Supreme Court of Canada

Date: 1983-03-24

Between:

Shalansky and Saskatchewan Union of Nurses

and

Regina Pasqua Hospital

Laskin, C.J.C., Dickson, Estey, McIntyre and Wilson, JJ.

Counsel:

Wayne McIntrye, for the appellants;

Ronald L. Barclay, Q.C., for the respondent.

[1] Laskin, C.J.C.: This appeal from a judgment of the Saskatchewan Court of Appeal, affirming a judgment of Noble, J., involves the reviewability of an award of a consensual arbitration board, charged to interpret and apply certain monthly salary and hourly rate provisions of a collective agreement between nurses and their hospital employer. The arbitration board by a majority upheld the position of the hospital as to the appropriate method of calculating an agreed upon general six per cent increase for both salaried nurses and hourly paid nurses. Noble, J., sustained the award, as did Bayda, C.J.S., speaking for the Court of Appeal, although in his opinion the construction advanced by the appellant Union was the correct one.

[2] The issues raised by the appellant were founded on a long-time arbitral distinction in consensual arbitration between a reference to arbitration of a specific question of law and a general reference in the course of which a question or questions of law arise. It was the appellant’s contention that there was here only a general question of construction involved, and he conceded that if the issue left to the arbitration board limited it to a specific question of law, its award would not be reviewable even if plainly wrong. On the footing advanced by counsel for the appellant that there was here a general reference to arbitration he contended that the question of reviewability of the award depended upon whether, in the view of the reviewing court, the interpretation adopted by the arbitration board was one which the collective agreement provision could reasonably bear provided there was ambiguity or doubt. In counsel’s view, however, there was no such ambiguity or doubt but rather a clear error that fell to be redressed by the court. The respondent hospital took the position that there was here a specific question of law left to the board which immunized its award and that, in any event, the result in favour of the hospital was the same even if the reference to arbitration was general and not specific.

[3] There being here a consensual arbitration, we are not trammelled by any certiorari question nor by any other statutory considerations. What is before us are certain terms of a voluntary collective agreement which gave rise to a dispute which the parties submitted to arbitration. Since the parties addressed the central issues before this court as turning essentially on whether a specific question of law was involved or a general question in the course of which questions of law could arise, I do not find this a proper occasion upon which to consider whether the Absalom Ltd. v. Great Western (London) Garden Village Society, [1933] A.C. 592, should no longer be held to apply to consensual labour arbitration.

[4] I am prepared in this case to accept the contention of the appellant that what we have here is a general question of construction of the collective agreement. On this basis, appellant’s counsel submitted that it was open to the court and, indeed, it ought to have concluded that a reviewable error of law was committed by the board. To determine whether this submission is correct, it is necessary to consider that is the appropriate text [sic] for reviewable error in these circumstances. In the course of the canvass of this issue, Noble, J., adopted the test of reasonable interpretation and on that basis concluded that there was no ground for interfering with the award of the board. In the Court of Appeal, Bayda, C.J.S., reviewed earlier decisions by this court and whether the test applied by Noble, J., namely, whether the interpretation was unreasonable or clearly wrong, was the proper one and if so, whether it was properly applied.

[5] As a matter of interpretation, the Chief Justice was of the view that the board had interpreted the relevant provisions of the collective agreement incorrectly, with the result that there was an error on the face of the award. This conclusion led him to consider whether the award of this consensual board was impeachable. He was of the opinion that the effect of this court’s decisions in Bell Canada v. Office and Professional Employees’ International Union, 1973 CanLII 18 (SCC), [1974] S.C.R. 335, Metropolitan Toronto Police Association v. Metropolital Board of Commissioners of Police, 1974 CanLII 13 (SCC), 2 N.R. 95; [1975] 1 S.C.R. 631 and Volvo Canada Ltd. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 1979 CanLII 4 (SCC), 27 N.R. 502; [1980] 1 S.C.R. 178, was that the proper issue was not whether the submission to arbitration was of a specific question of law or a general question in the course of which questions of law arose but there was rather a third category, namely, whether the issue submitted to arbitration constituted a grievance in the course of whose determination questions of the construction of the collective agreement arose. In his view, if the issue submitted to arbitration was in this category, an error by the board in its interpretation is not reviewable unless the interpretation is outrageous or patently unjustifiable (words used in the dissent in the Bell Canada case) or patently unreasonable (to use the words of Pigeon, J., in the Volvo case).

[6] I agree with Chief Justice Bayda that there is no significant difference in the meaning of the aforementioned three terms. Indeed, it would be my view that, apart from a question of emphasis, the test of unreasonableness or test of clearly wrong is also not different. Bayda, C.J.S., himself concluded that the board was presented with two reasonable constructions and hence was entitled to choose the one it did rather than the one preferred by the Chief Justice. In the result, he dismissed the appeal.

[7] In my opinion, this is the correct approach. Once it is accepted that there are two reasonable interpretations, the suggestion of a reviewable error of law in consensual arbitration disappears. There is no need to construct a third category, namely, reference to an arbitrator involving construction of a collective agreement. The principle on which this so-called third category is founded is the very principle applicable in all consensual arbitration cases. The decision of the arbitrator can be set aside only if it involves an interpretation which the words of the agreement could not reasonably bear.

[8] In the instant case even the dissenting arbitrator was of the opinion that the language of the agreement was susceptible of two interpretations. The resolution of the board majority involved the adoption of a reasonable or not unreasonable determination.

[9] It follows that the appeal fails and must be dismissed with costs.

Appeal dismissed.