Court File and Parties
COURT FILE NO.: 661/02 DATE: 2003-10-31
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Ontario Painting Contractors’ Association, Applicant -and- International Union of Painters and Allied Trades and The Ontario Council of the International Union of Painters and Allied Trades and George Surdykowski, Respondents
HEARD: June 11, 2003
BEFORE: Lane, Somers and Greer JJ.
COUNSEL: Jeffrey D. A. Murray and Ryan Conlin for the Applicant; Ronald Lebi for the Respondent Union and Council.
REASONS FOR DECISION
LANE J.:
[1] This is an application for judicial review of the decision, dated July 19, 2002, of the respondent Surdykowski acting as Final Offer Selector (“Selector”) pursuant to a province-wide collective bargaining agreement (“CBA”). Article 34 of the CBA contains a procedure for local amendments to the CBA to “remove competitive disadvantage and regain market share”. The applicant complains, primarily, that the Selector dismissed the applicant’s application for final offer selection to resolve a dispute over proposed amendments without selecting one of the two final offers submitted by the parties. It contends that under article 34 of the CBA the Selector had no power to do so; he had no choice but to choose one of the offers.
[2] The Union respondents contend that the Selector had the power, and the obligation, before selecting either of the offers, to decide whether the state of “competitive disadvantage” alleged by the applicant as the foundation for its proposed amendments, actually existed. They submit that the Selector had evidence before him to support a finding that there was no competitive disadvantage requiring a remedy and therefore he correctly dismissed the application.
Legislative Background:
[3] Since 1977, the Labour Relations Act (“Act”) has established a scheme of province-wide bargaining for the construction trades in the Industrial, Commercial and Institutional sector. Single bargaining agents for employers and employees bargain a single collective agreement for each trade. In December 2000, the Act was amended by Bill 69[^1] to provide for local variations of the CBA under certain circumstances set out in a new section, 163.2, of the Act. Section 163.2 provides that an employers’ bargaining agency may apply to its Union counterpart for amendments to the CBA to apply in a specified market, type of work or geographic location. The amendments may relate only to specified matters, including wages, hours of work, use of apprentices and certain hiring practices. The application is required by section 163.2(5)(a) to define the work, market and location to which the amendments would apply; and by section 163.2(5)(b) to:
(b) set out any submissions the applicant believes to be relevant to determine the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to any of the matters referred to in clause (a).
[4] The section goes on to provide that, if the amendments are agreed to by the Union and are put in writing, they become effective for the work, area or market in question.
[5] Section 163.3 deals with the case where the amendments are not agreed to within 14 days of the service of the employers’ request. The applicant may then give notice that it will refer the matter to arbitration. The notice must contain the applicant’s final offer with respect to the text of the amendments, and must attach the statements and submissions made under section 163.2(5)(a) and (b) in support of the application. In its response, the Union side is to set out its final offer with respect to the text of the amendments, if any, that it proposes, and its submissions as to any competitive disadvantage faced by employers in the relevant area, market or class of work. Neither side is permitted to bring forward any new argument at this stage.
[6] Section 163.2 (29) requires the arbitrator to determine whether the provisions of the provincial CBA render employers bound by it at a competitive disadvantage in the named area, market or class of work. If there is such a disadvantage, the arbitrator is to determine whether it would be removed if the CBA were amended in either of the ways proposed by the parties, and if so, the arbitrator is to choose the amendment that is most effective with the least deviation from the provincial CBA.
[7] Under this statutory scheme, it is clear that the existence of the alleged competitive disadvantage is a matter to be determined by the arbitrator before any remedy is considered.
Article 34:
[8] The parties to this application bargained a somewhat different scheme, Articles 33 and 34 of Appendix A to the province-wide CBA in the parties’ industry. Article 33, “Market Recovery Provisions”, establishes an “enabling” process for particular jobs but Article 34, “Market Share & Recovery Amending Provisions” is much broader and operates despite the existence of Article 33.
[9] Article 34.01 provides for an election by an employer group to submit “any issue” to the procedures of the Article “to remove competitive disadvantage and regain market share”. This is a broader scope than the legislation, which is limited to certain defined issues. The Notice to be delivered must include “issues and verification of the competitive disadvantage”, the amendments requested, the area to be covered, the period of time and the work to be affected. The Union is to respond to the issues raised, and a local negotiating process will be initiated. If there is no agreement after the negotiation, the applicant will notify the other party of its desire to submit “the entire issue or any portion for Final Offer Selection”. After the Selector is appointed, the parties make their submissions:
34.04.3: Final Offer Submissions:
a) Both parties will submit their final written offers to the Final Offer Selector and the other party within 7 days of selection.
b) The Selector may, at his or her discretion, request further clarification from the parties.
34.04.4: Final Offer Selection:
a) The Selector shall select the final offer within 14 days of his/her appointment.
b) The final offer selection shall most address the disadvantage while least altering the Collective Agreement.
c) The Selector will provide reasons for the decision.
[10] The language of this procedure lacks the precision of the statutory scheme. It does not expressly provide for the giving to the Selector of the submissions of the parties as to the competitive disadvantage; it does not expressly direct the Selector to determine if such a competitive disadvantage actually exists. Nevertheless, the hearing before the Selector dealt at length with the parties’ submissions on the existence, or not, of the competitive disadvantage. It could not be otherwise, for that is the central point of the entire proceeding.
The Proceedings to Date:
[11] In the present case, the applicant employer invoked the provisions of article 34 on May 10, 2002 on behalf of its member contractors in the Ottawa area. It sought amendments to the CBA, in particular a steep reduction in wages, to alleviate the competitive disadvantage which it alleged existed. Negotiations took place but were unsuccessful and the applicant invoked the final offer selection process. The respondent Surdykowski was appointed as Selector and the parties filed their briefs with him in early July, 2002. An oral hearing was held on July 15, 2002 and a decision dismissing the application without selecting one of the final offers was released on July 19, 2002.
[12] Written reasons, as required by article 34, were released on August 6, 2002. In essence, the Selector ruled that the applicant employer had “failed to verify a competitive disadvantage within the meaning of article 34”[^2] as a foundation for any relief. He therefore dismissed the applicant’s request for amendments. In addition, the Selector found that, in the event he should not have dismissed the request, he would have selected the Union’s final offer “as doing the most to address the alleged competitive disadvantage while least altering the collective agreement (which is the test under clause 34.04).”[^3]
The Issues:
[13] Before us, counsel for the applicant submitted that the Selector had committed two errors:
(a) A “jurisdictional error” in failing to select one of the two final offers;
(b) An error in reaching the patently unreasonable conclusion that painters in the Ottawa area did not suffer from a competitive disadvantage within the meaning of article 34.
Submissions of the Applicant on the First Issue:
[14] It was submitted that the first error was jurisdictional in nature because the Selector had no jurisdiction to fashion any remedy other than the one the parties had chosen to commit to him: to choose one of their offers. He could not dismiss the application; he had to choose. If he thought that there was no competitive disadvantage, he would presumably select the Union’s offer. It was open to the Union to propose no change at all as its final offer if it believed there was no competitive disadvantage. The whole point of Final Offer Selection rather than conventional interest arbitration was to force the parties to adopt more realistic and conciliatory positions so as to resolve the dispute:
An unreasonable or unrealistic position is likely to be rejected in total by the arbitrator (depending, obviously, on who is the ‘more’ unreasonable), and thus there is heightened pressure on the parties to assess and adjust their positions in the light of what a neutral third party is most likely to find acceptable.[^4]
[15] There was no express power to simply dismiss the employer’s request and none could be implied because no such power was necessary for the effective operation of the system.[^5] On the contrary, it was necessary that the Selector choose one of the offers for the system to operate properly. Further reference was made to passages from two learned articles on the subject, which were said to support the applicant’s submission that final offer selection offered no scope for any finding by the Selector that the competitive disadvantage did not exist at all.[^6]
[16] The applicant submitted that the Selector failed to explain where he got the jurisdiction to dismiss and further submitted that the Selector had wrongly stated that the parties had agreed that the applicant had to establish that there was a competitive disadvantage to be removed before the Selector could consider their final offers. The applicant denied that there had been any such concession or agreement, and filed an affidavit to that effect. The respondent filed an affidavit in support of the Selector’s statement, setting out that counsel for the applicant had conceded in reply submissions that there had to be verification by the employer of the competitive disadvantage in order to get to the stage of final offer selection.
[17] The applicant submitted that it must be very clear that there was such an agreement because it would give the Selector a jurisdiction which he did not have under article 34. The Selector was not directed to interpret the CBA or article 34, but only to select one offer.
Submissions of the Respondent Unions on the First Issue:
[18] Counsel for the Union respondents submitted that whether there was an agreement at the hearing that the employer had the onus of verifying the existence of the alleged competitive disadvantage was not the point; the burden existed anyway. It was implicit in the language of article 34 that the competitive disadvantage must be verified or there would be nothing to ameliorate. It would be an absurd construction of article 34 to hold that the Selector had to make an order amending the CBA when there was no competitive disadvantage. The purpose of the article was to ameliorate the impact of a competitive disadvantage but the applicant’s interpretation would lead to the possibility of amendments outside of the purpose of the article.
[19] The proceeding before the Selector is a form of arbitration and is governed by the Labour Relations Act: it is a labour arbitration in substance despite the final offer selection feature. Article 34 must be read in the context of the Labour Relations Act, which mandates province-wide agreements for the construction trades, subject to local variations for limited purposes, including the amelioration of competitive disadvantage. Sections 163.2 and 163.3 are a carefully drawn exception to the province-wide agreement policy and, while they do not over-ride article 34, it must be read in the context of the limited purpose for which such amendments are intended: the recovery of market share by ameliorating competitive disadvantage. Seen in this context, it makes sense that the parties to the CBA would have expected that there be a showing of some competitive disadvantage by the applicant before the Selector could reasonably be expected to order any amendment whatever.
[20] The Unions submit that consideration of article 34 supports this view. It contemplates that the employer’s notification to the Union will include “issues and verifications of the competitive disadvantage” (34.02A(2)); that the Union will respond to these issues (34.02B); that failing successful negotiations, the applicant will notify the Union that it wishes to submit “the entire issue or any outstanding portion” to Final Offer Selection (34.04.1); and that the final offer selection shall “most address the disadvantage” (34.04.4(b)). The Unions submit that this language presupposes that a competitive disadvantage exists and that verification of that fact is the responsibility of the applicant employer. In addition, the parties recognized the importance of establishing the competitive disadvantage in their extensive submissions to the Selector on the issue. As a matter of logic, before being able to select the amendment that most addresses the disadvantage, the Selector must find a disadvantage to be addressed. The mere claim of competitive disadvantage cannot be enough in the face of the requirement that the applicant include verification of its claim in its materials.
Standard of Review on the First Issue:
[21] The applicant characterizes the error it alleges as “jurisdictional” and therefore as attracting a standard of correctness. The arbitrator failed to do as he was required to do and thus fell into jurisdictional error. He simply had no jurisdiction to consider whether there was competitive disadvantage; he had to choose one of the offers. He had no power to ignore the CBA.[^7] The respondent submits that the pragmatic and functional approach is applicable to all questions before this court in this case. The Selector is a labour arbitrator and the cases show that judicial deference is very much called for in that situation, including the interpretation of the CBA. Judicial deference, which is fundamental in administrative law, is of particularly central importance in labour law.[^8]
[22] Our attention was directed to PSAC[^9], where the Supreme Court divided over the standard of review of a decision by the Public Service Staff Relations Board that it had jurisdiction to entertain a matter referred to it by the respondent Union under section 99 of the Public Service Staff Relations Act. The minority of three would have held that the Board’s decision that it had jurisdiction was a matter to be addressed on the patently unreasonable standard. Writing for the minority, L’Heureux-Dube J. said[^10] that the section was ambiguous and did not answer the question. Therefore the other elements in the pragmatic and functional test must be considered. Cory J., writing for the majority, reviewed the cases since the seminal decision of the Supreme Court in C.U.P.E. [^11] and adopted the views of Beetz J. in Bibeault [^12] that if a question of law is within a tribunal’s jurisdiction, it will only lose that jurisdiction if it acts in a patently unreasonable manner; if competent to answer a question, it can do so erroneously. However, if the question concerns a legislative provision limiting its powers, a mere error will subject the tribunal to judicial review. Cory J. summarized: (page 686)
To summarize, therefore: on the question of its jurisdiction to entertain the complaint put before it, if the Board made a simple error it has exceeded its jurisdiction.
[23] Thus, where the arbitrator is engaged in construing whether a statute confers a particular jurisdiction, there is strong authority that the arbitrator must be correct. However, where the arbitrator is acting within his or her jurisdiction, the decision should be reviewed on the standard of patent unreasonableness.
[24] The jurisdiction of the Selector in the present case does not derive from a statutory provision but from the CBA. It is apparently adapted from sections 163.2 and 163.3, supra, but it is not a statute. One element in the background of the case is the provision in section 163.39 setting the standard of review as “patently unreasonable”. There is some force to the argument of the respondent that this is a legislative pointer for the court in considering this application. More fundamentally, the Selector was clearly empowered to hear and decide the dispute between the parties. The question raised by the applicant is one of the interpretation of the CBA as to the remedies available, not of the Act. Interpretation of the CBA is within the core expertise of an experienced labour arbitrator such as the Selector[^13] and his decision should be accorded deference.
[25] There are numerous decisions of the Supreme Court indicating that judicial deference should be accorded to the decisions of arbitrators interpreting CBAs. Examples include Bradco[^14] and Volvo[^15]. In Volvo, at page 214, Pigeon J. said:
… the arbitration is not meant to be an additional step before the matter goes before the courts, the decision is meant to be final. It is therefore imperative that decisions on the construction of a collective agreement not be approached by asking how the court would decide the point, but by asking whether it is a “patently unreasonable” interpretation of the agreement.
[26] In Bradco, the arbitrator interpreted a clause in the CBA prohibiting the Employer from performing any work of the type covered by the CBA under the name of another entity, as extending to work performed by an affiliated company with common ownership and management. Bradco argued that the clause applied only to work on which it had obtained the contract and prohibited it from contracting such work out. The Union contended that the clause prohibited Bradco’s affiliate N. D. Dobbin Ltd. from entering into contracts to perform work of the type covered by the CBA, a practice known as “double-breasting”. The arbitrator agreed with the Union, as did the reviewing court. The Newfoundland Court of Appeal reversed. In the Supreme Court, the interpretation of the arbitrator was restored. Sopinka J. noted that the arbitrator had, with the aid of extrinsic evidence, resolved the ambiguous clause in favour of the Union position that it extended to prevent double-breasting, and continued:
Given that the words of Article 3.01 were capable of rationally supporting an interpretation reflective of this intention, it was not patently unreasonable for the arbitrator to conclude that it accomplished its purpose and that the relationships which it described included the relationship between Bradco and Dobbin.
[27] Since Bradco, in a series of cases of which Pushpanathan [^16] and Dr.Q[^17] are prominent examples, the Supreme Court has developed the pragmatic and functional approach to determining the standard of review of administrative decisions, and the degree of deference to be accorded to the various tribunals which the courts are called upon to supervise. In this approach, the standard of review is determined by considering four contextual 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.
[28] Applying this approach to the present case, section 48 of the Act provides that every CBA shall include a provision for ‘final and binding’ arbitration of disputes. Although not the strongest form of privative clause, this indicates that some degree of deference is due. The interpretation of CBAs is in the core expertise of the arbitrator and not of the court, and the second factor supports deference to the arbitrator’s decision. The Act is designed to require settlement of labour disputes without stoppage of work, and to that end labour relations boards and arbitrators balance the competing interests of labour and management and interpret the language of CBAs against the background of those interests. The interpretation of language is part of the court’s core expertise, which would call for less deference, but the element of labour relations is not and calls for greater deference.
[29] The heart of this issue is one of the interpretation of the CBA, a matter within the core expertise of the Selector. The purpose of the procedure established by article 34 is to examine the extent, if any, of the competitive disadvantage suffered by the employers and thereby swiftly determine the issue. Whether the Selector can decline to choose one of the offers because there is no competitive disadvantage established is a matter of interpreting the language of the CBA in its context. The Selector has undertaken this task of interpretation and has given reasons. The court’s task, therefore, is to consider article 34 and the Selector’s reasons. Was the Selector patently unreasonable in deciding that article 34 permitted him to find that there was no competitive disadvantage and therefore he did not have to select either party’s offer?
Analysis of the First Issue:
[30] In my view, the Union’s analysis of article 34 is persuasive. While I do not agree that the reference to ‘verification’ implies a higher standard of proof than normal, the language strongly supports the need for the existence of a competitive disadvantage as a foundation for the imposition of any amendment of the CBA on the respondent Unions. It must not be forgotten that the purpose of the applicant is to force down the freely bargained wage rates and working conditions embodied in the CBA. So radical a solution to the employer’s alleged competitive disadvantage problem is only logically justifiable in the presence of some proof of the reality of the problem. The language of article 34, with its requirement for verification, and for a solution that addresses “the disadvantage”, works only if there is a competitive disadvantage to be addressed. Otherwise, the applicant by a mere allegation, could provide the Selector with the power to enact a radical change in the CBA without proof of any problem. This is an absurd result which is not compelled by the language, nor made less absurd by the submission that the Union can propose ‘no amendment’ if it believes there is no problem. The Union should not be subject to being placed in jeopardy of amendments in the absence of verification by evidence of the existence of the competitive disadvantage which is the only basis for deviation from the statutorily mandated common CBA.
[31] The learned articles relied on by the applicant for the proposition that final offer selection invariably presupposes no finding of fact by the Selector, are somewhat broader than the passages cited to us. The Weeres article, in particular, demonstrates that there are a number of different models of final offer selection available. Some are indeed as described: there is no alternative to the selection of one of two final offers as a package. There are other models involving issue-by-issue selection whereby the arbitrator has more flexibility in developing the overall solution[^18], and still other models where there is conventional arbitration on some issues and final offer selection on others. Section 163.3 of the Act is itself an example of a final offer selection process in which a rejection of the alleged competitive disadvantage is not only possible, but required. It is clear that, in practice, final offer selection has several variants. Whatever the philosophy behind it may be, there is no magic in the use of the phrase. There must still be an analysis of article 34 to determine the issue before the court: did the parties to this agreement contemplate that the existence of the competitive disadvantage would be assumed because the employer asserted it, or was a finding of competitive disadvantage by the arbitrator a precondition to the requirement to choose one of the offers?
[32] Where the legislature has provided a mechanism for resolving the very problem addressed by article 34, at the very least the Selector was entitled to consider whether the language of article 34 showed clearly an intention not to require the finding that is fundamental to the legislated solution. It is clear from their briefs to the Selector that both parties recognized the existence and scale of the alleged competitive disadvantage as the central point in the case. This was bound to be so since the choice of remedial amendment would necessarily depend upon the Selector’s views as to the real scale of the alleged competitive disadvantage. Did these parties really contemplate that the factual issues would all be fought out before the Selector, but he would be unable to determine that there was no basis for any amendment at all? In my view, the language does not reveal such an intention. Rather, as noted, the language reveals an intention that no offer can be selected that does not address “the disadvantage”. If the parties had meant merely the “disadvantage alleged” they could have said so clearly. Instead they referred to “verification” and to “the disadvantage”. This language supports the approach of the Selector and the position of the Union respondents. There must be a proven competitive disadvantage in order for the Selector to act.
[33] I conclude that the Selector was not patently unreasonable to read article 34 as he did, as requiring that the employer establish, ‘verify’, that there was a competitive disadvantage before the Selector was required, or indeed entitled, to select one of the offers.
The Second Issue: Was the Selector in error in reaching a patently unreasonable conclusion: that painters in the Ottawa area did not suffer from a competitive disadvantage within the meaning of article 34.
[34] The applicant submitted in its factum that there were 9 instances of patently unreasonable findings by the arbitrator. Of these, two were pursued before us. They relate to findings 3 and 4 of the arbitrator in his reasons at page 31 of the Record:
To the extent that Quebec contractors compete with OPCA unionized contractors they do so as unionized contractors, under the same provincial agreement. The Ottawa area labour relations scene may be unique, but it does not contribute to any competitive disadvantage for unionized painting contractors in any relevant way.
Some two thirds of the OPCA unionized contractors neither require nor desire that the provincial agreement be altered (and by implication do not support this application).
Quebec Contractors:
[35] As to finding #3, the applicant submitted that there was no evidence to support this finding. The union responded that ample evidence could be found at paragraph 58 of its submissions and at paragraph 6 of its rebuttal submissions. The applicant responded that the assertions in those Union paragraphs were not ‘evidence’ but mere assertions.
[36] One difficulty with the applicant’s submission is that the Union submissions in paragraphs 58 and 6 do not differ in their nature from many of the applicant’s own submissions. The written hearing was conducted on the basis of submissions written by counsel and supported, in varying degrees, by quotations from the Armstrong Report, statistics compiled by the parties or obtained from other sources, and reports on the industry obtained from sources such as the WISB (in one case marked “Preliminary and for Discussion Only”)[^19]. The usefulness, admissibility and weight of this material were matters for the arbitrator and any objections to it being treated as evidence ought to have been made to him.
[37] Looking at the substance of paragraphs 58 and 6, the former addresses the increasing prominence in the Ottawa market in recent years of Quebec-based contractors who are unionized in Quebec and generally also become signatories to the Ontario provincial agreement. They thus have successfully entered the Ontario market while paying the Union rates. Table 5 in the Union submission illustrated that such Quebec contractors employed 42 of the 72 working members of Local 200. The Union submitted that, if the systemic competitive disadvantage alleged by the applicant actually existed, the Ottawa market would not be attracting new unionized employers.
[38] In the context of discussing paragraph 40 of the Union Submission, the applicant subjected Table 5 presented by the Union to an unfavourable analysis, asserting that some of the Union members listed were actually employed in Quebec. The applicant does not appear to have addressed paragraph 58 directly. In its rebuttal paragraph 6, the Union addresses the applicant’s response and asserts that when the Quebec-based contractors employ members of Local 200 in Ontario, they pay the Ontario CBA rate; when the employment is in Quebec, it is the Quebec CBA rate. The Union re-iterated that the entry of Quebec contractors paying union rates is strong evidence against a competitive disadvantage.
[39] In my view, these passages constitute evidence upon which the arbitrator was entitled to rely, and did rely, as support for the impugned finding #3.
[40] At page 30 of his reasons, the arbitrator stated that the applicant Employer did not dispute paragraph 58’s assertion that Quebec-based contractors obtain a significant amount of commercial and institutional painting work in the Ottawa area at the provincial agreement rates. The applicant submitted that this was an error: the Employer did dispute the point. Counsel for the applicant relied on a statement at page 328 of the Application Record where the Employer stated in its Response, that its failure to address any point made in the Union’s Submission meant that the point was of no significance, but was not to be considered as acceptance. This is a point without merit. The heart of this case was the allegation that unionized painters in the Ottawa area were at a competitive disadvantage so serious that relief was warranted. The Union evidence that some Quebec painters were entering the Ottawa market paying union rates was significant evidence and if there was a rebuttal it was obviously of importance to put it forward. A simple statement that it is not admitted falls far short. The arbitrator was not wrong in making the statement complained of.
Level of Support for the Application:
[41] In finding #4, the arbitrator referred to the low level of support for the Application in that some two-thirds of potentially affected contractors did not support it. The applicant submitted that there was no evidence to support this finding and that it was, in any event, irrelevant.
[42] The evidence to which the arbitrator referred in support of this finding included that 8 of the 13 unionized contractors preferred not to use the enabling clause (article 33) and professed not to require enabling in order to secure work. Four statements to this effect from contractors were filed by the Union. It is said that there was other evidence on the point as well. Be that as it may, there is clearly some evidence that there are contractors in Ottawa who do not feel that there is a competitive disadvantage such as to require the use of the less drastic enabling process. It is logical to infer, as the arbitrator did, that such contractors also would not feel that there is a competitive disadvantage justifying the more drastic amending process. I cannot say that there is no evidence to support the view that there is less than unanimity in Ottawa about this alleged competitive disadvantage. As to the relevance of this evidence, it was open to the arbitrator to take into account, in determining whether there was a real competitive disadvantage, that a number of contractors did not make use of the available techniques for remediation of any such situation.
Alternative Ruling:
[43] In the alternative to dismissing the applicant’s application, the arbitrator indicated that, if he could not dismiss, he would have selected the respondent’s Final Offer. Had we not agreed with the arbitrator that he did have the power to dismiss, we would not have sent the matter back for re-hearing, but would have given effect to the arbitrator’s alternative position.
Disposition:
[44] For these reasons, the application for judicial review is dismissed. Submissions as to costs may be made in writing directed to the panel through the Registrar of the Divisional Court, those of the respondent within 30 days, those of the applicant within a further 20 days and reply, if any, within a further 5 days
LANE J.
SOMERS J.
GREER J.
DATE:
[^1]: S.O. 2000, c. 24, s.7. [^2]: Award; Application Record, page 32. [^3]: Ibid., page 33. [^4]: Morton G. Mitchnick: Final Offer Selection: Making it Work”: Labour Arbitration Yearbook, 1996-97, 393; Toronto: Lancaster House. [^5]: Hamilton (City) v. C.U.P.E., Local 167 (1997), 33 O. R. (3rd) 5 (C.A.) at pages 11, 12: “…it cannot be said that it was necessary to imply a term in the agreement ...” [^6]: Mitchnick, supra; and Weeres: Final Offer Selection and Arbitration: An analysis and Recommendation: (1995) 8 Canadian Journal of Administrative Law and Practice 217. [^7]: O.P.S.E.U. v. Seneca College (1989), 68 O.R. (2nd) 593, 596 (Div. Ct.); Port Arthur Shipbuilding v. Arthurs (1968), 70 D.L.R. (2nd) 693 (S.C.C.). [^8]: Ivanhoe Inc. v. UFCW Local 500 (2001), 2001 SCC 47, 201 D.L.R. (4th) 577 (SCC) paragraph 32. [^9]: Canada (Attorney General) v. PSAC (1993), 101 D.L.R. (4th) 673 (S.C.C.) [^10]: Ibid. pages 676, 677. [^11]: C.U.P.E. Local 963 v. New Brunswick Liquor Corp,., [1979] 2 S.C.R. 227 [^12]: U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1086. [^13]: A former vice-chair of the O.L.R.B. [^14]: United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Limited (1993), 102 D.L.R. (4th) 402 (S.C.C.). [^15]: Volvo Canada Ltd. v. U.A.W. Local 720, [1980] 1 S.C.R. 178 [^16]: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. [^17]: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No.18; April 23, 2003. [^18]: See for example Weeres op. cit page 225, and pages 227 ff. [^19]: Application Record, page 179.