Supreme Court of Canada
Shell Canada Ltd. v. United Oil Workers of Canada, [1980] 2 S.C.R. 181
Date: 1980-06-27
Shell Canada Limited Appellant;
and
United Oil Workers of Canada, Local 1 and United Oil Workers of Canada, Local 2 Respondents;
and
Claude Lauzon Mis en cause.
1980: May 8; 1980: June 27.
Present: Martland, Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Labour law—Collective agreement—Unlawful strike—Claim by employer for damages—Grievance—Jurisdiction of arbitrator—Labour Code, R.S.Q. 1964, c. 141, ss. 1(g), 88, 95.
The appeal concerns the jurisdiction of an arbitrator to hear and dispose of a claim for damages by an employer, appellant, against unions, the respondents, as the result of an unlawful strike. The collective agreements contained a clause that there would not be any lockout or strike for the duration of the agreement. Appellant informed respondents of its intention to submit its claims for damages to arbitration, in accordance with the procedure provided in the collective agreements and the Labour Code. Respondents refused to appoint an arbitrator, on the ground that the claims for damages were not grievances “under the terms of the Collective Agreement and/or the Labour Code”. In view of respondents’ refusal, appellant wrote the Minister of Labour, who appointed the mis en cause arbitrator. At the outset respondents challenged the jurisdiction of the arbitrator, who dismissed their objection. The Superior Court refused to issue a writ of evocation. The Court of Appeal reversed this judgment and ordered the writ to be issued.
Held: The appeal is allowed.
The only question which arises is as to whether appellant’s claim based on a violation of the aforementioned clauses of the collective agreements constitutes a grievance. In answering this question, there is no basis for distinguishing between the claim of an employer and that of an employee: each case involves a monetary claim resulting from the violation of a provision of the collective agreement, and if one is within the arbitrator’s jurisdiction, so is the other. There is also no basis, following General Motors of Canada Limited v. Brunet,
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[1977] 2 S.C.R. 537, for making a distinction between the “interpretation” or “application” of a collective agreement and a “violation” of the said agreement: they are simply two ways of looking at the same problem, and either may be a basis for a grievance. Accordingly, in a case like the one at bar, in which respondents are sued for damages for the violation of clauses in which they had undertaken there would not be a strike, the matter constitutes a grievance within the jurisdiction of the arbitrator.
Les Travailleurs Unis du Pétrole, Local 3 v. Pétrofina Canada Ltée, [1977] C.A. 348; Le Syndicat National des Employés de Baie Comeau et al. v. La Société Canadienne de métaux Reynolds Ltée, [1976] C.A. 26; Fraternité Internationale des ouvriers en électricité v. Bédard‑Girard Limitée, [1969] Que. Q.B. 991; Maluorni v. La Ville de Mont-Royal, [1969] Que. Q.B. 922; MacEachern v. Margaritis, [1969] Que. Q.B. 481; L’Association des policiers de la Cité de Giffard v. La Cité de Giffard, [1968] Que. Q.B. 863, referred to; General Motors of Canada Ltd. v. Brunet, [1977] 2 S.C.R. 537; Imbleau et al. v. Laskin et al., [1962] S.C.R. 338, followed.
APPEAL from a judgment of the court of Appeal of Quebec[^1], reversing a judgment of the Superior Court[^2]. Appeal allowed.
Graham Nesbitt and Stephen Halperin, for the appellant.
Gino Castiglio, for the respondents.
English version of the judgment of the Court was delivered by
CHOUINARD J.—This appeal concerns the jurisdiction of an arbitrator to hear and dispose of a claim for damages by an employer as the result of an unlawful strike.
This strike occurred at Montreal between January 3 and 18, 1975. In the case of Local 1, appellant is claiming $302,600, and in the case of Local 2, $290,134, making a total of $592,734.
There were collective agreements between appellant and both unions, and both were concluded in 1973 to expire on January 31, 1976.
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Each of the collective agreements contains a clause that there will not be any lockout or strike for the duration of the agreement.
The matter is dealt with in the first agreement by clause 14.01, which reads as follows:
STRIKES AND LOCKOUTS
14.01 It is agreed by the parties hereto, that there will be no strikes, lockouts, or slow‑downs, partial or complete, during the life of this Agreement. No stoppage of work will occur due to any grievance. Work in the Department concerned must continue during settlement.
In the second, it is clause 21.01:
STRIKES AND LOCKOUTS
21.01 During the term of this Agreement, there shall be no strike or lockout.
In its own words, appellant based its claims on the violation of these clauses.
On March 3, 1975 appellant wrote each of the unions a letter setting out its claims and suggesting a meeting to select an arbitrator.
The unions refused primarily on the ground that these were not grievances “under the terms of the Collective Agreement and/or the Labour Code”. The also raised other arguments, but these are not at issue in this Court.
In view of respondents’ refusal, appellant wrote the Minister of Labour, who appointed the mis en cause arbitrator.
At the outset respondents challenged the jurisdiction of the arbitrator, who dismissed their objection and affirmed that he had jurisdiction. The Superior Court refused to issue a writ of evocation. The Court of Appeal reversed the trial judgment and ordered that the writ be issued.
The Court of Appeal in this regard followed the long established precedent that the violation of a provision of a collective agreement does not constitute a grievance, that is, under the definition of para, (g) of s. 1 of the Labour Code, a “disagreement respecting the interpretation or application
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of a collective agreement”, and that accordingly it does not fall within s. 88 of the Code, the first paragraph of which provides:
Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.
See, in particular the following decisions of the Court of Appeal: Les Travailleurs Unis du Pétrole, Local 3 v. Pétrofina Canada Ltée[^3]; Le Syndicat National des Employés de Baie Comeau et al. v. La Société Canadienne de métaux Reynolds Ltée[^4]; Le Syndicat international des travailleurs des industries pétrolière, chimique et atomique, local 9-745 et al. v. B.P. Pétroles Limitée, an unreported decision rendered on October 24, 1975, C.A.M. 09‑000923‑755; Fraternité Internationale des ouvriers en électricité v. Bédard-Girard Limitée[^5]; Maluorni v. La Ville de Mont-Royal[^6]; MacEachern v. Margaritis[^7]; L’Association des policiers de la Cité de Giffard v. La Cité de Giffard[^8].
As counsel for the respondents put it at the outset of this argument, the only question which arises in this case, is whether appellant’s claim based on a violation of the aforementioned clauses of the collective agreements constitutes a grievance. If it does, the jurisdiction of the arbitrator must be affirmed.
Appellant cites the decision of this Court in General Motors of Canada Ltd. v. Brunet[^9]. That case appears to me to be decisive.
In his opinion, concurred in by Dubé J.A., Casey J.A. does not deal with that case. Relying undoubtedly on the decisions of the Court of Appeal, he states:
I am satisfied that the claim is not a “grievance” and that since the decision goes to the Arbitrator’s jurisdic-
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tion it is subject to judicial review, i.e. it is evocable.
Monet J.A., whose opinion Dubé J.A. also concurred in, arrived at his conclusion that the arbitrator lacked jurisdiction by, in my view, adopting an erroneous interpretation of that case. I would first note the following passage:
[TRANSLATION] Where implementation of the remedies is concerned, in Brunet an employee was claiming to have rights enforceable against his employer, essentially as a result of provisions of the collective agreement. In the case under consideration, it is an employer who claims to have suffered damages caused by associations of employees as the result of an unlawful strike.
I do not see any basis for this distinction between the claim of an employer and that of an employee. Each case involves a monetary claim resulting from the violation of a provision of the collective agreement, and if one is within the arbitrator’s jurisdiction, so is the other.
Monet J.A. went on to say:
[TRANSLATION] AS the facts alleged in the motion for evocation are assumed to have been proven, it cannot be argued at this stage that the obligations of appellants, alleged by the mis-en-cause, derive exclusively from the collective agreements.
This passage appears to mean that, in Brunet (supra), this Court found that the arbitrator had jurisdiction because the action was based exclusively on the collective agreement, and that if it had not been then the arbitrator would not have had jurisdiction. That is definitely not what was held: rather, the Court held that the employee had no recourse in the civil courts because the rights which he was relying on derived exclusively from the collective agreement and had no other source.
In the following passage cited by this Court at pp. 541 and 542, Gagnon J.A., dissenting in the Court of Appeal, said the following:
[TRANSLATION] Respondent has taken action against appellant because, after he requested a job which would be suited to his state of health and physical capabilities, appellant refused to place him in a new position “as it is bound to do by the collective agreement governing relations between the parties”. Appellant, maintaining that
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respondent did not use his right to grieve and that the Superior Court had no jurisdiction, denied the allegations of fact which would open the way to application of the collective agreement. Therefore, in my opinion there was a disagreement about the application of the provisions of the collective agreement to respondent’s case.
It is true that only extracts from the collective agreement were printed in the case, and that the provisions on which respondent bases his right to be assigned to a new job and to be reinstated are not found in these extracts, but respondent himself quite clearly bases his remedy on the collective agreement which must then be interpreted and applied.
I do not want to dwell on a sore point unnecessarily, and I would pay no attention if I thought that respondent had made a mistake, but I observe that he brought an action against his union as well. He alleged that a grievance was filed and taken at least as far as the department head, and that he informed the president of the union of his “intentions to take advantage of the rights conferred on him by the collective agreement”, and he brought an action against the union in damages because it refused or neglected to support his grievance. Respondent was right in believing that this was a grievance.
It is therefore beyond the shadow of a doubt the collective agreement alone on which respondent bases his action, and I do not see how he could contend that he was exercising a separate remedy conferred on him by his individual employment contract, nor that he has a direct remedy in an ordinary court of law, because his union, which is his mandatary, did not take his grievance to the subsequent stages of the grievance procedure, including arbitration, provided by the collective agreement.
Pigeon J., speaking for the whole Court, went on to say:
This reasoning appears to me unassailable. To admit of a right to go to the Superior Court instead of having recourse to arbitration whenever a sum of money is claimed under a collective agreement would make totally ineffective the provision of s. 88 of the Labour Code…
Brunet (supra) has more to say: in it the unanimous opinion of the Court is clearly stated that there is no basis for the distinction between the “interpretation” or “application” and a “violation” of the agreement on which the decisions of the
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Court of Appeal mentioned above are based. Pigeon J. wrote at p. 551:
In my opinion, no distinction can be made between a dispute relating to the “application” of an agreement and a dispute relating to its “violation”, because these are simply two way of looking at the same problem.
Elsewhere the Court has affirmed the jurisdiction of an arbitration tribunal to hear a claim for damages resulting from an unlawful strike held in a violation of a collective agreement. See Imbleau et al. v. Laskin et al.[^10], in which the collective agreement contained the following clause:
8.01 The union agrees that during the life of the agreement there will be no strike and the company agrees that there will be no lockout.
The statute in question was the Industrial Relations and Disputes Investigations Act, R.S.C. 1952, c. 152. Section 19(1) was similar to s. 125(1) of the Canada Labour Code, R.S.C. 1970, c. L-1, referred to below, but differed from the provisions of the Quebec Labour Code, and this is why in B.P. Pétroles Limitée (supra) the Court of Appeal did not think it appropriate to refer to it.
Comparing the provisions of the Quebec Labour Code, the Canada Labour Code and the Ontario statute, The Labour Relations Act, R.S.O. 1970, c. 232, Pigeon J. said the following in Brunet (supra) at pp. 550 and 551, a passage from which the extract cited above is taken relating to the distinction between the “application” and “violation” of an agreement:
This brings me to the submission of counsel for the plaintiff on the interpretation of s. 88 of the Labour Code. He noted that the first paragraph of the law of Ontario concerning the compulsory arbitration of grievances under a collective agreement (The Labour Relations Act, R.S.O. 1970, c. 232, s. 37) reads as follows:
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application,
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administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
It may be seen that this text, after mentioning, as in the definition of “grievance” in the Labour Code, the “interpretation” and the “application” of the collective agreement, refers to the “administration or alleged violation”. It is argued that the matter here is an alleged violation, and therefore is not covered by the Quebec statute. In my opinion, this reasoning is fundamentally unsound. The Labour Code is not copied from the Ontario statute or from those of other provinces to the same effect, any more than from the Canada Labour Code (R.S.C. 1970, c. L-1) where one reads:
- (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.
Is it to be argued that under the federal Code a dispute over the application of a collective agreement does not come within the scope of this provision, because violations only are mentioned? In my opinion, no distinction can be made between a dispute relating to the “application” of an agreement and a dispute relating to its “violation”, because these are simply two ways of looking at the same problem. There can be no question of violation of the collective agreement if it has no application. Here, it is clear that what plaintiff claims is the application of the provisions of the collective agreement. If the case were to be dealt with under the federal Code, the reasoning of counsel for the plaintiff would lead him to argue that it is a dispute concerning not the violation of the collective agreement, but its application.
What this means is that the differences in wording of these provisions do not have the importance they appear to have been given and that, in short, the latter have the same general application. Thus, Imbleau(supra) is relevant even in light of s. 88 of the Quebec Labour Code.
In view of Brunet (supra) and Imbleau (supra), and for the reasons stated, therefore, I conclude that in a case like the one at bar, in which respondents are sued for damages for the violation of clauses in which they had undertaken there would not be a strike, the matter constitutes a grievance within the jurisdiction of the arbitrator.
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Did appellant have the option, as its counsel contended, to proceed in the Superior Court because its action was not derived exclusively from the collective agreement But also from s. 95 of the Labour Code? This section reads as follows:
- It is forbidden to strike during the period of a collective agreement, unless the agreement contains a clause permitting the revision thereof by the parties and the conditions prescribed in the preceding section have been observed.
It is not necessary to answer this question for the purposes of this appeal, and I think it would be better not to do so since it is in no way before the Court.
Does this also mean that if the collective agreement did not contain a clause like those contained in the agreements at issue there would not be a grievance, and the unlawful strike would then constitute an infringement of s. 95 of the Code, but not a violation of the collective agreement? This question is also not raised by the facts of this appeal, and for the same reasons as the preceding question I do not feel I should answer it.
Counsel for the respondents argued that the insertion in the agreement of a provision to the same effect as s. 95 of the Code cannot have the effect of transferring to the arbitrator a jurisdiction which would otherwise, in his submission, belong to the civil courts. In his factum he wrote:
[TRANSLATION] The fact that the parties saw fit in their collective agreement to reiterate what the Act had already made a requirement in no way alters the situation.
I doubt the validity of this statement, because unlike s. 95, which enacts a general prohibition directed at the employees just as much as, if not more than, it is directed at the Union as a distinct entity, the clause inserted in the agreement constitutes an undertaking by the union that it will not initiate a strike, and it will be understood that the evidence necessary to succeed may not be the same in both cases.
In support of this statement, counsel for the respondents cites an unreported decision of the
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Court of Appeal dated December 15, 1978, Les Ateliers d’ingénierie Dominion Ltée v. La Commission des droits de la personne du Québec et al., C.A.M. 500-09-000337-782, which appears to me to have no bearing on the case at bar. That case did not involve a decision as to the jurisdiction of an arbitration tribunal. It was concerned with determining whether the fact of inserting in the collective agreement a clause prohibiting discrimination in terms approximating the provisions of the Charter of Human Rights and Freedoms, 1975 S.Q., c. 6, and thus of allowing recourse to arbitration if necessary, had the effect of excluding the specific remedy provided for in the Charter. Concluding that the rights relied on did not derive exclusively from the collective agreement, and referring to Brunet (supra), the Court of Appeal held that recourse to the Human Rights Commission was not excluded. Jacques J. (ad hoc) observed:
[TRANSLATION] So far as the recourse to arbitration is concerned, it should be noted that in General Motors v. Brunet, [1977] 2 S.C.R. 537, the Supreme Court held that recourse to the common law courts was excluded when the right sought to be established derived exclusively from the collective agreement.
The fact that a provision has been inserted in a collective agreement which merely repeats an identical provision in a statute does not thereby deprive an individual of a specific and distinct statutory remedy associated with that provision by the statute.
The Court of Appeal was even of the opinion that in this case both remedies could co-exist without risk of contradiction in the outcome, and Jacques J. observed:
[TRANSLATION] So far as the possibility of contrary decisions is concerned, I think that it is non-existent.
It should perhaps be pointed out that in that case the judgment does not indicate that the employees both resorted to the grievance procedure and submitted a complaint to the Commission. The case only concerns the latter remedy and a complaint of dismissal for union activity, which is quite another thing.
I would allow the appeal, reverse the judgment of the Court of Appeal and dismiss the motion for a writ of evocation, with costs.
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Appeal allowed with costs.
Solicitors for the appellant: Courtois, Clarkson, Parsons & Tétrault, Montreal.
Solicitors for the respondents: Jasmin, Rivest, Castiglio, Castiglio & Lebel, Montreal.
[^1]: [1978] C.A. 404. [^2]: [1976] C.S. 474. [^3]: [1977] C.A. 348. [^4]: [1976] C.A. 26. [^5]: [1969] Que. Q.B. 991. [^6]: [1969] Que. Q.B. 922. [^7]: [1969] Que. Q.B. 481. [^8]: [1968] Que. Q.B. 863. [^9]: [1977] 2 S.C.R. 537. [^10]: [1962] S.C.R. 338.