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A-198-74
CKCH Radio Limitée (Applicant)
v.
Canada Labour Relations Board (Respondent) and
National Association of Broadcast Employees and Technicians, AFL-CIO-CLC (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Hyde JJ.—Montreal, April 9 and 17, 1975.
Judicial review—Canada Labour Relations Board amending collective agreement to provide for final settlement—Whether agreement already containing such provision—Whether Board entitled to exercise extraordinary powers—Canada Labour Code, R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18, s. 155.
The Board amended the collective agreement between appli cant and the union in order to provide for final settlement; applicant claims that the Board was not entitled to use the extraordinary power granted it under section 155(2) of the Act because the agreement already contained a "provision for final settlement" as required by section 155(1).
Held, dismissing the appeal, the agreement makes no provi sion for a method of settling differences and does not comply with section 155(1). In the circumstances, the Board was entitled to exercise the power conferred by section 155(2). Applicant did not argue the illegality of the decision on any other ground, hence the dismissal. However, doubts as to the validity of the decision do arise because it appears that the agreement as amended does not permit the employer to present a grievance, or submit a dispute to arbitration. A provision for final settlement does not comply with section 155(1) if it does not allow all parties to avail themselves of the procedure.
Union Carbide Canada Limited v. Weiler [1968] S.C.R. 966 and General Truck Drivers Union, Local 938 v. Hoar Transport Co. Ltd. [1969] S.C.R. 634, considered.
JUDICIAL review. COUNSEL:
R. Heenan for applicant.
F. Mercier, Q. C., for respondent.
C. Trudel for mis -en-cause.
SOLICITORS:
Johnston, Heenan & Blaikie, Montreal, for applicant.
Stikeman, Elliot, Tamaki, Mercier & Robb, Montreal for respondent.
Trudel, Nadeau, Letourneau, Lesage & Dulude, Montreal, for mis -en-cause.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: Applicant is seeking, in accordance with section 28 of the Federal Court Act, to have a decision of the Canada Labour Relations Board quashed. By that decision, handed down under section 155 of the Canada Labour Code, the Board amended the collective agreement concluded by applicant with the mis -en-cause union.
Section 155 of the Canada Labour Code reads as follows:
155. (1) Every collective agreement shall contain a provi sion for final settlement without stoppage of work, by arbitra tion or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged violation.
(2) Where a collective agreement does not contain a provi sion for final settlement as required by subsection (1), the Board shall, on application by either party to the collective agreement, by order, furnish a provision for final settlement, and a provision so furnished shall be deemed to be a term of the collective agreement and binding on the parties to and all employees bound by the collective agreement.
On February 1, 1974 applicant and the union concluded a collective agreement providing a procedure for the settlement of grievances present ed by the employees, and containing in addition the following clause:
22.4.8 The Union may exercise any remedy arising out of an alleged violation or misinterpretation of any provision of the collective agreement, as to which one or more employees have no personal or direct interest because of the very nature of the right in question.
However, this agreement did not provide that the union could act on a violation of the collective agreement harmful to the interests of employees who had not themselves presented grievances. Accordingly, at the request of the union, the Board decided that clause 22.4.8 of the agreement should be replaced by the following (which I cite from the English text of the decision of the Board because the text contained in the French version is 'unintelligible).
The union may submit any matter it considers to be a violation or misinterpretation of this agreement to the grievance and arbitration procedure provided in Article 22, except that in the case of the union grievance, the procedure shall begin at the second level as described in Article 22.3.
It is the legality of this decision that is disputed by applicant. It maintains that, in the circum stances, the Board was not entitled to exercise the extraordinary power conferred on it by section 155(2), because the collective agreement conclud ed by the parties already contained a "provision for final settlement" in compliance with the requirements of subsection (1) of that section.
Applicant's argument may be summarized as follows.
(a) Section 155 (1) requires that a collective agreement shall contain a "provision for final settlement" of all differences concerning the interpretation or application of the agreement.
(b) The differences referred to in section 155(1) are of two kinds: those relating to a clause of the agreement stipulated primarily in the interests of the employees, and those relating to a clause of the agreement stipulated primarily in the interests of the union.
(c) The agreement concluded by applicant and the mis -en-cause complies with the requirements of section 155(1), because it provides for the settlement by arbitration of these two kinds of differences. This is true despite the fact that, under the agreement, differences concerning violation of clauses of the agreement stipulated exclusively in the interest of the employees cannot be submitted to arbitration if the employees have not themselves presented a grievance. This stipulation is only a rule of procedure, comparable to the clause in the agreement setting a time limit for presentation of grievances. Moreover, there is nothing unusual in such a stipulation, since without it the union could "present the grievance of an individual employee against his wishes", which would be "contrary to the fundamental princi ples of theory and practice in labour law".
I See Union Carbide Canada Limited v. Weiler [1968] S.C.R. 966 and General Truck Drivers Union, Local 938 v. Hoar Transport Co. Ltd. [1969] S.C.R. 634.
In my view this argument cannot be accepted. Section 155(1) requires that every collective agree ment shall contain a "provision for final settle ment" of all differences "between the parties to or employees bound by the collective agreement", concerning its interpretation or application. The parties to the agreement are the employer and the union bargaining agent. 2 The Act therefore requires that the collective agreement provide a procedure for the settlement of all differences that may arise between the employer and the union regarding interpretation or application of the agreement. The term "difference" is not defined by the Act, and in the ordinary sense of the word, a difference exists between two persons provided they are in disagreement, regardless of the focus of that disagreement. In the current sense of the word, therefore, there may be a difference between the parties to the agreement even with respect to a matter not affecting the interests of those parties. However, it is possible that the word "difference" in section 155(1) must be given a more limited interpretation, as referring only to a difference the subject-matter of which affects the interests of parties to the difference. It is not necessary to decide this point, since it appears that, even if the word "difference" is given this more limited inter pretation, there can be a difference between an employer and a union concerning violation by the employer of clauses of the collective agreement stipulated in the interest of the employees, even though the employees concerned are not complain ing of this violation. The agreement concluded between applicant and the mis -en-cause makes no provision for a method of settling such differences, and in my view it does not comply with the requirements of section 155(1). Accordingly, I consider that, in the circumstances, the Board was entitled to exercise the extraordinary power con ferred on it by section 155(2), and for this reason I would dismiss the application.
In conclusion I would emphasize that applicant did not argue that the decision impugned was illegal for any reason other than that which I have dismissed. My reason for making this observation is that it seems doubtful, though the record pro vides no basis for a firm conclusion on this point, that the decision impugned is one which the Board
z See the definition of the terms "collective agreement" and "parties" in section 107(1) of the Canada Labour Code.
was entitled to make under section 155(2). In the case dealt with by this provision "the Board shall ... by order, furnish a provision", namely, a provision for final settlement as required by sec tion 155(1). The Board is therefore not entitled to order a provision which does not comply with all these requirements. In the case at bar, doubts concerning the validity of the decision handed down by the Board arise, inter aiia, because it would appear that the collective agreement, as amended by the Board's order, does not permit the employer to present a grievance or submit a dis pute to arbitration. In my opinion, a provision for final settlement does not comply with the require ments of section 155(1) if it does not allow all parties to a difference to avail themselves of the prescribed procedure for settlement.
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JACKETT C.J.: I concur in this opinion.
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HYDE J.: I concur in this opinion.
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