Spar Aerospace Limited v. United Automobile, Aerospace & Agricultural Implement Workers of America, Local 112 UAW, 1985 CanLII 1075

[1985] OLRB Rep. March 480

2370-84-M Spar Aerospace Limited, Employer, v. United Automobile, Aero­space & Agricultural Implement Workers of America, Local 112 UAW, Trade Union

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.

APPEARANCES: John P. Sanderson, Q. C., and Dean Brennan for the employer,' John H. Bettes and George Armitage for the trade union.

DECISION OF THE BOARD; March 14, 1985

1. The Minister of Labour has referred to the Board the question whether the Minister has authority to appoint a single arbitrator under section 45 of the Labour Relations Act in circumstances hereinafter described. The reference is made pursuant to section 107(1) of the Labour Relations Act, which provides as follows:

107.-(l) Where a request is made under section 16, subsection 44(4) or subsection 45(1), the Minister may refer to the Board any question that arises that in his opinion relates to his authority to make an appointment under any such provision that is mentioned in the reference, and the Board shall report to the Minister its decision on the question.

2. The affected employer and trade union were at all material times parties to a collective agreement which provided for the resolution of disputes over its interpretation, administration and application by resort to a two step grievance procedure and, thereafter, to arbitration by a sole arbitrator selected from a panel of arbitrators named in the agreement. On or about August 20, 1984, the union initiated an employee grievance at Step 1. The grievance was not resolved. It proceeded to Step 2. The employer then delivered a decision dated September 1 2, 1984 denying the grievance and giving certain reasons for so doing. Article 17.01 of the parties' collective agreement provides, in part:

17.01 If arbitration is to be invoked, the request for arbitration must be made in writing within five (5) working days after delivery of the decision following Step No. 2.

Although not satisfied with the employer's disposition of the grievance at Step 2, the trade union did not make a written request that the grievance be taken to arbitration under the collective agreement. Instead, on September 14, 1984, the trade union prepared a written request to the Minister of Labour asking that he refer the subject matter of the grievance to a single arbitrator to be appointed by the Minister pursuant to the provisions of section 45 of the Labour Relations Act. The trade union hand delivered a copy of the request to the employer the same day and then immediately mailed the original to the Ontario Ministry of Labour's Office of Arbitration, the Ministry office which customarily processes requests to the Minister for appointment of arbitrators under sections 44 and 45 of the Labour Relations Act. That office provides a standard form on which such requests can be made, and the trade union's request was in that form. In response to one of that form's questions, the trade union wrote that "The time stipulated in or permitted under the collective agreement for referring the grievance to arbitration expires on the 19th day of September, 1984." The request did not arrive at the Office of Arbitration until September 21, 1984.

3. The Office of Arbitration responded to the trade union's request with a letter dated September 27, 1984. In that letter, the Director of that office said it appeared the request did not conform to the requirements of section 45(2), because it was not received within the time prescribed by the parties' collective agreement for referring the grievance to arbitration. The letter concluded:

As you will appreciate, the section confers upon the Minister the authority to appoint a single arbitrator in certain specific circumstances. On the basis of the above information, the trade union's request does not appear to conform with the requirements of the section and therefore, the Minister has directed me to advise you that he has concluded that he does not have authority to make the requested appointment.

Of course, should there by any misunderstanding as to the facts, as stated, or should you wish to present further argument concerning the application of section 45, I would be pleased to convey your request to the Minister.

This letter was copied to the employer.

4. The trade union's President replied to the Director with a letter of October 1, 1984, which read:

This is in response to your letter dated September 27, 1984 re SPAR and UAW 112, Grievance of R. Lee re Job Posting A/84-0990.

The above grievance was heard on September 5/84 and the written answer was received on September 12/84. The request for arbitration was served on SPAR on September 14/84 and mailed to your department on the same date. Therefore, it was in the mail for 7 days from Downsview before reaching your office. This cannot be deemed a deficiency on behalf of the Union, but is an unforeseen and unexpected delay beyond our control.

In the event that the above was not sufficient reason to allow the case to continue, I submit that the date of completion of STEP 2 did not take place until Sept. 18/84 due to the fact that the company changed their answer on September 18/84 (letter enclosed). As the letter points out, not a typographical error but an addition of a word that changes the context of the argument. We submit that this, in effect, is a new answer.

I submit that the above question as to the time limits is properly the jurisdiction of the Arbitrator under 45, Subsection 4 as per the Labour Relations Act. We request that the arbitrator be appointed under section 45. Subsection I.

[emphasis added]

By letter dated October 30, 1 984, the employer replied to a letter of October 24th from the Director. The Director's letter is not before us. In its reply, the employer took the position that its September 18th advice to the trade union of the inadvertent omission of the word "not" from a significant passage in the reasons for its September 12th Step 2 decision did not constitute a new answer to the grievance. The employer's letter took no express position on the question of timeliness.

5. The Reference before us is dated November 27, 1984. After referring to the aforemen­tioned correspondence, it recites:

6. In the opinion of the Minister, the trade union's request and the subsequent representa­tions have raised a question concerning his authority to appoint a single arbitrator.

7. The Minister refers to the Ontario Labour Relations Board, pursuant to section 107(1) of The Act, the question as to whether the Minister has authority to appoint a single arbitrator under section 45 of The Act.

8. Briefly stated, the question is whether or not the trade union's request is in compliance with the provisions of section 45(2) of The Act.

9. On January 21, 1985, we heard oral representations made on behalf of the trade union and employer in connection with the matters referred to us by the Minister. In a preliminary objection, the trade union's representative took exception to the question posed in paragraph 6 of the Reference. He pointed out that the representations referred to in paragraph 4 of the Reference included the union's representation that the question as to time limits was one which should be dealt with by the arbitrator appointed by the Minister. He submitted that the question of timeliness was not one which affected the authority of the Minister to appoint a single arbitrator, that the Minister had not only the authority but the obligation to appoint a single arbitrator whatever the answer might be to the question posed in paragraph 6 of the Reference, and that it would therefore be improper for the Board to consider that question. We observed at that time, without objection by counsel for the employer, that we were prepared to hear representations with respect to the question set out in paragraph 5 of the Reference even if such representations went beyond the scope of the question set out in paragraph 6 of the Reference.

10. The trade union also advised us that if we concluded that the question of timeliness of the union's request was pertinent to the question of the Minister's authority to appoint an arbitrator, then it would be necessary for us to hear evidence about the parties' past practice in interpreting and applying their collective agreements. By way of explanation, the union's representative filed a copy of a letter dated September 23, 1981, from the employer's Director of Personnel to the Director of the Office of Arbitration, captioned "Collective agreement between Spar Aerospace Limited and UAW Local 673". The trade union's representative explained that its Local 673 represents the employer's office workers. The body of the letter reads as follows:

Confirming our telephone discussion of Tuesday, September 22, 1981, although it is the Ministry's interpretation Local 673 has exceeded the five working day time limit for requesting arbitration, both Spar and Local 673 have historically used that time limit to advise the other party they will be seeking arbitration at some time in the future, to increase pressure on the parties to settle the dispute.

If the Ministry is firm in its interpretation and such interpretation would preclude an application for appointment of an arbitrator under Section 37(a) of the Act, Spar agrees to a waiver of the time limits.

The trade union's representative said the union's proposed evidence would establish that the practice referred to in this letter is also the practice of the parties to the identically worded collective agreement between the employer and Local 112. On the basis of such evidence, the trade union's representative proposed to then argue that the current collective agreement between these parties must be interpreted as permitting a grievance to be referred to arbitration at any time, so long as the opposite party has been given notice, within the five day period, that referral may he sought at some future time. The union's timely delivery to the employer of a copy of its request to the Minister, he would submit, was sufficient advice to the employer that the union would be "seeking arbitration at some time in the future", so that there would be no limit on the time within which this grievance could then have been referred to arbitration.

8. Counsel for the employer advised the Board it would be his submission that the Minister was obliged to consider whether a request was timely and, moreover, he was obliged to make that assessment on the basis of the language of the parties' collective agreement alone, without reference to any alleged past practice. At the suggestion of the Board, the parties agreed that we should defer hearing any evidence with respect to alleged past practice until we had heard their argument on the following issues and determined whether any of them was dispositive:

(a) whether, as the union argued, the timeliness of a request for referral is a matter solely for the arbitrator whom the Minister is obliged to appoint in response to any request, however untimely it may appear to him to be;

(b) whether, as the employer submitted, the Minister is obliged to assess timeliness and to do so only on the basis of the contract language, without consideration of any past practice; and,

(c) whether the employer's step 2 answer must be taken as having been given on September 18, 1984, when the employer advised the union of its "typo­graphical error".

9. The relevant provisions of section 45 of the Labour Relations Act are the following:

45.-( I) Notwithstanding the arbitration provision in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement may request the Minister to refer to a single arbitrator, to be appointed by the Minister, any difference between the parties to the collective agreement arising from the interpreta­tion, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

(2) Subject to subsection (3), a request under subsection (I) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after thirty days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.

(3) Notwithstanding subsection (2), where a difference between the parties to a collective agreement is a difference respecting discharge from or other termination of employment, a request under subsection (I) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after fourteen days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.

(4) Where a request is received under subsection (I), the Minister shall appoint a single arbitrator who shall have exclusive jurisdiction to hear and determine the matter referred to him, including any question as to whether a matter is arbitrable and any question as to whether the request was timely.

[emphasis added]

10. The union's main argument was that the language of subsection 45(4) clearly obliges the Minister to appoint a single arbitrator upon receipt of a request of the sort described in subsection 45(1) without regard to the apparent timeliness of the request. Subsection 45(1) makes no reference to the timing of the request. Timeliness is the subject matter of subsections (2) and (3), neither of which makes any reference to the Minister's power of appointment. Subsection 45 (4) makes it clear that any question whether a request under subsection (I) is timely is a question that the appointed arbitrator is given exclusive jurisdiction to hear and determine. In the union's submission, the only question for the Minister to decide before making an appointment is whether he has received a request for appointment from someone who is party to a collective agreement entered into subsequent to the date on which section 45 first came into effect. The union further submitted that, to the extent the timeliness of the request to the Minister depends on an assessment of "that time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration", past practice is just as relevant to interpretation of the agreement's time limit as it is to any other question of interpretation of the collective agreement.

11. Counsel for the employer argued that the interpretation urged by the union requires us to ignore the language of subsection 45(2), and particularly the words ..... no such request shall be made .. ." Counsel submitted that before he makes the appointment contemplated by section 45, the Minister must make a number of administrative determinations, including not only a determination whether there is a collective agreement but also a determination whether the request for referral of a grievance to a single arbitrator is timely, having regard to the provisions of the collective agreement and the timing of the other steps taken by the parties in relation to the grievance. Counsel argued that the words".. . stipulated in or permitted under the agreement .. ." limit the Minister to considering the language of the collective agreement itself and not any collateral behaviour of the parties which might otherwise be relevant to the interpretation of the words of the collective agreement. In response to questions from the Board, counsel acknowledged that if a collective agreement expressly provided that the specified time limit for referral to arbitration could be extended by agreement of the parties, then the Minister could take into account any evidence which would establish whether or not such an agreement had been made. On the other hand, he took the position that the Minister could not take into account evidence of employer behaviour which might give rise to an estoppel and prevent the employer's reliance on the time limit if it were being asserted before an arbitrator appointed under the collective agreement. Counsel extended this principle so far as to submit that even if the parties to a collective agreement entered into an express agreement to extend the time within which a particular grievance could proceed to arbitration, the Minister could not take that agreement into account unless the collective agreement expressly contem­plated agreed extensions of the stipulated time limit. Counsel acknowledged that this would result in the Minister having to reject and refuse to act on evidence which an arbitrator could receive and act on in interpreting the meaning of the same provision of the parties' collective agreement.

12. Asked what effect should be given to the words "any question as to whether the request was timely" in subsection 45(4), counsel for the employer said there were certain problems with timeliness of a request which would be within the jurisdiction of the arbitrator. He emphasized the particular language used in subsection 45(2), which provides that a request "may be made after certain times, but after a further time no such request shall be made". Counsel drew from the difference between "shall" and "may" the distinction that the arbitrator may have jurisdiction to determine whether the request was untimely because it had been made too early, but that the Minister was to determine whether the request was untimely because it had been made too late.

13. The "timeliness" provisions of section 45 were considered by the Divisional Court in Re Hotel, Restaurant & Cafeteria Employees Union, Local 75 and Royal York Hotel, 1983 CanLII 1831 (ON HCJ), 42 O.R. (2d) 509, ("the Royal York Hotel decision") which dealt with an application to the Divisional Court for judicial review of an arbitration award reported sub. nom Re Canadian Pacific Hotels Ltd., (Royal York Hotel) at 1982 CanLII 4971 (ON LA), 6 L.A.C. (3d) 222 (Samuels). Article 18 of the collective agreement between the parties to those proceedings provided that the union could "submit" a grievance to arbitration within ten working days from the date of the employer's reply at Step 3 "as described in Article 19". Article 19 required that written notification of a party's intent to arbitrate a grievance name that party's nominee to atripartite board of arbitration, and that the opposite party nominate its member to the Board within ten working days thereafter. The trade union had made such a submission to arbitration, and named its nominee to the arbitration board, with respect to a particular grievance. Although that submission had been made beyond the first-mentioned ten day period, the employer had not objected to the lateness. The union and employer had then agreed to an extension of the second ten day period for nomination of the employer's representative on the Board, in order to permit settlement discussions. Over two months later, the employer filed an application under section 45 requesting that the Minister refer the grievance to a single arbitrator. The trade union responded with a request that the Minister name a member on behalf of the employer to the tripartite board contemplated by the collective agreement. A person described in the Court's decision as "a departmental official" advised the parties that the Minister was appointing a single arbitrator under section 45 of the Act and that it was "open to the union to raise any objection relating to the authority of the single arbitrator at the hearing". It did. The arbitrator appointed by the Minister considered that the agreed-upon extension of time for appointment of the employer's nominee had extended "the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration" within the meaning of subsection 45(2), and found he had jurisdiction. The Divisional Court found that the arbitrator had misinterpreted section 45. Mr. Justice Saunders had this to say (at pp 512-513):

In my opinion, the Legislature intended to provide strict time limits within which a party might make the request provided for in s. 45. In contrast to s. 44(6) of the Act which provides for extensions of time in grievance procedures there is no provision for the extension of the time-limits set out in s. 45(2). We have before us two possible interpreta­tions of that time-limit. In my opinion, a submission to arbitration under either art. 18.6 or art. 18.19 of the collective agreement is a referral to arbitration within the meaning of s. 45(2) of the Act. It seems to me that the plain meaning of the word "referring" in the context of the legislation must be restricted to the initiation of the process by either party. The applicant invoked the arbitration process which in its normal course would continue with the appointment of a board of arbitration, the hearing and the eventual decision. Once the process was invoked by either party, it would appear to be the scheme of the legislation that each would have to abide by it until either settlement or decision. While an extension of time under art. 18 might have extended the time in s. 45(2), the extension under art. 19(2) was not part of the referral to arbitration, but was rather an extension of one of the steps in the arbitration process.

In my view the learned arbitrator was right in stating that s. 45 could not be invoked after the parties had lost the right "to go to arbitration" but he misapprehended the situation when he found that on July 2, 1982, the parties were contemplating going to arbitration.

Although the arbitrator's award was set aside, the jurisdiction of the Minister to make the initial

appointment of that arbitrator was not questioned, nor was the jurisdiction of the arbitrator to deal with the question of the timeliness of the employer's request to the Minister.

14. The timeliness provisions of section 45 were considered by this Board on three occasions following the Royal York Hotel decision. In City of Mississauga (Transit Department), [1984] OLRB Rep. June 844, the trade union had taken the formal step necessary to refer a grievance to arbitration under the collective agreement. Thereafter, but still within the time stipulated under that collective agreement for referring a grievance to arbitration, the employer had requested that the Minister refer the grievance to a single arbitration under section 45 of the Act. The Minister referred to the Board the question of his authority to make the requested appointment. The issue dealt with by the parties before the Board was whether an otherwise timely request by one party was untimely by virtue only of the opposite party's having earlier referred the matter to arbitration under the terms of the collective agreement. The Board concluded that one party's resort to the arbitration process contemplated by a collective agreement could not foreclose an otherwise timely resort to the provisions of section 45 of the Act. The Board considered the Royal York Hotel decision, and particularly the sixth and seventh sentences of the above-quoted passage from that decision. The Board noted that the employer request in that case had not been made within the time which the Court found was stipulated by the parties' collective agreement for referring a grievance to arbitration. The Court had not had before it the question whether a request for referral made within that time could be foreclosed by an earlier resort by the other party to the arbitration process contem­plated by the collective agreement. The Board concluded that the Court had not intended to deal with that fact situation when it made the remarks in question, and respectfully declined to treat the Court's decision as having dealt with it. In the result, the Board advised the Minister that he did have jurisdiction to make the requested appointment.

15. A similar fact situation arose in The Kichener-Waterloo Catholic High School Board of Governors, [1984] OLRB Rep. July 977. The majority in that case also concluded that a request for Ministerial referral, which had been made within the times stipulated or provided under the collective agreement for referring the grievance to arbitration, was not untimely merely because the opposite party made an earlier referral to arbitration under the provisions of that collective agreement. The Board in that case also advised the Minister that he did have jurisdiction to make an appointment in those circumstances.

16. In St. Raphael's Nursing Home (Kitchener), [1984] OLRB Rep. June 859, the employer's request for a referral under section 45 was also made after the trade union had referred the grievance in question to arbitration under the terms of the collective agreement. Unlike the other two cases, the request for referral in that case had been mailed to the Minister after the time stipulated in the collective agreement for referring the grievance to arbitration. In the concluding paragraph of its decision on that Reference, the Board said:

17. For the foregoing reasons the Board is of the opinion that:

(a) in light of the Court's decision in Ro)'al York Hotel, supra, the time limits in section 45 must be strictly construed; and

(b) the employer in this case has failed to make a timely reference under section 45 of the Act.

We therefore respectfully advise the Minister of Labour that, in our opinion, he has no authority to accede to the employer's request, and appoint an arbitrator under section 45 of the Act.

17. The Board's conclusion in St. Raphael's Nursing Home (Kitchener}, supra, makes a connection between the timeliness of the employer's request and the Minister's authority to make the appointment requested. However, it appears from the decision that the Board and the parties all dealt with the Minister's Reference on the assumption that the Minister's authority to make the requested appointment was dependant on the request being timely. It is clear that the argument made to us in this reference was not put before the Board in that one. Indeed, subsection 45(4) of the Act, the provision on which that argument rests is neither reproduced nor referred to in the Board's decision in that case. Equally, as we noted earlier, it does not appear that the Minister's authority to appoint a sole arbitrator in response to an untimely request was in any way challenged in argument before either the arbitrator or the Court in the Royal York Hotel case. There is no suggestion in the Court's decision that the request in that case ought to have been refused by the Minister. Indeed, it is implicit in the Court's approach that it expected arbitrators would be dealing with the questions of timeliness of the sort dealt with in its decision. This appears from the following paragraph at page 51 3 of report of that decision:

This is new legislation. It is important that other arbitrators appointed under s. 45 be certain of the limits which give them jurisdiction. It may be, as contended by the respondent, that this is not an efficacious result in terms of practical labour relations. If this is so, then statutory amendment would appear to be the only solution.

In view of our finding it is unnecessary to deal with the second ground of the application.

Accordingly, the award is set aside with cost to the applicant.

[emphasis added]

18. In short, the main issue before us has not been dealt with directly in any previous case.

19. We are persuaded that the union's interpretation of section 45 is the correct one. Subsection 45(4) gives the Minister the power to appoint. It affords him no discretion in its exercise, prescribing that he "shall appoint a single arbitrator" where "a request is received under subsection (1) . . ." A request "received under subsection (1)" is a request envisaged by that subsection. Subsection (1) does not address the timing of the request. It addresses only the nature of the request and the identity of the party making it. It appears to us that the Minister has no choice but to appoint a single arbitrator if he receives a request from "a party to a collective agreement" who specifically asks that the Minister refer to an arbitrator to be appointed by him a difference between the parties to that agreement "arising from the interpretation, application, administration or alleged violation of the agreement, and including any question as to whether a matter is arbitrable".

20. In coming to that conclusion we do not ignore the timeliness provisions of subsections (2) and (3) of section 45. The request for appointment must be timely; otherwise, the arbitrator will be without jurisdiction to deal with the grievance on its merits. The issue here is not whether a request must be timely; the issue is whether it is the Minister or the arbitrator who must decide whether or not the request was timely. The requirements in each of subsections (2) and (3) that "no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration" are similar to the usual sort of collective agreement limitation which those subsections incorporate by reference. Collective agreements typically provide that grievances shall not be referred to arbitration unless some step is taken within some limited period of time after the grievance procedure is exhausted. An allegation that an arbitrator appointed under a collective agreement is without jurisdiction to consider the merits of grievance because its submission to arbitration was not made within the time stipulated by the the provisions of the collective agreement is a question as to whether the matter is arbitrable. The scheme contemplated and created by the Labour Relations Act is that all differences between the parties to a collective agreement which relate in any way to that agreement should be determined by an arbitrator or arbitration board, including any preliminary question whether a grievance is arbitrable. The timeliness of a request for Ministeri­al referral is a question which goes to the jurisdiction of the arbitrator in the same way as other questions of arbitrability which regularly come before arbitrators appointed pursuant to the provisions of collective collective agreements. The Legislature cannot be presumed oblivious to the volume of arbitral litigation which collective agreement time limits have spawned before arbitrators and arbitration boards. Indeed, only four years before enacting section 45, the Legislature responded to problems which arose in that very litigation by enacting what is now subsection 44(6). Questions of timeliness, and particularly questions of timeliness measured with reference to the provisions and meaning of collective agreements, are just the sort of questions one would expect to be assigned to an arbitrator under the Labour Relations Act. It is not surprising, therefore, that the Legislature assigned "any question as to whether the request was timely" to the Ministerially appointed arbitrator by the express language of subsection 45(4). The only such questions which could arise are questions involving the application of subsections (2) and (3) of section 45, and we cannot accept the employer's argument that the Legislature meant to assign to arbitrators only some such questions and not others. Not only is jurisdiction to deal with all such questions assigned to the arbitrator appointed by the Minister, subsection 4 makes it quite clear that the arbitrator has the "exclusive jurisdiction" to deal with such questions. In our opinion, those words are sufficient to exclude preliminary Ministerial review of any question of timeliness which arises in conjunc­tion with a request that he make an appointment under section 45.

21. We are reinforced in our interpretation of section 45 by consideration of the obvious purpose of that section, which is to provide each party to a collective agreement with an expeditious alternative to whatever arbitration process may be contemplated by that collective agreement. Subsection 45(7) requires that an arbitrator appointed by the Minister commence hearing the matters referred to him or her within twenty-one days after the receipt of the request by the Minister. That does not leave the Minister much time to do whatever the Legislature expected of him, and it is therefore obvious that the Legislature did not expect that he would regularly be required to entertain or resolve disputes over his jurisdiction to make an appoint­ment. Of course, section 107 does contemplate that there may be questions as to his authority to make an appointment. For example, there could be questions of the application of the Ontario Labour Relations Act to the labour relations of the employer party to the collective agreement referred to in a section 45 request, having regard to the provisions of that Act itself or to the constitutional division of authority over matters involving labour relations. Such questions are rare. The Minister does have to determine whether the party making the request is a party to a collective agreement. However, a collective agreement must be in writing and signed by the parties to it: s. 1(1)(e). Each party to a collective agreement is required to file one copy with the Minister forthwith as it is made: section 83. These requirements of the Labour Relations Act do not leave much room for a dispute about whether or not someone is party to a collective agreement, unless the signatures themselves are challenged. There may be an issue whether an employer is bound by a collective agreement as a member of the employer association party to that agreement. This will seldom arise outside the construction industry, where expedited arbitration is available under section 124 without intervention of the Minister.

There will occasionally be a question whether an employer not signatory to a collective agreement is nevertheless bound by its terms by operation of the provisions of section 63 of the Labour Relations Act. A requesting union may take the position that its grievance is against an employer who is a party to a collective agreement in that sense. In such cases, examination of the collective agreement itself is not dispositive of the questions the Minister must consider under subsection 45(1). Subsection 107(2) expressly anticipates that the authority of the Minister may occasionally depend on the proper application of section 63 to a particular set of facts. It is not at all surprising that the Legislature would contemplate such an issue being referred to this Board, which regularly deals with the application of section 63, rather than by an arbitrator. Issues in arbitrations as to the identity of parties or existence of a collective agreement are rare. Questions of arbitrability arising out of alleged non-compliance with collective agreement time limits are far more common, and are regularly dealt with by arbitrators. Again, subsection 45(7) contemplates that an arbitrator will commence dealing issues, including issues of arbitrability, within twenty-one days after the request is made to the Minister. In this case it took four months for an issue of timeliness to come to a hearing before this Board. With expedition as the purpose of the legislation, the assignment of adjudica­tion of common and familiar sorts of questions of arbitrability to arbitrators rather than to the Minister or this Board makes eminent good sense.

22. In this case it is common ground that the trade union and employer are parties to a collective agreement and that the trade union has made a request to the Minister to refer to a single arbitrator, to be appointed by the Minister, a difference between the parties to the collective agreement arising from its interpretation, application, administration or alleged violation. In those circumstances, we are of the opinion that the Minister does have the authority and, indeed, the obligation, to appoint a single arbitrator and refer to that arbitrator the difference between the parties, including any question as to whether the difference is arbitrable and any question as to whether the request to the Minister was timely.

23. We have found that one of the representations referred to in paragraph 4 of the Minister's Reference — the representation made by the trade union in the last paragraph of its letter of October 1, 1984 — is correct and determinative of the question articulated in paragraph 5 of the Reference. Paragraph 6 of the Reference poses a question which in our opinion does not relate to the Minister's authority to make an appointment. We have been concerned, however, whether we are nevertheless obliged to address that question. Read literally, section 107(1) requires us to report to the Minister the Board's decision on any question which in his opinion relates to his authority to make an appointment under section 45. As the Board's decision in St. Raphael's Nursing Home (Kitchener), supra, treated timeliness as relevant to the Minister's authority to make an appointment under section 45, it is not at all surprising that the Minister would have formed the opinion in this case that timeliness was a question which might affect his authority to make the requested appointment. We are satisfied that while the Board's opinion about the timeliness of the request in St. Raphael's Nursing Home (Kitchener} was correct, its conclusion about the Minister's authority to make the requested appointment was incorrect, and would have been different if its attention had been directed to the argument dealt with in this decision. In that case, however, as in the two other earlier References, the only question referred to the Board was the general question posed in paragraph 5 of this Reference. The specific question posed in paragraph 6 of this Reference was not posed in the three earlier References. It was here. Does the mandatory language of section 107(1) oblige us to answer that question?

24. The Board's role on a Reference, like that of a court in similar circumstances, is advisory (see R.v. Ontario Labour Relations Board, ex parte Kitchener Food Market Ltd., [1966] 2. O.R. 513 (Ont. C.A.)). The Minister is not obliged by law to follow the Board's decision. That decision is not determinative of the rights of the parties who would be affected by a Ministerial appointment, other than in the practical sense that on an issue which the Board would have jurisdiction to determine inter partes — the application of section 63, for example — those parties (and the Minister) could fairly expect that if the same issue arose in an application involving the same parties, the Board would respond identically to identical facts. Indeed, it is in that context that the procedure contemplated by section 107 is most efficacious. Although it may not have been intended that questions referred under section 107 be limited to issues with which the Board otherwise has jurisdiction to deal, it seems unlikely that it was intended to require the Board to answer all questions posed in a Reference, if the answer to one makes the other or others moot. Although the meaning of the language used in the Reference is not free from doubt, we conclude that paragraphs 4 and 5 of the Reference were intended to have some significance independent of paragraph 6, and that the Minister did not intend us to ignore the trade union's representation as to the arbitrator's jurisdiction. On that view, paragraph 6 is not the only question posed in the Reference. As the answer to the broader question in paragraph 5 makes it moot, we conclude it is not necessary for us to answer the question in paragraph 6. Had we concluded otherwise, we would have rescheduled this matter for hearing as, in our opinion, whoever is to assess what is "the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration" must approach the interpretation of the agreement's provisions in the same manner and on the same sort of evidence as an arbitrator would consider if a question of collective agreement interpretation had arisen in respect of his or her appointment under that agreement. On that basis, we would have heard the proposed evidence about the parties' past practice before making any decision about the timeliness of the request. Indeed, that further reinforces our interpretation of section 45: the person best equipped to approach the timeliness issue as an arbitrator would is an arbitrator.

25. We therefore respectfully advise the Minister of Labour that, in our opinion, he has the authority and obligation under subsection (4) of section 45 of the Labour Relations Act to act on the trade union's request and appoint a single arbitrator. It would be open to the employer to raise before the single arbitrator any objection to his or her authority arising out of the timing of the trade union's request to the Minister.