Gendron v. Municipalité de la Baie-James, [1986] 1 S.C.R. 401

Réjean Gendron Appellant;

and

Municipalité de la Baie‑James Respondent;

and

Judge Claude St‑Arnaud in his capacity as a judge of the Labour Court Mis en cause;

and

Labour Court and the Syndicat des gardiens de sécurité de la municipalité de la Baie‑James Mis en cause.

File No.: 18971.

1985: December 11, 12; 1986: April 24.

Present: Beetz, Chouinard, Lamer, Le Dain and La Forest JJ.

on appeal from the court of appeal for quebec

Labour law ‑‑ Extent of Labour Court’s power of remedy ‑‑ Complaint by employee against his association for failing its duty of representation in filing his grievance to arbitration ‑‑ Court’s order referring to arbitration employee’s claim already arbitrated ‑‑ Remedy not authorized by s. 47.5 of Labour Code ‑‑ Labour Code, R.S.Q., c. C‑27, s. 47.5.

Administrative law ‑‑ Labour Court ‑‑ Jurisdiction ‑‑ Complaint by employee against his association for failing its duty of representation in filing his grievance to arbitration ‑‑ Court’s order referring to arbitration employee’s claim already arbitrated ‑‑ Remedy not authorized by s. 47.5 of Labour Code ‑‑ Excess of jurisdiction ‑‑ Writ of evocation ‑‑ Labour Code, R.S.Q., c. C‑27, s. 47.5.

Appellant was dismissed by respondent and his dismissal grievance filed by his association was refused. Appellant alleged that his association had failed in its duty of representation and, in accordance with ss. 47.2 to 47.6 of the Labour Code, asked the Labour Court to authorize him to submit his claim to an arbitrator appointed by the Minister. This request was granted. Respondent then applied to the Superior Court for a writ of evocation against this decision, on the ground that the Labour Court had exceeded the jurisdiction conferred on it by s. 47.5 of the Code by referring to arbitration a claim which had already been arbitrated. The Superior Court dismissed the application, but a majority of the Court of Appeal reversed the judgment. The question in this appeal is whether an employee whose grievance has already been dismissed by an arbitration tribunal can obtain from the Labour Court, pursuant to s. 47.5 of the Code, authorization to submit his claim to another arbitrator.

Held: The appeal should be dismissed.

The Labour Court does not have the power under s. 47.5 of the Code to refer a case to an arbitrator when it has already been arbitrated and the grievance disposed of. That section applies when there has been no arbitration because the association representing the employee refused to take the grievance that far. This interpretation of s. 47.5 reconciles ss. 47.2 to 47.6 with each other and with the other provisions in the Code, in particular s. 101 which provides that an arbitration award is final and without appeal. Recognizing that a second arbitration can be ordered under s. 47.5 would be in direct conflict with s. 101.

Cases Cited

Asselin v. Travailleurs amalgamés du vêtement et du textile, local 1838, 1984 CanLII 3155 (QC TT), [1985] T.T. 74; Hines v. Anchor Motor Freight, 424 U.S. 554 (1976); Milhomme v. Aubé, 1983 CanLII 3424 (QC CA), [1984] C.A. 1; Lucio Samperi (1982), 49 di 40; John Semeniuk (1981), 45 di 258; Craib v. Canadian Pacific Ltd. (1984), 85 CLLC ¶ 16,006; Langlois v. Telecommunications Workers Union, C.L.R.B., No. 745‑2030, May 21, 1985; Teamsters Union Local 938 v. Massicotte, 1982 CanLII 18 (SCC), [1982] 1 S.C.R. 710; Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, 1984 CanLII 26 (SCC), [1984] 2 S.C.R. 412; Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, referred to.

Statutes and Regulations Cited

Labour Code, R.S.Q., c. C‑27, ss. 47.2, 47.3, 47.4, 47.5, 47.6, 100, 101.

APPEAL from a judgment of the Quebec Court of Appeal, [1984] C.A. 321 (sub nom. Municipalité de la Baie James v. St‑Arnaud), which reversed a judgment of the Superior Court, [1981] C.S. 394, refusing to issue a writ of evocation. Appeal dismissed.

Ghislain Laroche, for the appellant.

Roy L. Heenan, for the respondent.

Benoit Belleau and André Rochon, for the mis en cause the Labour Court.

English version of the judgment of the Court delivered by

1. Chouinard J.‑‑At issue in this appeal is the extent of the Quebec Labour Court's power of remedy in the case of a complaint by an employee who alleges that the union failed in its duty of representation.

2. In 1977 the Quebec legislator imposed on every certified association a duty to treat equally all employees included in the bargaining unit it represented. Until then this duty had only been recognized by judicial decisions: see Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509.

3. Section 47.2 of the Labour Code, R.S.Q., c. C‑27, came into effect on February 1, 1978: (1978) 110 G.O. II 491. That section provides:

47.2. A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members.

4. At the same time a specific remedy was introduced, defined in ss. 47.3 to 47.6:

47.3. If an employee who has been the subject of dismissal or a disciplinary sanction believes that the certified association is, in that respect, violating section 47.2, he shall, if he wishes to invoke this section, submit a written complaint to the Minister within six months. The Minister shall appoint an investigator who shall endeavour to settle the dispute to the satisfaction of the interested parties and of the certified association.

47.4. If no settlement has been reached within fifteen days of the appointment of the investigator or if the association does not carry out the agreement, the employee shall, if he wishes to invoke section 47.2, apply to the Court within the fifteen ensuing days to request that his claim be referred to arbitration.

47.5. If the Court considers that the association has violated section 47.2, it may authorize the employee to submit his claim to an arbitrator appointed by the Minister for decision in the manner provided for in the collective agreement, as in the case of a grievance. Sections 100 to 101.10 apply mutatis mutandis. The association shall pay the employee's costs.

The Court may, in addition, make any other order it considers necessary in the circumstances.

47.6. If a claim is referred to an arbitrator pursuant to section 47.5, the employer shall not allege the association's non‑observance of the procedure and delays provided for in the collection [sic] agreement for the settlement of grievances.

5. Appellant entered respondent's service on June 14, 1978 as a security officer.

6. As the result of a labour dispute, respondent imposed a lockout beginning at 12:01 a.m. on July 29, 1978.

7. The dispute ended and work resumed on December 23, 1978.

8. Appellant was dismissed on January 5, 1979.

9. At appellant's request the association filed a dismissal grievance which it took to arbitration.

10. The arbitration took place on June 26, 1979, but the union representative did not notify appellant and the latter was not present.

11. Before the arbitrator, respondent objected that appellant had only worked for fifty‑nine days, had thus not completed the sixty‑day probation period and his grievance was therefore inadmissible.

12. Respondent and the union representative made an admission of facts which the arbitrator summarized as follows:

[TRANSLATION] It is admitted by the parties that:

‑‑the first date Mr. Réjean Gendron started work was June 14, 1978;

‑‑the date on which continuous service ceased, for calculation purposes only, was 28/7/78;

‑‑resumption of work and operations: 23/12/78;

‑‑the date Réjean Gendron was dismissed: 5/1/79.

13. It follows from this admission that appellant in fact worked for only fifty‑nine days.

14. The union representative responded that the lockout days should be added to the days of continuous service in order to calculate seniority, and that therefore appellant had completed his probation period.

15. The arbitrator did not accept this argument, and on the ground that appellant had not completed the required probation period and had no right to initiate a grievance proceeding, he allowed the respondent's objection and dismissed the grievance.

16. Appellant, who was not happy with the association's actions, filed a complaint with the Minister of Labour pursuant to s. 47.3. He submitted that there had been serious negligence by the association within the meaning of s. 47.2.

17. An investigator was appointed but as no settlement was reached within the required time, appellant filed an application with the Labour Court pursuant to s. 47.4. He asked the Court to authorize him to submit his claim to an arbitrator appointed by the Minister.

18. In his application to the Labour Court appellant made the following allegations against the association, inter alia:

[TRANSLATION]

(a) It made no effort to inform applicant of the date on which the grievance was to be heard by the arbitrator, so that the said applicant was not present at the hearing and had no opportunity to correct certain facts;

(b) the admissions made when the grievance was submitted were made without the knowledge or approval of applicant;

(c) from January 1979, the time when the [association's] services were requested in connection with the grievance proceeding, until August 2, 1979, the date on which the arbitrator's decision was given to applicant, the latter had almost no information about what was happening in connection with his grievance, despite his frequent requests to representatives of the association;

(d) incidentally, applicant learned on or about August 2, 1979 that his grievance had been submitted to the arbitrator the preceding June 26;

(e) the [association] demonstrated incredible carelessness and lack of concern in the circumstances, by admitting facts on the basis of information not checked with the principal party concerned;

19. Appellant alleged that even though the lockout officially began on July 29, 1978, he had in fact worked on that day and so completed the sixty‑day probation period.

20. The Labour Court found that the actions of the association's representative amounted to serious negligence within the meaning of s. 47.2 and it authorized appellant to submit his claim to arbitration.

21. Respondent then applied to the Superior Court, by a motion in evocation, and asked that the Labour Court's decision be set aside essentially because the Court had exceeded the jurisdiction conferred on it by s. 47.5 by referring to arbitration a claim which had already been arbitrated.

22. It should be said at once that in its motion in evocation respondent was now admitting that appellant had worked on July 29, but it alleged that he had only resumed work on December 25, not December 23. He worked fifty‑eight days in all, therefore, rather than fifty‑nine. Accordingly, it said, the union representative's admission was favourable rather than prejudicial to appellant; and counsel for the respondent added that at this stage the facts alleged in the motion in evocation must be taken as proven.

23. I do not see how this can affect the question of whether the Labour Court exceeded its jurisdiction by ruling on the facts which were before it and which were before the arbitrator, facts which in addition were admitted. If respondent has new facts on which it wishes to rely, in my view a motion in evocation is not the proper procedure.

24. The Superior Court, [1981] C.S. 394, held that the Labour Court had not exceeded its jurisdiction and dismissed the motion.

25. By a majority judgment the Court of Appeal, [1984] C.A. 321, reversed this judgment and authorized a writ of evocation to be issued.

26. The case at bar is one covered by s. 47.3, namely a dismissal, and in accordance with that section appellant chose to invoke s. 47.2. He filed a complaint with the Minister within six months. An investigator was appointed, but he was not able to resolve the complaint within fifteen days. This is why appellant filed an application with the Labour Court.

27. The question therefore is whether appellant, whose grievance had already been dismissed by an arbitration tribunal, could seek and obtain from the Labour Court, pursuant to s. 47.5, authorization to "submit his claim to an arbitrator appointed by the Minister for decision in the manner provided for in the collective agreement, as in the case of a grievance".

28. If so, the Labour Court did not exceed its jurisdiction. However, it cannot err in this regard, as its very jurisdiction is involved. If it errs, it is assuming a power it does not possess. This is the rule developed by this Court in Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, 1984 CanLII 26 (SCC), [1984] 2 S.C.R. 412. At page 440, it reads:

... the provisions which the Board had to interpret in the case at bar confer jurisdiction, since they concern the orders which the Board is empowered to attach to a declaration of an unlawful strike. The question is whether the Board has the power to attach to such a declaration an order referring a matter to arbitration. I consider, therefore, that it is not doubtful but manifest that the interpretation of these provisions raises a question of jurisdiction about which the Board cannot err without committing an excess of jurisdiction.

29. In my view the Labour Court did not have the power to refer a case to arbitration in such a situation, when it had already been arbitrated and the grievance disposed of.

30. It is manifest that s. 47.5 applies when there has been no arbitration because the association refused to take the grievance that far.

31. It is a power similar to that which this Court recognized is enjoyed by the Canada Labour Relations Board, in Teamsters Union Local 938 v. Massicotte, 1982 CanLII 18 (SCC), [1982] 1 S.C.R. 710.

32. In that case the Canada Labour Relations Board, in view of the association's refusal to go to arbitration, found that it had failed in its duty of representation set forth as follows in s. 136.1 of the Canada Labour Code, R.S.C. 1970, c. L‑1, as amended by 1977‑78 (Can.), c. 27, s. 49:

136.1 Where a trade union is the bargaining agent for a bargaining unit, the trade union and every representative of the trade union shall represent, fairly and without discrimination, all employees in the bargaining unit.

33. The Canada Labour Relations Board then made an order authorizing the employee to proceed to arbitration of his grievance himself at the association's expense, and it allowed him to appoint an arbitrator himself for this purpose. The order was made pursuant to s. 189 of the Canada Labour Code, supra; 1972 (Can.), c. 18, s. 1; 1977‑78 (Can.), c. 27, s. 68, which does not expressly provide for such a remedy.

34. This Court held that the Canada Labour Relations Board had not exceeded its jurisdiction in making this order.

35. When there has been no arbitration s. 47.5 is readily understandable and ss. 47.2 to 47.6 can be reconciled with each other and with the other provisions in the Code.

36. This power is part of the general scheme of the Code which is that every grievance shall be submitted to arbitration (s. 100). It favours access to arbitration.

37. Under s. 47.3 an employee who feels that the association representing him has violated s. 47.2 files a complaint with the Minister, who appoints an investigator. The latter attempts to settle the complaint, presumably by trying to persuade the association to proceed or the employee to drop the matter.

38. If the investigator is unsuccessful, the employee makes an application to the Labour Court and asks it "[to order] that his claim be referred to arbitration" (s. 47.4).

39. The Labour Court (s. 47.5) may authorize the employee "to submit his claim to an arbitrator appointed by the Minister for decision in the manner provided for in the collective agreement, as in the case of a grievance". Sections 100 to 101.10 apply mutatis mutandis, and the association pays the employee's costs.

40. The very choice of language is understandable. For example, the legislation speaks of a "claim" rather than a "grievance". In general, the decision to take a grievance to arbitration is one to be made only by the association. When as in the case at bar the employee is authorized to proceed, it is no longer strictly speaking a "grievance" and this is why it is referred to as a "claim".

41. The arbitrator will be appointed by the Minister, since the association has not acted in accordance with the agreement or s. 100.

42. The claim will be decided in the manner provided for in the collective agreement, as in the case of a grievance. These words are necessary because the agreement has not been observed and it is no longer strictly speaking a grievance.

43. Section 47.6 provides that the employer cannot allege the association's non‑observance of the procedure and delays provided for in the collective agreement for the settlement of grievances. This section is necessary since, in view of the six‑month period in s. 47.3, the two fifteen‑day periods in s. 47.4 and the time needed by the Labour Court to dispose of the matter, the employee would be beyond the deadlines specified in the collective agreement for taking action.

44. Finally, these provisions are in complete harmony with s. 101, which provides that an arbitration award is without appeal and binds the parties.

45. The situation is quite different if there has already been arbitration.

46. The question then is what the investigator appointed under s. 47.3 will in fact try to settle between the association and the employee. There can be no question of the investigator attempting to persuade the association to take the grievance to arbitration, since that has already been done. Furthermore, I know of no provision which authorizes the association to compel the employer to go to a second arbitration in the event that the association and the employee reach agreement as a result of intervention by the investigator. If there is no agreement, the remedy provided for is arbitration. An agreement should lead to the same outcome, though no provision is made for it.

47. Section 47.3 has no application after there has been arbitration, unless it is maintained that the employee's remedy includes allowing the Labour Court to order a new arbitration in the event that the association refuses to apply for a writ of evocation against the arbitration award. This is what was held in Asselin v. Travailleurs amalgamés du vêtement et du textile, local 1838, 1984 CanLII 3155 (QC TT), [1985] T.T. 74. If we follow this reasoning, assuming that a motion for evocation is made and denied by the Superior Court, there could be recourse to s. 47.5 if the association refuses to appeal the Superior Court judgment. Again assuming that the Superior Court judgment has been appealed and that the appeal has been dismissed, there could still be recourse to s. 47.5 if the association refused to apply to this Court for leave to appeal. This would be giving the provisions under consideration too general an application, not justified by the wording.

48. Similarly, s. 47.4 seems hard to explain on the basis that an arbitration has already occurred. In so far as the section refers, first, to the failure of the investigator to settle the complaint, and second, to the association's failure to carry out the agreement concluded as a result of intervention by the investigator, the same observations made in connection with s. 47.3 apply regarding the object of the investigator's action. The purpose of the application, which is the next stage, is to ask for the claim to be referred to arbitration. The section gives no further clarification and does not distinguish between the arbitration requested by the employee in his application and that already completed.

49. Moreover, these sections give no indication what becomes of the arbitration award already made. For the interpretation one would like to give to s. 47.5 to have any meaning the second award clearly must supersede the first, which must be set aside. In my view this is the equivalent of a judgment on appeal and I cannot see how ss. 47.2 to 47.6 could be construed as creating a right of appeal.

50. Appellant and the Labour Court further submitted that the remedy under ss. 47.2 to 47.6 is a distinct and parallel remedy given to the employee himself. It is an individual remedy, not the usual recourse to arbitration which is generally reserved solely for the association. This argument raises a major difficulty: how are the provisions of the Code to be reconciled?

51. Section 101 of the Labour Code states that "The arbitration award is without appeal and binds the parties". To this objection appellant and the Labour Court answered that s. 47.5 is an exception to s. 101: an employee who was bound by the arbitration award no longer is.

52. Appellant and the Labour Court relied on the judgment of the United States Supreme Court in Hines v. Anchor Motor Freight, 424 U.S. 554 (1976). At page 567, it reads:

The union's breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union's breach also removes the bar of the finality provisions of the contract.

53. It is clear from reading the judgment and the passage cited above that what the U.S. Supreme Court is referring to is a clause in the collective agreement which confers final effect on the arbitration award, and this is also governed by the contractual clauses of the agreement. The judgment is not concerned with the provisions of legislation as in the case at bar.

54. In addition to the fact that this precedent is of course not binding here it should be added that, apart from decisions of the Labour Court, by a majority but not unanimous, no Canadian decisions were cited in support of the proposed interpretation.

55. Reference was made to Milhomme v. Aubé, 1983 CanLII 3424 (QC CA), [1984] C.A. 1, in which the Court of Appeal ruled on these sections of the Labour Code. The Court of Appeal, reversing the judgment of the Superior Court, authorized a writ of evocation to be issued against a decision of the Labour Court which had refused to refer the employee's claim to arbitration. However, that case was quite different from the case at bar. The arbitration had begun, but the association had withdrawn the grievance before the arbitration was complete. Appellant and the Labour Court relied in particular on the following passage from the reasons of Bisson J.A., whose opinion was concurred in by his brother judges, at pp. 5‑6:

[TRANSLATION] In closing, I would like to emphasize that the argument of respondent S.E.C.S.N., that ss. 47.2 to 47.6 of the Labour Code no longer apply when the arbitration proceeding has begun, cannot be admitted.

56. There is no inconsistency between the judgment of the Court of Appeal in the case at bar and Milhomme, where there was no arbitration. That case does not apply.

57. The Canada Labour Relations Board, for its part, has refused to make an order concerning an arbitration award challenged on the ground that the association had failed in its duty to represent an employee properly at the arbitration. The Board clearly indicated that in such a case it would be exercising an appellate jurisdiction. See Lucio Samperi (1982), 49 di 40. At pages 50‑51, it stated:

It would be a clear case of the tail wagging the dog if this Board were to effectively quash arbitration awards because we disapproved of the manner in which a union presented a grievance at arbitration. We do not consider it to be within the purview of our role or responsibility to evaluate the competence of union representatives or their counsel. Nor do we consider it to be compatible with the public policy purposes and objectives of party controlled compulsory grievance arbitration as a substitute for mid‑agreement work stoppages expressed in section 155 of the Code (see the discussion in James E. Dorsey, "Arbitration Under the Canada Labour Code: A Neglected Policy and an Incomplete Legislative Framework" (1980), 6 Dalhousie L.J. 41). The duty of fair representation has a role under the Code but it must have its limits. The limit falls short of an avenue of appeal from arbitral decisions based upon a judgment by this Board's legal and non‑legally trained members about the competence and performance of union representatives and their counsel.

58. In John Semeniuk (1981), 45 di 258, at pp. 262‑64, the Board similarly indicated that it does not sit in appeal from the decisions rendered.

59. However, the Board has reserved its opinion on whether it has the power to set aside an arbitration award because the association has contravened s. 136.1 of the Canada Labour Code, supra. See Craib v. Canadian Pacific Ltd. (1984), 85 CLLC ¶ 16,006. At pages 14,037 and 14,038 it reads:

We have not felt it necessary to address the question of whether the Board could in effect nullify the order or decision of an arbitrator or arbitration board which, under Section 156 of the Code is "final", even if we had justification for believing that the representation given by a union at an arbitration was contrary to Section 136.1. That matter will have to be left for another day if and when another panel is forced to such a conclusion.

60. More recently still, the Board expressed a strong doubt as to its jurisdiction in such a situation. This was in the decision in Langlois v. Telecommunications Workers Union, C.L.R.B., No. 745‑2030, May 21, 1985. It was rendered in the form of a letter, which stated at pp. 3‑4:

Under Section 156(1) of the Code "every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed by any court". Thus, even if we had doubts about the union's conduct between the time of the dismissal and the conclusion of the arbitration hearing, (which we do not have), it is highly questionable whether we would have any power to disturb the arbitration board's award, unlike the B.C. Board which has certain limited review powers vis‑à‑vis arbitration boards.

61. There is no doubt that recognizing that a second arbitration can be ordered under s. 47.5 would be in direct conflict with s. 101 of the Labour Code.

62. I adopt the following passage from the reasons of Nolan J.A., who rendered the majority judgment of the Court of Appeal, supra, at pp. 325‑26:

If sections 47.2 et sqq. were construed to mean the judge of the Labour Court in a case like the present one could authorize another arbitration to be held after a court of arbitration, acting within its jurisdiction, has already rendered a decision, it would be a flagrant contradiction of s. 101 of the Code du travail.

In my opinion sections 47.2 et sqq. must be read in conjunction with s. 101 in a way to reconcile them.

As stated in E.A. Driedger's The Construction of Statutes, Toronto, Butterworths, 1974, p. 72:

Not only must the whole Act be read, but every provision of the Act should, if possible, be given meaning; hence if there are rival constructions the general principle is that the construction that gives effect to the whole of the statute, or to the provision under consideration, should be adopted in preference to one that renders part thereof meaningless.

63. Counsel for the Labour Court argued that it is inconceivable that there could be a finding of serious negligence and no remedy would exist. It is not within the purview of these reasons to determine what other remedies may be available to the employee. As counsel for the Labour Court pointed out, s. 47.2 is very wide. However, in my view a second arbitration pursuant to s. 47.5 is not an available remedy.

64. Sections 47.2 to 47.6 of the Labour Code cannot be interpreted so as to authorize a second arbitration of a grievance which has already been the subject of one arbitration, and to create an exception to s. 101, which makes the award final.

65. Counsel for the respondent stated that costs are not being requested against appellant.

66. I would dismiss the appeal without costs.

Appeal dismissed.

Solicitors for the appellant: Laroche, Bibeau & Fauteux, Verdun.

Solicitors for the respondent: Heenan, Blaikie, Jolin, Potvin, Trépanier, Cobbett, Montréal.

Solicitors for the mis en cause the Labour Court: Belleau, Crevier & Associés, Montréal.