to determine as being a matter that was part and parcel of the question of construction upon which he was required to pronounce: see Ontario Labour Relations Board, Bradley v. Canadian General Electric Co. Ltd.[12], at p. 325.

I come now to the 1969 collective agreement and to the amending agreement of 1970, which were before the arbitrator for construction in order to decide whether the Board had violated its obligation to check off Association dues. The 1969 agreement, so-called by all concerned although it was dated March 20, 1970, ran, under art. 24, from January 1, 1969 to December 31, 1969 “and thereafter until replaced by a new agreement, decision or award”, each party being entitled to give notice between October 1 and December 31 of any year of its desire “to bargain for a new agreement or amendments to the existing agreement”. Article 1 of this agreement provided that it was to apply “only to those members of the Metropolitan Toronto Police Force as set out in Schedule A hereto”. Schedule A listed not only the classifications which gave meaning to art. 1 (e.g. constable, probationary detective, patrol sergeant and detective, sergeant and detective sergeant, sergeant of detectives, inspector, staff superintendent and superintendent) but also the hours per week and the wage scales for each classification. Article 4 of the 1969 agreement provided that “the annual salary of each member effective January 1, 1969, shall be in accordance with Schedule A to the Agreement”.

[Page 643]

Schedule A thus related to the classifications which were subject to the terms of the 1969 agreement and also to the annual pay of persons within those classifications. I have already referred in these reasons to art. 2(d) defining “member” as a person holding rank or classification as set out in Schedule A, and have referred also to art. 10 respecting payment of union dues. Article 6 of the 1969 agreement provided for (a) an annual clothing allowance in a fixed amount to “each member who holds the rank of Inspector or higher” and (b) a clothing allowance in a fixed amount to “each member below the rank of Inspector who is required to perform police duties in plain clothes”.

On July 10, 1970, the parties entered into an amending agreement with the same duration clause, art. 24, save that the fixed term was from January 1, 1970 to December 31, 1970. The amending agreement was not a complete redraft of the 1969 agreement but consisted rather of nine clauses each of which related to changes in named clauses of the 1969 agreement which, apart from those changes, continued in force under the new duration clause. The changes made were to arts. 4 and 5(f), a new art. 5(b)(11) was added, art. 11 was replaced as was art. 12, art. 13 was amended, art. 18 was replaced, art. 19 was amended and so too art. 24 as to duration. There were thus changes in eight of the twenty-four articles of the 1969 agreement. There was no change in art. 1 nor in art. 2 (unless there was necessarily a change because of the Schedule A change made for the purpose of art. 4) nor in art. 6.

Article 4 of the amending agreement of 1970 was as follows:

[Page 644]

The annual salary of each member, effective April 7, 1970, shall be in accordance with Schedule A to this Agreement.

Schedule A to the amending agreement listed the classifications included in that Schedule to the 1969 agreement, save those of inspector and staff superintendent and superintendent but it also joined to the classification of probationary detective the classification of probationary patrol sergeant. Increased rates of pay over those shown in Schedule A to the 1969 agreement were shown opposite the classifications listed in Schedule A to the 1970 amending agreement.

The issue that this new Schedule A presented is clear enough: Did the change in that Schedule, made for the purpose of the salary art. 4, also have the effect of excluding the inspectors from arts. 1 and 2, and thus also of excluding them from the checkoff obligation under art. 10? The arbitrator addressed himself to this question, one of construction alone, and concluded, on three alternative bases, that the obligation to deduct union dues in respect of the inspectors and to pay them over to the appellant Association was not affected by the amending agreement of 1970.

It is enough for present purposes to refer to his first basis of decision. As a matter of construction within the literal limits of the two agreements, he concluded that, having regard to the fact that arts. 1, 2 and 10 remained unamended and that art. 6 was also retained as it was in the 1969 agreement, the Association’s position was the more probable. Even on the application of Lord Cave’s widest proposition, there is here no reviewable error of law; there could only be a difference of opinion as to proper construction, and that is not a reviewable matter.

The fact that the arbitrator went on to consider the matter before him from the standpoint of ambiguity and let in extrinsic evidence is nihil

[Page 645]

ad rem; there being a non-reviewable basis of decision there is no reason for the Court to invervene because there was a reviewable issue on another view of the matter. Even on the basis of ambiguity, which it was for the arbitrator to determine, there could be no objection to extrinsic evidence as such. Apparently what was said to vitiate this alternative basis of decision was the reference to a letter of April 24, 1970 from the Chairman of the respondent Board to the President of the Association which represented a proposed settlement of the wage differences. That this was so is indicated by the acceptance of the proposals by the President of the Association with the notation above his signature and those of other persons of the words “effective date April 7th”. This is the date recited in the substituted art. 4. Although it is unnecessary, for reasons already given, to dwell on this alternative basis of decision, I see no legal objection to reference to this letter which evidenced an agreement which was in fact embodied formally in the 1970 amending agreement. It is entirely consistent with what is in art. 4 and in the wage and other benefit provisions found in the formal amendments.

For the foregoing reasons, I would allow the appeal, set aside the judgments below and dismiss the application to quash. The appellants are entitled to their costs throughout.

The judgment of Martland, Judson, Ritchie, Pigeon, Dickson and de Grandpré JJ. was delivered by

MARTLAND J.—This is an appeal from an order of the Court of Appeal for Ontario, which dismissed the appellants’ appeal from a judgment of Hughes J., which granted an application brought by the respondent for an order in lieu of certiorari to quash an arbitration award of the appellant Paul C. Weiler.

[Page 646]

The appellant Association (hereinafter referred to as “the Association”) is the bargaining agent for members of the Metropolitan Toronto Police Force. At all times material to this dispute the Association and the respondent Board (hereinafter referred to as “the Board”) were bound by a collective agreement dated March 10, 1970 (hereinafter referred to as “the 1969 agreement”), as amended by an amending agreement dated July 10, 1970 (hereinafter referred to as “the 1970 agreement”).

The 1969 agreement provided that it should run from January 1, 1969, until December 1, 1969, “and thereafter until replaced by a new agreement, decision or award”. The provisions of that agreement which are relevant to this appeal are as follows:

WHEREAS pursuant to Section 27 of the Police Act, a Bargaining Committee representing the Association met and bargained with a Bargaining Committee representing the Board for the purpose of making an Agreement in writing defining, determining and providing for remuneration, benefits, pensions and working conditions of the members of the Metropolitan Toronto Police Force set out in Schedule “A” hereto;

AND WHEREAS the initial Agreement between the parties has been amended from time to time;

AND WHEREAS the parties as of this date have reached an agreement as hereinafter set forth;

NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT:

1. This Agreement shall apply only to those members of the Metropolitan Toronto Police Force as set out in Schedule “A” hereto.

2. Except where a contrary intention appears,

(a) “Association” means the Metropolitan Toronto Police Association.

(b) “Board” means the Metropolitan Board of Commissioners of Police.

…

(d) “member” means a person holding rank or classification as set out in Schedule “A” to this Agreement.

…

[Page 647]

…

4. The annual salary of each member effective January 1, 1969 shall be in accordance with Schedule “A” to this Agreement.

…

6. (a) Each member who holds the rank of Inspector or higher shall be paid an annual clothing allowance as follows:

(i) One hundred and fifty dollars ($150.00) on the 30th day of June in each and every year, and

(ii) One hundred and fifty ($150.00) on the 31st day of December in each and every year,….

…

10. (a) Members who were not members of the Association on June 30th, 1969, shall not be obliged to pay dues to the Association as a condition of employment.

(b) Members who were members of the Association on June 30th, 1969, shall be obliged to pay the prescribed dues to the Association as a condition of employment but shall not be obliged to pay any assessments levied by the Association on any of its members which may be in excess of the prescribed dues unless they remain as members of the Association.

(c) Members who joined the Force on or after July 1, 1969, shall be obliged to pay the prescribed dues to the Association as a condition of employment but shall not be obliged to pay any assessments levied by the Association on any of its members which may be in excess of the prescribed dues unless they become members of the Association.

Paragraphs (d), (e) and (f) of this clause provided for the deduction by the Treasurer of the Municipality of Metropolitan Toronto from their pay of dues payable to the Association and payment of the amounts deducted by him to the Treasurer of the Association.

Clause 17 of this agreement dealt with the grievance procedure, and provided for five steps in the processing of a grievance. Step 5 provided for the appointment of an arbitrator. The relevant paragraphs of that clause read as follows:

An Arbitrator appointed under Step 5 of the Grievance Procedure shall not have power to add to, subtract from, alter, modify or amend any part of this

[Page 648]

Agreement, nor otherwise make any decision inconsistent with this Agreement.

Either party to this Agreement may lodge a grievance in writing with the other party on any difference between the parties concerning the interpretation, application or administration of this Agreement including any question as to whether a matter is arbitrable and such grievance shall commence at Step 4 and the said Step 4 and Step 5 shall apply mutatis mutandis to such grievance.

Annexed to this agreement was a schedule which was headed:

THIS IS SCHEDULE “A”—REFERRED TO IN THE ANNEXED AGREEMENT

This schedule described various ranks in the Force, from constable to inspector, and to staff superintendent, and provided for the respective hours of service per week and the pay rate for each rank.

The relevant provisions of the 1970 agreement are as follows:

WHEREAS the Board and the Association entered into an Agreement in writing dated the 10th day of March, 1970 (hereinafter referred to as “the Agreement”) defining, determining and providing for remuneration, benefits, pensions and working conditions of the members of the Metropolitan Toronto Police Force set out in Schedule “A” to the Agreement; and

WHEREAS Section 24 of the Agreement provides that it shall remain in full force and effect for the period extending from January 1st, 1969, until December 31st, 1969, and thereafter until replaced by a new Agreement, decision or award; and

WHEREAS the Board and the Association have agreed to make the amendments, changes, alterations and additions to the Agreement hereinafter set out;

NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the premises the Board and the Association hereby mutually agree and covenant as follows:

1. Clause 4 of the Agreement is deleted, and the following substituted therefor:

[Page 649]

“4. The annual salary of each member, effective April 7, 1970, shall be in accordance with Schedule “A” to this Agreement.”

…

9. Clause 24 of the Agreement is amended by striking out the figure 1969 wherever it appears in the Clause, and substituting therefor the figure 1970, so that the Clause, as amended, shall read as follows:

“24. The terms and conditions herein contained shall remain in full force and effect for the period extending from January 1st, 1970, until December 31st, 1970, and thereafter until replaced by a new agreement, decision or award…..”

A schedule was annexed to this agreement, which was headed:

THIS IS SCHEDULE “A”—REFERRED TO IN THE ANNEXED AGREEMENT

This schedule described various ranks in the Force, from constable to sergeant of detectives, and provided for the respective hours of service per week and the pay rates for each rank. No reference was made in it to any rank above that of sergeant of detectives. It did not include inspectors.

The grievance which gave rise to this case was in the form of a letter, dated September 14, 1970, from the president of the Association to the executive secretary of the Board. It referred to the fact that five sergeants had been promoted to the rank of inspector on July 14, 1970, and that another sergeant had been similarly promoted on July 28, 1970. Shortly thereafter these persons had written to the Association indicating their desire to resign membership in the Association. These resignations were not accepted. In August advice had been received by the writer of this letter that Deputy Chief Hamilton had ordered the Payroll or Administrative Section to stop, in respect of these six men, the deduction from the payroll of dues to the Association. The letter concluded with the following paragraph:

I now wish to bring this matter before the Police Commission at the earliest opportunity as a violation of agreement grievance. It is my respectful submission that the Department, specifically Deputy Chief

[Page 650]

Hamilton and/or the Police Commission has violated the agreement by stopping the dues payroll deductions for the aforementioned six members.

This is the grievance which was submitted to the appellant arbitrator. His award upheld the grievance and found that the Board was in breach of the agreement in failing to deduct Association dues from the inspectors’ salaries and to remit them to the Association. He delivered written reasons for his decision.

After referring to the 1969 and the 1970 agreements, he said:

In considering the implications of these two documents for the problem in this case, the one point which is clearly accepted by everyone is that the Inspectors were included under the 1969 Agreement and were liable to have dues deducted for the benefit of the Association. This is not the usual case of a grievance brought by the Union where an arbitrator is required to find positive evidence that, for instance, certain employees were negotiated into the bargaining unit. Instead, it is required to find positive evidence in the 1970 negotiations and document that it was agreed that these employees should be excluded from the unit and the Agreement.

He summarized the arguments submitted by the Board and by the Association and continued:

Taken by themselves, each of these arguments is a possible interpretation of the bare language of the Agreement. However, when considered together, these two views of the linguistic evidence on the face of the documents serve only to show the unsatisfactory character and serious difficulties in each. They certainly show important ambiguities in this language which entitles me to examine extrinsic evidence in order to clarify its meaning.

He then proceeded to review the negotiations leading to the execution of the 1970 agreement. In the course of this review he referred to a signed document of April 24, 1970, and added:

Certainly at this point, which may well represent a binding, written amendment to the Agreement, there is no hint of exclusion of Inspectors and we can

[Page 651]

assume that attempts to achieve it might well have required further concessions and benefits from the Board.

He then went on to say:

With this background, I would decide for the Union on three alternative though related, bases. If I were to consider the language alone of the 1969 or 1970 documents, on balance I conclude the Union interpretation is more probable. I rely for this conclusion on the fact that the 1969 Agreement is still in existence except as amended in 1970, that Sections 1, 2 and 10, which originally included the Inspectors, were not explicity amended by the latter, and that the continued existence of Section 6 is inconsistent with an implied exclusion of Inspectors from the whole of the Agreement by inference from a change in the salary schedule referred to by the amended Section 4. Although I recognize the difficulties in my linguistic interpretation, and reach it primarily because of the greater difficulties in the alternative, I am strongly reinforced in my conclusion by consideration of the extrinsic evidence of negotiating history. On this basis, I find it clear as a matter of fact that the parties have not actually agreed to or intended to exclude Inspectors from coverage of the dues deduction requirement of Section 10. Hence, ambiguities in the interpretation of Section 10 should be resolved in favour of its continued application to the Inspectors.

In the alternative, if I am wrong in believing that Sections 10 et al are sufficiently ambiguous in meaning to admit of resort to extrinsic evidence for their interpretation, then I hold that this is a proper case for the rectification of the latter to bring it into conformity with the binding and written agreement which they reached in April, 1970 and which was to be reflected in the July 1970 document. This case is closely analogous to the situation dealt with in Ontario Steel Products (1970) 21 L.A.C. 430 (Weiler), where I reviewed the authorities and stated that “the condition for its application (the doctrine of rectification) is that we find an actual, mutual agreement by the parties which is not expressed as intended in the final written document”.

For each of these three legal reasons, I conclude that the Board was in breach of the Agreement in

[Page 652]

failing to deduct dues from the Inspectors and pay them over to the Association…..

The Board applied to the Supreme Court of Ontario for an order in lieu of certiorari to quash the arbitrator’s award. This order was granted by Hughes J., who said:

My first observation about the way in which this result was reached must be to say that I have, with great respect, been unable to discern the ambiguities upon which the learned arbitrator relies for the importation of extrinsic evidence into his award. The 1969 agreement, as amended by the 1970 agreement, reads perfectly clearly, and the plain meaning of its words would exclude officers of the rank of inspector and over from membership in the Association. It is not suggested that there is anything defective about the execution of the 1970 agreement. The only specific inconsistency created by the 1970 agreement’s amendments or lack of them, is the fact that the provision for a clothing allowance for inspectors is still retained in section 6. But it is not sufficient to find an inconsistency in the retention of a section which it was not necessary for the arbitrator to construe. The characterization of this, and the omissions which the learned arbitrator professed to find in the failure of the 1970 agreement to alter the terms of sections 1, 2 and 10 of the 1969 agreement, as ambiguities for the purpose of letting in extrinsic evidence is error of law on the face of the award and alone sufficient to compel me to set it aside. There is, however, another aspect of the award which is in conflict with the express and unamended terms of the 1969 agreement in the form of that part of section 17 dealing with grievance procedure which reads in part as follows:—

“An Arbitrator appointed under Step 5 of the Grievance Procedure shall not have power to add to, subtract from, alter, modify or amend any part of this Agreement, nor otherwise make any decision inconsistent with this Agreement.”

This provision evidently stands in the way of any application of the arbitrator’s “doctrine of rectification”.

His conclusion is as follows:

Nevertheless the interpretation that the learned arbitrator puts upon the combined effect of sections 1, 2,

[Page 653]

4 and 10 and Schedule “A” of the agreement of 1969 as amended by the agreement of 1970 alters the effect of the amendments actually made and executed by the parties. Whether he does this by interpretation simpliciter, or by rectification based upon extrinsic evidence, he exceeds his jurisdiction by doing so.

The appellants appealed from this judgment to the Court of Appeal. The appeal was dismissed. The judgment pointed out that Hughes J. had considered that the arbitrator was sitting as a statutory arbitrator because both counsel had dealt with the matter on that basis. Counsel for the appellants on the appeal submitted that the arbitrator was a private consensual arbitrator, and the Court of Appeal agreed with this contention. The issue was then stated as being:

The next question, accordingly, is whether the award of a consensual arbitrator to whom a question of construction of an agreement is referred can be set aside, and if so, upon what grounds, and by what form of procedure.

The principle to be applied was stated as being that enunciated by Viscount Cave L.C. in Government of Kelantan v. Duff Development Company Limited[13] at p. 409:

No doubt an award may be set aside for an error of law appearing on the face of it; and no doubt a question of construction is (generally speaking) a question of law. But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally—for instance, that he has decided on evidence which in law was not admissible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent of the Court from the arbitrator’s conclusion on construction is not enough for that purpose.

[Page 654]

The conclusion reached in the judgment was as follows:

While Hughes, J. was approaching the matter on a different basis (because he was asked to do so), I am nevertheless in complete agreement with his finding that there were clear and serious errors of law on the part of the arbitrator. Putting it in the language appropriate to attacks upon the award of a consensual arbitrator, this arbitrator proceeded illegally not only in the sense that he has decided on evidence which in law was not admissible, but also because he decided the referred question on principles of construction which the law does not countenance. I completely agree with Hughes, J. that the agreements the arbitrator was required to consider were clear and unambiguous. Therefore, no extrinsic evidence was admissible in aid of their interpretation. Furthermore, the arbitrator erred in doing what he called “applying the principle of rectification” which I take to be a euphemism for “reading the document as if rectified”.

On the facts of the Kelantan case, Viscount Cave held that there had been a specific reference of a question of construction to the arbitrator and he was not prepared to hold that the arbitrator had acted illegally. Lord Shaw of Dunfermline agreed with this judgment. Lord Sumner agreed with the disposition of the appeal made by Viscount Cave. Lord Parmoor wrote separate reasons. He held that there had been a specific question of law submitted to the arbitrator. He adopted the statement of principle by Channell J. in In re King and Duveen[14], at p. 36:

…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.

Lord Trevethin was of the view that on the facts of the case there had not been a reference of a specific question of law. At p. 421 he stated the legal position as follows:

[Page 655]

If your Lordships should be of opinion that the award is bad in law upon its face, it should be set aside, for this is not in my view a submission to arbitration of such a nature that though the law be bad upon the face of the award, the decision cannot be questioned. That happens only when the submission is of a specific question of law, and is such that it can be fairly construed to show that the parties intended to give up their rights to resort to the King’s Courts, and in lieu thereof to submit that question to the decision of a tribunal of their own.

He agreed in the result because he did not find that the award was bad in law.

In F.R. Absalom, Limited v. Great Western (London) Garden Village Society, Limited[15], the House of Lords dealt with a case in which it was held that there had not been a reference of a specific question of law and the award was set aside because there was error of law on its face. Lord Russell of Killowen, in the course of his judgment, said, at p. 607:

My Lords, it is, I think, essential to keep the case where disputes are referred to an arbitrator in the decision of which a question of law becomes material distinct from the case in which a specific question of law has been referred to him for decision. I am not sure that the Court of Appeal has done so. The authorities make a clear distinction between these two cases, and, as they appear to me, they decide that in the former case the Court can interfere if and when any error of law appears on the face of the award, but that in the latter case no such interference is possible upon the ground that it so appears that the decision upon the question of law is an erroneous one.

It was unnecessary, in this case, to invoke the legal proposition stated by Viscount Cave, in the last sentence of the passage previously cited, because of the finding in the Absalom case that no specific question of law had been submitted to the arbitrator.

Reference was made to the statement of the law in the Absalom case, cited above, in the decision of this Court in Faubert and Watts v.

[Page 656]

Temagami Mining Co. Limited[16]. Again, in that case, it was held that no specific question of law had been submitted to the arbitrators and that there was an error of law on the face of the award. The principle stated by Lord Russell of Killowen was applied.

Viscount Cave’s proposition of law was cited, with apparent approval, in the case of City of Vancouver v. Brandram-Henderson of B.C. Limited[17], by Locke J., with whom three of the other four judges who heard the case concurred.

I would not be prepared to hold that the Court of Appeal erred in applying the principle enunciated by Viscount Cave in the present case.

There is, however, another ground on which the decision to set aside the arbitrator’s award is justified, and that is that in this case 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.

The application of the principle stated in the Faubert and Watts case was considered by this Court in Bell Canada v. Office and Professional Employees’ International Union, Local 131[18]. In that case a grievance was submitted claiming that an employee had been dismissed without just cause. The employer contended that the matter was not arbitrable under the terms of the collective agreement. It was agreed that the only matter which the arbitrator should deal with at the first hearing was this preliminary objection. The arbitrator ruled that thé matter was arbitrable. The employer sought to set aside the award. Its application was dismissed and an appeal to the Court of Appeal for Ontario was also dismissed, the Court holding that there had been a reference of a specific question of law

[Page 657]

and that the arbitrator’s decision could not be set aside, even if it were erroneous in law.

The appeal to this Court was successful. Judson J., writing the opinion of the majority, said:

This is not a case where the parties by agreement ousted the jurisdiction of the courts to determine a question of law by choosing to have that question determined by a judge of their own making. This matter came up in the ordinary course on the hearing of a grievance which was characterized by the employee as a dismissal and by the Company as a retirement on pension. It is obvious from the letter which the Company wrote when it consented to the appointment of the arbitrator that there would be a preliminary objection to jurisdiction. This was all that was done on the first hearing before the arbitrator. He made his decision to proceed with the arbitration. There was nothing to prevent the Company from asking the Court for an immediate review of this decision. The arbitrator’s decision was one which the Court ought to have reviewed and reversed.

The judgment of the Court of Appeal in the present case was delivered very shortly after the decision of that Court in the Bell Canada case, but before the judgment of this Court in that case.

In my opinion the present case is not one in which the parties by agreement “ousted the jurisdiction of the courts to determine a question of law by choosing to have that question determined by a judge of their own making”. 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.

There was here no joint submission by the parties to the arbitrator, seeking to have a specific question of law determined for them. The only submission was that contained in the final paragraph of the letter of September 14, 1970, from the president of the Association to the executive secretary of the Board, which has already been quoted. The Association’s submission was that the Department, specifically the deputy-chief, and/or the Police Commission had violated the agreement by stopping the dues

[Page 658]

payroll deductions for the six inspectors. That issue came before the arbitrator by virtue of the provisions of the collective agreement governing the processing of all grievances. Its solution certainly involved a consideration of the construction of the agreement, but the submission to the arbitrator was to be determined on the basis of the true meaning of the agreement. The parties had not bound themselves to an unqualified acceptance of the arbitrator’s decision as to what the agreement meant.

That this is so is shown by the provisions of the agreement governing the powers of the arbitrator. It was provided in clause 17 of the 1969 agreement (which was not amended by the 1970 agreement) that the arbitrator should not have power to add to, subtract from, alter, modify or amend any part of the agreement, “nor otherwise make any decision inconsistent with this 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 of law on the face of the award.

I agree with the views of both the Courts below that there was an error of law on the face of the award.

Clause 1 of the 1969 agreement limits the application of the agreement to those members of the Metropolitan Police Force set out in Schedule “A” to that agreement. The word “member” is defined to mean a person holding the rank or classification set out in Schedule “A”.

[Page 659]

Clause 4 provided that the annual salary of each member, effective January 1, 1969, should be in accordance with Schedule “A”. The schedule set forth various ranks in the Force and the respective pay rates and hours of work of each, including inspectors.

This clause was deleted by clause 1 of the 1970 agreement and replaced by a new clause 4 which provided that “the annual salary of each member, effective April 7, 1970, shall be in accordance with Schedule “A” to this Agreement”. The new Schedule “A” did not include inspectors.

In my opinion, following this amendment, an inspector was no longer within the definition of “member” under the agreement. Were this not so, and if an inspector could be considered as still being a “member”, there would be no provision for fixing his annual salary, because the new clause 4 says that the annual salary of “each member” shall be in accordance with Schedule “A” to this agreement and Schedule “A” contains no provision for an inspector’s salary.

Clause 10 provides for the payment of dues to the Association by “members” who may, or may not, be members of the Association. The obligation to pay dues rests only upon “members”. A person who ceases to be a “member” is no longer subject to that obligation.

In the result, I am of the opinion that the Court was entitled to review the award because of an error of law on its face. There was such error, and the Court rightly quashed the award. I would dismiss the appeal with costs.

SPENCE J. (dissenting)—I have had the opportunity to consider the reasons for judgment prepared by both the Chief Justice and Mr. Justice Martland and I find that I cannot express complete agreement with either of them and I, therefore, must set out my own views.

In the first place, I am in complete agreement with the Chief Justice that the grievance in this

[Page 660]

particular case was strictly a submission of a specific question of law to the arbitrator. The Chief Justice expresses the view that it is clear to him that it was clear to the arbitrator and to the Courts below that there were no disputed issues of fact. It is equally clear to me that there was only one issue and that was solely an issue of law, whether on the interpretation of the two agreements read together inspectors were included for check-off purposes.

The parties agreed that the arbitrator was a consensual arbitrator and therefore we have before us the narrow question as to the extent of the jurisdiction of any court to review the award of that consensual arbitrator.

In Bell Canada v. Office and Professional Employees, International Union, Local 131[19], the majority of this Court, of which I was one, allowed an appeal from the Court of Appeal for Ontario and quashed the award of the arbitrator. That majority, however, acted upon the basis that what was there submitted to the arbitrator was a general grievance and not a specific question of law upon the construction of the agreement, although the arbitrator, in the course of his decision, was called upon to construe the agreement and make a decision in law thereon, and therefore such error of law was reviewable in the Court. Laskin J., as he then was, dissented on the ground that what was referred to the arbitrator, who was a consensual arbitrator, was a specific question of law. Upon that basis, Laskin J. considered in detail the authorities in England and in Canada dealing with the power of a court to review the decision of the consensual arbitrator and expressed the view that this Court in Faubert and Watts v. Temagami Mining Co. Ltd.[20], had applied the narrower view of the scope of the jurisdiction of the court adopting

[Page 661]

the statement made by Lord Russell in Absalom Ltd. v. Great Western (London) Garden Village Society Ltd.[21], at p. 607, rather than the much broader statement of jurisdiction by Viscount Cave in Government of Kelantan v. Duff Development Co. Ltd.[22], at p. 409. That view the Chief Justice has repeated in his reasons for judgment in the present case and I am in agreement with that view. Therefore, I am of the opinion that the power of a court to review a decision on a specific question of law by a consensual arbitrator is limited to such matters as bias and fraud and that no court is entitled to consider a review based on a mistake in law appearing on the face of the award.

I adopt the view expressed so succinctly by Channell J. in Re King and Duveen[23], at p. 36, “Otherwise it would be futile ever to submit a question of law to an arbitrator”.

I am also in agreement with the view which the Chief Justice expressed in Bell Canada v. Office and Professional Employees’ International Union, supra, and repeats in his reasons for judgment in this case as to the desirability of limiting as strictly as it is possible the jurisdiction of the courts to interfere with awards of arbitrators acting under a self-governing regime established by a collective agreement.

I am therefore of the opinion that the courts including this Court should have refrained from quashing the award of the arbitrator on the basis of an error in law appearing on the face of the award. In my view, the arbitrator was entitled to make that error. I do, however, differ, with respect, from the Chief Justice on the question of whether or not an error in law does appear, and I am in agreement with the views expressed

[Page 662]

by Martland J. that there was such an error in law. Indeed, strive as I might, I cannot interpret the collective agreement in the fashion in which the arbitrator did. I repeat, however, that the arbitrator was entitled to commit what I regard as an error in law.

The arbitrator also purported to rely on a power which he imagined he possessed to rectify the agreement. I agree with the Court of Appeal for Ontario that such exercise of a purported right to rectify is straight in the face of clause 17 of the collective agreement. Had the result which the arbitrator reached been dependent on any rectification of the collective agreement, I would have been of the strong view that the award was beyond the jurisdiction of the arbitrator and therefore a nullity.

In my view, the arbitrator’s award in no way depended upon such power of rectification but was reached by a construction of the collective agreement.

In the result, I would dispose of the appeal in the manner indicated by the Chief Justice.

Pigeon J. concurred in the judgment delivered by

BEETZ J.—In their reasons for judgment, the Chief Justice and Mr. Justice Martland relate the facts.

The arbitrator in this case makes it clear that the first two alternative grounds upon which he made his findings, i.e. the language of the agreement and the consideration of extrinsic evidence, are not severable but related findings. He admits the difficulties of his linguistic interpretation and states that he was “strongly reinforced in his conclusion by consideration of the extrinsic evidence of the negotiating story.”

I cannot escape from the view that he could not have reached his conclusion had he not relied upon this evidence which consists of a

[Page 663]

document expressing proposals made in the course of negotiations.

It matters not whether the arbitrator was right or wrong when he found ambiguity in the collective agreement he had to construe. The use of this particular type of extrinsic evidence, if it became accepted, would render finally drafted and executed agreements perpetually renegotiate and would destroy the relative security and the use of the written form.

This error, in my view, is serious enough to deprive the arbitrator of his jurisdiction, to vitiate his award and to make it subject to review.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Armstrong & Maclean, Toronto.

Solicitor for the respondent: A.P.G. Joy, Toronto.