Hémond v. Coopérative fédérée du Québec, 1989 CanLII 46 (SCC), [1989] 2 SCR 962

Hémond v. Coopérative fédérée du Québec, [1989] 2 S.C.R. 962

Syndicat des travailleurs(euses) de l'abattoir de Princeville (C.S.N.) Appellant

v.

Robert Hémond, Raymond Grenier and Pierre‑André Ouellet Respondents

and

Coopérative fédérée du Québec Mis en cause

indexed as: hémond v. coopérative fédérée du québec

File No.: 20459.

1989: June 20; 1989: October 12.

Present: Lamer, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Labour relations -- Seniority -- Return to bargaining unit -- Motion for declaratory judgment to determine seniority rights of certain employees -- Collective agreement in effect at time employees returned to bargaining unit less generous than that in effect when promoted -- Whether seniority rights of employees governed by new collective agreement -- Whether Superior Court has jurisdiction to determine employees' seniority rights -- Distinction between applicability and application of collective agreement -- Labour Code, R.S.Q., c. C-27, ss. 1(f), 65, 66, 67, 100, 139.

Respondents, who had been employed by the mis en cause for many years, were promoted to be foremen and as such excluded from the bargaining unit. They were subsequently demoted and rejoined the unit. When they returned, however, respondents were only entitled to five years' seniority under the clause of the collective agreement then in effect. They filed a motion for a declaratory judgment in the Superior Court and contended that their seniority should be calculated in accordance with the collective agreement in effect at the time they were promoted. Under that agreement, H, G and O would be entitled to 27, 17 and 14 years' seniority respectively. They accordingly asked the court to declare that the clauses limiting seniority rights contained in the collective agreement concluded between the mis en cause and appellant could not be set up against them in computing their seniority because they were not bargaining parties. Appellant opposed the motion for a declaratory judgment for a lack of jurisdiction in the Superior Court ratione materiae, because the question involved the interpretation and application of a collective agreement and respondents' sole recourse was by grievance and arbitration. The Superior Court allowed the declinatory exception and dismissed the motion. The Court of Appeal reversed the judgment and held that the Superior Court had jurisdiction since the question raised by respondents concerned the applicability of the most recent collective agreement.

Held: The appeal should be allowed.

The Superior Court does not have jurisdiction to decide what seniority rights respondents have. These rights relate to the application of the most recent agreement and, under ss. 1(f), 100 and 139 of the Labour Code, only an arbitrator hearing a grievance has jurisdiction to determine them. It cannot be concluded that the problem raised by respondents is one of applicability (and that the Superior Court has jurisdiction), since this would mean that more than one collective agreement applied to the same bargaining unit. That would imply that a collective agreement which had otherwise expired would regulate the method used to calculate the seniority of certain employees (here respondents), while the text of the most recent collective agreement would regulate that of certain other employees. In light of the legislation and fundamental principles in the field of labour law, a collective agreement cannot be divided and governs all members of a bargaining unit. The wording of s. 67 of the Labour Code only recognizes the presence of one agreement and ss. 65 and 66 make it clear that old collective agreements are void. In view of these provisions, respondents' seniority rights must necessarily be based on the interpretation of the most recent collective agreement.

In any case, the concept of applicability cannot be extended to the case at bar. When applicability is in question it is not the content or effect of the particular provisions of the collective agreement that are at issue but whether the agreement as a whole is capable of governing a given situation. The scope of the particular provisions which do not imply the applicability of the agreement as a whole is a matter of interpretation and application reserved for the consideration of the grievance arbitrator.

Though it is possible in some cases to interpret a collective agreement so as to give seniority rights to certain workers, one cannot simply ignore the terms of such an agreement in order to give employees vested rights in the matter. Seniority rights are subject to the collective bargaining process like any other employee right and can therefore be changed. In the context of labour relations it would be singular for those rights to be raised to the level of vested rights. When a collective agreement exists, individual rights are for all practical purposes superseded.

An arbitrator having the function of determining respondents' seniority may refer to an earlier collective agreement as an interpretation tool.

Cases Cited

Distinguished: Attorney General of Quebec v. Labrecque, [1980 24 (SCC)], [1980] 2 S.C.R. 1057, referred to: Société Radio‑Canada v. Syndicat canadien de la Fonction publique, [1988 475 (QC CA)], [1988] R.J.Q. 932; Syndicat canadien des travailleurs du papier, section locale 204 v. Produits forestiers E.B. Eddy Ltée, [1988 578 (QC CA)], [1988] R.D.J. 614; Auger v. Société Asbestos Ltée, S.C. Frontenac, No.235‑05‑000394‑82, January 25, 1984; Lachance v. Carey Canada Inc., D.T.E. 84T‑53; Syndicat national de l'amiante d'Asbestos Inc. v. Nadeau, [1985 3467 (QC CA)], [1985] C.A. 62; General Motors of Canada Ltd. v. Brunet, [1976 196 (SCC)], [1977] 2 S.C.R. 537; McGavin Toastmaster Ltd. v. Ainscough, [1975 9 (SCC)], [1976] 1 S.C.R. 718; Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959 51 (SCC)], [1959] S.C.R. 206; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986 71 (SCC)], [1986] 1 S.C.R. 704; Syndicat des professeurs du CEGEP du Vieux‑Montréal v. CEGEP du Vieux‑Montréal, [1976 197 (SCC)], [1977] 2 S.C.R. 568; Re Federal Wire and Cable Co. (1960), 3 Steelworkers Arbitration Cases 276.

Statutes and Regulations Cited

Code of Civil Procedure, R.S.Q., c. C‑25, art. 453.

Labour Code, R.S.Q., c. C‑27, ss. 1(f), 62, 65, 66, 67, 100, 139 [rep. & subs. 1982, c. 16, s. 5].

APPEAL from a judgment of the Quebec Court of Appeal, [1987 453 (QC CA)], [1987] R.J.Q. 852, which reversed a judgment of the Superior Court¹, dismissing a motion for a declaratory judgment. Appeal allowed.

Laurent Roy and Louis Bibaud, for the appellant.

Jean Gagné, for the respondents.

Pierre Gagnon, for the mis en cause.

//Gonthier J.//

English version of the judgment of the Court delivered by

GONTHIER J. -- The case at bar concerns the jurisdiction of the Superior Court to determine, on a motion for a declaratory judgment, the seniority rights of employees promoted to be foremen who have left a bargaining unit and later rejoin it, when the provisions regarding seniority in a new collective agreement differ from those in effect at the time of their promotion.

Facts

The three respondents are employees of the mis en cause, the Coopérative fédérée du Québec. Robert Hémond was hired by the Coopérative in 1955, while Raymond Grenier and Pierre‑André Ouellet were hired in 1963 and 1964 respectively. Originally, all the respondents held the position of labourer.

At some point, the three respondents were promoted to be foremen. This meant that they were excluded from the employees' bargaining unit. Respondents however were subsequently demoted, became laborers again and rejoined the unit. The relevant dates of their promotion and rejoining the unit are respectively: for Robert Hémond, September 25, 1972 and July 19, 1982, for Raymond Grenier, December 8, 1980 and December 21, 1981, and for Pierre‑André Ouellet, September 4, 1978 and July 12, 1982.

At the time Robert Hémond left the bargaining unit to accept the position of foreman, the collective agreement then in effect contained the following provision:

[TRANSLATION] Art. 17(f) An employee promoted from the bargaining unit to a foreman's position may subject to the provisions of this clause return to the bargaining unit with seniority rights. The representatives of the parties shall meet to discuss the rejoining terms. The employee's seniority shall include the length of service given by him as foreman in addition to the seniority already acquired at the time of his promotion.

When the other two respondents in their turn left the bargaining unit, the following provision was in effect:

[TRANSLATION] An employee promoted from the bargaining unit to a foreman's position may subject to the provisions of this clause return to the bargaining unit with seniority rights within six months of his promotion. The representatives of the parties shall meet to discuss the rejoining terms. After six months, such an employee returning to the bargaining unit shall not have any seniority rights. Notwithstanding the foregoing, an employee holding the position of foreman on the date on which this agreement is signed, may return to the bargaining unit with seniority rights equivalent either:

(A)to the time worked in the bargaining unit until his appointment to the position of foreman;

or

(B)to a maximum of five years for a foreman who belonged to the bargaining unit for a period of less than five years.

The relevant provision of the collective agreement in effect at the time the three respondents returned to the bargaining unit reads as follows:

[TRANSLATION] Art. 29.02 Employees transferred to an occupation excluded from the bargaining unit for a period of six months or more who are later assigned by the employer to duties included in the bargaining unit shall have seniority equivalent to the time worked in the bargaining unit until their appointment, but such seniority shall not exceed a maximum of five years.

When respondents rejoined the bargaining unit the Coopérative told them that, under the foregoing clause, they were entitled only to five years' seniority. This decision had the effect of significantly reducing the seniority of each of the respondents. They contend that Robert Hémond lost a little over twenty‑seven years' seniority and the other two respondents, Raymond Grenier and Pierre‑André Ouellet, were deprived respectively of some seventeen and fourteen years' seniority.

In view of this, respondents filed a motion for a declaratory judgment in the Superior Court pursuant to art. 453 of the Code of Civil Procedure, R.S.Q., c. C‑25. They contended that their seniority should be calculated in accordance with the collective agreement in effect at the time they were promoted to the position of foreman, not that in effect at the time they rejoined the bargaining unit. They asked the court to make the following findings:

[TRANSLATION] DECLARE that the clauses limiting seniority rights contained in the collective agreements concluded between respondent and the mis en cause union since July 31, 1974, as regards the applicant ROBERT HÉMOND, and subsequent to July 31, 1980 as regards the applicants RAYMOND GRENIER and PIERRE‑ANDRÉ OUELLET, cannot be set up against applicants in computing their seniority because the latter were not bargaining parties;

ACCORDINGLY:

DECLARE that during the period in which he worked for respondent as foreman, petitioner ROBERT HÉMOND did not lose twenty‑seven years, one month and six days' seniority;

DECLARE further that during the period he was a foreman in the employ of respondent petitioner RAYMOND GRENIER did not lose seventeen years, seven months' seniority;

DECLARE further that during the period he was a foreman in the employ of respondent petitioner PIERRE‑ANDRÉ OUELLET did not lose fourteen years, three months and sixteen days' seniority.

Appellant Syndicat des travailleurs (euses) de l'abattoir de Princeville (C.S.N.) opposed respondents' motion for a declaratory judgment, first, for lack of jurisdiction in the Superior Court ratione materiae because the question involves the interpretation and application of a collective agreement and respondents' sole recourse is by grievance and arbitration. It further argued that respondents' motion was without foundation in law.

Decisions of Lower Courts

Superior Court

André Gervais J. allowed the declinatory exception made by appellant. He found that the Superior Court did not have the necessary jurisdiction to determine respondents' seniority rights, and accordingly dismissed the motion for a declaratory judgment. In support of its decision the court referred to the reasons for judgment in two cases dealing with the same question: Auger v. Société Asbestos Ltée, S.C. Frontenac, No. 235‑05‑000394‑82, January 25, 1984, and Lachance v. Carey Canada Inc., S.C. Beauce, No. 350‑05‑000142‑834, December 20, 1983 (summarized D.T.E. 84T-53).

In Auger Gervais J. dismissed the motion for a declaratory judgment. In the court's opinion it was clear that the union in that case had refused to file a grievance on the employees' behalf, and that this refusal by the union was the only plausible reason application had not been made directly to a civil tribunal. In such a case, the only possible recourse open to employees was an action against the union as such, not a motion for a declaratory judgment. The court cited in this connection the observations of Pigeon J. in General Motors of Canada Ltd. v. Brunet, [1976 196 (SCC)], [1977] 2 S.C.R. 537, at p. 548:

It would be absolutely contrary to these provisions to allow the discharged employee to ask the courts to assume the function of the arbitrator appointed by the agreement, if the Union drops the grievance rather than carrying it to arbitration. The situation might be different if the Union acted in bad faith . . .

and wrote:

[TRANSLATION] Taking into account what was said above regarding applicants' rights in the event that the UNION fails to represent them by a grievance, and their possible remedies in such a situation, the court must conclude that the said applicants cannot do indirectly, that is through a motion for a declaratory judgment, what they cannot do or what they have been prevented from doing directly, namely by a grievance, which in the field of collective labour law was their only proper remedy.

In Lachance Boisvert J., on the other hand, took a rather different approach. The applicants in that case had in their turn asked the court to determine the applicability to them of a seniority clause which had been amended against their interests when they were out of the bargaining unit. The court considered that the problem was exclusively within the jurisdiction of an arbitrator and refused to intervene on their behalf. The court held it could not apply and interpret either an expired collective agreement or one that was in effect. Boisvert J. cited s. 100 of the Labour Code, R.S.Q., c. C-27, which provides that any question of the interpretation and application of a collective agreement must be submitted to arbitration:

[TRANSLATION] . . . it has to be said that the only rights applicants have are those resulting from one or other of the collective agreements in effect: not only can the court not interpret old collective agreements which have ceased to apply, but the Superior Court has no right to interpret an existing collective agreement; such a right is null and non‑existent; moreover as I mentioned above, under s. 100 of the Labour Code a grievance must be submitted to arbitration and the Superior Court is not required to become involved in the interpretation of collective agreements . . .

Court of Appeal

Relying on the reasons for its judgment in Syndicat national de l'amiante d'Asbestos Inc. v. Nadeau, [1985 3467 (QC CA)], [1985] C.A. 62, a majority of the Court of Appeal reversed the judgment of the Superior Court: [1987 453 (QC CA)], [1987] R.J.Q. 852. In the latter case, in which the situation of fact was almost the same as in the case at bar, the Court of Appeal had held that the Superior Court had the necessary jurisdiction to grant the remedies sought by the applicants because their seniority rights concerned not the application of a collective agreement (a question over which an arbitrator would have exclusive jurisdiction) but rather the applicability of a collective agreement. The court relied on Attorney General of Quebec v. Labrecque, [1980 24 (SCC)], [1980] 2 S.C.R. 1057, in which this Court held at p. 1073 that the applicability of such an agreement, as opposed to its application, was within the jurisdiction of a civil tribunal:

It is important to distinguish between the applicability of a collective agreement and its application, although both expressions are frequently used interchangeably.

The question of applicability is preliminary and goes to the initial jurisdiction of the arbitrator. That question asks whether in a given situation the collective agreement is capable of being applied, because it attains the objective sought. This question is not itself arbitrable; if it is before the arbitrator, he cannot err in this regard without usurping a jurisdiction which he does not have or refusing to exercise one which he does have.

The question of the application of a collective agreement concerns its implementation, the putting of it into practice. This is a subsequent question which arises only when the preceding one has been resolved in the affirmative and about which the arbitrator can err without his jurisdiction being necessarily affected.

A disagreement as to the applicability of a collective agreement therefore does not constitute a grievance but a preliminary issue.

On the substantive question the Quebec Court of Appeal held in Syndicat national de l'amiante d'Asbestos Inc., supra, that applicants' seniority rights depended on the collective agreement that was in effect at the time they were promoted to the position of foreman. The Court of Appeal considered that applicants' seniority rights were individual rights that could not be altered without their consent by subsequent collective agreements.

In the case at bar Nichols and Paré JJ.A. therefore held that the question raised by respondents concerned the applicability of the most recent collective agreement. They found that the question is which of the seniority clauses governs respondents, and returned the matter to the Superior Court for this to be determined. Dubé J.A., dissenting, considered on the contrary that the problem raised by respondents does not relate to the applicability of the most recent collective agreement, but to its application and interpretation. After noting that under s. 67 of the Labour Code, respondents are governed by the aforementioned agreement, Dubé J.A. concluded that in accordance with s. 100 of the Labour Code, the dispute between the parties had to be settled by arbitration.

Point at Issue

The only point at issue is whether the Superior Court has jurisdiction to decide what seniority rights respondents have. If the issue between the parties raises a question of applicability, the Superior Court will have jurisdiction. If on the other hand it is the application and interpretation of the most recent collective agreement which is in question, only the arbitrator can hear the matter.

Arguments of Parties in this Court

Appellant alleged that respondents' seniority must be determined by an arbitrator in a grievance proceeding. In its submission, the concept of applicability is limited in scope and cannot successfully be relied on in the context of the case at bar. In appellant's opinion a collective agreement becomes applicable to employees as soon as it is determined that they are members of the bargaining unit for which the agreement was negotiated. Since it is clear that respondents are currently members of the bargaining unit of the employees of the mis en cause, there can be no doubt in appellant's view that their seniority rights are governed by the most recent collective agreement.

In appellant's opinion the Court of Appeal judgment has the effect of recognizing the existence of two collective agreements, one governing certain rights of respondents (namely seniority), and the other governing certain other rights. This position, appellant submitted, is contrary to the letter and spirit of the legislation dealing with labour relations. In appellant's submission respondents' seniority rights must necessarily be read and understood in terms of the most recent collective agreement.

Respondents for their part relied on Labrecque, supra, as a basis for saying that the problem raised by them regarding their seniority is not within the jurisdiction of an arbitrator. In the final analysis, they alleged that the seniority clause contained in the most recent collective agreement cannot be set up against them and accordingly concluded that the arbitrator, whose function is limited to the application and interpretation of that agreement, is not competent to decide what their rights are in the matter. In support of their argument that the most recent seniority clause does not apply to them, respondents argued that their seniority rights are vested rights which cannot be abridged without their agreement. They argued that the union has no power to alter their seniority rights by a subsequent collective agreement, as for all practical purposes those rights are personal rights which can neither be limited nor abolished without agreement between the parties.

The mis en cause employer adopted some part of the argument of each of the other two parties. It agreed with respondents that the debate in this Court concerns a question of applicability, but it supported appellant's opinion that respondents' seniority rights must ultimately be determined in accordance with the most recent collective agreement.

Analysis

If one were to conclude that the problem raised by respondents is one of applicability (and that the Superior Court thus has jurisdiction) this would mean that more than one collective agreement applies to the same bargaining unit. That would imply that a collective agreement which had otherwise expired would regulate the method used to calculate the seniority of certain employees (here respondents), while the text of the most recent collective agreement would regulate that of certain other employees. This would amount to saying that a collective agreement can be divided and may not govern certain members of a bargaining unit. In light of the legislation and fundamental principles in the field of labour law, this in my opinion would be an untenable conclusion.

Applicability of Collective Agreement

To fully understand the problem of applicability, certain rules of law that emerge from the Labour Code or from precedent need to be looked at. Respondents' position on the question of applicability must be examined in terms of the legislation which governs labour relations and the case law that has resulted from it.

One of the most fundamental rules dealing with the question of applicability is stated in s. 67 of the Labour Code. This section provides first that the collective agreement is applicable to all employees, present or future, and also provides that the certified association must make only one collective agreement with the employer:

67. [Employees bound] A collective agreement shall be binding upon all the present or future employees contemplated by the certification.

[One collective agreement per group] The certified association and the employer shall make only one collective agreement with respect to the group of employees contemplated by the certification.

Additionally, ss. 65 and 66 provide that collective agreements are for a limited time and are therefore capable of being ended and replaced:

65. [Duration] The term of a collective agreement shall not be less than one year nor more than three years.

66. [Presumption] An agreement having no fixed and definite term is presumed to be in force for one year.

Aside from these legislative provisions, two recent judgments of the Quebec Court of Appeal referring to the question of applicability are worth mentioning. In Société Radio‑Canada v. Syndicat canadien de la Fonction publique, [1988 475 (QC CA)], [1988] R.J.Q. 932, and Syndicat canadien des travailleurs du papier, section locale 204 v. Produits forestiers E.B. Eddy Ltée, [1988 578 (QC CA)], [1988] R.D.J. 614, the question was whether certain workers could rejoin the bargaining unit and retain the seniority they had accumulated when they were absent from it. In each of these two cases the union had argued that the employees' collective agreement, which was favourable to the workers' position, could not apply to them since they were no longer members of the unit. The Quebec Court of Appeal had to decide whether the arbitrator, who had based his finding on the employees' collective agreement and ruled in favour of the workers, had erred on the question of applicability. The Court of Appeal said, at p. 938 of Société Radio‑Canada, supra:

[TRANSLATION] I think . . . that the question presented to the arbitrator did not concern third parties . . . but employees who had belonged to the bargaining unit working in other capacities at the time of the lay‑off for the same employer. If they rejoined the unit, what were their rights under the collective agreement? The question of applicability was not presented at the outset: only the application of the collective agreement was the subject of the grievance. [Emphasis added.]

Note that the court thus did not conclude in these two cases that the arbitrator erred by applying the agreement in effect at the time of the arbitration, rather than that which had been in effect when the workers were promoted. The court remained silent on this point.

When applied to the case at bar, ss. 65, 66 and 67 necessarily mean that the most recent agreement alone determines respondents' seniority rights. The very wording of s. 67 only recognizes the presence of one agreement and ss. 65 and 66 in their turn make it clear that old collective agreements are void. In view of these provisions respondents' seniority rights must necessarily be based on interpretation of the most recent collective agreement. As Dubé J.A., dissenting in the Court of Appeal, noted at pp. 855‑56, the problem raised by respondents concerns the interpretation and application of this agreement, not its applicability:

[TRANSLATION] In the case at bar since appellants have rejoined the collective agreement, it is clear that the question is not for them one of "applicability" but rather a question of application and interpretation of [the new collective agreement] . . .

Moreover, respondents are not asking the Court to rule that they are not subject to the collective agreement now in effect, which might raise a question of applicability involving the initial jurisdiction of the arbitrator. Instead they are asking the Court to find that certain provisions of the agreement should not be set up against them, essentially because their seniority rights are personal rights, vested rights which exist outside the aforementioned agreement. They argue that the arbitrator has no jurisdiction over the determination of these rights since they are completely independent of the agreement. With respect, I cannot agree with this view. The advantages or benefits which respondents may enjoy as a result of their seniority have to be established by application of the new agreement by the arbitrator responsible for doing so. The arbitrator Bora Laskin, as he then was, said in Re Federal Wire and Cable Co. (1960), 3 Steelworkers Arbitration Cases 276, at p. 278:

I take as my starting point that seniority under a collective agreement has its meaning and application only under the terms and in the context of the agreement. Seniority, in other words, is a collective bargaining concept.

It cannot be said that the union in the case at bar did not have the right to alter respondents' seniority rights by means of a subsequent collective agreement. Section 62 of the Labour Code states that:

62. [Content of agreement] The collective agreement may contain any provision respecting conditions of employment which is not contrary to public order or prohibited by law.

Though it is possible in some cases to interpret a collective agreement so as to give seniority rights to certain workers, one cannot simply ignore the terms of such an agreement in order to give employees vested rights in the matter. Seniority rights are subject to the collective bargaining process like any other employee right. In the context of labour relations it would be singular, to say the least, for these rights to be absolutely and irremediably raised to the level of vested rights. When a collective agreement exists, individual rights are for all practical purposes superseded. As Laskin C.J. said at p. 725 of McGavin Toastmaster Ltd. v. Ainscough, [1975 9 (SCC)], [1976] 1 S.C.R. 718, in which the Court adopted a rule stated in Syndicat catholique des employés de magasins du Québec Inc. v. Compagnie Paquet Ltée, [1959 51 (SCC)], [1959] S.C.R. 206:

The common law as it applies to individual employment contracts is no longer relevant to employer‑employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto.

Respondents' seniority rights relate to the application of the most recent agreement. Under ss. 100, 1(f) and 139 of the Labour Code, reproduced below, only the arbitrator of this agreement has jurisdiction to determine them.

100. [Arbitration of grievance] 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.

1. . . .

(f) ["grievance"] "grievance" -‑ any disagreement respecting the interpretation or application of a collective agreement;

139. [Prohibited recourses] Except on a question of jurisdiction, no extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against any council of arbitration, court of arbitration, certification agent, labour commissioner or the Court acting in their official capacities.

Accordingly, it is the arbitrator and not the Superior Court which has jurisdiction to decide on respondents' seniority. Any question related to this seniority must be settled by an arbitrator in a grievance proceeding. As this Court held per Estey J. in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986 71 (SCC)], [1986] 1 S.C.R. 704, at p. 718, the arbitrator's jurisdiction over questions involving the interpretation of a collective agreement is exclusive:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law.

For these reasons, I am unable to agree that respondents can escape the arbitrator's jurisdiction by relying on the concept of applicability as discussed in Labrecque, supra. The concept of applicability cannot be used in the case at bar to evade the rules contained in the Labour Code or in the case law. It should be noted in this regard that the issue in Labrecque raised the question of applicability in a completely different way. The question was whether Mr. Labrecque, a part‑time employee of the Government of Quebec, belonged as such to a certain bargaining unit to which a particular collective agreement applied and whether he was accordingly subject to that agreement. The question presented in that case is thus very different from the one at bar, where the Court must decide on the seniority rights of respondents whose membership in the bargaining unit and accordingly coverage by the collective agreement are not at issue. Only the question of whether certain of its provisions can be set up against them is raised. In my view, extending the scope of Labrecque to the case at bar would be to misunderstand the concept of applicability discussed in it. When applicability is in question it is not the content or effect of the particular provisions of the collective agreement that are at issue but whether the agreement as a whole is capable of governing a given situation. The scope of the particular provisions which do not imply the applicability of the agreement as a whole is a matter of interpretation and application reserved for the consideration of the grievance arbitrator. That is what is at issue here.

Use of the Old Collective Agreement

By this conclusion I do not intend to exclude all recourse by the arbitrator to the provisions of an earlier collective agreement in appropriate cases as an aid in applying and interpreting the collective agreement in effect. There are examples of this in earlier arbitral awards. What should be understood is that the arbitrator of the most recent collective agreement has exclusive jurisdiction to rule on respondents' seniority. He alone has the responsibility for determining the content and scope of all the rights and privileges connected with their seniority. However, as we have noted, the arbitrator of the collective agreement may use the wording of expired agreements as a guide in his interpretation function in certain particular situations, such as where the wording of the provision is not decisive. This has already been recognized by this Court. In Syndicat des professeurs du CEGEP du Vieux‑Montréal v. CEGEP du Vieux‑Montréal, [1976 197 (SCC)], [1977] 2 S.C.R. 568, in which the Court had to decide on the validity of an arbitral award as to a teacher's employment priority, Pigeon J. explained at p. 573:

It was unquestionably the duty of the arbitration board hearing the grievance to decide how the new agreement would apply to a notice of termination given under the earlier agreement. Undoubtedly, the existence of this other agreement was one of the facts to be taken into account and the arbitrators certainly were not giving the new text a construction it could not bear . . .

An arbitrator having the function of determining respondents' seniority may thus refer to an earlier collective agreement as an interpretation tool. Such an agreement, as appellant in fact conceded, may, depending on the circumstances, assist in understanding the rights conferred by the more recent agreement.

Disposition

For these reasons I would allow the appeal at bar, reverse the judgment of the Quebec Court of Appeal, reinstate the trial judgment and accordingly dismiss for lack of jurisdiction the motion for a declaratory judgment, the whole with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Trudel, Nadeau, Lesage, Clearly, Larivière & Associés, Montréal; Sauvé, Ménard & Associés, Montréal.

Solicitors for the respondents: Moisan, Bellavance, Aubert & Associés, Arthabaska.

Solicitors for the mis en cause: Gagnon, de Billy, Cantin, Martin, Beaudoin, Lesage & Associés, Québec.

¹ Hémond v. Coopérative fédérée du Québec, S.C. Arthabaska, No. 415-05-000136-837, January 25, 1984.