General Motors of Canada Ltd. v. Brunet, [1977] 2 SCR 537

Supreme Court of Canada

General Motors of Canada Ltd. v. Brunet, [1977] 2 S.C.R. 537

Date: 1976-11-02

General Motors of Canada Ltd. (Defendant) Appellant;

and

Pierre Brunet (Plaintiff) Respondent;

and

The United Automobile, Aerospace and Agricultural Implement Workers of America Local 1163 (Defendant) Mis en cause.

1975: December 3 and 4; 1976: November 2.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Labour law—Industrial accident—Lay-off of an injured employee—Damages and reinstatement sought by employee in the Superior Court—Declinatory exception—Rights under the collective agreement—Grievance within the meaning of the Labour Code—Rights capable of being claimed only by grievance procedure—Code of Civil Procedure, art. 167—Labour Code, R.S.Q. 1964, c. 141, ss. 1(g) 81, 88, 89.

Respondent Brunet was injured in an industrial accident while he was a spot welder in appellant’s employ. He filed a grievance following his employer’s refusal to assign him to a less strenuous job. Respondent was laid off and received no support from his union. He brought an action against his employer and his union in which he asked the Superior Court to award him damages for lost wages and order that he be reinstated in a position that he could fill. Appellant filed a motion in which it requested the Superior Court to declare that it lacked jurisdiction ratione materiae, the matter being within the exclusive jurisdiction of the arbitration board.

The Court of Appeal affirmed the judgment of the Superior Court dismissing this motion on the ground that the matter in dispute could not be considered a grievance within the meaning of the Labour Code. Gagnon J.A., dissenting, was of the opinion that there was a disagreement respecting the application of the provisions of the collective agreement to respondent’s case, and that he did not have a direct remedy in an ordinary court of law.

Held: The appeal should be allowed.

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It is clear that the collective agreement is the only basis for the rights which plaintiff claims. Reinstatement in employment cannot be obtained under ordinary principles of law, and it is also certain that under those principles an employer is in no way bound to provide to a workman injured in an industrial accident work other than that which he can no longer perform. It is clear that what respondent claims is the application of the provisions of the collective agreement. His dispute with General Motors is thus a grievance within the meaning of the Labour Code.

An employee can bring an action to recover unpaid wages only in so far as it is simply a matter of unpaid wages. If there is in fact a dispute over the interpretation or application of the collective agreement, the provision requiring arbitration is a bar to such an action and it must be dismissed. To admit of a right to go to the Superior Court whenever a sum of money is claimed under a collective agreement would make the provision of s. 88 of the Labour Code totally ineffective. Moreover, the collective agreement which applies in the case at bar provides that only the Canadian Director of the union or his designated representative can claim recourse to arbitration. This provision is a condition governing the rights which plaintiff seeks to exercise. It would be absolutely contrary to this provision to allow the discharged employee to ask the courts to assume the function of the arbitrator appointed by the agreements, if the union drops the grievance rather than carrying it to arbitration. The situation might be different if the union acted in bad faith, but good faith is to be presumed and there is no allegation of bad faith.

Hamilton Street Railway v. Northcott, [1967] S.C.R. 3, distinguished; Le Syndicat catholique des Employés de Magasins de Québec v. Cie Paquet Ltée, [1959] S.C.R. 206, rev’g. [1958] Que. Q.B. 275; Close v. Globe & Mail Ltd. (1966), 60 D.L.R. (2d) 105; Ford v. Trustees of the Ottawa Civic Hospital, [1973] 3 O.R. 437, followed; L’Association des Policiers de Giffard c. La Cité de Giffard, [1968] Que. Q.B. 863; Grottoli v. Lock & Son Ltd. (1963), 39 D.L.R. (2d) 128; Woods v. Miramichi Hospital (1966), 59 D.L.R. (2d) 290; General Truck Drivers Union v. Hoar Transport, [1969] S.C.R. 634, referred to.

APPEAL from a decision of the Court of Appeal of Quebec affirming a judgment of Math-

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ieu J. of the Superior Court. Appeal allowed.

J. Turgeon, for the appellant.

R.L. Heenan and G. Dufort, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—This appeal is brought by leave of the Court against a majority decision of the Court of Appeal of Quebec affirming the judgment of the Superior Court dismissing the declinatory exception of appellant (General Motors). At the hearing we pointed out that although the latter gave to the Union notice of this motion in the Superior Court and of its inscription in appeal, it did not implead the Union on the appeal to this Court. In the circumstances, we ordered that the Union be made a party to the appeal as respondent and have the right to file a factum and request a new hearing, which it did not consider expedient to do, being apparently satisfied to rely on its only proceeding in the record, a defence on the merits.

Plaintiff (the respondent in this Court) was employed by General Motors until June 25, 1970, on which day he received a notice of lay-off, of termination of employment as General Motors says in its defence. He was a spot welder on the assembly line when, on April 4, 1968, he injured his right wrist. The next day, he was given light work on small parts away from the assembly line. At the beginning of June he was put back in his job as welder. After an interruption in mid-June, he returned to work in September, but again had to be assigned to light work. In December, having been put back into the position of welder, he left work, and returned on February 3, 1969. On February 26, he left the welding job again while waiting for an operation on his injured wrist. Having undergone the operation in May, plaintiff returned to work on June 2 and was assigned to another welding job, “mig” welding. This work was suitable, he said. When he was assigned to a different job near the end of November, he experienced the same difficulties as in the spot welding position. However, he said it was not until

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January 21, 1970 that he raised a grievance. According to General Motors’ statement of defence, the only grievance was dated October 7, 1969. Whatever the case, plaintiff was laid off work on January 23, 1970.

On January 28, 1970, an official of the Workmen’s Compensation Commission sent a letter to plaintiff with a copy sent at the same time to General Motors; it read as follows:

[TRANSLATION] This letter is further to the medical examination which you underwent before one of our medical examiners on December 30.

As a result of observations made at this clinical and radiological examination, our doctor believes that a change of work not requiring repeated movement of your wrist would be beneficial. We therefore advise you to speak to your employer and enquire whether it would be possible to find a position suited to your physical condition.

Moreover, it was noted that no compensable partial incapacity resulted from the accident you suffered on April 3, 1968.

If you have suffered a loss of wages in order to attend this examination, please provide us with a certificate to that effect from your employer, giving us your hourly rate and the number of hours lost.

Plaintiff contends that following this letter and a formal demand sent on November 10, 1970, General Motors refused to perform the obligation placed upon it by the collective labour agreement, to assign plaintiff to another job which he could fill, and that for its part, the Automobile Workers Union of which he is a member refused or neglected to support his grievance. The conclusions of the action are that General Motors and the Union be jointly condemned to pay damages which plaintiff says amount to the sum of $13,178.60 for lost wages, and that moreover General Motors be ordered [TRANSLATION] “to observe the collective agreement signed by it and reinstate plaintiff in a position which he can fill”.

On June 23, 1971, several months after filing a defence, General Motors filed a motion in which it

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requested the Superior Court [TRANSLATION] “to declare that it lacked jurisdiction rationae materiae and dismiss plaintiff’s action with costs, reserving his rights under the above‑mentioned tie agreement, if any”. This motion was heard on July 22, 1971, in the presence of counsel for the Union and for the plaintiff. The certification of the Union as the representative of the employees of General Motors was already in the record. The complete text of the collective agreement in both languages was entered by consent. Judgment was reserved and rendered on April 10, 1972, dismissing the motion for reasons the substance of which appears in the following two sentences:

[TRANSLATION] In the case at bar, must we find that there is a grievance within the meaning of the Labour Code?

The court is of the opinion that it must not, because plaintiff-respondent claims in his action a sum of money lost for days of work which he could not perform, and he also requests that he be reinstated in his position.

The reasons of the majority on appeal differed little from those of the trial judge, Owen J.A. saying with the concurrence of the Chief Justice:

On the merits the problem submitted for decision by the Superior Court is whether in fact General Motors refused to offer Brunet lighter work and fired him or whether Brunet refused lighter work and left the employ of General Motors voluntarily. This issue is not a grievance under the Labour Code in the sense of being a disagreement respecting the interpretation or application of the collective agreement.

On the other hand, the late Gagnon J.A., dissenting, expressed the following opinion:

[TRANSLATION] Respondent has taken action against appellant because, after he requested a job which would be suited to his state of health and physical capabilities, appellant refused to place him in a new position “as it is bound to do by the collective agreement governing relations between the parties”. Appellant, maintaining that respondent did not use his right to grieve and that the Superior Court had no jurisdiction, denied the allegations of fact which would open the way to application of the collective agreement. Therefore, in my opinion there

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was a disagreement about the application of the provisions of the collective agreement to respondent’s case.

It is true that only extracts from the collective agreement were printed in the case, and that the provisions on which respondent bases his right to be assigned to a new job and to be reinstated are not found in these extracts, but respondent himself quite clearly bases his remedy on the collective agreement which must then be interpreted and applied.

I do not want to dwell on a sore point unnecessarily, and I would pay no attention if I thought that respondent had made a mistake, but I observe that he brought an action against his union as well. He alleged that a grievance was filed and taken at least as far as the department head, and that he informed the president of the union of his “intentions to take advantage of the rights conferred on him by the collective agreement”, and he brought an action against the union in damages because it refused or neglected to support his grievance. Respondent was right in believing that this was a grievance.

It is therefore beyond the shadow of a doubt the collective agreement alone on which respondent bases his action, and I do not see how he could contend that he was exercising a separate remedy conferred on him by his individual employment contract, nor that he has a direct remedy in an ordinary court of law, because his union, which is his mandatary, did not take his grievance to the subsequent stages of the grievance procedure, including arbitration, provided by the collective agreement.

This reasoning appears to me unassailable. To admit of a right to go to the Superior Court instead of having recourse to arbitration whenever a sum of money is claimed under a collective agreement would make totally ineffective the provision of s. 88 of the Labour Code, which reads as follows as amended by s. 28 of c. 48 of the 1969 Statutes:

88. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the parties abide by it; otherwise it shall be referred to an arbitration officer chosen by the parties or, failing agreement, appointed by the Minister.

As Gagnon J.A. noted, the judgment rendered by this Court in Hamilton Street Railway v.

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Northcott[1], does not in any way mean that the pecuniary nature of the decision sought is the determining factor in deciding whether the case is to be dealt with through compulsory arbitration or in the Superior Court. In that case, there had been an arbitration on the interpretation of the collective agreement and it had been decided that the claimants had the right to be paid for at least seventy hours of work in a pay period of fourteen days. The arbitration board had also ruled that the union had the right to have this matter settled. However, the amount payable to each operator as a result had not been fixed. The employer’s contention, which was rejected by all courts, was that each operator would have had to file an individual grievance in order to obtain a decision fixing a sum. This is the argument which was unanimously rejected, Judson J. saying (at p. 5):

Both the Division Court and the Court of Appeal have rejected this contention. These men have a point conclusively settled in their favour by the arbitration board. They can go before a court and say, “We are entitled to this money. All that remains is a mere matter of calculation. These are the hours for which we are entitled to be paid—seventy hours minus whatever hours we were paid for and which we actually worked”.

It may be seen that what was in fact decided in that case was that one may go to an ordinary law court to obtain a condemnation to pay what was awarded by arbitration, even if the award is made on the dispute without calculating the amount payable. In the case at bar, on the contrary, the Court is being asked to rule on the dispute. It should also be noted that under the Labour Code, although the arbitration award is conclusive, this does not make it executory by itself; ss. 89 and 81 read as follows:

89. The arbitration award shall be final and bind the parties. It may be executed in accordance with section 81.

81. The award shall have the effect of a collective agreement signed by the parties.

It may be executed under the authority of a court of competent jurisdiction at the suit of a party who shall

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not be obliged to implead the person for whose benefit he is acting.

I do not see how respondent can maintain that his dispute with General Motors is not a grievance within the meaning of the Labour Code, which defines this expression as follows (s. 1, para, (g)):

(g) “grievance”—any disagreement respecting the interpretation or application of a collective agreement.

First, it is clear that the collective agreement is the only basis for the rights which plaintiff claims. Reinstatement in employment cannot be obtained under ordinary principles of law, and it is also certain that under those principles an employer is in no way bound to provide to a workman injured in an industrial accident work other than that which he can no longer perform. Therefore, it is solely on the application of the terms of the collective agreement that plaintiff’s conclusions are based. The provision at issue is mainly para. 65 (a) of the collective agreement, which is as follows:

(65) (a) Any employee who has been incapacitated at Ms work by injury or compensable occupational disease, while employed by the Company, will be employed in other work on a job that is operating in the plant which he can do without regard to any seniority provisions of this Agreement, except that such employee may not displace an employee with longer seniority.

Reinstatement in employment is provided for in para. 47 of the collective agreement, which is in of Section VIII, “Grievance Procedure.” These provisions of the collective agreement are extremely lengthy. Although attempting to quote only as much as necessary, I must nevertheless reproduce the following pages:

SECTION VIII

GRIEVANCE PROCEDURE

(20) All grievance arising between employees and Individual Company shall be dealt with as speedily and effectively as possible by cooperative effort on the part of both the Union and local Management in accordance with the following procedure.

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Step One (1)

(21) (a) An employee having a grievance or one designated member of a group having a grievance, should first take the grievance up with his Foreman, who will attempt to adjust it.

(b) Any employee may request his Foreman to call his Zone Committeeman to handle a specified grievance with the Foreman. The word “specified” as used in this paragraph is interpreted by the parties hereto to mean an employee is required to “state the nature of his grievance”. The Foreman will send for the Zone Committeeman without undue delay and without further discussion of the grievance.

(c) The Committeeman, with or without the employee involved being present, will attempt to adjust the specified grievance with the Foreman before it is given to the Foreman for his written answer.

(d) If the grievance is not adjusted by the Foreman, it shall be reduced to writing on an Employee Grievance Form provided by the Individual Company and signed by the employee involved and one copy shall be given to the Foreman. The Foreman shall give his reply in writing on the Employee Grievance Form to the Zone Committeeman without undue delay but in any event not later than the end of the employee’s shift next following that on which the written grievance was received by the employee’s Foreman.

Step Two (2)

(22) Where the Union is not represented in the Plant by District Committeemen and the grievance is not adjusted by the Foreman, an appeal may be lodged by the Zone Committeeman within two (2) working days thereafter to the Superintendent or Department Head of the aggrieved employee’s department. The Zone Committeeman shall be given an opportunity to discuss the grievance with the Superintendent or Department Head, with or without the employee concerned being present.

The Superintendent or Department Head shall give his decision in writing on the Employee Grievance Form to the Zone Committeeman not later than two (2) working days following the presentation to him of the written grievance.

The Chairman, in accordance with the agreed local practice, may assist a Zone Committeeman at Step Two of the Grievance Procedure.

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(23) Where the Union is represented in the plant by District Committeeman and the grievance is not adjusted by the Foreman, he shall without undue delay arrange to have the grievance delivered to the District Committeeman who may lodge an appeal within two (2) working days thereafter to the Superintendent of the aggrieved employee’s department. The District Committeeman shall be given an opportunity to discuss the grievance with the Superintendent with or without the Zone Committeeman concerned being present.

The Superintendent shall give his decision in writing on the Employee Grievance Form to the District Committeeman not later than two (2) working days following the completion of such discussion.

Step Three (3)

(24) (a) If the written decision of the Superintendent or Department Head is not satisfactory, the grievance may be referred to the Shop Committee. The Chairman of the Shop Committee or the District Committeeman in the District in which the grievance arose, may then investigate the grievance, in accordance with agreed local practice, in order to discuss the grievance properly if it is to be taken up by the Shop Committee at a meeting with Management. The Shop Committee may within five (5) working days of receipt of the written decision of the Superintendent or Department Head appeal in writing to Management.

…

Suspension and Discharge Cases

(27) Any employee who is removed from his work to the Foreman’s desk; or to an office; or called to an office, for interview concerning discipline, may, if he so desires, request the presence of his Zone Committeeman to represent him during such interview. The Foreman will send for the Zone Committeeman without undue delay and without further discussion of the matter.

…

(30) (a) Any grievance arising from a suspension or discharge shall be filed with Management through the Shop Committee on an Employee Grievance Form signed by the employee involved within three (3) working days after the suspension or discharge occurred.

(b) Unless there is mutual agreement to do otherwise, the grievance will then be considered by a committee consisting of not more than three (3) local Union committeemen. The committee shall meet with Man-

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agement representatives at a special meeting to be held within two (2) working days after the presentation of such grievance. Management’s decision in the matter shall be given in writing to the Chairman of the Shop Committee within two (2) working days after such meeting; however, in event a suspension does not exceed two (2) days or in event the employee involved is notified to return to work before the special grievance meeting can be held under the above procedure, the grievance shall be automatically referred back to Step One.

Step Four (4)

(31) (a) If the written decision of Management at Step Three is not satisfactory and the Shop Committee believes it has grounds for appeal from such decision, the Chairman of the Shop Committee will give the plant management a written “Notice of Intention to Appeal”, on forms supplied by the Company. Thereafter the Chairman or a designated member of the Shop Committee and the Personnel Director or his designated representative will each prepare a complete “Statement of Unadjusted Grievance”. Such statement shall include the grievance identification number, and all the facts and circumstances surrounding the grievance.

…

Arbitration

(33) Should any grievance fail to be satisfactorily settled under the foregoing provisions of this Section, such grievance may be referred by the Canadian Director or his specified representative to arbitration in the manner and subject to the conditions and provisions hereinafter set out and the decision of the Arbitrator shall be final and binding upon the parties and upon all employees.

…

General

(44) Should any employee or the Local Union desire to take advantage of the procedure provided for in this Section for the settlement of grievances, each step in such procedure, up to and including the reference to appoint an Arbitrator, shall be taken by the Local Union within the time limits prescribed herein or the grievance will be deemed to have been finally abandoned, provided, however, that a grievance may be withdrawn from the procedure by mutual agreement without prejudice to either party.

(45) No claims, including claims for back wages, by an employee covered by this Agreement, or by the Union against the Company or Individual Companies shall

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be valid for a period prior to the date the grievance was first filed in writing, unless the circumstances of the case made it impossible for the employee, or for the Union as the case may be, to know that he, or the Union had grounds for such a claim prior to that date, in which case the claim shall be limited retroactively to a period of sixty (60) days prior to the date the claim was first filed in writing.

(46) Any time limits fixed by this Section for the taking of any action in connection with a specific written grievance may be extended by written agreement of Management and the Chairman of the Shop Committee.

(47) Where, under the provisions of this Section, it has been finally established that an employee has been improperly laid or, suspended or discharged, he shall be reinstated without loss of seniority, and the consideration of his grievance shall include the determination of the extent, if any, to which he shall fee compensated for lost pay.

I do not find it necessary to consider to what extent the Union may be obliged to take an employee’s grievance to the third stage. In any case, para. 31 clearly gives the Union the sole responsibility of deciding whether it will go to the next stage. With respect to recourse to arbitration, the wording is equally clear: the only person who can claim it, according to para. 33, is the Canadian Director or his designated representative. It would be absolutely contrary to these provisions to allow the discharged employee to ask the courts to assume the function of the arbitrator appointed by the agreement, if the Union drops the grievance rather than carrying it to arbitration. The situation might be different if the Union acted in bad faith, but good faith is to be presumed and there is no allegation of bad faith.

It is important to note that the rights which plaintiff wishes to exercise derive exclusively from the agreement. It is to be taken as a whole and it is a part of the bargain between General Motors and the Union that grievances will be handled in the manner provided therein. The provision that it is for the Union to decide whether the grievance will go beyond the third stage, as well as those which

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do not allow a grievance to be filed except within a short period of time after the decision complained of, are conditions governing the rights which plaintiff seeks to exercise. If, instead of saying that these rights can be exercised only through the grievance procedure provided in the agreement, it is held that any employee whose grievance the Union decides to drop may bring an action in the courts, the nature of the contract is radically altered: it is the Court which makes the final decision, instead of the arbitrator chosen by agreement. This is even more serious in that the rights claimed are not those which an employee may claim under ordinary rules of law. Even when there was in issue an ordinary right of an employee, the right to be paid, this Court has held that the provisions of the collective agreement may prevail over it. In Le Syndicat catholique des Employés de Magasins de Québec v. Cie Paquet Ltée.[2], Judson J. said for the majority (at pp. 212 and 214):

The union is, by virtue of its incorporation under the Professional Syndicates’ Act and its certification under the Labour Relations Act, the representative of all the employees in the unit for the purpose of negotiating the labour agreement. There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations.

…

The Union contracts not as agent or mandatary but as an independent contracting party and the contract it makes with the employer binds the employer to regulate his master and servant relations according to the agreed terms.

This decision is important in another respect. As may be seen in the reasons of Pratte J.A. in the Court of Appeal[3], (at p. 227), one of the employer’s defences was that plaintiff had refused to submit the dispute to arbitration, contrary to a clause of the agreement. The Court of Appeal did not rule on that defence, as it held that the mandatory

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withholding of union dues was invalid. This Court, on the other hand, held this provision to be valid, and allowed the action without considering it necessary to rule expressly on the question of recourse to arbitration. It seems clear that the defence was not accepted because the dispute did not relate to the interpretation or the application of the agreement, but to its validity, an issue within the jurisdiction of the courts since the law of Quebec at that time did not include a provision conferring on an administrative tribunal the duty of ruling on the validity of the agreement.

This brings me to the submission of counsel for the plaintiff on the interpretation of s. 88 of the Labour Code. He noted that the first paragraph of the law of Ontario concerning the compulsory arbitration of grievances under a collective agreement (The Labour Relations Act, R.S.O. 1970, c. 232, s. 37) reads as follows:

37. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

It may be seen that this text, after mentioning, as in the definition of “grievance” in the Labour Code, the “interpretation” and the “application” of the collective agreement, refers to the “administration or alleged violation”. It is argued that the matter here is an alleged violation, and therefore is not covered by the Quebec statute. In my opinion, this reasoning is fundamentally unsound. The Labour Code is not copied from the Ontario statute or from those of other provinces to the same effect, any more than from the Canada Labour Code (R.S.C. 1970, c. L-1) where one reads:

125. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.

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Is it to be argued that under the federal Code a dispute over the application of a collective agreement does not come within the scope of this provision, because violations only are mentioned? In my opinion, no distinction can be made between a dispute relating to the “application” of an agreement and a dispute relating to its “violation”, because these are simply two ways of looking at the same problem. There can be no question of violation of the collective agreement if it has no application. Here, it is clear that what plaintiff claims is the application of the provisions of the collective agreement. If the case were to be dealt with under the federal Code, the reasoning of counsel for the plaintiff would lead him to argue that it is a dispute concerning not the violation of the collective agreement, but its application.

He cited the decision of the Court of Appeal of Quebec in L’Association des Policiers de Giffard v. La Cité de Giffard[4]. The case arose out of an arbitration award having the effect of a collective agreement. There was disagreement on the interpretation of this award and its retroactive application. I cannot see how it may have been decided that there was no “disagreement respecting the interpretation or application of a collective agreement”, when I read in the reasons (at p. 867):

[TRANSLATION] In opposition to the interpretation which I adopt, the city sets out some inconveniences which would result from the retroactive application of the clause relating to overtime. If it is correct, the arbitration board was wrong, but there is nothing we can do about it. (Italics mine.)

The Court appears to have relied mainly on the judgment of McRuer J. in Grottoli v. Lock & Son Ltd.[5]—a decision which was cited by Judson J. in Hamilton Street Railway v. Northcott, cited above—where the dispute had actually been submitted to arbitration. All that was decided by McRuer J. was that nothing prevents an employee from bringing an action to recover unpaid wages. It is now well established that this is true only in so far as it is simply a matter of unpaid wages. If

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there is in fact a dispute over the interpretation or application of the collective agreement, the provision requiring arbitration is a bar to such an action and it must be dismissed: Close v. Globe & Mail Ltd.[6], a decision of the Court of Appeal of Ontario. There is also the recent judgment of Lieff J. in Ford v. Trustees of the Ottawa Civic Hospital[7], where all the cases are reviewed.

With respect to the decision of the Court of Appeal of New Brunswick in Woods v. Miramichi Hospital[8], it is to be noted that the action was based on plaintiff’s allegation that he had been unlawfully dismissed for union activity. Thus the collective agreement was not the real basis of the claim.

Before concluding, I must make the following observations.

It does not appear necessary to consider what recourse an employee would have if the certified union which signed the collective agreement refused in bad faith to submit a grievance and whether there is a distinction to be made depending on the employer’s awareness or ignorance of such bad faith. I will only note that, in General Truck Drivers Union v. Hoar Transport[9], this Court held that a failure to act within the time fixed by the collective agreement is fatal to the claim.

Is it to be said that the concluding words of s. 88 of the Labour Code then come into operation, requiring the matter to be referred to an arbitration officer chosen by the parties or, failing agreement, appointed by the Minister? The Court was informed at the hearing that the administrative view is that the employer and the Union are the parties to the collective agreement, and as a result an arbitrator will not be named on the request of an employee, but it does not seem that the question has ever been the subject of a judicial decision.

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Finally, I incline to the view that General Motors’ motion really was an exception to dismiss the action rather than a declinatory exception. This is of no consequence, since art. 167 of the Code of Civil Procedure provides that the dismissal of an action may be urged notwithstanding the failure to do so within the time allowed. However, I think it would be reasonnable in the circumstances not to condemn plaintiff to pay costs.

For these reasons, I would allow the appeal, set aside the judgments of the Court of Appeal and of the Superior Court, and dismiss plaintiff’s action without costs, reserving to the plaintiff any recourse by arbitration.

Appeal allowed without costs.

Solicitors for the appellant: Buchanan, McAllister, Blakely & Turgeon, Montreal.

Solicitors for the respondent: Johnston, Heenan & Blaikie, Montreal.

Solicitors for the mis en cause: Lévesque & Brodeur, Montreal.