A-57-80
Teamsters Union Local 938 of the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and Fred
Johnston (Applicants)
v.
Gerald M. Massicotte, Humes Transport Limited,
and Canada Labour Relations Board (Respond-
ents)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, October 31, 1980; Ottawa, Decem-
ber 15, 1980.
Judicial review — Labour relations — Application to review
and set aside respondent Board's decision that Massicotte was
a member of the bargaining unit covered by the collective
agreement and as such had a right to grieve the termination of
his employment pursuant to s. 155 of the Canada Labour Code
and that the Union had violated s. 136.1 of the Code
Massicotte, a part-time employee, filed a grievance against the
Company alleging that his termination was unjust — Union
refused to proceed on the ground that Massicotte was part-
time help and therefore not covered by the collective agreement
— Massicotte filed a complaint with the respondent Board —
Whether Court has jurisdiction to review Board's decision —
Whether Board has jurisdiction to determine whether Mas-
sicotte was included in the bargaining unit — Whether Board
exceeded its jurisdiction by suggesting an , interpretation of the
collective agreement — Whether the Board had jurisdiction to
determine that Massicotte could grieve against his termination
— Application dismissed — Canada Labour Code, R.S.C.
1970, c. L-1, as amended, ss. 136.1, 155(1), 187(1), 189 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside the decision of
the respondent Board that the respondent Massicotte was a
member of the bargaining unit covered by the collective agree
ment in question, that Massicotte had a right to grieve his
termination of employment by virtue of section 155 of the
Canada Labour Code and that the Union had violated section
136.1 of the Code. Massicotte had been employed by the
Company for two and a half years as part-time help when his
employment was terminated. He filed a grievance against the
Company but the Union refused to proceed on the ground that
he was not covered by the collective agreement except for the
wage rate and the payment of dues. Massicotte filed a com
plaint with the Board alleging that the applicants had violated
section 136.1 of the Code. Section 136.1 provides that where
the trade union is the bargaining agent, it shall represent all
employees in the bargaining unit. The Board ordered that the
question of whether Massicotte's dismissal was unjust should
proceed to arbitration. The questions are whether the Court has
jurisdiction to entertain the application, whether the Board has
jurisdiction to determine whether Massicotte is in the bargain
ing unit, whether the Board exceeded its jurisdiction by sug-
gesting an interpretation of the collective agreement and
whether the Board had the jurisdiction to determine that
Massicotte could grieve against his termination.
Held, the application is dismissed. The respondent Mas-
sicotte was entitled to make a written complaint to the Board
pursuant to subsection 187(1) of the Canada Labour Code. The
Board had "jurisdiction in the narrow sense of authority to
enter upon an inquiry" pursuant to the authority given to it
under subsection 187(1). With respect to the second question,
the Board was not determining the appropriate bargaining unit,
but was determining whether Massicotte was an employee
within the bargaining unit. In making this determination the
Board had regard to the evidence of the Union and employer
representatives. Additionally however, it carefully considered
the relevant provisions of the collective agreement as well as the
actions of the parties. The Board's approach to this question
was reasonable and its answer thereto was likewise reasonable.
With respect to the third issue, in ordering arbitration the
Board had the view that in this forum the merits of both
Massicotte's and the employer's case could be heard. With
respect to the last issue, subsection 155(1) of the Code requires
a dispute resolution procedure "by arbitration or otherwise".
The scope of subsection 155(1) is not confined to disputes
between the parties. It extends also to "employees bound by the
collective agreement". This would include Massicotte. Subsec
tion (2) does not restrict the ambit of subsection (1). The broad
remedial powers granted to the Board at the conclusion of
section 189 of the Code are wide enough to permit of the
directions which the Board gave in this case.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation [1979] 2 S.C.R. 227, fol
lowed. Service Employees' International Union, Local No.
333 v. Nipawin District Staff Nurses Association [1975] 1
S.C.R. 382, applied.
APPLICATION for judicial review.
COUNSEL:
H. Caley and J. Nyman for applicants.
B. Iter for respondent G. M. Massicotte.
J. C. Murray for respondent Humes Trans
port Limited.
I. Scott, Q.C. for respondent Canada Labour
Relations Board.
SOLICITORS:
Caley & Wray, Toronto, for applicants.
B. Iler, Toronto, for respondent G. M.
Massicotte.
Hicks Morley Hamilton Stewart Stolle,
Toronto, for respondent Humes Transport
Limited.
Cameron, Brewin & Scott, Toronto, for re
spondent Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the respondent
Board dated January 25, 1980 wherein the Board
held:
1. That the respondent Massicotte was a
member of the bargaining unit covered by the
collective agreement between the respondent
Humes Transport Limited (the Company) and
the applicant Union;
2. That the respondent Massicotte as a member
of that bargaining unit had a right to grieve his
termination of employment by virtue of section
155 of the Canada Labour Code, R.S.C. 1970,
c. L-1, as amended; and
3. That the applicant Union had violated section
136.1 of the Canada Labour Code'.
Pursuant to these findings and as an integral part
of the decision of January 25, 1980 herein im
pugned, the Board made the following directions
(Case, pages 134 and 135):
To these ends we direct as follows:
1. The question of whether Massicotte's dismissal was contrary
to the collective agreement shall proceed to arbitration.
2. To allow this we exercise our authority under section 121
and 189 to relieve against any time limits in the collective
agreement so the arbitration board may hear the merits of the
case.
3. The arbitration board shall consist of three persons: one
nominated by Massicotte, one nominated by the employer and
a chairman chosen by these two. Failing their agreement this
Board shall nominate the chairman.
4. Massicotte, of course, may be represented in all future
proceedings arising out of this decision and at arbitration by
counsel of his choice. The legal fees, disbursements and
expenses shall be paid by the union. As well his reasonable
disbursements and expenses shall be paid by the union. If there
is any dispute, it shall be referred to this Board for final
determination.
' Said section 136.1 reads as follows:
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 discrimi
nation, all employees in the bargaining unit.
5. The union shall pay the reasonable fees, disbursements and
expenses of Massicotte's nominee and one half of those of the
chairman. If there is any dispute, it shall be referred to this
Board for final determination.
6. Should the arbitration board determine Massicotte should be
compensated with reinstatement or some lesser discipline than
discharge, the union shall pay the amount of compensation
from the date of discharge to the date of this decision, if any,
and the employer shall pay the amount from the date of this
decision, if any.
7. In calculating the amount of compensation from the date of
discharge to the date of this decision, if any, and payable by the
union, the amount shall not be decreased by any application
against Massicotte of a duty to mitigate. (He was actively
seeking redress before the Ontario Labour Relations Board and
this Board).
The Board reserves jurisdiction pursuant to section 120.1 to
issue a final decision after the conclusion of arbitration or any
settlement by the parties. The Board will issue an interim order
if necessary and will clarify any of its directions should a party
request it.
The relevant facts in this matter are not in dispute
and may be stated as follows: In 1949 the respond
ent Company voluntarily recognized the applicant
Union as the bargaining agent for certain of its
employees. Since 1949 these parties have entered
into a series of collective agreements, the most
recent one being effective from October 1, 1977
until September 30, 1979. On August 15, 1979,
the employment of the respondent Massicotte with
the Company at their Toronto terminal was ter
minated by the Company, he having been
employed by the Company as part-time help since
January 24, 1977. On August 16, 1979, the
respondent Massicotte filed a grievance against
the Company alleging that this termination was
unjust. On August 17, 1979, Massicotte had a
discussion with the applicant, Fred Johnston, a
business agent for the applicant Union, wherein
Johnston informed Massicotte that the Union
could not proceed with his grievance for the reason
that inasmuch as Massicotte was part-time help he
was not covered by the collective agreement be
tween the Company and the Union except for the
wage rate and the payment of dues. In that discus
sion Massicotte agreed that he was part-time help
and that he did not work over 16 hours per week.
On September 20, 1979, the respondent Mas-
sicotte filed a complaint with the respondent Board
pursuant to subsection 187(1) of the Canada
Labour Code 2 alleging that the applicant Union
and the applicant Johnston had violated section
136.1 of the Code.
The Board held a hearing into this complaint
and on January 25, 1980 made the decision herein
impugned.
Counsel for the respondent Board as well as
counsel for the respondent Massicotte challenged
the jurisdiction of the Court in respect of this
matter. They observed that this Court's jurisdic
tion, in respect of a decision of the respondent
Board may be exercised only where that Board
failed to observe a principle of natural justice, or
otherwise acted beyond or refused to exercise its
jurisdiction 3 . As counsel for the Board put it "..
the Board may make errors of fact, and as well,
errors of law which are beyond judicial review.
The Board has the right to be wrong on matters of
both fact and law." (See the respondent Board's
memorandum of points to be argued—page 10.)
In support of this submission, reliance is placed
upon the decision of the Supreme Court of Canada
in the case of Canadian Union of Public
Employees Local 963 v. New Brunswick Liquor
Corporation [1979] 2 S.C.R. 227. The centre of
the controversy in that case was the interpretation
of paragraph 102(3)(a) of the Public Service
Labour Relations Act, R.S.N.B. 1973, c. P-25, of
New Brunswick which prohibited an employer
from replacing striking employees with any other
employee. In dealing with this matter, Dickson J.
who delivered the judgment of the Court stated at
2 Said subsection 187(1) reads as follows:
187. (1) Subject to subsections (2) to (5), any person or
organization may make a complaint in writing to the Board
that
(a) an employer, a person acting on behalf of an employer,
a trade union, a person acting on behalf of a trade union or
an employee has failed to comply with subsection 124(4)
or section 136.1, 148, 161.1, 184 or 185; or
(b) any person has failed to comply with section 186.
3 See subsection 122(1) of the Canada Labour Code and
paragraph 28(1)(a) of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10.
pages 232-235:
Before entering upon a discussion of the conflicting interpre
tations of s. 102(3)(a) found in the judgments in the Court of
Appeal, there is the critical characterization of the interpreta
tion of s. 102(3) as a "preliminary or collateral matter" by that
court, in the reasons of Mr. Justice Limerick:
The Board is empowered to inquire into a complaint that
the employer has failed to observe a prohibition in the Act
and not to determine what is prohibited by the Act or to
interpret it except as necessary to determine its jurisdiction.
Two questions are therefore raised by the complaint,
1. Does the Act prohibit management personnel replacing
striking employees? and if so
2. Did management personnel replace employees?
It is the latter question which is the subject matter of the
complaint and the primary matter for enquiry by the Board.
The first question is a condition precedent to and collateral to
determining the second.
It is true the Board must determine the first question to
vest itself with the jurisdiction to enquire into the second, but
it is equally true the Board cannot by wrongly deciding the
first question confer a jurisdiction on itself it cannot other
wise acquire. See judgment of Pigeon J. in Roland Jacmain
v. The Attorney General of Canada et al., 30th September,
1977 (S.C.C.) [[1978] 2 S.C.R. 15]. See also Jarvis v.
Associated Medical Services Ltd. et al. (1964), 44 D.L.R.
(2d) 407 et seq. (S.C.C.), and Parkhill Bedding & Furni
ture Ltd. v. International Molders & Foundry Workers
Union of North America, Local 174 and Manitoba Labour
Board (1961) 26 D.L.R. (2d) 589 at 593.
With respect, I do not think that the language of "prelimi-
nary or collateral matter" assists in the inquiry into the Board's
jurisdiction. One can, I suppose, in most circumstances subdi
vide the matter before an administrative tribunal into a series
of tasks or questions and, without too much difficulty, charac
terize one of those questions as a "preliminary or collateral
matter". As Wade suggests in his Administrative Law (4th ed.,
1977) at p. 245, questions of fact will naturally be regarded as
"the primary and central questions for decision", whereas the
"prescribed statutory ingredients will be more readily found to
be collateral". This is precisely what has occurred in this case,
the existence of the prohibition described in the statute
becoming the `collateral matter", and the facts possibly con
stituting breach of the prohibition, however interpreted, the
"primary matter for enquiry". Underlying this sort of language
is, however, another and, in my opinion, a preferable approach
to jurisdictional problems, namely, that jurisdiction is typically
to be determined at the outset of the inquiry.
The question of what is and is not jurisdictional is often very
difficult to determine. The courts, in my view, should not be
alert to brand as jurisdictional, and therefore subject to broader
curial review, that which may be doubtfully so.
Broadly speaking, the Public Service Labour Relations
Board acquires its jurisdiction to consider a complaint of
violation of the Act under s. 19(1)(a):
19(1) The Board shall examine and inquire into any com
plaint made to it that the employer, or any person acting on
its behalf, or that an employee organization, or any person
acting on its behalf, or any other person, has failed
(a) to observe any prohibition or to give effect to any
provision contained in this Act or the regulations under this
Act.
The parties before the Board, a separate employer identified
in the Act, and a bargaining agent duly certified under the Act,
were certainly those entitled to initiate the inquiry according to
s. 19(1), and to be parties to that inquiry. The general subject-
matter of the dispute between the parties unquestionably fell
within the confines of the Act, that is, the situation of a strike
by employees which is considered lawful by the very provisions
of the Act. The Board was asked by the parties to determine
whether certain activities of the Union and of the employer
during that lawful strike were in violation of a prohibition in
the Act, i.e. s. 102(3). The Union took no jurisdictional objec
tion to the ban on picketing contrary to s.102(3)(b), nor did the
employer. The employer, in its reply to the Union complaint of
violation of s. 102(3)(a), only contended that the Liquor Cor
poration "has not in any way violated" that provision. One
cannot therefore suggest that the Board did not have "jurisdic-
tion in the narrow sense of authority to enter upon an inquiry":
Service Employees' International Union v. Nipawin Union
Hospital ([1975] 1 S.C.R. 382), at p. 389.
On this view of the matters before the Board, it is difficult to
conceive how the existence of the prohibition, can be a question
"preliminary" to the Board's jurisdiction, in the sense of deter
mining the scope of the Board's capacity to hear and decide the
issues before them. Thus, the cases cited by the Court of
Appeal in support of their view do not have any application in
the case at bar. In Jacmain v. Attorney General of Canada
([1978] 2 S.C.R. 15), the adjudicator's characterization of the
employer's action as a disciplinary dismissal, or a rejection for
unsuitability, could be seen as crucial to his ability even to
enter upon a consideration of the grievance. In Parkhill Bed
ding and Furniture, supra, the issue was whether the Board
could hear the Union's application under the successor rights
provisions of the Manitoba Labour Relations Act and, there
fore, rule the purchaser of the defunct company's assets bound
by the existing agreement. Had the Board not found the
purchaser to be a "successor" employer, then the Union would
have had to apply anew for certification under the normal
certification procedures. In the Jarvis case, the interpretation
given to the Ontario Labour Relations Act by this Court was
that the unfair practice provisions of that Act were only
intended to benefit persons who were "employees" as defined
by the Act. In this context, the Board's finding that Mrs. Jarvis
was not an "employee" left the Board without jurisdiction to
inquire into whether she was dismissed contrary to the Act, or
to exercise its remedial powers of reinstatement. In each of
these cases, at the threshold of the inquiry, the Board or the
adjudicator had to determine whether the case before them was
one of the kind upon which the empowering statute permitted
entering an inquiry.
In my opinion, the situation in the case at bar is
quite similar to that dealt with by Dickson J.
supra in the New Brunswick Liquor case. In the
present case, the Canada Labour Relations Board
acquires its jurisdiction to consider subject com
plaint under section 136.1 from the provisions of
subsection 187(1) of the Canada Labour Code
(supra). The latter section is, in my view, compa
rable to subsection 19(1) of the New Brunswick
Act dealt with by Mr. Justice Dickson in the
passage quoted supra.
As in that case, the respondent Massicotte was
certainly entitled to make a written complaint to
the Board pursuant to subsection 187(1). Likewise
he and the applicant Union and the applicant
Johnston are proper parties to the investigation of
that complaint. I am also satisfied that the general
subject-matter of the complaint, i.e., the question
of fair representation by a trade union of all
employees in a bargaining unit, is one falling
within the "confines" of the Canada Labour Code
and one in respect of which the Board is permitted
to enter upon an inquiry. I have accordingly con
cluded that the Board in this case had ". .. juris
diction in the narrow sense of authority to enter
upon an inquiry ..."' pursuant to the authority
given to it under the provisions of subsection
187 (1) supra. Put another way, and in the lan
guage used by Mr. Justice Dickson in the New
Brunswick Liquor case (supra): "... the Board
decided a matter which was plainly confided to it,
for it alone to decide within its jurisdiction" 5 .
The applicants submit further, however, that
even assuming "jurisdiction in the narrow sense of
authority to enter upon an inquiry", where a statu
tory tribunal asks itself the wrong question or
places an interpretation on its enabling legislation
which is so patently unreasonable that its construc
tion cannot be rationally supported by its enabling
4 See: Service Employees' International Union, Local No.
333 v. Nipawin District Staff Nurses Association [1975] 1
S.C.R. 382 at page 389.
5 See: The New Brunswick Liquor case at page 237.
legislation, the statutory tribunal exceeds its
jurisdiction 6 .
The applicants' submissions of "patently unrea
sonable error" may be summarized as follows:
First Submission: Subsection 107(1) of the Code
defines a "bargaining unit" as either a unit deter
mined by the Board to be appropriate for collective
bargaining or a unit to which a collective agree
ment applies. Only on an application for certifica
tion does the Board have imposed on it a duty to
determine the appropriate bargaining unit'.
Accordingly, there is no obligation imposed upon
the Board to include part-time employees in any
bargaining unit. In cases such as this where the
collective agreement describes the bargaining unit,
the Board has no right or duty to determine the
appropriate bargaining unit and since this is
entirely a matter between the parties to the agree
ment, the Board cannot ignore the decision of the
parties as to what is included in the bargaining
unit. Accordingly, in this case the Board had no
jurisdiction to determine whether the respondent
Massicotte was included in the bargaining unit.
Second Submission: The Board has no jurisdiction
to interpret the provisions of the collective agree
ment nor to direct that the board of arbitration
interpret the agreement in a particular way. The
Code and the collective agreement give exclusive
jurisdiction to interpret the collective agreement to
a board of arbitration appointed pursuant to the
terms of the agreement. (See, section 155 of the
Code.) Thus even if the Board could order the
6 This submission refers to the test set out by Dickson J. in
the New Brunswick Liquor case where he said at page 237:
Did the Board here so misinterpret the provisions of the Act
as to embark on an inquiry or answer a question not remitted
to it? Put another way, was the Board's interpretation so
patently unreasonable that its construction cannot be ration
ally supported by the relevant legislation and demands inter
vention by the court upon review?
7 Applicants' authority for this statement is said to be subsec
tion 125(1) of the Code which reads as follows:
125. (1) Where a trade union applies under section 124 for
certification as the bargaining agent for a unit that the trade
union considers appropriate for collective bargaining, the
Board shall determine the unit that, in the opinion of the
Board, is appropriate for collective bargaining.
arbitration of the Massicotte grievance, it exceeds
its jurisdiction by ordering or directing a particu
lar interpretation.
Third Submission: In the alternative to the first
submission (supra), even if the respondent Mas-
sicotte was in the bargaining unit, the Board had
no jurisdiction to determine that he could grieve
against his termination. This would amount to an
amendment of the collective agreement, which the
Board has no jurisdiction to do.
In order to deal with these submissions it is
necessary, in my view, to examine the reasons for
decision of the Board. The Board addresses itself
to the question raised in applicants' first submis
sion (supra) as follows (Case, page 126):
The question to be answered by the Board is whether Mas-
sicotte, as a part-time employee, is in the bargaining unit and
represented by the union. If he is not then the union owes him
no duty. If he is then there can be no question that he was not
represented fairly and without discrimination because the union
refused to represent him when he was discharged.
Then at pages 129 to 131 of the Case, it gives its
reasons for concluding that the respondent Mas-
sicotte as a part-time employee is in the bargaining
unit and that the union must represent him in
accordance with section 136.1 of the Code. Those
reasons read as follows:
In the testimony before the Board both the union and
employer representatives said part-time employees were not
intended to be covered by the collective agreement and they
had behaved as if they did not. This is strong evidence, but we
do not accept this as conclusive. It may merely camouflage a
union violation of section 136.1 in Massicotte's case or a larger
collaborative discrimination against part-time employees
generally.
Let us see what the collective agreement says. First the
general scope clause in section 1.2 does not exclude part-time
employees. But this language cannot be relied upon to say it
includes part-time employees because it would also cover main
tenance employees who are excluded. There is no reference to
their rates of pay, etc. and there is a separate collective
agreement covering them. Section 29.1(e) sets a rate of pay for
part-time employees and says they "... are not otherwise
covered by the terms of this Agreement". But they are. Section
29.1(a) provides for dues deduction. Section 29.1(b) provides
when they may be "used", as do sections 29.1(f) and (g).
Section 29.1(i) says they must punch a time card.
The union and employer have established the price of their
labour, and in Massicotte's case, reduced that price drastically
without asking him. They have agreed when he can work and
for how long. They have agreed he must punch a time clock.
They have agreed he must pay money to the union and the
employer deducted that from his pay.
It is a hard fought for and established right in our country
that an employer may only deduct money from an employee's
wages in certain well defined situations. The history of labour
standards legislation shows the progression to a state today
where payment of wages legislation, truck legislation, garnishee
legislation, room and board legislation, like section 38 of the
Canada Labour Code (Part III), restraints on deductions from
pay for sale of shares in a company, restraints on chasing of
miners' and others' cheques in taverns, and other forms of
legislation were enacted to ensure the wage earner received his
full pay and was only required to give his labour and not also
his business in exchange for that pay. Part V of the Code is a
piece of that history. Section 162 specifically addresses when
money payable to a union may be deducted from an employee's
wages by an employer.
"162. (1) Any employee who is represented by a bargaining
agent may authorize his employer in writing, at any time
after the date on which the bargaining agent becomes en
titled to represent him, to deduct from his wages the amount
of the regular monthly membership or union dues payable by
him to the bargaining agent and to remit that amount to the
bargaining agent, and the employer shall deduct and remit
that amount in accordance with the authorization.
(2) An employee may, by notice in writing to his employer,
revoke an authorization given by him pursuant to subsection
(1), and that revocation shall have effect thirty days from the
date upon which it is received by the employer.
(3) Subsections (1) and (2) do not apply to an employee who
is bound by a collective agreement entered into between an
employer and a bargaining agent that contains a provision
requiring
(a) the employer to deduct from the wages of the employee
the membership or union dues or amounts of money in lieu
of such dues payable by the employee to the bargaining
agent; or
(b) the employee to pay membership or union dues or
amounts of money in lieu of such dues to the bargaining
agent."
There was no authorization under subsection (1) by Mas-
sicotte and no evidence any is required from any part-time
employee. There is no reference to an authorization or its
revocation in section 29 of the collective agreement. Subsection
(3) applies regardless of an authorization but it only relates to
"an employee bound by a collective agreement". By section 154
a collective agreement is binding upon "every employee in the
bargaining unit."
Where does this lead us? The general scope clause is of no
assistance. Section 29.1(e) does not say part-time employees
are not covered by the agreement it only says they are "not
otherwise covered by the terms of the Agreement". Yet other
terms do apply to part-time employees. Finally, the union and
employer agree to and do deduct money from wages in a
situation only authorized at law where the employee is in the
bargaining unit and bound by the collective agreement. We can
only conclude Massicotte as a part-time employee is in the
bargaining unit and the union must represent him in accord
ance with section 136.1. The implications of concluding other
wise for the union and employer are far too serious. The
language of the agreement and actions of the parties speak
louder and clearer in law than do their testimony or perhaps
misunderstanding of their acts.
From the above quotations it will be seen that
the Board was not in fact determining the appro
priate bargaining unit as alleged by the applicants
but was, rather, determining whether Massicotte
was an employee within the bargaining unit. In
making this determination the Board had regard to
the evidence of the Union and employer repre
sentatives. Additionally however, it carefully con
sidered the relevant provisions of the collective
agreement as well as the actions of the parties
(including the agreement between the employer
and the Union to deduct union dues in a situation
only authorized at law where the employee is in
the bargaining unit and bound by the collective
agreement). In my view the Board's approach to
this question was reasonable and its answer thereto
was likewise reasonable. In any event, its conclu
sion was certainly not "patently unreasonable".
The fatal defect, as it seems to me, in this submis
sion by the applicant, is the presumption or prem
ise upon which it is based, namely that there is no
ambiguity as to the scope of the bargaining unit.
As pointed out by the Board, the evidence of the
parties is only one facet of the total picture; it is
also necessary to examine the terms of the agree
ment as well as the conduct of the parties. This the
Board did in reaching its final conclusion and in
my view, that conclusion is a reasonable one,
having regard both to the facts and the relevant
jurisprudence.
Referring now to applicants' second submission
(supra), the basis for this submission appears to be
in that portion of the Board's reasons which
appear at pages 133 and 134 of the Case and read
as follows:
Our intention is to place Massicotte in the position he should
have been in had he been represented. But because of the
attitude of the union and employer to part-time employees we
do not think we can do it by simply issuing a remedy in the
fashion described in paragraph 189(a). Rather this is a case
that should bypass the grievance procedure and proceed direct
ly to arbitration. Further it is one in which the individual
unrepresented for so long should have full control over the
process. We also have decided to allow processes of arbitration
to be the avenue of redress for Massicotte. In this forum the
merits of the employer's case can be heard (see Vincent Maffei,
supra). It is conceivable on reading the collective agreement
that the employer may adopt the position that a part-time
employee does not have protection against unjust dismissal. It
may be, as we noted earlier, that Massicotte passed from
part-time to regular status at some time. We have not found it
necessary to examine this question. Assuming Massicotte is
part-time, as we have, we find it inconceivable that an arbitra
tor would find that an employee in a bargaining unit with
Massicotte's length of employment does not have the protection
against unjust dismissal he would have if he were not "subject
to a collective agreement". That protection is Parliament's
enacted public policy in favour of recourse against unjust
dismissal expressed in section 61.5 of the Canada Labour Code
(Part III). In the resolution of any ambiguity or argument
against Massicotte having recourse to arbitration for unjust
dismissal, we expect arbitrators will be guided by the interpre
tive approach of the Supreme Court of Canada in Bradburn et
al. v. Wentworth Arms Hotel Limited et al (1978), 79 CLLC
14,189 [[1979] 1 S.C.R. 846] and the clear policy expressed in
section 61.5.
As I read this portion of the reasons I do not agree
that the respondent Board is ordering an arbitra
tion board to interpret the provisions of the collec
tive agreement in a particular way or is prejudging
the result of the arbitration. The above quotation
makes it clear that, in ordering arbitration, the
respondent Board has the view that in this forum,
the merits of both Massicotte's and the employer's
case can be heard. It is noted that the respondent
Board gives its opinion as to what the outcome
might well be, while at the same time, anticipating
a contrary position being taken by the employer.
Counsel for the Board has agreed that in so far as
this portion of the reasons strongly suggests what
the result is likely to be, it is perhaps an imprudent
statement by the Board. However, I would not
characterize this frank expression of opinion by
the Board as being an attempt to influence the
outcome of the arbitration. It is merely a gratui
tous expression of opinion which is not in any way
binding on the arbitration board. I certainly would
not describe it as an error entitling the Court to
quash the Board's order on this basis.
Dealing now with the applicants' third submis
sion (supra), the basis upon which the Board
assumed jurisdiction to determine that Massicotte
could grieve against his termination, having previ
ously determined that he was included in the
bargaining unit, is to be found in the reasons of the
Board at pages 131 and 132 of the Case and
reading as follows:
But that does not conclude the matter. Can Massicotte be in
the unit, represented by the union and not entitled to access to
some dispute resolution procedure for his grievances, which
under this collective agreement is a grievance and arbitration
procedure? The answer is no. Section 155 of the Code man
dates a dispute resolution procedure and makes it automatic if
one is missing from the agreement.
From the above quotation it is clear that the
respondent Board was relying on section 155 of the
Codes.
8 155. (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 any difference arises between parties to a collec
tive agreement and
(a) the collective agreement does not contain a provision for
final settlement of the difference as required by subsection
(1), or
(b) the collective agreement contains a provision for final
settlement of the difference by an arbitration board and
either party fails to name its nominee to the board in
accordance with the collective agreement,
the difference shall, notwithstanding any provision of the col
lective agreement, be submitted by the parties for final
settlement
(c) to an arbitrator selected by the parties, or
(d) where the parties are unable to agree on the selection of
an arbitrator and either party makes a written request to the
Minister to appoint an arbitrator, to an arbitrator appointed
by the Minister after such inquiry, if any, as the Minister
considers necessary.
(3) Where a collective agreement provides for final settle
ment, without stoppage of work, of differences described in
subsection (1) by an arbitrator or arbitration board and the
parties or their nominees are unable to agree on the selection of
an arbitrator or a chairman of the arbitration board, as the case
may be, either party or its nominee may, notwithstanding
anything in the collective agreement, make a written request to
the Minister to appoint an arbitrator or a chairman of the
arbitration board, as the case may be, and, upon receipt of such
written request, the Minister shall, after such inquiry, if any, as
he considers necessary, appoint the arbitrator or chairman of
the arbitration board, as the case may be.
(4) Any person appointed or selected pursuant to subsection
(2) or (3) as an arbitrator or arbitration board chairman shall
be deemed, for all purposes of this Part, to have been appointed
pursuant to the collective agreement between the parties.
It seems to me that what the Board is saying
here is that, where in cases such as this, the
collective agreement may not provide a dispute
resolution procedure for certain employees in the
bargaining unit, such an omission is remedied by
the mandatory provisions of subsection 155(1)
supra. The applicants dispute this interpretation
and submit rather that section 155, and, in par
ticular subsection 155(2) of the Code applies only
where there exists a difference between the parties
to an agreement and, therefore, cannot be used to
create in an employee in the position of Massicotte
a right to grieve and arbitrate which is denied to
him in the collective agreement where, as here, no
difference exists between the parties to the collec
tive agreement. I do not so interpret the provisions
of subsections 155(1) and 155(2) of the Code.
Subsection (1) requires a dispute resolution proce
dure "by arbitration or otherwise" [emphasis
added]. Thus subsection (1) does not restrict that
resolution procedure to arbitration. Furthermore,
the scope of subsection (1) is not confined to
disputes between the parties. It extends also to
"employees bound by the collective agreement".
This would, in my view, include the respondent
Massicotte.
Then, coming to subsection (2) of section 155,
the provisions of that subsection appear to be
restricted to resolution of disputes between the
parties but I do not read that subsection as
restricting the ambit of subsection (1). I accord
ingly do not agree that the respondent Board's
decision on this aspect of the matter was "patently
unreasonable".
The applicants also question the Board's direc
tions numbering 1 to 7 (Case, pages 134 and 135).
It is said that the Board does not have the power to
make the directions specified in numbers 3, 4
and 7 thereof. The Board's perception of its specif
ic remedial authority with respect to violations of
section 136.1 is contained in the following passage
from its reasons (Case, pages 132 and 133):
Section 189 sets out the Board's specific remedial authority
with respect to a violation of section 136.1 and some of its more
general remedial authority.
"189. Where, under section 188, the Board determines that a
party to a complaint has failed to comply with subsection
124(4) or section 136.1, 148, 161.1, 184, 185, or 186, the
Board may, by order, require the party to comply with that
subsection or section and may
(a) in respect of a failure to comply with section 136.1,
require a trade union to take and carry on on behalf of any
employee affected by the failure or to assist any such
employee to take and carry on such action or proceeding as
the Board considers that the union ought to have taken
and carried on on the employee's behalf or ought to have
assisted the employee to take and carry on;
and, for the purpose of ensuring the fulfilment of the objec
tives of this Part, the Board may, in respect of any failure to
comply with any provision to which this section applies and
in addition to or in lieu of any other order that the Board is
authorized to make under this section, by order, require an
employer or a trade union to do or refrain from doing any
thing that it is equitable to require the employer or trade
union to do or refrain from doing in order to remedy or
counteract any consequence of such failure to comply that is
adverse to the fulfilment of those objectives."
The Board also has authority under section 121. Clearly the
authority in section 189(a) is not the only remedial authority
the Board has. This is clear from the general language at the
conclusion of section 189 and the fact the duty in section 136.1
arises in more circumstances than those referred to in para
graph (a).
It is my view that the Board's opinion that its
remedial powers were wide enough to encompass
the directions which it gave is a correct view of
those powers. The factual situation in the case at
bar is, to say the least, unusual. There is no dispute
between the Company and the Union as to the
meaning of the collective agreement and as to the
non-applicability of the grievance and arbitration
procedure set out therein to the respondent Mas-
sicotte. To order the Union to go to arbitration on
behalf of Massicotte with a Union representative
on the Board might well be a meaningless exercise
given the Union's firm view both before the Board
and before this Court that Massicotte had no right
to grieve or to arbitrate. In my view, the Board's
opinion that section 189 when read with section
121 9 vested it with authority to make these direc
tions is a correct view to take of the Board's
powers in these rather unusual circumstances.
9 Section 121 reads as follows:
121. The Board shall exercise such powers and perform
such duties as are conferred or imposed upon it by, or as may
be incidental to the attainment of the objects of, this Part
including, without restricting the generality of the foregoing,
the making of orders requiring compliance with the provi
sions of this Part, with any regulation made under this Part
or with any decision made in respect of a matter before the
Board.
The general powers granted to the Board at the
conclusion of section 189 includes the right to ".. .
require an employer or a trade union to do or
refrain from doing any thing that it is equitable to
require ... in order to remedy ... any consequence
of such failure to comply" (with the named provi
sions of the Code). These broad remedial powers
are wide enough, in my view, to permit of the
directions which the Board gave in this case.
Accordingly, and for the above reasons, I would
dismiss the section 28 application.
* * *
URIE J.: I agree.
* * *
MACKAY D.J.: I agree.
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.