A-198-74
CKCH Radio Limitée (Applicant)
v.
Canada Labour Relations Board (Respondent)
and
National Association of Broadcast Employees and
Technicians, AFL-CIO-CLC (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Hyde
JJ.—Montreal, April 9 and 17, 1975.
Judicial review—Canada Labour Relations Board amending
collective agreement to provide for final settlement—Whether
agreement already containing such provision—Whether Board
entitled to exercise extraordinary powers—Canada Labour
Code, R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18, s. 155.
The Board amended the collective agreement between appli
cant and the union in order to provide for final settlement;
applicant claims that the Board was not entitled to use the
extraordinary power granted it under section 155(2) of the Act
because the agreement already contained a "provision for final
settlement" as required by section 155(1).
Held, dismissing the appeal, the agreement makes no provi
sion for a method of settling differences and does not comply
with section 155(1). In the circumstances, the Board was
entitled to exercise the power conferred by section 155(2).
Applicant did not argue the illegality of the decision on any
other ground, hence the dismissal. However, doubts as to the
validity of the decision do arise because it appears that the
agreement as amended does not permit the employer to present
a grievance, or submit a dispute to arbitration. A provision for
final settlement does not comply with section 155(1) if it does
not allow all parties to avail themselves of the procedure.
Union Carbide Canada Limited v. Weiler [1968] S.C.R.
966 and General Truck Drivers Union, Local 938 v. Hoar
Transport Co. Ltd. [1969] S.C.R. 634, considered.
JUDICIAL review.
COUNSEL:
R. Heenan for applicant.
F. Mercier, Q. C., for respondent.
C. Trudel for mis -en-cause.
SOLICITORS:
Johnston, Heenan & Blaikie, Montreal, for
applicant.
Stikeman, Elliot, Tamaki, Mercier & Robb,
Montreal for respondent.
Trudel, Nadeau, Letourneau, Lesage &
Dulude, Montreal, for mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is seeking, in accordance
with section 28 of the Federal Court Act, to have a
decision of the Canada Labour Relations Board
quashed. By that decision, handed down under
section 155 of the Canada Labour Code, the Board
amended the collective agreement concluded by
applicant with the mis -en-cause union.
Section 155 of the Canada Labour Code reads
as follows:
155. (1) Every collective agreement shall contain a provi
sion for final settlement without stoppage of work, by arbitra
tion or otherwise, of all differences between the parties to or
employees bound by the collective agreement, concerning its
interpretation, application, administration or alleged violation.
(2) Where a collective agreement does not contain a provi
sion for final settlement as required by subsection (1), the
Board shall, on application by either party to the collective
agreement, by order, furnish a provision for final settlement,
and a provision so furnished shall be deemed to be a term of the
collective agreement and binding on the parties to and all
employees bound by the collective agreement.
On February 1, 1974 applicant and the union
concluded a collective agreement providing a
procedure for the settlement of grievances present
ed by the employees, and containing in addition
the following clause:
22.4.8 The Union may exercise any remedy arising out of an
alleged violation or misinterpretation of any provision of the
collective agreement, as to which one or more employees have
no personal or direct interest because of the very nature of the
right in question.
However, this agreement did not provide that the
union could act on a violation of the collective
agreement harmful to the interests of employees
who had not themselves presented grievances.
Accordingly, at the request of the union, the Board
decided that clause 22.4.8 of the agreement should
be replaced by the following (which I cite from the
English text of the decision of the Board because
the text contained in the French version is
'unintelligible).
The union may submit any matter it considers to be a violation
or misinterpretation of this agreement to the grievance and
arbitration procedure provided in Article 22, except that in the
case of the union grievance, the procedure shall begin at the
second level as described in Article 22.3.
It is the legality of this decision that is disputed
by applicant. It maintains that, in the circum
stances, the Board was not entitled to exercise the
extraordinary power conferred on it by section
155(2), because the collective agreement conclud
ed by the parties already contained a "provision
for final settlement" in compliance with the
requirements of subsection (1) of that section.
Applicant's argument may be summarized as
follows.
(a) Section 155 (1) requires that a collective
agreement shall contain a "provision for final
settlement" of all differences concerning the
interpretation or application of the agreement.
(b) The differences referred to in section 155(1)
are of two kinds: those relating to a clause of the
agreement stipulated primarily in the interests
of the employees, and those relating to a clause
of the agreement stipulated primarily in the
interests of the union.
(c) The agreement concluded by applicant and
the mis -en-cause complies with the requirements
of section 155(1), because it provides for the
settlement by arbitration of these two kinds of
differences. This is true despite the fact that,
under the agreement, differences concerning
violation of clauses of the agreement stipulated
exclusively in the interest of the employees
cannot be submitted to arbitration if the
employees have not themselves presented a
grievance. This stipulation is only a rule of
procedure, comparable to the clause in the
agreement setting a time limit for presentation
of grievances. Moreover, there is nothing
unusual in such a stipulation, since without it
the union could "present the grievance of an
individual employee against his wishes", which
would be "contrary to the fundamental princi
ples of theory and practice in labour law".
I See Union Carbide Canada Limited v. Weiler [1968]
S.C.R. 966 and General Truck Drivers Union, Local 938 v.
Hoar Transport Co. Ltd. [1969] S.C.R. 634.
In my view this argument cannot be accepted.
Section 155(1) requires that every collective agree
ment shall contain a "provision for final settle
ment" of all differences "between the parties to or
employees bound by the collective agreement",
concerning its interpretation or application. The
parties to the agreement are the employer and the
union bargaining agent. 2 The Act therefore
requires that the collective agreement provide a
procedure for the settlement of all differences that
may arise between the employer and the union
regarding interpretation or application of the
agreement. The term "difference" is not defined
by the Act, and in the ordinary sense of the word,
a difference exists between two persons provided
they are in disagreement, regardless of the focus of
that disagreement. In the current sense of the
word, therefore, there may be a difference between
the parties to the agreement even with respect to a
matter not affecting the interests of those parties.
However, it is possible that the word "difference"
in section 155(1) must be given a more limited
interpretation, as referring only to a difference the
subject-matter of which affects the interests of
parties to the difference. It is not necessary to
decide this point, since it appears that, even if the
word "difference" is given this more limited inter
pretation, there can be a difference between an
employer and a union concerning violation by the
employer of clauses of the collective agreement
stipulated in the interest of the employees, even
though the employees concerned are not complain
ing of this violation. The agreement concluded
between applicant and the mis -en-cause makes no
provision for a method of settling such differences,
and in my view it does not comply with the
requirements of section 155(1). Accordingly, I
consider that, in the circumstances, the Board was
entitled to exercise the extraordinary power con
ferred on it by section 155(2), and for this reason I
would dismiss the application.
In conclusion I would emphasize that applicant
did not argue that the decision impugned was
illegal for any reason other than that which I have
dismissed. My reason for making this observation
is that it seems doubtful, though the record pro
vides no basis for a firm conclusion on this point,
that the decision impugned is one which the Board
z See the definition of the terms "collective agreement" and
"parties" in section 107(1) of the Canada Labour Code.
was entitled to make under section 155(2). In the
case dealt with by this provision "the Board
shall ... by order, furnish a provision", namely, a
provision for final settlement as required by sec
tion 155(1). The Board is therefore not entitled to
order a provision which does not comply with all
these requirements. In the case at bar, doubts
concerning the validity of the decision handed
down by the Board arise, inter aiia, because it
would appear that the collective agreement, as
amended by the Board's order, does not permit the
employer to present a grievance or submit a dis
pute to arbitration. In my opinion, a provision for
final settlement does not comply with the require
ments of section 155(1) if it does not allow all
parties to a difference to avail themselves of the
prescribed procedure for settlement.
* * *
JACKETT C.J.: I concur in this opinion.
* * *
HYDE J.: I concur in this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.