PRESENT: The Honourable Madam Justice Snider
BETWEEN:
AEROSPACE DIVISION (COMOX)
Applicant
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This application involves a labour dispute between the Applicant, I.M.P. Group Limited, Aerospace Division (Comox), a division of I.M.P. Group Limited (IMP or the Employer), and certain of its employees whose bargaining agent is the Respondent, the Public Service Alliance of Canada, UNDE Local 1018 (PSAC or the Union). The Applicant seeks judicial review of the interest arbitration award of Arbitrator Vincent L. Ready, dated May 24, 2006.
[2] IMP is a federal undertaking by reason of its aviation and aerospace operations. Accordingly, for labour relations purposes, it is governed by the provisions of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
2. Factual Background
[3] I begin by outlining the history that gave rise to this application.
[4] On July 7, 2003, PSAC was certified under the Code as the bargaining agent for IMP employees working at CFB Comox, Hanger 14, Lazo, British Columbia with the exception of the Site Manager, Deputy Site Manager and Crew Chief positions. Between October 20, 2003 and December 3, 2003, the parties unsuccessfully attempted to negotiate a first collective agreement. Eventually, the Union and the Employer entered into an arbitration agreement whereby the remaining items in dispute would be decided by way of a final and binding interest arbitration (the Arbitration Agreement).
[5] Pursuant to the Arbitration Agreement, which is specifically authorized by subsection 79(1) of the Code, Mr. Vincent Ready was appointed to decide the remaining terms of the parties’ first collective agreement. The following sets out the chronological sequence of events.
- Award #1: Following an oral hearing on August 12, 2004, Arbitrator Ready published an arbitration award on September 17, 2004 (Award #1) in which he ruled on the issues in dispute between the parties, save for one item (the addition of the Crew Chief and Training Instructor positions to the bargaining unit) which was the subject of another proceeding before the Canada Industrial Relations Board (the CIRB). In his Award #1, Arbitrator Ready retained jurisdiction as an interest arbitrator to settle the terms and conditions in the event that any of these positions were found to be in the bargaining unit. In addition, Arbitrator Ready, on his own motion, stated that he retained jurisdiction to resolve any issues arising out of the implementation of Award #1.
- Award #2: On October 1, 2004, the CIRB held that the Crew Chief position was to be included in the bargaining unit. As a result of the inclusion of the Crew Chief position in the bargaining unit, Arbitrator Ready received and considered submissions on the Crew Chief’s wage rate. On December 20, 2004, Arbitrator Ready issued a further arbitration award (Award #2), addressing the issues of the Crew Chief’s wage rate, and several other issues.
- Award #3: On January 27, 2005, the Union wrote to Arbitrator Ready requesting that he reconsider the wage rates for the Crew Chief position and order that the wage grid be made retroactive. After consideration of submissions, on March 15, 2005, Arbitrator Ready issued a further arbitration award on the issues of the Crew Chief’s correct wage rate and on retroactivity (Award #3).
- Collective Agreement: Based on the three arbitration awards of Arbitrator Ready, the Union and the Employer prepared and signed their first collective agreement on March 15, 2005 (the Collective Agreement). The Collective Agreement contains a grievance procedure (Grievance Procedure).
- Grievance: Soon after the signing of the Collective Agreement, the parties realized that they differed significantly in their understanding of Arbitrator Ready’s award with respect to Crew Chief premiums and acting pay. A group grievance was filed by the Union on April 7, 2005.
- PSAC Approach to Arbitrator Ready: The parties agreed on a grievance arbitrator to hear the arbitration (Mr. Brian Foley) and were in the process of negotiating dates for the arbitration when, on January 5, 2006, the Union requested that, even though grievances had been filed on the issues of the Crew Chief’s premium pay and retroactive pay, Arbitrator Ready nevertheless rule on these matters.
- Award #4: By letter dated February 8, 2006, Arbitrator Ready informed the parties of his conclusion that the matters fell within the ambit of implementation of his previous awards and requested written submissions from the parties on the issues. After further submissions, on May 24, 2006, Arbitrator Ready issued an arbitration award (Award #4) in which he again dismissed the Employer’s objections to his jurisdiction. Further, he ordered that the Applicant’s Crew Chiefs be paid premiums and ordered that acting pay be paid retroactively, for all hours where an employee performs the duties and responsibilities of a higher position, without a waiting period.
[6] It is Award #4 that is the subject of this judicial review.
3. Issues
[7] This dispute revolves around the authority of Arbitrator Ready to issue Award #4, given that the Collective Agreement was in place. As I understand the submissions, the Employer does not, in this application, address the merits of Award #4. Thus, the determinative issue is:
Was Arbitrator Ready functus officio once the Collective Agreement was signed or was he able to rely on one of the exceptions to functus officio?
4. Jurisdiction of the Federal Court
[8] Since the Federal Court does not often deal with labour disputes of this nature, I turn to the jurisdiction of the Federal Court to hear this application. Jurisdiction pursuant to s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, depends on whether the body which made the decision obtains its source of jurisdiction and powers from an Act of Parliament. In this case, Mr. Ready purports to exercise his authority under s. 79 of the Code. That provision states that:
[9] In this case, the parties had proceeded to finalize the terms of their collective agreement through the use of what is commonly referred to as “interest arbitration”, pursuant to s. 79 of the Code. The parties agree that the Federal Court has jurisdiction to judicially review the decision of Mr. Ready.
[10] It is interesting and, in this case, very relevant to note that the Code explicitly excludes Federal Court jurisdiction for some arbitration decisions made under the Code. Sections 56 to 69 of the Code, which deal with the “Content and Interpretation of Collective Agreements”, provide a comprehensive scheme for dealing with issues that arise under existing collective agreements. This includes provisions that deal with the role and appointment of arbitrators to settle “any difference that arises between parties to a collective agreement” (s. 57). Subsection 58(3) provides that:
|
58. (3) For the purposes of the Federal Courts Act, an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act.
|
|
58. (3) Pour l’application de la Loi sur les Cours fédérales, l’arbitre nommé en application d’une convention collective et le conseil d’arbitrage ne constituent pas un office fédéral au sens de cette loi. |
[11] Thus, if the parties had proceeded with arbitration of their differences under the terms of their Collective Agreement, the decision of the arbitrator would not be reviewable by the Federal Court. A provincial superior court would have had jurisdiction. This type of arbitration is often referred to as “grievance arbitration” or “rights arbitration”. (For a description of the difference between these two types of arbitration, see Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28 at para. 53.)
5. Arbitrator Ready’s decision to assume authority for Award #4
[12] I turn now to the decision in question in this application. As noted earlier, the dispute about Crew Chief premiums and retroactive pay arose subsequent to the execution of the Collective Agreement. The Union asked Arbitrator Ready to rule on these issues.
[13] The opposition of the Employer to the authority of Arbitrator Ready to issue Award #4 was made very clear to Arbitrator Ready in written submissions. The initial response, dated February 8, 2006, from Arbitrator Ready was simply that “both of these matters fall within the ambit of implementation of my awards” and were, hence, “within my jurisdiction”. An expanded explanation of this response was contained in Award #4:
While [the February 8, 2006] ruling provides a full and complete answer to the Employer’s submission, I will take the time to elaborate further that the matters being brought before me in this case are “clarification” issues relating to the implementation of the awards dated September 17 and December 20, 2004 and March 15, 2005.
The matter of Crew Chief premiums finds roots in my ruling in the latter two decisions [Award #2 and Award #3] that:
In addition to the wage rates set out above, I award that the applicable premiums be paid.
The present dispute relates to what was intended by “applicable premiums”. The resolution of that dispute falls squarely within my retained jurisdiction as an interest arbitrator.
Turning to the matter of the retroactive pay/acting pay, I dealt with these issues in my September 17, 2004 award [. . .]
In addition to expressly retaining jurisdiction, again the issue in dispute here is a matter of clarification of the above as it relates to the timing and payment of acting pay.
6. Analysis
6.1 Standard of Review
[14] The jurisprudence is clear that, in assessing Arbitrator Ready’s decision, I must conduct a pragmatic and functional analysis to determine the appropriate standard of review (in the area of labour relations, see, for example, Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004] S.C.J. No. 2 at para.15). As stated by Justice Major in Voice, above at para. 15, “The purpose is to ascertain the extent of judicial review that the legislature intended for a particular decision of the administrative tribunal”.
[15] The pragmatic and functional approach involves the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question -- law, fact or mixed law and fact.
[16] The requirement that a pragmatic and functional analysis be undertaken in every case emphasizes the importance of identifying the particular question at issue in the decision under review in any given case (Sketchley v. Canada (Attorney General), 2005 FCA 404, 263 D.L.R. (4th) 113, 344 N.R. 257, [2005] F.C.J. No. 2056 at para. 50 (F.C.A.) (QL)). In this case, the determinative question in issue is whether, given the existence of the Collective Agreement between the parties, Arbitrator Ready was functus officio. I note that this is a threshold question. If Arbitrator Ready was functus officio, he was without authority to consider the correct interpretation of the provisions of his earlier awards on the matters of the Crew Chiefs’ premiums and retroactive pay.
(a) Privative Clause
[17] There is no privative clause in the Code with respect to the decision of a “person or body” selected under s. 79(1) of the Code. Nevertheless, the words “final and binding determination”, in s. 79(1), appear to suggest some degree of deference.
[18] With respect to the use of the words “final and binding”, I note that such language was considered by the Supreme Court in Voice Construction, above at paras. 25-26, where the words “final and binding” were included in the collective agreement and the word “final” was used in a relevant statutory provision. In Justice Major’s view, these provisions did not constitute full privative protection; however, he stated that “they suggest that increased consideration be given to the decisions of labour arbitrators” (at paras. 25-26).
[19] For purposes of my analysis, it is significant that a “person or body” performing an arbitration under s. 79 is not included in the definition of “arbitrator” under the Code (s. 3). Section 58 of the Code applies to an arbitrator, as defined in the Code, and provides as follows:
|
58. (1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court. (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of their proceedings under this Part.
(3) For the purposes of the Federal Courts Act, an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act.
|
|
58. (1) Les ordonnances ou décisions d’un conseil d’arbitrage ou d’un arbitre sont définitives et ne peuvent être ni contestées ni révisées par voie judiciaire.
(2) Il n’est admis aucun recours ou décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action d’un arbitre ou d’un conseil d’arbitrage exercée dans le cadre de la présente partie.
(3) Pour l’application de la Loi sur les Cours fédérales, l’arbitre nommé en application d’une convention collective et le conseil d’arbitrage ne constituent pas un office fédéral au sens de cette loi.
|
[20] Thus, while the decision of an “arbitrator” is protected by a very strong privative clause, no similar privative clause is in place for Arbitrator Ready.
[21] The failure to include a privative clause for decisions by a “person or body” under s. 79 must be presumed to have been an intentional omission by Parliament (Ruth Sullivan, Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths Canada Ltd. 2002) at 162-163).
[22] Thus, I conclude that the lack of a privative clause indicates that less deference is owed to a “person or body” acting pursuant to s. 79.
(b) Expertise
[23] There is no question that Arbitrator Ready is extremely well-qualified and experienced in labour relations matters. As typified by the comments of Justice Major in Voice Construction, above at para. 27, arbitrators, “who function within the special sphere of labour relations, are likely, in that field to have more experience and expertise in interpreting collective agreements”. However, the question in this case is not one that, in my view, relies on Arbitrator Ready’s expertise in labour negotiations. In addressing the threshold question of whether or not he retained the authority to issue Award #4, I believe that the Court is in as good a position as Arbitrator Ready. This suggests less deference.
(c) Purpose of the legislation and s. 79 of the Code
[24] In general, the purpose of the Code is to foster good industrial relations between unionized employees and their employers. In the particular context of this application, s. 79 provides the parties with a mechanism for finalizing a collective agreement. The role of the “person or body”, acting under s. 79, is to resolve a two-party dispute. This is not an example of “polycentric” decision. This does not suggest an increased level of deference.
(d) Nature of question
[25] The final factor relates to the nature of the question. Is this a question of law, of fact, or of mixed fact and law? The issue of whether Arbitrator Ready was entitled to rely on the exception to functus officio is a question of mixed fact and law. It is mixed fact and law because he must apply the general principles of functus officio to the particular facts of this case.
[26] In dealing with the issue of whether an interest arbitration board’s supplemental award gave effect to its intent manifest in the earlier main award, the Nova Scotia Court of Appeal pointed out that this question was at the fact intensive end of the spectrum of questions of mixed law and fact (Capital District Health Authority v. Nova Scotia Government and General Employees Union, 2006 NSCA 85, [2006] N.S.J. NO. 281 at para. 50 (N.S.C.A.) (QL)). Thus, the Nova Scotia Court of Appeal found that this supports giving some deference to interest arbitration board (Capital District, above at para. 50). However, I note that the Court in Capital District was not faced with a completed collective agreement. Thus, in this case, while acknowledging that there is some factual content to the decision, my view is that the question is more heavily weighted to a question of law.
[27] In conclusion on the issue of standard of review, I find that the decision of Arbitrator Ready on the question of whether he was functus is reviewable on a standard of correctness.
[28] My conclusion is consistent with the views of Justice LeBel in Isidore Garon Ltée v. Tremblay, 2006 SCC 2, 262 D.L.R. (4th) 385, 344 N.R. 1, [2006] S.C.J. No. 3 at para. 90. Speaking for the minority (the majority not expressing a view on the standard of review) and without conducting a pragmatic and functional analysis, Justice LeBel stated that:
This appeal raises the question of whether the arbitrator had the power to apply arts. 2091 and 2092 C.C.Q. to decide the grievances. This is a question of law relating to the arbitrator’s jurisdiction. Accordingly . . . the applicable standard of review is correctness. [Citations omitted.]
6.2 Principles of Functus Officio
[29] The rule described as functus officio is intended to provide finality to decisions. In general, once a tribunal – be it a court or administrative tribunal – has rendered its decision, it cannot reopen the matter.
[30] The leading case dealing with this legal rule in the context of administrative decision makers is Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577, 99 N.R. 277. The Supreme Court affirmed that an administrative tribunal may only reopen a decision if authorized by statute or if there was an error in expressing the “manifest intention” of the court (Chandler at 860, citing Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186). Justice Sopinka, speaking for the majority at paras. 21-23, provided the following rationale and guidance:
[In the context of administrative tribunals, the principle of functus officio] is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. […]
Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. […]
[31] In sum, the rule of functus officio must be applied with some flexibility to ensure that justice is done between the parties. This, in my view, requires a review of the circumstances surrounding the role and function of Arbitrator Ready. I will begin with the basic question of the mandate (under statute and the Arbitration Agreement) of Arbitrator Ready. I will then consider the role of the Grievance Procedure in the Collective Agreement. Finally, I will consider whether, in spite of the analysis, Arbitrator Ready should be permitted to provide the parties with Award #4 on the basis of the “manifest intention” exception to the rule of functus officio.
6.3 Mandate of Arbitrator Ready
[32] The authority of Arbitrator Ready arises from the provisions of the Code and of the Arbitration Agreement. Although referred to by the parties and in these reasons as “arbitrator”, Arbitrator Ready is not an “arbitrator” as defined in the Code; rather, he is a “person” who has been selected by the parties for the limited purpose defined by s. 79(1) of the Code.
[33] In my view, there are a number of factors that arise from the Code, the Arbitration Agreement and the actions of the parties that support a conclusion that the role of Arbitrator Ready was completed as of the signing of the Collective Agreement. The basis of my conclusion is based on three such factors:
- The words of s. 79(1);
- The intent of the Arbitration Agreement as indicated by the parties and recognized by Arbitrator Ready; and
- The lack of agreement by the Employer to the continued mandate beyond the Collective Agreement.
None of these relevant factors were considered by Arbitrator Ready in reaching his decision to issue Award #4.
[34] Pursuant to s. 79(1) of the Code, an employer and a bargaining unit may agree in writing “to refer any matter respecting the renewal or revision of a collective agreement or the entering into of a new collective agreement to a person or body for final and binding determination” [emphasis added]. Under this provision, Arbitrator Ready’s authority was directed to the entering into of the first collective agreement between the parties. On its face, s. 79(1) indicates that the mandate of the “person or body” selected is limited to the entering into of the collective agreement. It follows that, once the collective agreement has been signed by the parties, his mandate expires.
[35] I also note that s. 79 provides a voluntary process; neither party is obligated to pursue this avenue to resolve their dispute. Thus, it is important that any interpretation of the interest arbitrator’s authority does not extend beyond that agreed to by the parties.
[36] I turn now to the Arbitration Agreement dated March 4, 2004. There is no reference whatsoever in this agreement to a “collective agreement”. The closest that I have are the two recital clauses that provide as follows:
WHEREAS the parties are unable to resolve certain issues arising from collective bargaining.
AND WHEREAS the parties have agreed that there will be final determination of the remaining issues in dispute by binding arbitration.
[37] The clauses of the agreement focus on the procedure to be followed for this “binding arbitration” and do not address when the mandate of Arbitrator Ready is to end. However, the lack of reference to the Collective Agreement does not, in my view, leave the arbitration mandate open-ended. Arbitrator Ready, in Award #1, clearly describes his task as follows:
On July 30, 2003, the Public Service Alliance of Canada (PSAC) served I.M.P. with Notice to Bargain. The parties met in Comox, British Columbia on October 20-28 and December 1-3, 2003 for the purposes of negotiating a first Collective Agreement. Although substantial progress was made on a number of matters, the parties were not able to reach an agreement on all outstanding issues.
The parties participated in conciliation sessions from March 2-4, 2004. At the conclusion of this process, the parties were still far apart on wages and other matters. They agreed to proceed by interest arbitration to settle the outstanding issues. These are now before me.
[38] Arbitrator Ready left open the possibility of further arbitration awards in Award #1 where he stated, “I shall retain jurisdiction to resolve any issue(s) arising out of the implementation of this award.” Using this self-proclaimed authority, Arbitrator Ready proceeded to deal with further questions on the Crew Chief Position and the retroactive wages and to issue Award #2 and Award #3, the substance of which were incorporated into the Collective Agreement. Neither party disputed the authority of Arbitrator Ready to continue his role up to the time that the Collective Agreement was signed. However, once the Collective Agreement was in place, it is obvious that the Employer was of the view that the tasks defined by s. 79(1) of the Code and the Arbitration Agreement had been completed. In effect, there was no agreement for the continued actions by Arbitrator Ready; it is therefore arguable that none existed. Nor could Arbitrator Ready’s claim of continued jurisdiction protect Award #4 if he was otherwise functus. As noted above, Chandler makes it clear that reserving a right to render further decisions does not necessarily preserve jurisdiction.
[39] Finally, I note that, upon Arbitrator Ready’s interpretation, his authority would never end. Once again, that cannot have been the intention of the parties to the Arbitration Agreement or of s. 79(1) of the Code.
[40] In conclusion on this point:
- s. 79(1) of the Code limits the mandate of Arbitrator Ready to resolving disputes prior to the entering into of the collective agreement;
- the intent of the parties to the Arbitration Agreement was for Arbitrator Ready to finalize a Collective Agreement, which task was completed upon its signing; and
- there was no consent by the parties to allow Arbitrator Ready to provide “clarification” once the Collective Agreement was signed.
[41] Accordingly, when Arbitrator Ready determined that he was not functus and that he could exercise his authority in respect of these alleged matters of “clarification”, he erred. In light of these factors, Arbitrator Ready was without authority to issue Award #4.
6.4 Arbitration Provisions of the Collective Agreement
[42] While the principles of functus officio are flexible, I do not believe that the flexibility can reasonably be applied to the circumstances of this application. Beyond the factors that point to an end to Arbitrator Ready’s mandate once the Collective Agreement was in place, there are broad policy and contextual factors that militate against continued authority.
[43] The Union submits: “If there is a dispute over what the Collective Agreement meant, who better than the person who created it?” I acknowledge that Adjudicator Ready has the background knowledge to undertake the task that he performed. But, the fact that he could provide an interpretation of terms of the Collective Agreement does not mean that he was correct to impose his interpretation upon the parties as part of the exercise of his mandate under the Arbitration Agreement. In my view, Arbitrator Ready’s earlier role in assisting the parties in finalizing the Collective Agreement is simply insufficient justification for assuming a continued authority over its interpretation. The main impediment to the Union’s argument is the presence of a grievance procedure in the Collective Agreement.
[44] In general, the substantive rights and obligations of an employer and bargaining unit are set out in a collective agreement. Of course, not everything is set out in a collective agreement. For instance, the agreement usually does not define the general law concepts upon which the agreement is based; recourse to general law principles is relevant for the purposes of interpreting the conditions of employment contained in the agreement (Isidore Garon, above at para. 28). However, where a collective agreement provides for a mechanism for interpreting the terms of the agreement, that is where the parties should first go to resolve their disputes. Only if the agreement does not provide a mechanism for resolving a particular matter or question should the parties resort to alternative means. I see no reason why an interest arbitrator’s authority should change merely because the interest arbitrator had the knowledge to provide an interpretation of the provisions of the Collective Agreement.
[45] In light of this overview of the role of a collective agreement, there are three main problems with the decision by Arbitrator Ready to continue his authority beyond the signing of the Collective Agreement:
- The codification of a grievance procedure in the Collective Agreement;
- The potential for conflicting or duplicative decisions on the substance of the dispute; and
- The potential for duplication of and conflicting decisions due to judicial oversight by two different courts.
[46] The first problem with Arbitrator Ready’s decision is that he fails to have regard to the existence and terms of the Grievance Procedure in the Collective Agreement. There is no question that the issues addressed by Arbitrator Ready could have been addressed through the application of Article 29 of the Collective Agreement - the Grievance Procedure.
[47] Of particular relevance to this application, under Article 29.01, the parties recognize that grievances may arise “by the interpretation or application of . . . a provision of this Agreement”. The final step of the Grievance Procedure is set out in Article 29.08 and 29.09 of the Collective Agreement, which state as follows:
29.08 If the grievance is not satisfactorily settled at Level 3, the grievance may be referred to arbitration, within fifteen (15) working days after the decision received at Level 3.
29.09 The parties agree that grievances will be heard by a single arbitrator who will be mutually agreed upon by the parties. If mutual agreement is not reached by the parties to choose a single arbitrator within thirty (30) calendar days from the date that either party receives notification of a wish to proceed to arbitration, the Minister of Labour shall be asked to appoint an arbitrator. This appointment shall be accepted by both parties.
The Arbitrator has all the powers granted to arbitrators under the Canada Labour Code, in addition to any powers which are contained in this Agreement but shall not have the authority to alter or amend any of the provisions of this Agreement nor to substitute any new provisions in lieu thereof, nor to render any decision contrary to the terms and provisions to this Agreement, nor to increase or decrease wages.
The Employer and the Union shall each pay one half of the remuneration and expenses of the Arbitrator and each party shall bear its own expenses of every arbitration. The decision of the Arbitrator will be binding on both parties.
[48] Indeed, the parties had already proceeded through the levels of grievance provided for in the Collective Agreement and had gone so far as to select a grievance arbitrator. Arbitrator Foley was ready, willing and able to conduct the grievance arbitration; all that was left was for the parties to agree to hearing dates. In oral argument before me, counsel for the Union did not disagree that the Union could have proceeded to have its rights determined on the same issues through the grievance procedures in the Collective Agreement.
[49] The consequences of the assumption of authority in circumstances such as these are readily apparent. First, there is the appearance of “arbitrator shopping”; that cannot have been the intent of the Arbitration Agreement or the Collective Agreement.
[50] There is also the possibility of two different – and possibly conflicting – outcomes. This situation could arise as follows. Although the Employer has agreed, for the time being, to a stay of the grievance arbitration, let us assume that either the Employer or the Union does not agree with the interpretation of the Collective Agreement provided by Arbitrator Ready with respect to the issues in question. The unsuccessful party could take the position that it still has a grievance that has arisen “by interpretation or application of a provision of this Agreement” (Article 29.01(a)(ii)). In such a situation, I cannot see how a party to the Collective Agreement could refuse to follow the Grievance Procedure with final resort to arbitration as set out in Articles 29.08 and 29.09 of the Collective Agreement. Thus, even with Award #4 in place, I am not persuaded that the Employer would be precluded from accessing the Grievance Procedure under the Collective Agreement. By assuming authority for Award #4, Arbitrator Ready has put in motion the possibility of conflicting awards and a duplicative process. Surely, that cannot have been the intent of the Arbitration Agreement.
[51] Further, there is the question of judicial oversight. As noted earlier, the Federal Court only has jurisdiction to review decisions of interest arbitrators. Once the Collective Agreement is in place and grievances are commenced, the Supreme Court of British Columbia would be the forum for judicial review. By pursuing arbitration under the Arbitration Agreement rather than under the Collective Agreement, the possibility of conflicting or, at best, duplicative judicial decisions exists. Surely, that cannot have been the intent of the parties. Even if it had been the intent, it is a serious abuse of scarce judicial resources.
[52] The Union relies on the decision of the Nova Scotia Court of Appeal in Capital District Health Authority v. Nova Scotia Government and General Employees Union, above. In that decision, the Court held that an interest arbitration board was not functus officio, even though it had issued an earlier award. The Court concluded, at para. 61, as follows:
In my view, the board reasonably concluded that the language in the main award by which it described eligibility for catch-up increases did not give effect to the manifest intent of that award. Having made that finding, the board was entitled under the relevant legal principles to issue its supplemental award to clarify this issue, as it did.
In other words, the board was not functus.
[53] The key distinction between the situations faced by the Court in Capital District Health Authority and that before me is the existence of the Collective Agreement. In Capital District Health Authority, there was no collective agreement referred to. The principles relied on by the Nova Scotia Court of Appeal could, arguably, have applied to the issuance of Awards #2 and #3 which were completed prior to the execution of the Collective Agreement. In my view, however, the decision in Capital District Health Authority does not assist the Union with respect to the decision to issue Award #4 after the signing of the Collective Agreement.
[54] In summary on this matter, I conclude that the circumstances of this case preclude the application of an exception to the rule of functus officio, primarily due to:
- The existence of the Grievance Procedure in the Collective Agreement; and
- The potential for conflicting arbitration and judicial decisions.
6.5 Manifest Intention
[55] As noted above, a tribunal may rely on an exception to the functus rule “where there has been error in expressing the manifest intention of the court” (Chandler, above). It was on this basis that the court in Capital District Health Authority permitted a further interest arbitration award.
[56] In this case, the Union argues that Award #4 falls within the “manifest intention” exception to the rule of functus. I do not agree.
[57] Whether there has been an error in expressing the “manifest intention” of Arbitrator Ready must be determined on the facts of this case.
[58] After considering the circumstances of this application, I am of the view that there was no “manifest” error to be corrected. The Collective Agreement, as signed, addresses the issues of the Crew Chief’s premium pay and retroactive pay. Further, there appears to be no argument that the Collective Agreement, as far as it went with respect to the issues, was a misrepresentation of the earlier awards. Rather, as acknowledged in Award #4, Arbitrator Ready was providing clarification of issues that he had already addressed in Awards #2 and #3. Nowhere in his reasons does he state that the Collective Agreement did not express his manifest intention. In effect, he was augmenting his reasons. This type of correction does not, in my view, fall within the exceptions to the rule of functus officio.
[59] Also important to this question is the fact that the parties felt that they had enough information upon which to conclude the Collective Agreement. Since the parties did finalize a Collective Agreement after Award #3, we cannot say that they were prevented from implementing the arbitration decisions contemplated by the Arbitration Agreement. Just because, subsequently, the parties found that they did not agree on the interpretation of the terms of the Collective Agreement does not mean that the Collective Agreement did not express the manifest intention of Arbitrator Ready.
[60] Even if I assume that the clarification undertaken by Arbitrator Ready rose to the level of “manifest intention”, I would still conclude that Arbitrator Ready was functus after the signing of the Collective Agreement. A determination of Arbitrator Ready’s continued authority must be made only after consideration of all of the circumstances. In the face of a reasonable interpretation of s. 79(1) of the Code, the Arbitration Agreement and the Collective Agreement, this is a situation where the principle of functus should apply.
7. Conclusion
[61] For these reasons, I conclude that Arbitrator Ready was not correct in assuming authority to issue Award #4. Once the awards were crystallized in the Collective Agreement, Arbitrator Ready’s job was done. The application for judicial review will be allowed, with costs to IMP, and Award #4 quashed.
[62] As described earlier, the Union is not without recourse: they may still pursue their grievance through the terms of the Collective Agreement.
ORDER
THIS COURT ORDERS that:
- The application for judicial review is allowed, with costs to the Applicant; and
- Award #4 of Arbitrator Ready is set aside.
“Judith A. Snider”
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2126-06
STYLE OF CAUSE: I.M.P. Group Limited et al v.
Public Service Alliance of Canada
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 24, 2007
APPEARANCES:
|
Mr. Geoffrey J. Litherland
|
|
|
Mr. Andrew Raven
|
SOLICITORS OF RECORD:
|
Harris & Company Vancouver, British Columbia
|
|
|
Raven, Cameron, Ballantyne & Yazbeck LLP Ottawa, Ontario |