ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, EPSTEIN AND sWINTON JJ.
B E T W E E N:
WRITERS GUILD OF CANADA
Applicant
- and -
CANADIAN BROADCASTING CORPORATION, CANADIAN MEDIA GUILD and STAN LANYON, Q.C.
Respondents
Joe Morrison, for the Applicant
Henry Dinsdale and Megan Telford, for the Canadian Broadcasting Corporation
Paul Cavalluzzo and Jo-Anne Pickel, for the Canadian Media Guild
HEARD at Toronto: June 20, 2006
1The Writers Guild of Canada (“WGC”) has brought an application for judicial review to quash the preliminary award of Arbitrator Stan Lanyon, Q.C. dated August 18, 2004. The issue in this application is whether the arbitrator erred in concluding that he had jurisdiction to determine whether the grievor was an employee/dependent contractor or an independent contractor.
Background
2WGC is an association that represents more than 1,800 professional screenwriters working in film, television, radio and multimedia production in Canada. On or about June 25, 1996, WGC was granted certification as an “artists’ association” under the Status of the Artist Act, S.C. 1992, c. 33 (“the SAA”). As a certified artists’ association, WGC negotiates, administers and enforces “scale agreements” pursuant to the SAA. These scale agreements are agreements between WGC and a producer such as the respondent Canadian Broadcasting Corporation (“CBC”), which govern minimum rates, working conditions, and other terms of engagement for writers within WGC’s jurisdiction.
3Pursuant to the SAA, the CBC is a party to two scale agreements with WGC governing certain “artists”. In addition to being a party to a scale agreement with the WGC, the CBC is also party to a collective agreement with the Canadian Media Guild (“CMG”) covering certain employees of the CBC, pursuant to the Canada Labour Code, R.S.C. 1985, c. L.2, as amended (“the Code”).
4The preliminary arbitration award arose out of a dispute surrounding services provided by Edward Kay, an individual engaged by the CBC as a Producer/Director in connection with a program called “I Dig BC”. Mr. Kay was engaged by the CBC pursuant to a “Freelance Specific Services” contract. Freelance Specific Services Producers/Directors fall within the CMG bargaining unit and are addressed in the CBC/CMG collective agreement in articles 109 and 121.
5The WGC filed a grievance, alleging that some of the work performed by Mr. Kay was writing, and as such, Mr. Kay’s services for the CBC should be governed by the WGC/CBC Scale Agreement (Television). The CBC denied the grievance on the basis that Mr. Kay was not an independent contractor, and he was properly engaged under the CBC/CMG collective agreement.
6The grievance was referred to arbitration before Mr. Lanyon, and the CMG’s request for intervenor status was granted. Before the commencement of the arbitration, WGC took the position that the question whether the scale agreement applied to Mr. Kay must be referred to the Canadian Artists and Producers Professional Relations Tribunal (“the Tribunal”). The arbitrator’s decision on that preliminary issue, namely to dismiss WGC’s argument, is the subject of this application for judicial review.
The Statutory Framework
7Part II of the SAA deals with professional relations between “artists” and “producers”, which are both defined terms under the SAA. The purpose of Part II is to establish a framework to govern professional relations between the parties and to guarantee freedom of association to artists. The SAA achieves this goal by providing a framework for artists to organize into associations for the purpose of negotiating scale agreements, which contain minimum terms and conditions for the provision of artistic services to producers.
8Only independent contractors who come within the definition of “artist” in the SAA are covered by the Act. Section 5 of the Act states that
In this Part,
“artist” means an independent contractor described in paragraph 6(2)(b);…
Paragraph 6(2)(b) then states,
This Part applies
(b) to independent contractors determined to be professionals according to the criteria set out in paragraph 18(b), and who
(i) are authors of artistic, dramatic, literary or musical works within the meaning of the Copyright Act, or directors responsible for the overall direction of audiovisual works,
(ii) perform, sing, recite, direct or act, in any manner, in a musical, literary or dramatic work, or in a circus, variety, mime or puppet show, or
(iii) contribute to the creation of any production in the performing arts, music, dance and variety entertainment, film, radio and television, video, sound-recording, dubbing or the recording of commercials, arts and crafts, or visual arts, and fall within a professional category prescribed by regulation.
9Paragraph 18(b) states:
The Tribunal shall take into account
(b) in determining whether an independent contractor is a professional for the purposes of paragraph 6(2)(b), whether the independent contractor
(i) is paid for the display or presentation of that independent contractor’s work before an audience, and is recognized to be an artist by other artists,
(ii) is in the process of becoming an artist according to the practice of the artistic community, or
(iii) is a member of an artists’ association.
10As in other labour relations statutes, two types of decision-making bodies are established by the SAA: the Tribunal and arbitrators. The Tribunal, established pursuant to s. 10, has a Chairperson, Vice Chairperson and not fewer than two or more than four full-time or part-time members. The members are appointed by the Governor in Council on the recommendation of the Minister of Labour in consultation with the Minister of Canadian Heritage.
11The Tribunal’s work is largely the certification of artists’ associations. As well, the Tribunal has the power to hear a number of complaints, including allegations of a failure to bargain in good faith and unfair labour practices.
12Section 36(1) of the SAA requires a scale agreement to contain a provision for dispute resolution concerning its “interpretation, application, administration or alleged contravention”. In this case, article A6 of the scale agreement describes the grievance and arbitration procedure agreed upon by WGC and the CBC.
13At the outset of the arbitration hearing, WGC submitted that the arbitrator had no jurisdiction to determine whether Mr. Kay was covered by the scale agreement, because s. 41(1) of the SAA confers exclusive jurisdiction on the Tribunal to make that determination. Subsection 41(1) states,
An arbitrator or arbitration board shall refer to the Tribunal for hearing and determination any question that arises in a matter before it as to the existence of a scale agreement, the identification of the parties to it, or the application of the agreement to a particular sector or artist.
14That section must be read in the context of other provisions in the Act and, in particular s. 9(3)(b), which states:
This Part does not apply, in respect of work undertaken in the course of employment, to
(b) employees, within the meaning of Part I of the Canada Labour Code, including those determined to be employees by the Canada Industrial Relations Board, and members of a bargaining unit that is certified by that Board.
The Arbitrator’s Award
15The arbitrator began his award with an analysis of the SAA. He noted that the SAA apples only to “artists” who are engaged as independent contractors and not to employees within the meaning of the Code (SAA, s. 9(3)(b)). He reviewed a prior arbitration award concerning these parties dated May 28, 2002, in which Arbitrator Stephen Kelleher concluded that he had jurisdiction to determine whether a grievor was an independent contractor or an employee/dependent contractor.
16Arbitrator Lanyon then stated at p. 17 of his award:
Although s. 41.(1) [sic] states that when an issue as to the applicability of the Scale Agreement to a particular artist arises, it must be referred to the Tribunal, this issue of applicability cannot be dealt with as we have seen, until a determination is first made as to the employment status of the artist. Second, s. 9(3)(b) specifically states that s. 41.(1) (and Part II as a whole) does not apply to employees/dependent contractors. Further, the specific provisions within Part II that address the issue of what constitutes an artist, in particular s. 5, 6, and 18, specifically refer to the artist as an independent contractor.
17He went on to conclude that he had jurisdiction to determine whether a particular individual was an independent contractor or an employee/dependent contractor. At p. 18 of the award, he stated,
… the issue of who is an employee/dependent contractor/independent contractor, for employment purposes, rests both statutorily and under collective agreements, with Labour Boards and arbitrators. A mandatory policy of deferral in relation to such issues would potentially lead to a statutory policy of bifurcated arbitral proceedings.
In his view, when s. 41(1) of the SAA was read in context, it did not require referral of the issue of the grievor’s employment status to the Tribunal. Rather, the arbitrator had jurisdiction to determine that issue as a preliminary matter.
The Issues
18There are two issues in this case:
What is the appropriate standard of review?
Did the arbitrator err in concluding that he had jurisdiction to determine the grievor’s employment status?
Issue No. 1: What is the Appropriate Standard of Review?
19The applicant submits that the appropriate standard of review is correctness, as the arbitrator made a jurisdictional error in interpreting s. 41(1) of the SAA. The respondents submit that the appropriate standard of review is patent unreasonableness.
20In determining the appropriate standard of review of a tribunal’s decision, the Court must apply the pragmatic and functional analysis to determine the degree of deference intended by the Legislature. This involves consideration of four factors: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question – fact, law or mixed fact and law (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 at paras. 29-38).
21In this case, the arbitrator’s award is protected by a strong privative clause in s. 37 of the SAA, which warrants significant deference. While this privative clause does not explicitly preclude judicial review of jurisdictional issues, as does s. 21(2) relating to the Tribunal, it is, nevertheless, a strong privative clause (see Eamor v. Air Canada Ltd., [1998] B.C.J. No. 1357 (S.C.) at para. 11, aff’d (1999), 1999 BCCA 559, 179 D.L.R. (4th) 243 (B.C.C.A.) at para. 55).
22When one turns to the purpose of the legislation, it is apparent that the purpose of the SAA is to establish a framework to govern professional relations between artists and producers. The SAA is intended to complement the Code by providing a labour relations regime applicable to artists who are independent contractors and not covered by the Code. The determination of whether a particular independent contractor is an artist under the SAA and the scope of bargaining rights granted to a particular artists’ association fall within the expertise of the Tribunal.
23However, the SAA also establishes a binding system of grievance arbitration for the prompt and final settlement of disputes arising out of a scale agreement. Section 36 requires every scale agreement to contain a provision for arbitration of all differences between the parties concerning the “interpretation, application, administration or alleged contravention” of the agreement (emphasis added). Pursuant to s. 39(1), the arbitrator has the powers conferred on the Tribunal pursuant to paragraphs 17(a) to (c) and “the power to determine whether any matter referred to the arbitrator or board is arbitrable”. This suggests substantial deference should be awarded to arbitrators appointed to resolve disputes under the Act.
24The third consideration in the pragmatic and functional approach is the relative expertise of the tribunal and the courts in relation to the issues before the tribunal. The applicant submits that the issue to be determined by the arbitrator was jurisdictional – namely, whether the Tribunal has exclusive jurisdiction pursuant to s. 41(1) to determine whether Mr. Kay was subject to the scale agreement. In interpreting the legislation, the applicant submits, the arbitrator’s expertise was no greater than the court’s and no deference should be accorded.
25There is no absolute rule that when a tribunal decides an issue of its own jurisdiction, the standard of review is always correctness (Ontario Public Service Employees’ Union v. Seneca College of Applied Arts & Technology, 2006 14236 (ON CA), [2006] O.J. No. 1756 (C.A.) at paras. 30-31)). Moreover, the courts have held that arbitrators are owed deference when interpreting a statute that is intimately connected to the tribunal’s mandate and encountered frequently as a result (Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Association (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737 (C.A.) at para. 22; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local No. 27 v. London Machinery Inc., 2006 8711 (ON CA), [2006] O.J. No. 1087 (C.A.) at para. 37).
26In London Machinery, supra, the Court of Appeal determined that the standard of patent unreasonableness should be applied in the review of a decision of a labour arbitrator applying provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41 relating to temporary lay-off and employee election in the context of a collective agreement providing for employee recall and seniority rights. Cronk J.A. stated at para. 37:
The arbitrator’s decision in this case concerned the interpretation of the collective agreement between the parties and various provisions of the Act and the Regulation. The legislation in issue lies at the core of the work of labour arbitrators in the employment law sector. It is both centrally related to their expertise and intimately connected to their mandate. Moreover, the interpretive issues in play here have important implications in the labour relations and employment law domains. They arise in the context of a powerful, although not full, privative clause under the LRA [Labour Relations Act] and employment standards legislation that itself invites strong deference to the arbitral process. These factors militate in favour of a high degree of deference to the arbitrator’s award.
27In this case, the question before the arbitrator was the arbitrability of the grievance before him. This required him to decide whether the grievor was an employee/dependent contractor or an independent contractor. The issue of the grievor’s status is a matter within the specialized expertise of the arbitrator, requiring him to consider the Code and the Labour Board’s jurisprudence on dependent contractors as well the interaction of the SAA and the Code.
28The applicant correctly points out that s. 41(1) of the SAA limits the jurisdiction of an arbitrator. Moreover, this is not a case like London Machinery, where the arbitrator was applying employment standards legislation in the context of a particular dispute involving the interaction of that legislation and the collective agreement. Nevertheless, some deference is owed to the arbitrator in interpreting the SAA, given the nature of the legislation. The arbitrator’s mandate flowed from the SAA. In interpreting s. 41(1), he was required to consider it in the context of the other provisions of the SAA, including s. 9(3)(b), and to draw on his specialized knowledge of labour relations.
29When all the factors are weighed, it is clear that considerable deference should be shown to the arbitrator’s decision. At the least, the standard of review is reasonableness. Given our view that the arbitrator’s decision was not only reasonable, but indeed correct, we need not determine whether the standard of patent unreasonableness applies here (see Elementary Teachers Federation of Ontario v. Toronto District School Board, 2005 36712 (ON CA), [2005] O.J. No. 4368 (C.A.) at para. 13).
Issue No. 2: Did the arbitrator err in concluding that he had jurisdiction to determine the grievor’s employment status?
30The applicant submits that the arbitrator misinterpreted s. 41(1) of the SAA and therefore erred in concluding that he had jurisdiction to determine whether the grievor was an independent contractor or an employee/dependent contractor. According to the applicant, the Tribunal has exclusive jurisdiction to determine whether a scale agreement applies to a particular artist.
31Section 41(1) does state that the arbitration board shall refer to the Tribunal any question that arises as to the “application of the agreement to a particular sector or artist”. It does not state, however, that the Tribunal has exclusive jurisdiction to determine whether a particular person is an independent contractor or an employee/dependent contractor.
32Subsection 36(1) of the SAA requires the parties to resolve their disputes involving the interpretation or application of the scale agreement by arbitration or otherwise, while s. 39(1) confers the power on the arbitrator to determine whether a matter is arbitrable. Section 9(3)(b) of the SAA and the definition of “artist” within the Act make it clear that the SAA does not apply to individuals who are employees within the meaning of the Canada Labour Code or within a bargaining unit created by the Canada Industrial Relations Board. Therefore, there was an obvious issue of arbitrability before the arbitrator – namely, whether the grievor was an employee within the Code and therefore excluded from the SAA, or whether he was an independent contractor subject to the scale agreement. The words of s. 41(1) of the SAA did not bar him from determining this issue.
33The applicant submits that there is significance in the fact that s. 17(p)(i) of the SAA gives the Tribunal the power to determine whether a “person is an artist”, while no such power is conferred on the arbitrator. However, s. 17(p)(i) does not assist in the interpretation of s. 41(1), given the difference in wording in the two provisions. Section 17(p)(i) confers power on the Tribunal to determine a person’s status as an artist. It does not limit the powers of an arbitration board. In contrast, s. 41(1) states that an arbitration board must refer the question whether a scale agreement applies to an “artist” - not whether a person is an independent contractor or an employee/dependent contractor.
34The arbitrator interpreted s. 41(1) of the SAA in light of s. 9(3)(b) and the existing labour relations jurisprudence concerning employees, dependent contractors and independent contractors. It can not be said that his decision that he had jurisdiction to determine the grievor’s employment status was unreasonable. Indeed, given the language of the SAA and its interaction with the Code, the decision is correct.
Conclusion
35For these reasons, the application for judicial review is dismissed. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Swinton J.
Ferrier J.
Epstein J.
Released: July 20, 2006
COURT FILE NO.: 615/04
DATE: 20060720
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, EPSTEIN AND SWINTON JJ.
B E T W E E N:
WRITERS GUILD OF CANADA
Applicant
- and -
CANADIAN BROADCASTING CORPORATION, CANADIAN MEDIA GUILD and STAN LANYON, Q.C.
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: July 20, 2006