Labour law ‑‑ Extent of Labour Court’s
power of remedy ‑‑ Complaint by employee against his association
for failing its duty of representation in filing his grievance to arbitration ‑‑
Court’s order referring to arbitration employee’s claim already arbitrated ‑‑
Remedy not authorized by s. 47.5 of Labour Code ‑‑ Labour Code,
R.S.Q., c. C‑27, s. 47.5.
Administrative law ‑‑ Labour Court ‑‑
Jurisdiction ‑‑ Complaint by employee against his association for
failing its duty of representation in filing his grievance to arbitration ‑‑
Court’s order referring to arbitration employee’s claim already arbitrated ‑‑
Remedy not authorized by s. 47.5 of Labour Code ‑‑ Excess of
jurisdiction ‑‑ Writ of evocation ‑‑ Labour Code,
R.S.Q., c. C‑27, s. 47.5.
Appellant was dismissed by respondent and his
dismissal grievance filed by his association was refused. Appellant alleged
that his association had failed in its duty of representation and, in
accordance with ss. 47.2 to 47.6 of the Labour Code, asked the Labour
Court to authorize him to submit his claim to an arbitrator appointed by the
Minister. This request was granted. Respondent then applied to the Superior
Court for a writ of evocation against this decision, on the ground that the
Labour Court had exceeded the jurisdiction conferred on it by s. 47.5 of the
Code by referring to arbitration a claim which had already been arbitrated. The
Superior Court dismissed the application, but a majority of the Court of Appeal
reversed the judgment. The question in this appeal is whether an employee whose
grievance has already been dismissed by an arbitration tribunal can obtain from
the Labour Court, pursuant to s. 47.5 of the Code, authorization to submit his
claim to another arbitrator.
Held: The appeal should
be dismissed.
The Labour Court does not have the power under s.
47.5 of the Code to refer a case to an arbitrator when it has already been
arbitrated and the grievance disposed of. That section applies when there has
been no arbitration because the association representing the employee refused
to take the grievance that far. This interpretation of s. 47.5 reconciles ss.
47.2 to 47.6 with each other and with the other provisions in the Code, in
particular s. 101 which provides that an arbitration award is final and without
appeal. Recognizing that a second arbitration can be ordered under s. 47.5
would be in direct conflict with s. 101.
Cases Cited
Asselin v. Travailleurs amalgamés du vêtement et du
textile, local 1838, [1985] T.T. 74; Hines
v. Anchor Motor Freight, 424 U.S. 554 (1976); Milhomme v. Aubé,
[1984] C.A. 1; Lucio Samperi (1982), 49 di 40; John Semeniuk
(1981), 45 di 258; Craib v. Canadian Pacific Ltd. (1984), 85 CLLC ¶
16,006; Langlois v. Telecommunications Workers Union, C.L.R.B., No. 745‑2030,
May 21, 1985; Teamsters Union Local 938 v. Massicotte, [1982] 1 S.C.R.
710; Syndicat des employés de production du Québec et de l’Acadie v. Canada
Labour Relations Board, [1984] 2 S.C.R. 412; Canadian Merchant Service
Guild v. Gagnon, [1984] 1 S.C.R. 509, referred to.
Statutes and Regulations Cited
Labour Code, R.S.Q., c. C‑27, ss. 47.2, 47.3, 47.4, 47.5, 47.6, 100, 101.
APPEAL from a judgment of the Quebec Court of
Appeal, [1984] C.A. 321 (sub nom. Municipalité de la Baie James v. St‑Arnaud),
which reversed a judgment of the Superior Court, [1981] C.S. 394, refusing to
issue a writ of evocation. Appeal dismissed.
Ghislain Laroche,
for the appellant.
Roy L. Heenan,
for the respondent.
Benoit Belleau
and André Rochon, for the mis en cause the Labour Court.
English version of the judgment of the Court
delivered by
1. Chouinard
J.‑‑At issue in this appeal is the extent of the Quebec
Labour Court's power of remedy in the case of a complaint by an employee who
alleges that the union failed in its duty of representation.
2. In 1977 the Quebec legislator imposed on
every certified association a duty to treat equally all employees included in
the bargaining unit it represented. Until then this duty had only been
recognized by judicial decisions: see Canadian Merchant Service Guild v.
Gagnon, [1984] 1 S.C.R. 509.
3. Section 47.2 of the Labour Code,
R.S.Q., c. C‑27, came into effect on February 1, 1978: (1978) 110 G.O. II
491. That section provides:
47.2. A certified association shall not act in bad faith or in an arbitrary
or discriminatory manner or show serious negligence in respect of employees
comprised in a bargaining unit represented by it, whether or not they are
members.
4. At the same time a specific remedy was
introduced, defined in ss. 47.3 to 47.6:
47.3. If an employee who has been the subject of dismissal or a disciplinary
sanction believes that the certified association is, in that respect, violating
section 47.2, he shall, if he wishes to invoke this section, submit a written
complaint to the Minister within six months. The Minister shall appoint an
investigator who shall endeavour to settle the dispute to the satisfaction of
the interested parties and of the certified association.
47.4. If no settlement has been reached within fifteen days of the
appointment of the investigator or if the association does not carry out the
agreement, the employee shall, if he wishes to invoke section 47.2, apply to
the Court within the fifteen ensuing days to request that his claim be referred
to arbitration.
47.5. If the Court considers that the association has violated section 47.2,
it may authorize the employee to submit his claim to an arbitrator appointed by
the Minister for decision in the manner provided for in the collective
agreement, as in the case of a grievance. Sections 100 to 101.10 apply mutatis
mutandis. The association shall pay the employee's costs.
The
Court may, in addition, make any other order it considers necessary in the
circumstances.
47.6. If a claim is referred to an arbitrator pursuant to section 47.5, the
employer shall not allege the association's non‑observance of the
procedure and delays provided for in the collection [sic] agreement for
the settlement of grievances.
5. Appellant entered respondent's service
on June 14, 1978 as a security officer.
6. As the result of a labour dispute,
respondent imposed a lockout beginning at 12:01 a.m. on July 29, 1978.
7. The dispute ended and work resumed on
December 23, 1978.
8. Appellant was dismissed on January 5,
1979.
9. At appellant's request the association
filed a dismissal grievance which it took to arbitration.
10. The arbitration took place on June 26,
1979, but the union representative did not notify appellant and the latter was
not present.
11. Before the arbitrator, respondent objected
that appellant had only worked for fifty‑nine days, had thus not
completed the sixty‑day probation period and his grievance was therefore
inadmissible.
12. Respondent and the union representative
made an admission of facts which the arbitrator summarized as follows:
[TRANSLATION]
It is admitted by the parties that:
‑‑the first
date Mr. Réjean Gendron started work was June 14, 1978;
‑‑the date on
which continuous service ceased, for calculation purposes only, was 28/7/78;
‑‑resumption
of work and operations: 23/12/78;
‑‑the date
Réjean Gendron was dismissed: 5/1/79.
13. It follows from this admission that
appellant in fact worked for only fifty‑nine days.
14. The union representative responded that
the lockout days should be added to the days of continuous service in order to
calculate seniority, and that therefore appellant had completed his probation
period.
15. The arbitrator did not accept this
argument, and on the ground that appellant had not completed the required
probation period and had no right to initiate a grievance proceeding, he
allowed the respondent's objection and dismissed the grievance.
16. Appellant, who was not happy with the
association's actions, filed a complaint with the Minister of Labour pursuant
to s. 47.3. He submitted that there had been serious negligence by the
association within the meaning of s. 47.2.
17. An investigator was appointed but as no
settlement was reached within the required time, appellant filed an application
with the Labour Court pursuant to s. 47.4. He asked the Court to authorize him
to submit his claim to an arbitrator appointed by the Minister.
18. In his application to the Labour Court
appellant made the following allegations against the association, inter alia:
[TRANSLATION]
(a) It made no
effort to inform applicant of the date on which the grievance was to be heard
by the arbitrator, so that the said applicant was not present at the hearing
and had no opportunity to correct certain facts;
(b) the admissions
made when the grievance was submitted were made without the knowledge or approval
of applicant;
(c) from January
1979, the time when the [association's] services were requested in connection
with the grievance proceeding, until August 2, 1979, the date on which the
arbitrator's decision was given to applicant, the latter had almost no
information about what was happening in connection with his grievance, despite
his frequent requests to representatives of the association;
(d) incidentally,
applicant learned on or about August 2, 1979 that his grievance had been
submitted to the arbitrator the preceding June 26;
(e) the
[association] demonstrated incredible carelessness and lack of concern in the
circumstances, by admitting facts on the basis of information not checked with
the principal party concerned;
19. Appellant alleged that even though the
lockout officially began on July 29, 1978, he had in fact worked on that day
and so completed the sixty‑day probation period.
20. The Labour Court found that the actions of
the association's representative amounted to serious negligence within the
meaning of s. 47.2 and it authorized appellant to submit his claim to
arbitration.
21. Respondent then applied to the Superior
Court, by a motion in evocation, and asked that the Labour Court's decision be
set aside essentially because the Court had exceeded the jurisdiction conferred
on it by s. 47.5 by referring to arbitration a claim which had already been
arbitrated.
22. It should be said at once that in its
motion in evocation respondent was now admitting that appellant had worked on
July 29, but it alleged that he had only resumed work on December 25, not
December 23. He worked fifty‑eight days in all, therefore, rather than
fifty‑nine. Accordingly, it said, the union representative's admission
was favourable rather than prejudicial to appellant; and counsel for the
respondent added that at this stage the facts alleged in the motion in
evocation must be taken as proven.
23. I do not see how this can affect the
question of whether the Labour Court exceeded its jurisdiction by ruling on the
facts which were before it and which were before the arbitrator, facts which in
addition were admitted. If respondent has new facts on which it wishes to rely,
in my view a motion in evocation is not the proper procedure.
24. The Superior Court, [1981] C.S. 394, held
that the Labour Court had not exceeded its jurisdiction and dismissed the
motion.
25. By a majority judgment the Court of
Appeal, [1984] C.A. 321, reversed this judgment and authorized a writ of
evocation to be issued.
26. The case at bar is one covered by s. 47.3,
namely a dismissal, and in accordance with that section appellant chose to
invoke s. 47.2. He filed a complaint with the Minister within six months. An
investigator was appointed, but he was not able to resolve the complaint within
fifteen days. This is why appellant filed an application with the Labour Court.
27. The question therefore is whether
appellant, whose grievance had already been dismissed by an arbitration
tribunal, could seek and obtain from the Labour Court, pursuant to s. 47.5,
authorization to "submit his claim to an arbitrator appointed by the Minister
for decision in the manner provided for in the collective agreement, as in the
case of a grievance".
28. If so, the Labour Court did not exceed its
jurisdiction. However, it cannot err in this regard, as its very jurisdiction
is involved. If it errs, it is assuming a power it does not possess. This is
the rule developed by this Court in Syndicat des employés de production du
Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R.
412. At page 440, it reads:
... the provisions which
the Board had to interpret in the case at bar confer jurisdiction, since they
concern the orders which the Board is empowered to attach to a declaration of
an unlawful strike. The question is whether the Board has the power to attach to
such a declaration an order referring a matter to arbitration. I consider,
therefore, that it is not doubtful but manifest that the interpretation of
these provisions raises a question of jurisdiction about which the Board cannot
err without committing an excess of jurisdiction.
29. In my view the Labour Court did not have
the power to refer a case to arbitration in such a situation, when it had
already been arbitrated and the grievance disposed of.
30. It is manifest that s. 47.5 applies when
there has been no arbitration because the association refused to take the
grievance that far.
31. It is a power similar to that which this
Court recognized is enjoyed by the Canada Labour Relations Board, in Teamsters
Union Local 938 v. Massicotte, [1982] 1 S.C.R. 710.
32. In that case the Canada Labour Relations
Board, in view of the association's refusal to go to arbitration, found that it
had failed in its duty of representation set forth as follows in s. 136.1 of
the Canada Labour Code, R.S.C. 1970, c. L‑1, as amended by 1977‑78
(Can.), c. 27, s. 49:
136.1 Where a trade union is the bargaining agent for a bargaining unit, the
trade union and every representative of the trade union shall represent, fairly
and without discrimination, all employees in the bargaining unit.
33. The Canada Labour Relations Board then
made an order authorizing the employee to proceed to arbitration of his
grievance himself at the association's expense, and it allowed him to appoint
an arbitrator himself for this purpose. The order was made pursuant to s. 189
of the Canada Labour Code , supra; 1972 (Can.), c. 18, s. 1; 1977‑78
(Can.), c. 27, s. 68, which does not expressly provide for such a remedy.
34. This Court held that the Canada Labour
Relations Board had not exceeded its jurisdiction in making this order.
35. When there has been no arbitration s. 47.5
is readily understandable and ss. 47.2 to 47.6 can be reconciled with each
other and with the other provisions in the Code.
36. This power is part of the general scheme
of the Code which is that every grievance shall be submitted to arbitration (s.
100). It favours access to arbitration.
37. Under s. 47.3 an employee who feels that
the association representing him has violated s. 47.2 files a complaint with
the Minister, who appoints an investigator. The latter attempts to settle the
complaint, presumably by trying to persuade the association to proceed or the
employee to drop the matter.
38. If the investigator is unsuccessful, the
employee makes an application to the Labour Court and asks it "[to order]
that his claim be referred to arbitration" (s. 47.4).
39. The Labour Court (s. 47.5) may authorize
the employee "to submit his claim to an arbitrator appointed by the
Minister for decision in the manner provided for in the collective agreement,
as in the case of a grievance". Sections 100 to 101.10 apply mutatis
mutandis, and the association pays the employee's costs.
40. The very choice of language is
understandable. For example, the legislation speaks of a "claim"
rather than a "grievance". In general, the decision to take a
grievance to arbitration is one to be made only by the association. When as in
the case at bar the employee is authorized to proceed, it is no longer strictly
speaking a "grievance" and this is why it is referred to as a
"claim".
41. The arbitrator will be appointed by the
Minister, since the association has not acted in accordance with the agreement
or s. 100.
42. The claim will be decided in the manner
provided for in the collective agreement, as in the case of a grievance. These
words are necessary because the agreement has not been observed and it is no
longer strictly speaking a grievance.
43. Section 47.6 provides that the employer
cannot allege the association's non‑observance of the procedure and
delays provided for in the collective agreement for the settlement of
grievances. This section is necessary since, in view of the six‑month
period in s. 47.3, the two fifteen‑day periods in s. 47.4 and the time
needed by the Labour Court to dispose of the matter, the employee would be
beyond the deadlines specified in the collective agreement for taking action.
44. Finally, these provisions are in complete
harmony with s. 101, which provides that an arbitration award is without appeal
and binds the parties.
45. The situation is quite different if there
has already been arbitration.
46. The question then is what the investigator
appointed under s. 47.3 will in fact try to settle between the association and
the employee. There can be no question of the investigator attempting to
persuade the association to take the grievance to arbitration, since that has
already been done. Furthermore, I know of no provision which authorizes the
association to compel the employer to go to a second arbitration in the event
that the association and the employee reach agreement as a result of
intervention by the investigator. If there is no agreement, the remedy provided
for is arbitration. An agreement should lead to the same outcome, though no
provision is made for it.
47. Section 47.3 has no application after
there has been arbitration, unless it is maintained that the employee's remedy
includes allowing the Labour Court to order a new arbitration in the event that
the association refuses to apply for a writ of evocation against the
arbitration award. This is what was held in Asselin v. Travailleurs
amalgamés du vêtement et du textile, local 1838, [1985] T.T. 74. If
we follow this reasoning, assuming that a motion for evocation is made and
denied by the Superior Court, there could be recourse to s. 47.5 if the
association refuses to appeal the Superior Court judgment. Again assuming that
the Superior Court judgment has been appealed and that the appeal has been
dismissed, there could still be recourse to s. 47.5 if the association refused
to apply to this Court for leave to appeal. This would be giving the provisions
under consideration too general an application, not justified by the wording.
48. Similarly, s. 47.4 seems hard to explain
on the basis that an arbitration has already occurred. In so far as the section
refers, first, to the failure of the investigator to settle the complaint, and
second, to the association's failure to carry out the agreement concluded as a
result of intervention by the investigator, the same observations made in
connection with s. 47.3 apply regarding the object of the investigator's
action. The purpose of the application, which is the next stage, is to ask for
the claim to be referred to arbitration. The section gives no further
clarification and does not distinguish between the arbitration requested by the
employee in his application and that already completed.
49. Moreover, these sections give no
indication what becomes of the arbitration award already made. For the
interpretation one would like to give to s. 47.5 to have any meaning the second
award clearly must supersede the first, which must be set aside. In my view
this is the equivalent of a judgment on appeal and I cannot see how ss. 47.2 to
47.6 could be construed as creating a right of appeal.
50. Appellant and the Labour Court further
submitted that the remedy under ss. 47.2 to 47.6 is a distinct and parallel
remedy given to the employee himself. It is an individual remedy, not the usual
recourse to arbitration which is generally reserved solely for the association.
This argument raises a major difficulty: how are the provisions of the Code to
be reconciled?
51. Section 101 of the Labour Code
states that "The arbitration award is without appeal and binds the
parties". To this objection appellant and the Labour Court answered that
s. 47.5 is an exception to s. 101: an employee who was bound by the arbitration
award no longer is.
52. Appellant and the Labour Court relied on
the judgment of the United States Supreme Court in Hines v. Anchor Motor
Freight, 424 U.S. 554 (1976). At page 567, it reads:
The union's breach of duty
relieves the employee of an express or implied requirement that disputes be
settled through contractual grievance procedures; if it seriously undermines
the integrity of the arbitral process the union's breach also removes the bar
of the finality provisions of the contract.
53. It is clear from reading the judgment and
the passage cited above that what the U.S. Supreme Court is referring to is a
clause in the collective agreement which confers final effect on the
arbitration award, and this is also governed by the contractual clauses of the
agreement. The judgment is not concerned with the provisions of legislation as
in the case at bar.
54. In addition to the fact that this
precedent is of course not binding here it should be added that, apart from
decisions of the Labour Court, by a majority but not unanimous, no Canadian
decisions were cited in support of the proposed interpretation.
55. Reference was made to Milhomme v. Aubé,
[1984] C.A. 1, in which the Court of Appeal ruled on these sections of the Labour
Code. The Court of Appeal, reversing the judgment of the Superior Court,
authorized a writ of evocation to be issued against a decision of the Labour
Court which had refused to refer the employee's claim to arbitration. However,
that case was quite different from the case at bar. The arbitration had begun,
but the association had withdrawn the grievance before the arbitration was
complete. Appellant and the Labour Court relied in particular on the following
passage from the reasons of Bisson J.A., whose opinion was concurred in by his
brother judges, at pp. 5‑6:
[TRANSLATION] In closing,
I would like to emphasize that the argument of respondent S.E.C.S.N., that ss.
47.2 to 47.6 of the Labour Code no longer apply when the arbitration
proceeding has begun, cannot be admitted.
56. There is no inconsistency between the
judgment of the Court of Appeal in the case at bar and Milhomme, where
there was no arbitration. That case does not apply.
57. The Canada Labour Relations Board, for its
part, has refused to make an order concerning an arbitration award challenged
on the ground that the association had failed in its duty to represent an
employee properly at the arbitration. The Board clearly indicated that in such
a case it would be exercising an appellate jurisdiction. See Lucio Samperi
(1982), 49 di 40. At pages 50‑51, it stated:
It would be a clear case
of the tail wagging the dog if this Board were to effectively quash arbitration
awards because we disapproved of the manner in which a union presented a
grievance at arbitration. We do not consider it to be within the purview of our
role or responsibility to evaluate the competence of union representatives or
their counsel. Nor do we consider it to be compatible with the public policy
purposes and objectives of party controlled compulsory grievance arbitration as
a substitute for mid‑agreement work stoppages expressed in section 155 of
the Code (see the discussion in James E. Dorsey, "Arbitration Under the
Canada Labour Code : A Neglected Policy and an Incomplete Legislative
Framework" (1980), 6 Dalhousie L.J. 41). The duty of fair representation
has a role under the Code but it must have its limits. The limit falls short of
an avenue of appeal from arbitral decisions based upon a judgment by this
Board's legal and non‑legally trained members about the competence and
performance of union representatives and their counsel.
58. In John Semeniuk (1981), 45 di 258,
at pp. 262‑64, the Board similarly indicated that it does not sit in
appeal from the decisions rendered.
59. However, the Board has reserved its
opinion on whether it has the power to set aside an arbitration award because
the association has contravened s. 136.1 of the Canada Labour Code , supra.
See Craib v. Canadian Pacific Ltd. (1984), 85 CLLC ¶ 16,006. At pages
14,037 and 14,038 it reads:
We
have not felt it necessary to address the question of whether the Board could
in effect nullify the order or decision of an arbitrator or arbitration board
which, under Section 156 of the Code is "final", even if we had
justification for believing that the representation given by a union at an
arbitration was contrary to Section 136.1 . That matter will have to be left for
another day if and when another panel is forced to such a conclusion.
60. More recently still, the Board expressed a
strong doubt as to its jurisdiction in such a situation. This was in the
decision in Langlois v. Telecommunications Workers Union, C.L.R.B., No.
745‑2030, May 21, 1985. It was rendered in the form of a letter, which
stated at pp. 3‑4:
Under Section 156(1) of
the Code "every order or decision of an arbitrator or arbitration board is
final and shall not be questioned or reviewed by any court". Thus, even if
we had doubts about the union's conduct between the time of the dismissal and
the conclusion of the arbitration hearing, (which we do not have), it is highly
questionable whether we would have any power to disturb the arbitration board's
award, unlike the B.C. Board which has certain limited review powers vis‑à‑vis
arbitration boards.
61. There is no doubt that recognizing that a
second arbitration can be ordered under s. 47.5 would be in direct conflict
with s. 101 of the Labour Code.
62. I adopt the following passage from the
reasons of Nolan J.A., who rendered the majority judgment of the Court of
Appeal, supra, at pp. 325‑26:
If sections 47.2 et sqq.
were construed to mean the judge of the Labour Court in a case like the present
one could authorize another arbitration to be held after a court of
arbitration, acting within its jurisdiction, has already rendered a decision,
it would be a flagrant contradiction of s. 101 of the Code du travail.
In my
opinion sections 47.2 et sqq. must be read in conjunction with s. 101 in
a way to reconcile them.
As
stated in E.A. Driedger's The Construction of Statutes, Toronto,
Butterworths, 1974, p. 72:
Not only must the whole
Act be read, but every provision of the Act should, if possible, be given
meaning; hence if there are rival constructions the general principle is that
the construction that gives effect to the whole of the statute, or to the
provision under consideration, should be adopted in preference to one that
renders part thereof meaningless.
63. Counsel for the Labour Court argued that
it is inconceivable that there could be a finding of serious negligence and no
remedy would exist. It is not within the purview of these reasons to determine
what other remedies may be available to the employee. As counsel for the Labour
Court pointed out, s. 47.2 is very wide. However, in my view a second
arbitration pursuant to s. 47.5 is not an available remedy.
64. Sections 47.2 to 47.6 of the Labour
Code cannot be interpreted so as to authorize a second arbitration of a
grievance which has already been the subject of one arbitration, and to create
an exception to s. 101, which makes the award final.
65. Counsel for the respondent stated that
costs are not being requested against appellant.
66. I would dismiss the appeal without costs.
Appeal dismissed.
Solicitors for the appellant: Laroche, Bibeau &
Fauteux, Verdun.
Solicitors for the respondent: Heenan, Blaikie,
Jolin, Potvin, Trépanier, Cobbett, Montréal.
Solicitors for the mis en cause the Labour Court:
Belleau, Crevier & Associés, Montréal.
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