Supreme Court of Canada
Syndicat des professeurs du collège de Lévis-Lauzon v. CEGEP de Lévis-Lauzon, [1985] 1 S.C.R. 596
Date: 1985-05-23
Syndicat des professeurs du collège de Lévis-Lauzon, Roméo Côté, Dame Lucette Hade, Robert Wilson, Gérard Barrette Appellants;
and
Collège d'enseignement général et professionnel de Lévis-Lauzon Respondent;
and
Mr. François G. Fortier, Mr. Pierre Gagnon, Dame Hélène Choquette Mis en cause;
and
Lionel Labbé Mis en cause.
File No: 17069.
1983: October 31; 1985: May 23.
Present: Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
Ritchie J. took no part in the judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Labour law — Arbitrator — Judicial review — Preliminary objection that grievances filed late dismissed by arbitrator — Evocation — Whether decision of arbitrator on lateness of grievance subject to judicial review.
Appellant teachers filed grievances claiming that their university level teaching experience should be regarded as teaching experience. The respondent asked the arbitration tribunal to dismiss these grievances on the ground that they were prescribed because they had not been filed within the deadlines specified in clause 9-1.03 of the collective agreement. The tribunal found that clause 9-2.15 of the agreement, regarding "errors of evaluation", should be applied in the circumstances and dismissed respondent's objection. The continuance of the hearing ordered by the arbitration tribunal was interrupted by the issuance of a writ of evocation authorized by the Superior Court. The Court held that the arbitration tribunal had exceeded its jurisdiction by a misinterpretation of the collective agreement. The Court of Appeal affirmed the judgment. The purpose of this appeal is to determine whether an arbitrator's decision on the late filing of a grievance is a preliminary question giving rise to a remedy in evocation.
[Page 597]
Held: The appeal should be allowed.
The respondent's motion for evocation should be dismissed. The decision of an arbitrator on whether a grievance is late is not jurisdictional in nature and is not a basis for judicial review. Whether correct or not, this decision was made within the limits of the arbitrator's jurisdiction. By unnecessarily separating the preliminary jurisdiction of the arbitration tribunal from its general jurisdiction, the Court of Appeal actually impaired the integrity of the arbitration tribunal's jurisdiction taken as a whole. It is wrong to say that the full jurisdiction of the arbitration tribunal consists in hearing the grievance when it is not prescribed. Rather, its full jurisdiction consists in the power to dispose of grievances before it by applying the relevant provisions of the collective agreement or the law. It has jurisdiction to allow or dismiss these grievances, and its jurisdiction is not placed in question because it allows or dismisses them in accordance with one rather than another of the provisions of the collective agreement. By the dichotomy which it set up between the initial jurisdiction of the arbitration tribunal and its general jurisdiction, the Court of Appeal erroneously transformed the question of prescription of the grievance into one of conferring jurisdiction.
Cases cited
Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394, considered; Ville de Montréal v. Desfossés, [1972] R.D.T. 473; Désourdy Inc. v. Sylvestre, [1976] C.A. 639; Prudential Transport Co. v. Lefebvre, [1978] C.A. 411; John Lewis Industries Ltée v. Tassoni, [1977] C.A. 351, followed; Syndicat international des travailleurs, local 333 v. Cie Sucre Atlantic Ltée, [1981] C.A. 416; Union des employés de service (local 298) F.T.Q. v. École Notre-Dame-de-Liesse, [1974] R.D.T. 487; Ville de Montréal-Est v. Gagnon, [1978] C.A. 100; Désourdy Construction Ltée v. Perreault, [1978] C.A. 111; Foyer St-Antoine v. Lalancette, [1978] C.A. 349; Commission des accidents du travail de Québec v. Pâtes Domtar Ltée, J.E. 78-852; Syndicat des employés de l'Hôpital Régina Ltée v. Hôpital Régina Ltée, [1980] C.A. 378; Fraternité inter-provinciale des ouvriers en électricité v. Ingénierie B.G. Checo Ltée, J.E. 81-354; Celanese Canada Inc. v. Clément, [1983] C.A. 319, not followed; Union Carbide Canada Ltd. v. Weiler, [1968] S.C.R. 966; General Truck Drivers Union, Local 938 v. Hoar Transport Co., [1969] S.C.R. 634; Fraternité des policiers de la Ville de Laval Inc. v. Ville de Laval, [1978] C.A. 120; Segal v. City of Montreal, [1931] S.C.R. 460; Syndicat des employés de production du Québec et de l'Acadie v. C.L.R.B., [1984] 2 S.C.R. 412; Canadian Union of
[Page 598]
Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, referred to.
Statutes and Regulations Cited
Labour Code, R.S.Q., c. C-27, s. 139.
APPEAL from a judgment of the Quebec Court of Appeal[1], affirming a judgment of the Superior Court[2], authorizing a writ of evocation to be issued. Appeal allowed.
Georges Marceau and Giuseppe Sciortino, for the appellants.
Marc Rivard, for the respondent.
English version of the judgment of the Court delivered by
BEETZ J.—Is the decision of an arbitrator on whether a grievance has been filed late subject to judicial review? That is the question for decision. It has been the source of controversy in Quebec for some years, and has resulted in several contradictory decisions by the Quebec Court of Appeal.
I—Facts
The facts are not at issue. They are summarized in appellants' factum as follows:
[TRANSLATION] On May 2, 1980 the parties signed on a local basis a collective agreement giving effect to the agreement concluded at the provincial level on April 23, 1980.
On the following May 5 and 29, appellant teachers filed individual grievances in accordance with the provisions of the said collective agreement.
By their grievances appellant teachers contended that the Collége had failed to observe clause 6-3.00 of the agreement in question, by not giving full credit for all their experience, and claimed in these grievances that their university level experience should be regarded as teaching experience at the university level, retroactive to the date of their hiring by respondent.
In accordance with the collective agreement, the misen cause were appointed arbitrators to hear the said grievances.
[Page 599]
At the start of the hearing held on February 6, 1981 the representative of respondent raised the prescription of the said grievances. The parties then agreed that the discussion should be initially limited to this one question.
The arbitration tribunal then proceeded to hear the evidence and accepted the following facts as established:
"1. The Collège hired LUCETTE HADE for 1975-76, GÉRARD BARRETTE and ROBERT WILSON for 1976-77 and ROMÉO CÔTÉ for 1977-78.
2. When they were hired these four teachers gave the Collège their curricula vitae setting out their university experience.
3. When hired each of these teachers discussed this "university experience" with the Collège, but the latter did not credit it as teaching experience.
4. On May 2, 1980 the parties signed on a local basis a collective agreement giving effect to the agreement concluded at the provincial level on April 23, 1980.
5. On May 5, 1980, ROMÉO CÔTÉ claimed credit in a grievance for his university experience as teaching experience; LUCETTE HADE, GÉRARD BARRETTE and ROBERT WILSON did likewise on May 27, 1980."
Respondent submitted to the arbitration tribunal that the grievances should be dismissed because appellant teachers knew when they were hired of the decision by respondent Collège not to credit their university experience as teaching experience, and in any case they had not filed their grievances within the required time, under clause 9-1.03 of the collective agreement. This clause read as follows:
"9-1.03: If a teacher, group of teachers or the union wishes to file a grievance it shall be submitted to the Collège in writing within thirty working days of the date on which the facts giving rise to the grievance are known, and no later than six months after the same occurred.
The foregoing deadline of thirty working days shall not commence to run until the second month of the teaching year or of a new teacher's service with the Collège.
Once a grievance has been submitted to the Collège, the Collège or the union may apply for the C.R.T. to be convened to arrive at an agreement."
Appellant teachers maintained that they could present their grievances at any time, under the exception pro-
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vided for in clause 9-2.15 of the collective agreement. This provision read as follows:
"9-2.15: Any grievance relating to an error in calculation of salary or an error in evaluating information in fact produced within the required time which leads directly to calculation of salary may be submitted at any time, and a teacher shall be entitled to the total amount to which he would have been entitled if the error in calculating salary or in evaluating the said documents had not been made."
On March 30, 1981, the arbitration tribunal rendered its decision. After examining an arbitral award on the same point, a majority of the said tribunal found that clause 9-2.15 of the collective agreement should be applied to grievances like those of the complainants. The tribunal supported its decision as follows:
"The evidence discloses that these are grievances which relate to errors in evaluating information in fact produced within the required time, and which lead directly to calculation of salary. This is true of university experience."
Accordingly, the tribunal dismissed the employer's objection that the grievances were prescribed and ordered that "the hearing should continue".
In its factum, respondent acknowledges that the foregoing summary [TRANSLATION] "is a fairly accurate reflection of the reality". However, it adds an important qualification which is alleged in the motion for evocation, and which must therefore be taken as established at this stage of the proceedings. According to that allegation, each of the appellant teachers was told at the time of hiring that no credit would be given for "university experience".
The continuance of the hearing ordered by the arbitration tribunal was interrupted by the issuance of a writ of evocation applied for by respondent and authorized by a judge of the Superior Court. This authorization was affirmed by a unanimous judgment of the Court of Appeal, from which the appeal is brought.
II—Superior Court judgment, Court of Appeal judgment and error allegedly made by arbitration tribunal
The judgment of the Superior Court is very short. The gist of it reads:
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[TRANSLATION] From the record as submitted to the Court it appears that each of the mis en cause teachers, when hired, discussed their "university experience" with the COLLÈGE D'ENSEIGNEMENT GÉNÉRAL ET PROFESSIONNEL DE LÉVIS-LAUZON, the applicant at bar, and that the latter refused to credit all the experience they claimed to have.
This would indicate, therefore, that the said mis en cause knew before they were hired that the Collège was not taking all the experience they claimed to have into account, and would not do so, and that they still thereafter knowingly agreed to work for applicant employer.
In the circumstances, these mis en cause are clearly not covered by clause 9-2.15 of the agreement, Exhibit R-1, but by clause 9-1.03. It is a case, in the circumstances, in which the arbitration tribunal apparently exceeded its jurisdiction by a misinterpretation of agreement Exhibit R-1:
The reasons of the Court of Appeal were written by Crête C.J.Q., and concurred in by L'Heureux-Dubé and Malouf JJ.A. After summarizing the facts, the arguments of the parties before the arbitration tribunal, the arbitral award and the judgment a quo, Crête C.J.Q. concluded:
[TRANSLATION] In the case under consideration … the arbitrators, to exclude the application of clauses 9-1.03 and 9-1.07 of the agreement, erroneously regarded as "errors of evaluation" the refusal by the Collège to credit the university experience of the four teachers concerned, which the teachers concerned were aware of over two years before the grievance proceedings were initiated.
Only a misinterpretation of the facts and the agreement could have led to the conclusions of the majority on the tribunal. As Turgeon J.A. said in the decision cited above, "It is established that a lower court cannot give itself jurisdiction by misinterpreting a statute or regulation".
Reference should be made to what Mayrand J.A. said in L'Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394, at p. 401:
"When an arbitrator erroneously finds that a grievance is not prescribed, he is assuming a jurisdiction which he does not have to hear the grievance."
See also Syndicat international des travailleurs, local 333 v. La Compagnie Sucre Atlantic Ltée et Raymond Leboeuf et Gilles Desjardins, June 25, 1981, C.A.M. 09-001240-795.
[Page 602]
For these reasons, I consider that the judgment a quo is correct and that the appeal should be dismissed with costs.
Respondent argued that the error made by the arbitration tribunal was in treating as an error of evaluation the decision made by the Collège and communicated to appellants, that it would not credit their "university experience". No evaluation was ever in question, there never was any and there cannot therefore have been any error of evaluation.
It must be borne in mind that under the privative clause contained in s. 139 of the Labour Code, R.S.Q., c. C-27, a mere error of law is not subject to judicial review. Only an error as to jurisdiction can be a basis for review, or an error resulting from an unreasonable interpretation, which is treated in the same way as a jurisdictional error.
No one, not even respondent, contended that the error allegedly committed by the arbitration tribunal, which was in fact based on an interpretation by another arbitrator, resulted from an unreasonable interpretation of the facts and the collective agreement. The most that respondent wrote in its submission was that this error had the effect of adding to the collective agreement, which is another way of saying that the arbitration tribunal exceeded its jurisdiction.
I take it, therefore, that the error made by the arbitration tribunal, if there was an error, was not manifestly unreasonable. For the purposes of the discussion, but without deciding the point, I will proceed as if there had been an error. The Court must decide whether the error was a jurisdictional one because it concerned whether the grievance was late.
III—The question
In the last case mentioned by Crête C.J.Q. at the end of the foregoing passage from his reasons, Syndicat international des travailleurs, local 333 v. Cie Sucre Atlantic Ltée, [1981] C.A. 416, the Court of Appeal held, as in the case at bar, that the arbitrator's error on whether a grievance was late was on a preliminary matter, on which his jurisdiction depended and which was a basis for
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the remedy in evocation. The reasons in that case were also written by Crête C.J.Q. McCarthy J.A. concurred, with certain additional observations. Bélanger J.A. concurred with his two brother judges. Crête C.J.Q. reviewed the contradictions in the case law.
The approach taken by a minority of judgments holds that an arbitrator's decision on the lateness of a grievance is not jurisdictional in nature and is not a basis for judicial review. This approach was approved in the following cases: Ville de Montréal v. Desfossés, [1972] R.D.T. 473, a unanimous judgment of a bench of the Court of Appeal consisting of Owen, Brossard and Lajoie JJ.A.; Désourdy Inc. v. Sylvestre, [1976] C.A. 639, a unanimous judgment of a bench of the Court of Appeal consisting of Rinfret, Kaufman and Chouinard JJ.A., written by Chouinard J.A. before he became a member of this Court; and Prudential Transport Co.v. Lefebvre, [1978] C.A. 411, a unanimous judgment of a bench of the Court of Appeal consisting of Owen, Turgeon and Jacques ad hoc JJ.A.
Reference should also be made to a case which is not free from ambiguity, John Lewis Industries Ltée v. Tassoni, [1977] C.A. 351. Tremblay and Casey JJ.A. held that mandamus and not evocation was the proper remedy against the decision of an arbitrator who refused to hear a grievance because it was submitted late. However, this was an obiter dictum because the two judges found that the arbitrator's decision was correct in law. Kaufman J.A. simply observed that, whether correct or not, the arbitrator's decision was made within the limits of his jurisdiction.
The opposite approach is taken in a majority of cases, and holds that the question of whether a grievance is late is a preliminary matter on which the arbitrator's jurisdiction depends. It has been approved in a number of cases. Crête C.J.Q. mentions the following cases, inter alia, at pp. 421 and 422 of Cie Sucre Atlantic Ltée, supra: Union des employés de service (local 298) F.T.Q. v. École Notre-Dame-de-Liesse, [1974] R.D.T. 487; Ville de Montréal-Est v. Gagnon, [1978] C.A. 100; Désourdy Construction Ltée v. Perreault, [1978] C.A. 111; Foyer St-Antoine v. Lalancette, [1978]
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C.A. 349; Commission des accidents du travail de Québec v. Pâtes Domtar Ltée, J.E. 78-852; Syndicat des employés de l'Hôpital Régina Ltée v. Hôpital Régina Ltée, [1980] C.A. 378; and Fraternité inter-provinciale des ouvriers en électricité v. Ingénierie B.G. Checo Ltée, J.E. 81-354. Even now, some judges refuse to follow this prevailing line of authority, while others only do so with reluctance: Celanese Canada Inc. v. Clément, [1983] C.A. 319. Of the judgments which approve the majority view, however, special reference should be made to Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394, which Crête C.J.Q. also cited in the case at bar, and in which both approaches are most fully expressed. I will return to this below.
Before coming to that, however, it is necessary to distinguish from the majority and minority views a third line of authority, dealing with cases where an arbitrator, though finding that the deadlines have not been met and the grievance is therefore prescribed, decides for one reason or another to hear it anyway. The Court of Appeal has held that there is an excess of jurisdiction in such a case, in accordance with the precedents established by this Court in Union Carbide Canada Ltd. v. Weiler, [1968] S.C.R. 966, and General Truck Drivers Union, Local 938 v. Hoar Transport Co., [1969] S.C.R. 634: Fraternité des policiers de la Ville de Laval Inc. v. Ville de Laval, [1978] C.A. 120.
As indicated above, the fullest expression of these two approaches is to be found in Union des employés de commerce, local 503 v. Roy, supra. Owen J.A. sets out the minority approach, both in that case and in the cases as a whole, and Mayrand J.A., with the concurrence of L'Heureux-Dubé J.A., states the majority view. Paradoxically, the decision was unanimous because all the judges came to the same conclusions for radically opposite reasons. It was a case in which the union was asking that a writ of mandamus be issued against an arbitrator who had dismissed a grievance because it was filed late. The Court of Appeal unanimously affirmed the Superior Court judgment refusing to issue the writ; but Owen J.A.
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affirmed on the ground that, whether right or wrong in law, the arbitrator's decision was taken within the limits of his jurisdiction and could not be a basis for judicial review. Mayrand and L'Heureux-Dubé J.A. affirmed on the ground that, though subject to judicial review, the arbitrator's decision was correct in law. I can do no better than to cite at length from the reasons of Owen J.A. and Mayrand J.A.
The reasons of Owen J.A. are to be found at pp. 395-401:
The specific issue raised by the present appeal is whether the arbitrator refused to perform his duty when, by reason of an alleged error, he dismissed a grievance on the ground that it was submitted after the delays had elapsed (i.e. after it was prescribed) and, accordingly, did not go into the merits of the grievance.
The present appeal also involves the general issue as to whether the policy of the courts today should be to exercise a control as wide as possible over administrative tribunals by means of extraordinary remedies or whether their policy should be to restrict such interference to exceptional cases.
…
In my opinion, the first question to be asked in this appeal is not whether the arbitrator committed an error in deciding that the grievance was submitted outside the delays provided in the collective agreement. The first question to be asked in this appeal is whether the arbitrator's decision that the grievance was prescribed is reviewable by the courts. If it is not so reviewable, then it does not matter whether the arbitrator was right or wrong. It is only if the said decision is reviewable that the courts should consider whether or not it is erroneous.
… I am of the opinion that the arbitrator's decision that the grievance was filed outside the delays provided in the collective agreement and in the Labour Code is not subject to review by the courts. The arbitrator had the competence, the jurisdiction, the power, and the duty to decide disputes between the parties to the collective agreement arising out of disagreements relating to the interpretation, application or alleged violation of the collective agreement. The collective agreement in this case provides that a grievance must be submitted and discussed within ten working days following the event giving rise to that grievance. The employer submitted that the grievance here in question was not submitted
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within the delays so provided and the Union submitted that it was. The arbitrator decided it was not and dismissed the grievance as prescribed. In making this decision, the arbitrator acted within his competence and performed a duty belonging to his office. Accordingly this decision on the question of prescription is final and is not subject to review by the courts. Having found the grievance to be prescribed, it was the duty of the arbitrator to follow the only logical course and dismiss the grievance.
There are cases decided by this Court which support the proposition that such a decision by an arbitrator on the question of prescription is not subject to review by the courts in virtue of extraordinary remedies such as evocation or mandamus.
Owen J.A. then cited passages from the minority decisions of the Court of Appeal. He went on:
There is a line of jurisprudence dealing with cases where the arbitrator first decides that the grievance is prescribed and then proceeds, on one pretext or another, to deal with the prescribed grievance on the merits. These cases hold that the arbitrator's decision on the merits is subject to review by the courts not on the ground that the first decision on the question of prescription is open to such review, but on the ground that the second decision to hear and decide the prescribed grievance on the merits was not within the competence of the arbitrator and is, therefore, open to such review. In my opinion these cases have no bearing on the solution of the issue now before us which is whether the arbitrator's decision on the question of prescription is subject to review by the courts.
…
As to the general issue with respect to the policy of the courts to-day concerning the exercise of their control over administrative tribunals, I am of the opinion that recourse to extraordinary remedies such as evocation or mandamus should be granted sparingly. If the courts, every time an error in the decision of an arbitrator is brought to their attention, start searching for a formula that will classify the error as one going to jurisdiction—without defining the term jurisdiction—the role of the extraordinary remedies will be distorted and the purpose of administrative law will be defeated.
Finally, after citing a passage from a decision of this Court, he concluded:
The application of the above policy to the present case confirms my opinion that a writ of mandamus does not
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lie in the present case against the arbitrator's decision that the grievance was prescribed.
On the ground that, even if the arbitrator committed an error in deciding that the grievance was prescribed and should be dismissed, this decision is not subject to review by the courts and does not constitute a refusal to perform a duty belonging to his office, I would confirm the judgment appealed from, which refused the issuance of a writ of mandamus, and dismiss the present appeal, with costs.
The gist of the reasons of Mayrand J.A. is as follows (at p. 401):
[TRANSLATION] But is the arbitrator's decision beyond any review by the superior courts solely on the ground that it was made within the limits of his jurisdiction? With the greatest respect for the contrary view, I do not think so.
The non-prescription of a grievance—or to put it in a better way, the non-forfeiture of the right to the grievance — is generally one of the preliminary and essential conditions for an arbitrator's jurisdiction. It is settled law that an erroneous decision of an arbitrator on a preliminary or conditional matter, on which his jurisdiction depends, is not beyond review by the superior courts.
Of course, the arbitrator must first rule on any material or legal fact (such as whether the grievance was filed late) on which he will base his jurisdiction. However, when he finds that the grievance is inadmissible because it is prescribed, he is not exercising a general jurisdiction conferred on him by law and the agreement: rather, he is concluding that a preliminary and essential condition for his jurisdiction is absent. An error by him on this point amounts to a failure to exercise jurisdiction which he has, that of hearing the grievance. Declining jurisdiction that one has or assuming jurisdiction one has not are errors which are both a basis for intervention by the superior courts.
There is no lack of authority for the conclusion that a distinction must be made depending on whether the arbitrator who decided to hear the grievance was aware that it was late or erroneously believed it to be within the deadline. Opinions are divided on this point. For my part, I consider that the superior courts must be recognized as having a right to intervene in the second case as well as in the first. In either case, the result is the same and the right to review should not depend either on the way in which the arbitrator erred or on the way in which his error was expressed.
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When an arbitrator erroneously finds that a grievance has not been prescribed, he is assuming a jurisdiction he does not have to hear that grievance. The same is true when the arbitrator finds that the grievance was filed late but erroneously decides that he can hear it nevertheless. I incline to the view that the same rule should apply in the converse situation, where the arbitrator erroneously finds that the grievance is late and refuses to hear it on the merits: he is then declining a jurisdiction which he has.
Mayrand J.A. then referred to Segal v. City of Montreal, [1931] S.C.R. 460, as a basis for saying that [TRANSLATION] "the Supreme Court of Canada long ago reiterated that an error on a point preliminary to jurisdiction is a basis for review by the superior courts". He went on to conclude:
[TRANSLATION] In the case at bar the arbitrator's decision, if erroneous, would result in a refusal to exercise his full jurisdiction, as it would prevent the grievance being heard on the merits in accordance with the law and the collective agreement.
Mayrand J.A. then held that the arbitrator's decision was not erroneous and on this ground alone concluded that the appeal should be dismissed.
With the greatest respect for those who are of the contrary view, I entirely agree with the reasons of Owen J.A., which I adopt and to which I need only add but a few observations.
First, it seems to me that by unnecessarily and, in my opinion, wrongly separating the preliminary jurisdiction of the arbitration tribunal from its general or full jurisdiction, which when the grievance is not prescribed consists in the power of hearing the grievance on the merits, the Court of Appeal is actually impairing the integrity of the arbitration tribunal's jurisdiction taken as a whole. It seems wrong to say that the full jurisdiction of the arbitration tribunal consists in hearing the grievance when it is not prescribed. Rather, it seems to me that the arbitration tribunal's full jurisdiction consists in the power to dispose of grievances before it by applying the relevant provisions of the collective agreement or the law. It has jurisdiction to allow or dismiss these grievances,
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and its jurisdiction is not placed in question because it allows or dismisses them in accordance with one rather than another of the provisions of the collective agreement.
By the dichotomy which it sets up between the initial jurisdiction of the arbitration tribunal and its general jurisdiction, the Court of Appeal is artificially transforming the question of prescription of the grievance into one of conferring or, depending on the circumstances, divesting jurisdiction, but only jurisdiction in the narrow sense of the power to dispose of the grievance on one ground rather than on another. As I have just indicated, in my opinion the arbitrator's jurisdiction is wider than that.
Moreover, the method used by the Court of Appeal which, in the case at bar, consists of considering the question of prescription of the grievance as a preliminary matter on which the arbitration tribunal's jurisdiction depends is one which has attracted some support but against which this Court finally warned the courts in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227. Dickson J., as he then was, rendered the unanimous decision of the full Court. At p. 233, he wrote:
With respect, I do not think that the language of "preliminary or collateral matter" assists in the inquiry into the Board's jurisdiction. One can, I suppose, in most circumstances subdivide the matter before an administrative tribunal into a series of tasks or questions and, without too much difficulty, characterize one of those questions as a "preliminary or collateral matter".
…
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.
The controversy to which I have just referred indicates that there may at least be "some doubt in this regard", though I find none.
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In its submission respondent wrote that Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, supra, is [TRANSLATION] "a special case of very limited application". Certainly that case did not concern arbitration, and the provisions which had to be interpreted differed from those in the case at bar: but the principle of judicial restraint and the description of the procedure that should be avoided if it is to be followed apply to an arbitration matter and are still entirely relevant. This judgment is frequently cited, and the policy stated regarding limitation of judicial intervention has recently been applied by the decision of this Court in Syndicat des employés de production du Québec et de l'Acadie v. C.L.R.B., [1984] 2 S.C.R. 412.
I would be of the same opinion if the provisions regarding the prescription of grievances were contained in legislation rather than in the collective agreement; but I find added support for my view in the fact that, in the case at bar, as in a great many cases, they are in the collective agreement. This is a type of complex and very particular provision which varies from one collective agreement to another, which the parties have negotiated and drafted with the greatest care and on which they agreed with the understanding and intent that, in the event of a disagreement between them as to their meaning, an arbitrator or arbitration tribunal would interpret them alone without appeal and without the delays of judicial review. Though these provisions cannot themselves be the subject of a grievance, it was the intent of the parties and the law that they be "arbitrable". Furthermore, such provisions, as in the case of clause 9-2.15, are often closely integrated with the general scheme of the collective agreement and are unquestionably a matter for expert consideration by arbitrators and arbitration tribunals.
For these reasons, I conclude that the decision of an arbitrator on whether a grievance is filed late is not subject to judicial review.
IV—Conclusions
The appeal is allowed, the judgment of the Court of Appeal and the judgment of the Superior
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Court are set aside and respondent's motion for evocation is dismissed with costs in all courts.
Appeal allowed with costs.
Solicitors for the appellants: Melançon, Marceau, Grenier & Sciortino, Montréal.
Solicitors for the respondent: Choquette, Leduc & Rivard, Montréal.