Hemphill v. National Gallery of Canada

[Indexed as: Hemphill v. National Gallery of Canada]

74 O.R. (3d) 740

[2005] O.J. No. 1072 (French version)

File No. 03-DV-00863

Superior Court of Justice

Divisional Court

Forget, Roy and Charbonneau JJ.

March 23, 2005

• Reasons released in French. English translation by the Centre for Legal Translation and Documentation at the University of Ottawa. Vous trouverez les motifs en franais la p. 749, post [74 O.R. (3d) 749].

Labour and employment -- Labour relations -- Grievance arbitration -- Employer objecting at outset of hearing that grievance had not been filed within time limit set out in collective agreement -- Grievor arguing that employer had waived its right to raise that objection and alternatively asking arbitrator to exercise his discretion to extend time limit -- Arbitrator upholding objection and dismissing grievance but not referring to grievor's request for extension of time limit -- Omission not being fatal to award -- Issue of extension not relating directly to main issue raised before arbitrator -- Grievor not having established that extension was justified -- Grievor not adducing convincing evidence that employer had waived time limit -- Canada Labour Code, R.S.C. 1985, c. L-2, s. 60(1)1.1. [page741]

At the start of an arbitration hearing, the employer argued that the grievance had not been filed within the time limit set out in the collective agreement. The grievor argued that the employer was barred from raising the issue of the time limit at the last minute and that, under the circumstances, the employer should be considered to have waived its right to raise the objection. Alternatively, the grievor asked the arbitrator to extend the time limit in order to allow the filing of a grievance, using the discretion conferred upon him under s. 60(1)1.1 of the Canada Labour Code. The arbitrator allowed the objection and dismissed the grievance, holding that he had no jurisdiction to deal with it as it was out of time. The grievor brought an application to quash that award.

Held, the application should be dismissed.

Per Charbonneau J. (Forget J. concurring): Nothing in the case law supported the contention that a party may waive a right by remaining silent. Waiver may be established through words, a written statement or clear conduct evincing a clear intention from the party to waive the right. The grievor failed to adduce any convincing evidence that the employer had waived the time limit or that the grievor was prejudiced by the employer's lack of action. The arbitrator was justified in allowing the objection at the start of the hearing. While the arbitral award made no mention of the grievor's request to extend the time limit under s. 60(1)1.1 of the Code, none of the circumstances requiring an arbitrator to deal specifically with a major point raised by one of the parties in his reasons for decision existed here. The request made by the grievor under s. 60(2)1.2 did not relate directly to the main issue raised in the employer's preliminary objection. The issue of whether or not the arbitrator was obligate d under s. 60(2)1.2 to extend the deadline raised a totally different issue, namely, under what circumstances is an arbitrator justified in granting an extension and ignoring the time limit. The onus is on an applicant to demonstrate that the extension is justified and that it does not unduly restrict the rights of the other party. Nothing in the record of evidence submitted to the arbitrator could have convinced him to exercise his discretionary power. While it would have been preferable for the arbitrator to have expressly stated that the request made under s. 60(1)1.1 was dismissed, it was clear that the arbitrator dismissed the request for extension for lack of proper justification. The lack of reasons by the arbitrator on what was essentially a subsidiary issue did not provide cause to overturn the arbitral award.

Per Roy J. (dissenting): The arbitrator refused to decide the issue on its merits because he believed that the time limit set out in the collective agreement had been exceeded and that, as a consequence, he no longer had jurisdiction. By refusing to provide reasons for his decision, the arbitrator may have breached the principles of natural justice.

APPLICATION for judicial review of a decision of an arbitrator dismissing a grievance.

Sittig v. Canada, [1995] F.C.J. No. 693 (T.D.), distd Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22; Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289, 55 N.R. 194, 84 C.L.L.C. 14,070; Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 69 B.C.L.R. 255, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35 (sub nom. Cardinal and Oswald and R. (Re)); Dayco (Canada) Ltd. v. National Automobile, Aerospace & Agricultural Implement Workers Union of Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230, [1993] S.C.J. No. 53, 13 O.R. (3d) 164n, 102 D.L.R. (4th) 609, 152 N.R. 1, 93 C.L.L.C. 14,032; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, 89 C.C.C. (3d) 193, 29 C.R. (4th) 113 (sub nom. R. v. B. (R.H.)); [page742] R. v. Nelson and District Credit Union and I.W.A. - Canada, Loc. 1-405 (1998), 71 L.A.C. (4 th) 333 Statutes referred to Canada Labour Code, R.S.C. 1985, c. L-2, s. 60(1) Authorities referred to Brown, D., and D.M. Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora, Ont.: Canada Law Book, 1988)

Sean T. McGee and Annie Berthiaume, for applicant. Nancy Boyle, Geneviève Desmarais and Norman W. Carroll, for respondent.

CHARBONNEAU J. (FORGET J. concurring): --

The Nature of the Application

[1] The applicant is asking the court to overturn the arbitral award made on September 24, 2002, by arbitrator Alain Corriveau and to have the case referred back for a de novo arbitration process. In support of this application, the applicant claims that the arbitrator failed to specifically address in his reasons for decision two of the contentions raised at the hearing, i.e.:

1. The employer had waived the time limit set out in the collective agreement (clause 39.04) for filing a grievance;

2. If the employer did not waive the time limit, the arbitrator should extend the time limit by exercising the discretion conferred upon him under s. 60(1)1.1 of the Canada Labour Code, R.S.C. 1985, c. L-2 ("the Code").

[2] The applicant acknowledges that, given the privative provision of the Code and the high level of expertise of the arbitrator, this court should exercise great restraint. The applicant acknowledges that this court should not interfere with the arbitrator's decision unless it is considered to be patently unreasonable. However, the applicant claims that in dealing with the respondent's preliminary objection to the effect that the filing of the grievance was time barred under clause 39.04, the arbitrator should have decided three issues. The respondent claims that the arbitrator made no mention of two of the issues in his reasons. As a result, according to the applicant, the arbitrator simply failed to put the matter to rest and such an omission requires that a de novo arbitration process be ordered. [page743]

Arbitration Proceedings

[3] At the start of the hearing, the employer argued that the grievance had not been filed within the time limit set out in clause 30.04 of the collective agreement. As a result, the arbitrator lacked jurisdiction to hear the case. In reply, the applicant argued that the respondent was barred from raising the issue of the time limit at the last minute and that in fact, under the circumstances, the respondent should be considered to have waived his right to raise such an objection.

[4] The arbitrator stated that he intended to rule on this preliminary objection before hearing the case on its merits. He offered to adjourn the hearing in order to allow the applicant time to prepare his response to the objection. The applicant refused to have the hearing adjourned and chose to argue his case without adducing evidence. Instead, his arguments were limited to oral representations.

[5] The arbitrator, after hearing representations from both parties, took the case under advisement. On September 24, 2002, he issued an arbitral award allowing the objection raised by the respondent. In his conclusion, he stated: "The grievance is dismissed, the Panel having no jurisdiction to deal with it since it is time barred."

[6] During the hearing of the preliminary objection, the applicant made three alternative submissions:

1. The respondent should not be allowed to raise the time limit issue at this stage of the proceedings and should be considered to have waived that right.

2. The grievance had not been filed beyond the time limit and, accordingly, was not time barred under clause 30.04.

3. If the respondent were allowed to argue successfully that the time limit operated in his favour and, as a result, the grievance was found to have been filed beyond it, the applicant requested that the arbitrator extend the time limit in order to allow the filing of the grievance, using the discretion conferred upon him under s. 60(1)1.1 of the Code.

[7] The arbitrator ruled that the grievance had in effect been filed beyond the time limit. He provided very detailed reasons on this aspect of the case. He found that the grievance should have been filed in December 2000. It is obvious that he considered the initial issue of the alleged waiver by the employer of the time limit when he stated: "And yet, it is only on April 10, 2001, that [page744] the grievance was forwarded to Human Resources Management and nothing in the evidence shows that the parties had agreed to extend the time limit set out in clause 39.04 of the collective agreement for the filing of a grievance" (pp. 8 and 9).

[8] Nothing in the case law supports the contention that a party may waive a right by remaining silent. The evidence in support of the argument that there was a waiver should include words, a written statement or clear conduct evincing a clear intention from that party to waive the right:

The concept of "waiver" connotes a party not insisting on some right, or giving up some advantage. However, to be operative, waiver will generally require both knowledge of and an intention to forego the exercise of such a right.

(Brown and Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora, Ont.: Canada Law Book, 1988) at p. 108)

[9] The applicant has failed to adduce any convincing evidence showing that the respondent had waived the time limit or that the applicant was prejudiced by the respondent's lack of action. As a result, the arbitrator was quite justified in allowing the objection at the start of the hearing. In addition, the applicant was given the opportunity to have the hearing adjourned but turned it down. No principle of fairness was breached. Nor was there any breach of due process. The arbitrator accordingly rejected the applicant's argument regarding waiver of the time limit by the respondent.

[10] However, the arbitral award makes no mention of the applicant's request to extend the time limit under s. 60(1)1.1 of the Code.

[11] There are circumstances requiring an arbitrator to deal specifically with a major point raised by one of the parties in his reasons for decision. For instance, in the case of Sittig v. Canada, [1995] F.C.J. No. 693 (T.D.), the arbitrator omitted to deal with the ambiguity between two sections of the collective agreement. This issue went to the very root of the dispute. Accordingly, Justice Teitelbaum referred the matter back for a de novo hearing.

[12] Such is not the case here. The substance of the issue raised in the preliminary objection was to determine whether or not the grievance had indeed been filed too late, therefore justifying the grievance being dismissed on the basis of time lapse. On this particular aspect of the issue, the reasons provided by the arbitrator are complete.

[13] The request made by the applicant under s. 60(2)1.2 did not relate directly to the main issue raised in the preliminary objection made by the employer. [page745]

[14] The issue of whether or not the arbitrator was obligated under s. 60(2)1.2 to extend the deadline raised a totally different issue, namely, under what circumstances is an arbitrator justified in granting an extension and ignoring the time limit. This issue was simultaneously dependent upon the wording of s. 60(1)1.1 itself, the case law construing that provision as well as all the specific circumstances pertaining to the request for extension.

[15] First, s. 60(1)1.1 confers upon the arbitrator a power that is totally discretionary. The arbitrator may or may not extend the deadline. Second, the prerequisites for the exercise of this discretionary power are: "if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension". The case law has clearly established that the onus is on the union to demonstrate that the extension is justified and that it "does not unduly restrict the rights of the other party". See, for example, the arbitral award by B.M. Greyell in the case of R. v. Nelson and District Credit Union and I.W.A. - Canada, Loc. 1-405 (1998), 1998 30065 (BC LA), 71 L.A.C. (4th) 333, at pp. 339 and 340:

Section 89(e) [Labour Relations Code, R.S.B.C., 1996, c. 244] has been subject to comment by a number of arbitrators. In Fraser Lake Sawmills and I.W.A. - Canada, Loc. 1-424 (1980, unreported), I reviewed a number of those decisions at pp. 6-8:

As the parties have both acknowledged (the employer in its alternative submission) my jurisdiction under s. 98(e) [as the section then was] must be exercised judicially and sparingly ...

... In his award the arbitrator made reference to his earlier decision in Pacific Forest Products Ltd. (1983), 1983 4897 (BC LA), 14 L.A.C. (3d) 151 (November 14, 1983) in which he stated:

Section 98(e) of the Labour Code provides that an arbitration board may "... relieve, on just and equitable terms, against breaches of time limits ... set out in collective agreements". As with other discretionary powers, this one must be exercised judicially: a decision to relieve against apparently mandatory time limits must be a reasoned decision, one which proceeds from the premise that relief against any provision of a collective agreement is an extraordinary event. Moreover, and implicit in what I have already said, the party who seeks such relief should bear the burden of showing why it is proper in the circumstances.

[16] The approach used above in dealing with the discretion conferred by s. 60(1)1.1 is perfectly reasonable. The onus is on the applicant to convince the arbitrator that the extension was justified. This he could only do by adducing convincing evidence in support of his contention. [page746]

[17] Third, the evidence filed by the party requesting an arbitrator to extend the time limit should allow the arbitrator to weigh the following factors:

-- The nature of the grievance.

-- At what stage of the procedure did the delay occur?

-- Was the employee responsible for the delay?

-- The reason(s) for the delay.

-- The extent of the delay.

-- Could the employer reasonably come to the conclusion that the grievance had been abandoned?

[18] Nothing in the record of evidence submitted to the arbitrator could have convinced him to exercise his discretionary power. On the contrary, there is every reason to believe that evidence was lacking with respect to a number of relevant factors. In addition, the employee position had in the meantime been staffed and this fact would constitute an additional detriment weighing against the extension of the time limit. It is quite clear that the real issue for the arbitrator was whether or not the grievance had been filed on time. The request for extension was only made at the very last stage of the procedure and quite summarily, without any evidence being adduced in support of the request.

[19] There is no doubt that it would have been preferable for the arbitrator to clearly state in his reasons that the request made under s. 60(1)1.1 was dismissed. In light, however, of the applicable law, and of the record of evidence which totally lacks substance on this point, this court must find that the arbitrator dismissed the request for extension for lack of proper justification. There simply weren't any special circumstances justifying the exercise of this discretionary power which is to be "exercised judicially and sparingly". Should this court attach any special consequence to the arbitrator's lack of reasons on this specific point? Under the circumstances of the case, I find that the lack of reasons by the arbitrator on what is essentially a subsidiary issue does not provide cause for this court to overturn the arbitral award.

[20] It seems to me quite appropriate to quote the pronouncements by Justice McLachlin in the case of R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, at p. 664 S.C.R., because of their [page747] relevance to this particular case. If such pronouncements are binding upon a trial judge hearing a criminal case, they apply just as well, if not more so, to an arbitrator issuing an arbitral award in a labour dispute:

Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.

[21] Accordingly, I am of the opinion that this court should not interfere. The application is hereby dismissed.

ROY J. (dissenting):--

[1] I accept the statement of facts as detailed in paras. 1, 3, 4, 5 and 6 of the endorsement by my colleague, Justice Charbonneau. I regret that I cannot concur with his decision.

[2] I accept that, given the privative provision of the Canada Labour Code and the high level of expertise of the arbitrator, this court must show great restraint. In other words, the court acknowledges that it should not interfere with the arbitrator's decision unless the decision is considered to be patently unreasonable. In the case at bar, the arbitrator simply refused to decide the issue on its merits because he believed that the time limit set out in the collective agreement had been exceeded and that, as a consequence, he no longer had jurisdiction. Furthermore, by refusing to provide reasons for his decision, the arbitrator may have breached the principles of natural justice. In such circumstances, then, the standard for review applicable to the arbitrator's decision is that of a just decision (Dayco (Canada) Ltd. v. National Automobile, Aerospace & Agricultural Implement Workers Union of Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230, [1993] S.C.J. No. 53, 102 D.L.R. (4th) 609; Cardinal v. Di rector of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, at p. 661 S.C.R.).

[3] In his decision, the arbitrator Corriveau did not deal at all with the issue raised by the Institute, that is, whether or not there had been a waiver of the time limit on the basis that the employer never mentioned it and, secondly, the arbitrator made no reference to the request by the Institute for an extension of the time limit under the discretion conferred upon him under s. 60(1)1.1 of the Canada Labour Code, R.S.C. 1985, c. L-2. These two questions were fundamental and essential for the applicant because, if the arbitrator had ruled against him, that would have been the end of his grievance procedure. In this case, the applicant did not receive the benefit of the guarantees of due process established [page748] by the principles of natural justice, such as the right to be heard, the right to an impartial hearing and the right to be apprised of the relevant reasons for the arbitrator's decision.

[4] In the case of Cardinal v. Director of Kent Institution, supra, I quote Justice Le Dain [at p. 661 S.C.R.]:

... the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. ...

[5] In the case of Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289, Justice Lamer stated the following at [p. 500 S.C.R.]:

Where there is a privative clause such errors are beyond judicial review except in accordance with the rules discussed above. Additionally, it is hard to see how such a deficiency in the reasons could affect the arbitrator's jurisdiction to hear the case and to render the decision he thinks proper, except to the extent that the insufficiency of the reasons is so great that it amounts to an infringement of the rules of natural justice.

[6] On several occasions, the Supreme Court of Canada has stressed the importance of providing the relevant reasons for a decision in order to comply with the principles of natural justice and due process.

[7] In the case of Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, the Honourable Justice L'Heureux-Dubé stated [at pp. 845-46 S.C.R.], and I quote:

Reasons, it has been argued, foster better decision-making by insuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if the decision is to be appealed, questioned, or considered on judicial review. ... Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. ...

[8] In this case, the arbitrator terminated the grievance procedure by ruling that he lacked jurisdiction. In my opinion, it was essential for the arbitrator to provide reasons for his decision because it deals with the same two issues raised by the applicant, that is the issue of the waiver by the respondent and, more importantly, the reason behind the arbitrator's refusal to extend the time limit and to exercise his discretion under the Canada Labour Code. The lack of reasons in his decision amounts to a breach of the principles of natural justice. [page749]

[9] I can appreciate on a practical level that the grievance filed by the applicant relates to a position that has already been staffed for a number of months. However, one cannot let this practical consideration be used as an excuse to circumvent a fundamental principle.

[10] Under the circumstances, I would allow the applicant's application and refer the case to an arbitration panel set up de novo in order to have a decision issued in accordance with the directives of this court. In addition, I would award costs to the applicant.

Application dismissed.