SUPREME COURT OF CANADA
Roberval Express v. Transport Drivers Union, [1982] 2 S.C.R. 888
Date: 1982-12-21
Roberval Express Limitée Appellant;
and
Transport Drivers, Warehousemen and General Workers Union, Local 106, Vladimiro Massignani and Claude Lauzon Respondents.
File No.: 15687.
1982: October 20; 1982: December 21.
Present: Laskin C.J. and Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Labour relations — Collective agreement negotiated under Canada Labour Code — Arbitrator appointed to hear grievance — Whether arbitrator constituted a statutory tribunal within the meaning of art. 846 C.C.P. — Criteria to determine whether a tribunal is statutory — Excess of jurisdiction — Writ of evocation — Code of Civil Procedure, arts. 33, 846 — Canada Labour Code, R.S.C. 1970, c. L-1 (amended by 1972 (Can.), c. 18, s. 1), ss. 156, 157, 159, 160(5).
Appellant applied to the Superior Court for a writ of evocation against the decision of an arbitrator, which amended the disciplinary measure imposed by appellant on one of its employees. The Superior Court dismissed the motion and the Court of Appeal upheld the judgment. The primary question was whether an arbitrator appointed under a collective agreement concluded pursuant to the Canada Labour Code constituted a statutory tribunal within the meaning of art. 846 C.C.P. If so, the question then arises whether the facts alleged disclosed a want or excess of jurisdiction.
Held: The appeal should be allowed.
The arbitrator appointed in the case at bar constituted a statutory tribunal within the meaning of art. 846 C.C.P. because he was invested with wide duties and powers by statute: this is one of the criteria established by the courts. On the second question, as the arbitrator refused to hear admissible and relevant evidence — a fact which must be taken as proven at the stage of issuing the writ of evocation — this was clearly a case of excess or refusal to exercise his jurisdiction.
R. v. National Joint Council for the Craft of Dental Technicians, [1953] 1 Q.B. 704; Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318,
[page 889]
affirming (1961), 29 D.L.R. (2d) 76; Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85; Association of Radio and Television Employees of Canada (CUPE-CLC) v. Canadian Broadcasting Corp., [1975] 1 S.C.R. 118, considered; Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555; Nordair Ltd. v. Lauzon, Reid. H, Ferland. D, C.P.C. ANNOTÉ, 1981, v. 3, p. 517, (C.A.); Re The International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379, referred to.
APPEAL from a judgment of the Quebec Court of Appeal[1] affirming a Superior Court judgment which refused to issue a writ of evocation. Appeal allowed.
H. Laddie Schnaiberg, Q.C., for the appellant.
Robert Castiglio, for the respondents.
English version of the judgment of the Court delivered by
CHOUINARD J.—This case concerns a motion for a writ of evocation, which was denied both by the Court of Appeal and by the Superior Court.
The action was taken to challenge a decision of an arbitrator appointed in accordance with a collective agreement concluded pursuant to the Canada Labour Code, R.S.C. 1970, c. L-1.
The primary question that arises is whether the arbitrator constitutes a statutory tribunal within the meaning of art. 846 C.C.P., and is therefore subject to the superintending and reforming power of the Superior Court under that article.
If he is, the question then arises whether the facts alleged in the motion, taken as proven, disclose a want or excess of jurisdiction by the arbitrator under para. 1 of art. 846 C.C.P., on which appellant relies, and justify the conclusions sought.
Turgeon J.A., writing the unanimous decision of the Court of Appeal, summed up the facts and proceedings in the following manner:
[TRANSLATION] The Transport Drivers, Warehousemen and General Workers Union, Local 106, is an
[page 890]
association of employees certified under the Canada Labour Code as representing all drivers employed by appellant company.
Respondent Massignani is a member of the Union and is also a driver employed by appellant. He was dismissed by a representative of appellant company on May 2, 1975. Following this dismissal, Massignani filed a grievance and Mr. Claude Lauzon was appointed to act as sole arbitrator to hear the grievance. It is important to emphasize that Mr. Lauzon was acting under a collective agreement negotiated in accordance with the Canada Labour Code.
At the hearing before the arbitrator, the employer presented evidence in support of its decision to dismiss Massignani and the parties submitted their respective arguments. Following this hearing, the arbitrator rendered a decision in which he vacated the dismissal of Massignani, replaced it by a suspension of one month and ordered appellant to reinstate the employee Massignani in his employment and reimburse him for wages lost since his dismissal, less a period of one month, deducting wages earned in the interim.
Following this arbitral award, appellant applied to the Superior Court for a writ of evocation pursuant to arts. 846 et seq. of the Code of Civil Procedure, to vacate the arbitral award on the ground that the arbitrator exceeded his jurisdiction.
At the hearing in the Superior Court, respondent Union and respondent Massignani filed a preliminary objection stating that the proceeding instituted by appellant, namely the motion for a writ of evocation, was not a proceeding authorized by the Code, since an arbitration tribunal constituted under a collective agreement subject to the Canada Labour Code was not a statutory tribunal. The objection was allowed by the Superior Court, which dismissed appellant's motion with costs.
Appellant's motion alleged in substance that during November 1974, April 1975 and May 1975 respondent Massignani failed to perform the duties for which he was employed on several occasions, and was disciplined, and that in May 1975 he was released for insubordination.
In each of these cases, the Union and Massignani filed grievances.
In the submission of appellant, the parties agreed in May 1975 to submit the four grievances to arbitration and Mr. Lauzon was selected as arbitrator.
The motion added that the dismissal of Massignani was the result of the three incidents which preceded it.
[page 891]
It alleged that the arbitrator refused to take into account all the evidence led before him or made available to him, and dealt first with the grievance relating to the dismissal. It was also alleged that he limited his decision to the grievance relating to the dismissal.
Turgeon J.A. further observed:
[TRANSLATION]In any case, whether or not the arbitrator erred in weighing the evidence, or in law, he acted within his jurisdiction and did not commit an excess of jurisdiction.
However, it is perhaps not necessary to rule on the merits of the question, since it seems to me that the proceeding instituted by appellant is not a proceeding authorized by the law.
Relying on earlier decisions of the Court of Appeal, in particular Nordair Ltd. v. Lauzon, which is not published in the Court of Appeal reports, but which can be found in Reid. H, Ferland. D, C.P.C. ANNOTÉ, 1981, v. 3, p. 517, Turgeon J.A. reaffirmed that an arbitration tribunal constituted in accordance with a collective agreement concluded pursuant to the Canada Labour Code is not a statutory tribunal. For this reason, he held that the Superior Court judgment is correct and that the appeal should be dismissed.
It is not in dispute that the writ of evocation, which corresponds in the case at bar to a writ of certiorari, can only be brought against a statutory tribunal. What appellant is asking the Court to decide is what is meant by a statutory tribunal.
Several decisions of this Court were cited by the parties in this connection.
The earliest is Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318.
In that case, a writ of certiorari was issued against an arbitration tribunal constituted under the Labour Relations Act of British Columbia, 1954 (B.C.), c. 17. The case turned on s. 22:
22. (1) Every collective agreement entered into after the commencement of this Act shall contain a provision for final and conclusive settlement without stoppage of work, by arbitration or otherwise, of all differences
[page 892]
between the persons bound by the agreement concerning its interpretation, application, operation, or any alleged violation thereof.
(2) Where a collective agreement, whether entered into before or after the commencement of this Act, does not contain a provision as required by this section, the Minister shall by order prescribe a provision for such purpose, and a provision so prescribed shall be deemed to be a term of the collective agreement and binding on all persons bound by the agreement.
Cartwright J., as he then was, wrote for the Court at p. 328:
In the Court of Appeal, for the first time, the question was raised whether certiorari would lie against this arbitration board; that Court held unanimously that it would not and consequently allowed the appeal without dealing with any other questions.
The issue is succinctly stated in the following paragraph in the reasons of Tysoe J.A.:
Certiorari does not lie against an arbitrator or arbitration board unless the arbitrator or board is a statutory arbitrator or statutory board; that is a person or board to whom by Statute the parties must resort. Prerogative Writs of Certiorari and Prohibition do not go to ordinary private arbitration boards set up by agreement of parties: R. v. National Joint Council for the Craft of Dental Technicians [1953] 1 Q.B. 704. We must, therefore, decide whether this arbitration board is a private arbitration body set up by agreement, or a statutory board.
In his reasons, with which this Court indicated its agreement in principle, Tysoe J.A. of the Court of Appeal, whose judgment is published in (1961), 29 D.L.R. (2d) 76, continued as follows at p. 79, after the passage cited above:
In my opinion, if the Arbitration Board qualifies as a statutory board, it does so only by reason of the provisions of s. 22 of the Labour Relations Act. Without them, I doubt if anyone would suggest the Board would be other than a private arbitration body. The question would, therefore, seem to be, does s. 22 have the effect of constituting the Arbitration Board to which the parties to the collective agreement have agreed to refer for the final settlement of differences, a statutory arbitral tribunal? In my opinion, the answer to this question is in the negative.
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Section 22 does not create an arbitral tribunal or any other tribunal or body. It merely requires the parties to a collective agreement to agree between themselves on a method for finally and conclusively settling any differences without stoppage of work, and to embody their agreement in the collective agreement. If they do not do this, the Minister is to do it for them and his method becomes embodied in and forms part of the collective agreement. The method may be "by arbitration or otherwise". The parties may select and provide their own method and the only condition is that it shall achieve the desired result, namely, the final and conclusive settlement of differences without stoppage of work. The Legislature has not said the parties must resort to an Arbitration Board or to any particular person or body of persons. It has left the parties complete freedom of choice in this respect. All the Legislature has said is that there must be a method by which disputes will be finally and conclusively determined without stoppage of work. To find the method one turns to the agreement.
Essentially, it was held by this Court that s. 22, requiring the collective agreement to provide for the settlement of disputes "by arbitration or otherwise", and so leaving the parties to choose their method, did not have the effect of making the arbitration tribunal a statutory tribunal, one to which by statute the parties must resort.
This decision was based on that of the British Queen's Bench Division, in R. v. National Joint Council for the Craft of Dental Technicians, [1953] 1 Q.B. 704. The following passages from the judgment of Lord Goddard C.J. may be cited from this case (at pp. 706, 707 and 708):
I think possibly that the court giving leave may have thought at the time that the National Joint Council by reason of its name was a statutory body, but as soon as the court saw the papers in this matter it occurred to them to inquire about the constitution of this body because, unless there is a body set up by statute and which has duties conferred on it by statute so that the parties are bound to resort to it, it appeared to the court that it would be a very novel proceeding indeed if we issued these prerogative writs to it. It turns out that this committee are merely arbitrators appointed under an ordinary submission to arbitration contained in an indenture of apprenticeship.
[…]
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But the bodies to which in modern times the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of subjects who may have to submit to their jurisdiction.
[…]
Certiorari lies to bring up the decision or record of the inferior court to this court with a view to it being quashed. It is granted and directed to one of the inferior courts, such as magistrates' courts and county courts, and it has been extended to the various bodies which have been entrusted by Parliament with duties partly of an administrative character and partly of a judicial character in some cases, but cases in which subjects may be affected by their decisions. There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom by statute the parties must resort.
Lord Goddard concluded at p. 708:
For these reasons, I think that it would be a great departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator, whether the arbitrator is a single arbitrator or a body of men who are called a council. For these reasons, I am of opinion that we must dismiss these applications on the ground that they are wholly misconceived.
The test applied by this Court in Howe Sound (supra) to determine whether a tribunal is statutory is that by statute the parties are bound to resort to it. However, it can be seen from reading the passages cited that in them Lord Goddard referred to other tests. I will return to this point below.
In Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, the Court had to consider the Ontario Labour Relations Act, R.S.O. 1960, c. 202, s. 34(1) of which read:
Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
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Applying again the test stated by Lord Goddard, under which the Act must require the parties to resort to the tribunal, this Court held in brief that the tribunal in s. 34(1) was a statutory tribunal against which a writ of certiorari could be brought.
This Court at the same time approved the judgment of the Ontario Court of Appeal in Re The International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379, the reasoning of which Judson J., speaking for this Court, said he adopted. Judson J. cited inter alia the following passage from Aylesworth J.A., who delivered the judgment of the Court of Appeal in the latter case:
Consideration of these statutory provisions makes it abundantly clear that the parties are under compulsion to arbitrate their differences. The parties are directed by statute as to the matters which must be governed by arbitration; they are told that they must abide by the award and they are also told, (a) that if they fail to include in their collective agreement an arbitration provision, then the statutory provision in subs. (2) will form part of their agreement, subject in proper cases to modification of the provision by the Labour Relations Board, and (b) that if they fail to appoint an arbitrator or to constitute a Board of Arbitration, the necessary appointments will be made by the Minister of Labour.
With respect, it seems to me that the element and degree of compulsion inherent in the Labour Relations Act regarding arbitration of industrial disputes establishes the instant Board of Arbitration as a statutory Board. If this be so, then admittedly certiorari may issue to it from this Court.
Before discussing further the nature of the tribunal, whether statutory or otherwise, it may be useful to make the following observations on another argument made by appellant, namely that if the remedy in evocation is not available, its motion should be considered as a direct action in nullity under art. 33 C.C.P.
In Port Arthur (supra) Judson J., after concluding that the Court in s. 34(1) of the Ontario Act was a statutory tribunal against which certiorari was accordingly an appropriate remedy, added that in any case at common law a decision of such
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a tribunal was subject to the superintending and reforming power, and he wrote at p. 95:
In Ontario relief by way of certiorari is obtained in an originating motion and no writ is issued. This is the same procedure that is used to quash an award of a private arbitrator or arbitration tribunal. The notice of motion in these proceedings makes it clear that the relief asked for is an order quashing the award. It does not seem to me to be of any consequence that the motion contains a reference to certiorari. The procedure is the same and in my opinion this notice of motion is sufficient to justify an order quashing the award.
The same reasoning is restated by Laskin J., as he then was, in Association of Radio and Television Employees of Canada (CUPE- CLC) v. Canadian Broadcasting Corp., [1975] 1 S.C.R. 118. In that case Laskin J. dissented. On this question, however, dealing with the competence of the Manitoba Court of Queen's Bench, the Court was unanimous. Martland J., speaking for the majority, wrote at p. 127:
I am in agreement with the reasons of my brother Laskin maintaining the jurisdiction of the Court of Queen's Bench of Manitoba to deal with the application which was made to it by the respondent.
In that case the Court had to consider s. 19 of the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152, subsequently incorporated in the Canada Labour Code. Section 19 provided only that any collective agreement should contain a provision "for final settlement without stoppage of work, by arbitration or otherwise, of all differences ... concerning its meaning or violation". The passage which I wish to cite from the judgment of Laskin J. in this case is the following, at pp. 136-37:
However, the Court in the Howe Sound case did go on to say that the fact that certiorari would not lie did not mean that review under the common law or under a general arbitration statute was precluded.
This latter point was restated and expanded by this Court in Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, at pp. 94-95. The effect of what was
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said there is to deny homage to technicality, and to make it clear that where the proceedings to review a decision of a board of arbitration are by way of a motion to quash or to set aside the award, dispensing with the issue of a writ of certiorari, it matters not whether the board of arbitration is or is not a statutory tribunal in any strict sense. I agree with this view of the issue and would add that it would be equally resolved by the bringing of an action for a declaration. Having regard to the form of the proceedings in the present case, it is unnecessary to consider whether the board of arbitration was a statutory tribunal in the Rivando sense or was a non-statutory tribunal in the Howe Sound sense. In either case, there was jurisdiction in the Manitoba Court of Queen's Bench.
Relying on this decision and on what was said on the point in Howe Sound and Port Arthur (supra), counsel for the appellant, in his submission, invited the Court to apply similar reasoning to the provisions of the Code of Civil Procedure, so that in the absence of a remedy in evocation, his motion could be considered an originating motion under art. 33 C.C.P. He argued that quite apart from the possibility of evocation, an arbitration tribunal remains subject to the superintending and reforming power of the Superior Court under art. 33 C.C.P., and this was admitted by counsel for the respondents, who wrote in his submission:
[TRANSLATION]It is beyond question that the Superior Court has an inherent superintending and reforming power over an arbitration tribunal such as that established in the case at bar. This jurisdiction was codified by the Quebec legislator in article 33 of the Code of Civil Procedure.
On the resemblance between the remedy under art. 33 C.C.P. and that of evocation, the Court was referred to the following passages from the opinion of Pigeon J., speaking for the Court, in Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555 at pp. 560-61:
It should be noted that art. 846 C.C.P. is in permissive, not in mandatory, form. This was accepted by the Court of Appeal in a unanimous decision affirmed in this Court, City of Chicoutimi v. Séminaire de Chicoutimi, [1970] C.A. 413, aff'd. [1973] S.C.R. 681, Montgomery J.A. said, (at p. 415):
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... Even if evocation should be an appropriate remedy, this would not in itself establish that there is no other remedy; I find nothing in the code to suggest that such an exception may not be taken before the Provincial Court.
Of course, the litigant who needs a stay of proceedings or wishes to paralyze the administrative process, is in a way obliged to resort to evocation under art. 846. However, if he is merely seeking to have a regulatory provision declared void, how is he prevented from proceeding by action in accordance with the general rule:
110. Unless otherwise provided, every action is instituted by a writ of summons in the name of the Sovereign.
[…]
It is quite true that art. 834 prohibits evocation and certain other remedies without prior authorization, but nowhere does the Code prohibit a declaratory action or a motion for a declaratory judgment in respect of claims that may be urged by an extraordinary remedy contemplated in this article.
[…]
In my view, the same general principles must be applied when the question is whether the appropriate procedure is an ordinary action or an application for evocation. The only consequence of resorting to an action or to a motion for a declaration rather than to an application for evocation in a case coming within art. 846 C.C.P., is that the plaintiff does not obtain a staying order.
It can probably also be said that once the writ has been issued there is no longer any difference between the evocation procedure and the action in nullity under art. 33 C.C.P. Before that stage is reached, however, there are significant differences. Thus, while a pending case may be evoked, there can only be a direct action against a decision which has been rendered. Additionally, while under art. 33 C.C.P. there can only be an action in nullity in cases of excess of jurisdiction or an injustice amounting to fraud, art. 846 C.C.P. provides for other cases of evocation. The argument of appellant may be valid in a case like that before the Court, where the arbitrator has rendered his decision, it is his jurisdiction which is at issue and the conclusions of the motion contain all the components of the conclusions in an action in nullity;
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in my opinion, however, it may not apply in every case.
At all events, counsel for the appellant did not persist in this line of argument at the hearing and did not need to do so if, as I consider, he should succeed on his other argument.
I return, therefore, to the fundamental question of whether an arbitrator appointed in accordance with a collective agreement concluded pursuant to the Canada Labour Code constitutes a statutory tribunal within the meaning of art. 846 C.C.P.
As I have tried to show, the only test which has been applied thus far is that stated by Lord Goddard in R. v. National Joint Council for the Craft of Dental Technicians (supra), to the effect that a tribunal to which by statute the parties must resort is statutory.
I mentioned above that Lord Goddard referred to other tests, on which he did not need to rely in the case before him. These are set forth in the three passages from his opinion cited above.
In addition to the obligation on the parties to resort to this tribunal, in the first passage Lord Goddard speaks of a body set up by statute, which has duties conferred on it by statute. In the second, he speaks of powers and duties conferred by statute, which when exercised may lead to the detriment of subjects who may have to submit to their jurisdiction. In the third, he speaks of bodies which have been entrusted by Parliament with duties partly of an administrative character and partly of a judicial character in some cases, the decisions of which may affect the parties.
In my view the key point to be noted is this characteristic, referred to three times by Lord Goddard, which consists of duties and powers conferred by statute and which seems to me to be as important in classifying a tribunal as the obligation to resort to that tribunal or, what would be more correct in the context, the absence of a choice whereby the parties may adopt this method or some other to resolve their differences.
The test that the statute must require the parties to resort to the tribunal is sure and easy to apply
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when it must be given a positive application, as in the case of the Ontario statute, which imposes an obligation to include an arbitral clause, as was held in Rivando and Port Arthur (supra).
However, when it is given a negative application, as in Howe Sound (supra), I do not see why the Court should not go further and consider the other tests mentioned by Lord Goddard, in particular that relating to the conferring of powers and duties by statute. A distinction must be recognized between, on the one hand, a tribunal invested with wide powers by statute, the award of which is binding on the parties and defines their rights, and on the other, a clearly consensual tribunal which owes its existence solely to the will of the parties, the only jurisdiction and powers of which are those conferred on it by the parties, and the award of which will be binding or not depending on whether the parties have so provided or not.
The mere fact that the parties have been left the choice of another method of reconciling their differences should not be the sole determining factor, when they have in fact selected arbitration and this arbitration which they have selected is governed by statute. Convenient though the test that the statute must require the parties to resort to a tribunal may be in determining its statutory nature, when that is the case, it should not remove from consideration the intrinsic nature of the tribunal itself once it has been selected.
In the same way, and although the analogy is not complete, when the Federal Court Act in s. 17 confers concurrent jurisdiction on the Federal Court and other courts, it gives the parties a choice as to the tribunal before which they will appear. This fact does not affect the nature of the tribunal selected.
What is important to note in the case at bar is that the reason this test was not mentioned in Howe Sound (supra) or in Association of Radio and Television Employees of Canada (supra) is that the Labour Relations Act in the first case, and the Industrial Relations and Disputes Investigation Act in the second, were silent as to the powers of the tribunal which could be applied to
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by the parties. The same is true of the Ontario statute, considered in Rivando (supra) and Port Arthur (supra).
That is not true of the Canada Labour Code as it stood in 1975, the year in which these proceedings began, as the result of amendments introduced in 1972, ten years after Howe Sound (supra), by the Act to amend the Canada Labour Code, 1972 (Can.), c. 18.
Section 157, added in 1972, confers on the arbitrator a number of powers including, under para. (d), that of altering the disciplinary measure imposed by an employer and substituting some other penalty for it. As counsel for the appellant pointed out, these powers are not in any way conferred on the arbitrator by the collective agreement. Section 157 reads:
157. An arbitrator appointed pursuant to a collective agreement or an arbitration board
(a) shall determine his or its own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to him or it;
(b) has, in relation to any proceeding before him or it, the powers conferred on the Board, in relation to any proceeding before the Board, by paragraphs 118(a), (b) and (c);
(c) has power to determine any question as to whether a matter referred to him or it is arbitrable; and
(d) where
(i) he or it determines that an employee has been discharged or disciplined by an employer for cause, and
(ii) the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration,
has power to substitute for the discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.
Subsection (5) of s. 160 extends the arbitrator's powers beyond the duration of the collective agreement. That subsection reads:
(5) Where a difference arises between the parties to a collective agreement relating to a provision contained in the collective agreement during the period from the date of its termination to the date the requirements of paragraphs 180(1)(a) to (d) have been met,
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(a) an arbitrator or arbitration board may hear and determine the difference; and
(b) sections 155 to 159 apply to the hearing and determination.
Additionally, it is subs. (1) of s. 156 itself and not the clauses of the collective agreement which confers finality on the settlement of a dispute by arbitration. Section 159 provides for implementation of the arbitral award.
Finally, the legislator himself appears to have recognized the statutory nature of the arbitrator by at the same time enacting a privative clause, namely subs. (2) of s. 156;
(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 his or its proceedings under this Part.
As counsel for the appellant submitted, such a privative clause would definitely not be necessary to exclude an action by certiorari if the arbitrator was purely consensual, since in such a case there would be no basis for a writ of certiorari.
It can be seen that this Canada Labour Code tribunal is quite different from that in question in the decisions of this Court considered above.
Discussing the Ontario legislation considered in Rivando and Port Arthur (supra), Laskin J. wrote in Association of Radio and Television Employees of Canada (supra), at p. 135-36:
It could not be said that boards of arbitration under the then Ontario legislation had their statutory powers and duties conferred by that legislation. Yet this was one of the tests of subjection to certiorari which was mentioned by Lord Goddard in Regina v. National Joint Council for the Craft of Dental Technicians, [1953] 1 Q.B. 704, upon which the Court in the Rivando case relied.
Relying on this test, and having in mind the provisions of the Canada Labour Code added in 1972, conferring wide duties and powers on the
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arbitrator, I am of the view that once the parties have chosen arbitration as a final method for settling their differences, the arbitrator appointed in accordance with a collective agreement concluded pursuant to the Canada Labour Code is a statutory tribunal and that cases pending before him and his decisions are subject to being evoked pursuant to art. 846 C.C.P.
The allegations of the motion relating to the refusal by the arbitrator to exercise his jurisdiction are the following:
12 THAT it was the intention of all the parties hereto, to have the Respondent Arbitrator, arbitrate the four grievances as can be seen in Exhibits P-3, P-4, P-5 and P-6;
13. THAT when Petitioner attempted to make its proof on the grievances, the Respondent-Union objected to the Proof on the first three instances on which a disciplinary measure was imposed, stating that they were subject to grievance, and that we were proceeding only in the case involving dismissal;
14. THAT in spite of arguments submitted, the Arbitrator refused to consider the first three instances, and only proceeded in the grievance involving dismissal, Exhibit P-6, contrary to the intent of the parties;
15. THAT on October 7, 1975, the Respondent-Arbitrator, limits his decision to one grievance, namely the grievance concerning dismissal, reducing the dismissal to one month's suspension and fails to take into consideration, the three other matters above-mentioned, a copy of the said decision is herewith produced as Exhibit P-9;
[…]
17. THAT the dismissal of Respondent-Employee was as a result of the three previous incidents which led to his dismissal by Petitioner;
18. THAT the Petitioner established before the arbitrator, the events which led to all the disciplinary measures, including the dismissal;
19. THAT the Arbitrator's refusal to take into consideration, all the proof in front of him, was an excess of jurisdiction, and a declination of jurisdiction which was lawfully his to exercise;
20. THAT the Arbitrator's decision, not to hear the four grievances, i.e., was contrary to the intent of all the parties hereto and by restricting himself to one grievance, the Respondent-Arbitrator, exceeded his jurisdiction and declined to exercise his jurisdiction;
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21. THAT as a result of the Arbitrator only hearing one grievance, and not hearing all grievances at the same time, the proceedings were effected with a gross irregularity and, therefore, justice has not been done;
22. THAT as a result of the foregoing, the Respondent-Arbitrator, Me Claude Lauzon, has declined to exercise, has exceeded and abused his jurisdiction;
In my view, there is more here than a question concerning the weighing of evidence. If these facts are proven, and at the stage of issuing the writ of evocation they must be taken as proven, I would have no hesitation in finding that they support the conclusions sought. Appellant alleged a refusal by the arbitrator to hear admissible and relevant evidence. A refusal to hear admissible and relevant evidence is so clear a case of excess or refusal to exercise jurisdiction that it needs no further comment.
For these reasons, I would allow the appeal with costs, set aside the judgment of the Court of Appeal and the judgment of the Superior Court and authorize a writ of evocation to be issued.
Appeal allowed with costs.
Solicitors for the appellant: Schnaiberg & Schnaiberg, Montreal.
Solicitors for the respondents: Rivest, Castiglio, Castiglio, Lebel & Schmidt, Montreal.