Cite as: International Union of Operating Engineers, Local 721 v. Municipal Contracting Ltd., 1989 NSCA 5 S.C.A. 01997
IN THE SUPREME COURT OF NOVA S C O n A APPEAL DIVISION Clarke, C.J.N.S., Hart, Macdonald, Matthews and Chlpman. JJ.A. BETWEEN:
THE INTERNATIONAL UNION OF OPERATING ENGINkERS, LOCAL 721, and WILLIAM H. KYDD, Appellants
- - and MUNICIPAL CONTRACTING LIMITED, Respondent
BY THE COURT: Appeal allowed and cross-appeal dismissed and award of arbitrator restored judgment of Clarke. C.J.N.S., Matthews and Chipman, J.J.A. concurring.
R.A. Pink-and G.N. Forsyth, for the appellants
G.M. Mitchell, Q.C. and Mr. T.P. Donovan, for the respondent A. Scott.
for the lntervenot Appeal Heard: March 30, 1989 Judgment Delivered: May 17, 1989
per reasons for Harr. Macdonald.
CLARKE, C.J.N.S.: This appea l concerns t h e s t a t u t o r y procedure provided fo r t h e a rb i t ra t ion of gr ievances in t h e cons t ruc t ion industry in Nova Scot ia as set f o r t h in t h e T rade Union Ac t , S.N.S. 1972, c. 19. It ra i ses t h e issues whether under s. 103 (7) a n a rb i t r a to r Is required to g r a n t a n adjournment to o n e pa r ty in t h e f a c e of t h e s t a t u t o r y t l m e cons t r a in t s imposed by t h e A c t and a l so whe the r t h e subsec t ion is unconst i tut lonal because it violates s. 15 (1) of t h e Canadtan C h a r t e r of R lgh t s and Freedoms. Sec t ion 103 (7) states: T h e declsion of t h e a r b i t r a t o r shal l be rendered within forty-eight hours of t h e t i m e of appoin tment unless a n ex tens ion Is agreed upon by t h e parties.
The appea l is f rom t h e decision of Mr. J u s t i c e Davison of t h e Trial Division who on J u n e 29, 1988 g r a n t e d t h e app l i ca t i on of t h e respondent (Municipal) and issued a n o r d e r in t h e n a t u r e of ce r t i o r a r i to quash t h e decision of a n a r b i t r a t o r appointed pursuant to t h e Act . I t is appropr ia te to begin wlth a brief overview of t h e Act . I t is dlvided i n t o t w o parts. T h e f i r s t con ta in s t h e longstanding provisions, amended f rom t i m e t o t ime , t h a t began with t h e f i r s t T rade Union A c t in Nova Scot ia concerning unionized labour and management relations. I t recognizes t h e role of t h e a r b i t r a t o r , o r a rb i t r a t i on board, in t h e s e i t l e m e n t of g r i e v a n c e disputes, w h e t h e r appointed consensual ly o r pursuant to t h e Ac t . Where a c o l l e c t i v e ag reemen t does n o t provide f o r arbitration, t h e A c t imposes a n
a rb i t r a t i on c l ause a n d m a k e s provision fo r t h e appo in tmen t of a n a rb i t r a to r if t h e pa r t i e s a r e unable to ag ree . The bulk of P a r t 1 a rb i t r a t i ons a r i s e f r o m t h e l a s t s t e p g r i evance provisions in co l l ec t i ve a g r e e m e n t s a n d a r e t h e r e f o r e consensual. Sect ion 41 (1) is in P a r t 1 of t h e A c t and provides: 41 (1) A n a rb i t r a to r , o r a n a rb i t r a t i on board, appoin ted pursuant to th is A c t o r to a co l l ec t i ve agreement :
(a) shal l d e t e r m i n e h is or i t s own procedure, bu t sha l l give fu l l oppor tuni ty to t h e pa r t i e s to t h e
proceedings to present ev idence and make submissions to h im o r i t ; (c) h a s power to d e t e r m i n e any quest ion as to whe the r a m a t t e r r e f e r r e d to him o r i t is a rb i t rab le ; Dur ing t h e mid-1960s t h e province became engul fed in a ser ies of d i sputes in t h e cons t ruc t ion industry which t h r e a t e n e d t h e economic s tab i l i ty of various a r e a s o f t h e province in par t icu lar and to s o m e e x t e n t , t h e province in genera l . In 1967 Mr. 1.M. MacKeigan, Q.C. ( la te r Chief J u s t i c e of Nova Scotia) was commiss ioned to inquire i n t o t h e s e problems with spec i a l emphas i s upon t h e d i f f icu l t ies which w e r e delaying and disrupt ing t h e cons t ruc t ion of t h e Deu te r ium Heavy Wate r P l an t at G l a c e Bay. H e r ecommended , among o the r s , t h a t s e p a r a t e s t a tu to ry recognit ion be g iven to t h e cons t ruc t ion industry in Nova Scotia and , v i t a l to t h e issues t h a t prompt t h i s appea l , t h a t a process of "speedy arb i t ra t lon" to reso lve disputes be imposed upon unions and employers . A s a resu l t t h e
Legis la ture e n a c t e d a s e p a r a t e ce r t l f i ca t l on p rocedure fo r t h e cons t ruc t lon industry. H e n c e t h e beglnning of P a r t 11 designed t o apply only to t h e cons t ruc t ion industry. T h e recommendat ion f o r "speedy arb i t ra t ion" w a s no t implemented at t h a t t ime. The problems t h a t made for d i sputes among t h e cons t ruc t ion t r a d e s continued, including jurisdictional d i sputes ove r work a n d r ights , employmen t o f non-union labour and r e l a t ed ma t t e r s . Wlldcats, s t r i ke s and lockouts w e r e f r e q u e n t a n d regular occurrences . This led to t h e appoin tment of t h e l a t e Professor H.D. Woods of McGill to inves t iga te t h e de t e r io ra t i ng situation. H e concluded , as had Commissioner MacKeigan, t h a t t h e t rad i t iona l ( P a r t I) method o f resolving d isputes was inadequate to s e r v e t h e spec ia l c l r cums tances t h a t had developed i n t h e cons t ruc t ion industry in Nova Scotia . Professor Woods recommended, at pages 101-102 of h is repor t , t h a t t h e cons t ruc t ion industry in Nova Sco t i a required a s e p a r a t e a n d spec ia l s y s t e m f o r t h e resolution of i t s g r i evance disputes and more part icular ly, o n e t h a t would, (a) be ava i lab le f r o m t h e moment t h e co l lec t ive ag reemen t c o m e s in to fo rce ;
(b) be ava i lab le to employees through t h e union f o r t h e resolut ion o f g r i evance disputes unresolved at any s t e p in t h e gr ievance procedure;
(c) be ava i lab le to t h e union to dea l with a l lega t ions t h a t the , employe r o r employers ' organizat ion (whichever is s igna tory tc t h e a g r e e m e n t ) h a s violated t h e r ights of t h e union under
t h e a g r e e m e n t ;
(dl be ava i lab le to t h e employer o r employers ' associat ion (whichever is s igna to ry to t h e ag reemen t ) to dea l with a l lega t ions t h a t t h e union h a s vlolated t h e r ights o f t h e employer under t h e ag reemen t :
(el provide for rapid hearings conducted with the minimum resort t o legalism consistent wlth the protection of natural justice;
(f) produce a n award in the shortest possible t ime in which the arbitrator gives his ruling on the issue or issues placed before him and order the parties to do, or refrain from doing, whatever is necessary t o protect the parties in their rights under the agreement. In carrying out this responsibility the arbitrator should be f ree , where appropriate, to vary a penalty, t o award damages t o an employee, an employer, and the union, and to do whatever else is necessary t o meet his responsibilities
under the agreement.
I t was in response t o these recommendations that the Trade Union Act was emended by S.N.S. 1970-71, c. 5, to provide for a n accelerated arbitration procedure in the constructon industry. The Act was further amended and consolidated in 1972 by c. 19. I t Ls from this brief historical backdrop tha t Par t 11 entitled Construction Industry Labour Relations achieved i ts legislative birth and statutory existence. While subsection 7 of sectior. 103 of Par t 11 is at the hear t of this appeal, It will be helpful to the r e ~ d e rto set forth all of s. 103 by way of providing ac insight t o the response the Legislature made to the recommendations of Professor Woods. Arbitration 103 (1) Notwithstanding Sections 39 and 40 and any provision in a collective agreement, where an empioyer or an employers' organization enters a collective agreement, any dispute o r
difference between the parties t o t h e collective egreement, including the persons bound by the collective agreement, relating
t o or involving
(a) the interpretation, administration of t h e collective agreement or any provision of the collective agreement;
meaning, application or
(b) a violation o r a n al legat ion of a violat ion of the co l l ec t i ve ag reemen t ;
(c) working conditions; o r (d) a quest ion whether a m a t t e r is a rb i t rab le , sha l l be submi t t ed fo r f inal s e t t l emen t to a rb i t r a t i on in acco rdance wi th th i s sec t ion in subst i tut ion fo r a n y a rb i t r a t i on o r a rb i t ra t ion procedure provided f o r in t h e co l lec t ive agreement .
Be fo re S t r i k e Pos i t ion a f t e r Agreement Expi res (2) Where a dispute o r d i f fe rence a r i s e s be tween t h e par t ies to a co l l ec t i ve ag reemen t to which th i s Sec t ion appl ies during
t h e period f rom t h e d a t e of i t s t e rmina t ion to t h e d a t e t h e requi rements of Sect ion 102 have been m e t , t h i s Sec t ion applies to t h e s e t t l e m e n t of t h e dispute o r difference.
T i m e Limi t to A g r e e o n Appointment of Arb i t r a to r (3) When a dispute o r d i f fe rence a r i s e s which t h e par t ies a r e unable to resoive, t h e par t ies to t h e dispute o r d i f f e r ence shal l a g r e e by midnight of t h e day on which t h e d ispute o r d i f f e r ence a r i s e s upon t h e appointment of a single a r b i t r a t o r to a r b i t r a t e t h e dispute o r difference.
Failure to Comply wi th Subsect ion (3) (4) When o n e of t h e par t ies advises t h e Minister t h a t a dispute o r d i f f e r ence has a r i sen and t h a t t h e pa r t i e s to t h e d ispute
o r d i f f e r ence have failed to comply with subsect ion (3), t h e bfinister may appoin t a n a rb i t ra tor .
Appoin tment of Arb i t r a to r by Minister (5) Notwithstanding any provision of t h i s Sect ion, t h e Minister may, with t h e wr i t t en consent of t h e employer a n d t h e t r a d e union o r unions represent ing t h e employees who a r e r ep re sen ted by a t r a d e union, appoint a person to b e t h e a r b i t r a t o r fo r t h e purpose of t h i s Sec t ion f o r t h e t e r m of t h e co l lec t ive ag reemen t o r f o r t h e t e r m mentioned in t h e appo in tmen t and t h e provisions of subsect ions (3) and (4) shal l n o t apply.
Powers of Arbitrator (6) The arbitrator appointed pursuant t o this Section has the powers conferred by Section 41 and, without restricting his power and authority, his decision shall be a n order and may require
(a) compliance with the collective agreement In the manner stipulated;
(b) reinstatement of an employee in the case of a dismissal o r suspension in lieu of dismissal with o r without compensation.
Tlme Limi t f o r Rendering Decision of Arbi t ra tor (7) The decision of the arbitrator shall be rendered within forty-eight hours of the t ime of appointment unless a n extension is agreed upon by the parties.
Parties Bound by Decision of Arbitrator (8) The part ies t o the dispute o r difference shall be bound by t h e decision of the arbitrator from t h e t ime the decision is rendered and shall abide by and carry out any requirement contained in t h e decision.
Reporting of Decision (9) An arbi t ra tor appointed pursuant t o the provisions of this Section who renders a decision in respect of a dispute
or d i f ference shall make a report and shall transmit the report t o t h e Minister and t o the parties.
Fees and Expensesof Arbitrator (1) One third of the fees of , and t h e expenses incurred by, a n a rb i t ra to r appointed under the provisions of this Section shall be paid by each of the Minister and the employer or the employers' organization and trade union tha t a re parties t o the collective agreement in accordance with a scale of fees and expenses approved by t h e Minister.
Section 103 has continued since 1972 without amendment. During t h e intervening period a multi tude of grievances in t h e construction industry have been expedited t o f inal resolution.
T h e appel lan t (Union) 1s t h e ce r t i f i ed bargaining a g e n t fo r t h e employees who a r e employed as opera t ing engineers by t h e respondent (Municipal). This resul ts f rom a co l l ec t ive ag reemen t e n t e r e d be tween t h e Union and the Const ruc t ion Management Labour Relat lons Bureau, o f which t h e respondent is a member . In 1976 t h e Construct ion Industry Pane l of t h e Labour Relat ions Board issued a n accredi ta t ion o rde r whereby t h e Bureau was author ized to nego t i a t e co i lec t ive a g r e e m e n t s on behalf of i t s unionized employer members in t h e industrial and commerc ia l s e c t o r of t h e cons t ruc t ion industry. No col lec t ive a g r e e m e n t ex is t s be tween t h e Union and Municipal fo r o ther s e c t o r s in t h e cons t ruc t ion industry which, under t h e Ac t , include housebuilding, sewers , tunnels and w a t e r mains, and roadbuilding. During t h e l a t t e r pa r t of 1987 t h e Union al leged Municipal was employing non-union employees a t s o m e of i t s jobs, con t r a ry to t h e hir ing provisions of t h e coi lec t ive ag reemen t . T h e Union filed four gr ievances on t h e following d a t e s concerning t h e work being performed by Municipal at four locations. August 24, 1987 - School f o r t h e Blind, Halifax August 26, 1987 - Volvo Plant , Hal i fax Oc tobe r 20, 1987 - Bayers Road Shopping Cen t r e , Halifax
November 5,1987 - Li t ton Plant , Hal i fax County Industr ial P a r k
O n each occasion, and on t h e day of the delivery of each grlevance, t h e Union business agent, Estabrooks, discussed t h e grlevance wlth t h e comptroller of Municipal, Widmeyer. O n each occasion they were unable to a g r e e upon t h e se t t lement of t h e grievance or upon t h e appointment of a n arbitrator. Estabrooks deposes t h a t he informed Widmeyer that h e would be requesting t h e Minister of Labour to appoint an arbitrator. By November 9, 1987 these grievances had not yet gone t o arbitrat ion and t h e Union requested t h e Minister of Labour to appoint a Section 103 arbi t ra tor and fur ther indicate? to t h e Mlnk te r t h a t t h e Union did not wish t o waive t h e forty-eight hours t i m e Hmit provided by s. 103 (7). Thereupon Mr. P. F. Langioh, t h e Asslstanr to t h e Deputy Minister of Labour, communka ted with Mr. Widmeyer of Municipal. Mr. Langlois deposes by his affidavlt: 1 contacted Gary Widmeyer, Comptroller of Municipal Contractlng Limited, sometime between November 10, 1987 and November 17, 1987 regarding t h e Respondent's application. 1 discussed the nature of t h e request made and asked whether Mr. Widmeyer wanted me t o con tac t t h e company's solicitor before a n arbitrator was appointed. Mr. Widmeyer advised t h a t i t was not necessary for me t o do so.
On November 18, 1987 t h e Minister appointed Arbitrator W.H. Kydd, Q.C. t o hear all four grievances and both parties were notified accordingly. Arbitrator Kydd commenced a hearing on November 19. 1987. At the beginning of t h e arbitrat ion hearing, counsel of Municlpal made a preliminary motion asking tha t t h e proceeding be adjourned because she claimed t h e issues in these grievances would
be resolved by ano the r a rb i t ra t ion proceeding be tween t h e pa r t i e s scheduled to be heard in February 1988. She advanced o t h e r reasons including t h a t t he gr ievances lacked any deg ree of urgency, t h e whole m a t t e r had been sprung on her when she f i r s t heard of i t t h e day before as a result of a te legram f rom t h e Labour Depar tment , t h e usual sol ici tor f o r Municipal was ou t of t h e province, and she lacked t i m e to prepare both t h e case and t h e employer's witnesses. She argued t h a t to fai l to g ran t a n adjournment under t h e s e c i rcumstances would amoun t t o a f l ag ran t abuse of s. 103 and t h e principles of na tu ra l justice. She submit ted t h a t 6. 103 (7) of P a r t 11 was in confl ict wi th 6. 41 (1) (a) of P a r t I a n d t h a t t h e t i m e required f o r a ful l hearing took precedence over t h e obligation t o r ende r a decision within forty-eight hours. She also argued t h a t s. 103 (7) was in violation of 6s. 7 a n d 15 of t h e Charter and the re fo re unconstitutional. , Counsel of t h e Union refused to a g r e e to a n adjournment. c
H e submi t t ed t h a t s. 103 was to be followed. Af t e r considering t h e submissions of both part ies , Arbi t ra tor Kydd concluded t h a t t h e provisions of s. 103 (7) were to be observed and t h a t absent "an extension ag reed upon by t h e parties", t h e a rb i t r a t ion would g o forward. He refused t o g r a n t t h e preliminary motion made by counsel of Municipal. Arbi t ra tor Kydd said: The Employer's position in this case L t h a t it would t a k e much longer t han t h e t i m e avai lable to call a l l of h e r witnesses a n d t h a t she was not being unreasonable in contempla t ing t h e length of h e r evidence, considering t h e e s t i m a t e s given
by t h e Union as to t h e amoun t of t l m e it requi red to p re sen t its case bo th be fo re t h e cons t ruc t ion indus t ry panel and before Mr. MacDougall. 1 ag ree with her submission t h a t h e r t i m e e s t i m a t e is reasonable if t h e r e were no t i m e l imits , considering t h e Union's position on t h e ea r l i e r hearings. T h e essent ia l d i f fe rence however is t h a t both par t ies h a d t h e normal r igh t to t a k e as much t i m e as t h e y wanted wi th in t h e bounds of relevancy, in hearings before t h e P a n e l a n d Mr. MacDougall
(before whom t h e part ies had waived t h e t i m e limit). Where t he re is a t i m e l imi t however t h e r e is no such r ight and t h e part ies h a v e to select the i r ev idence and p lan its prepara t ion accordingly. In addit ion 1 no te t h a t when t h e s a m e issue w a s heard in t h e a rb i t ra t ion be fo re Judge MacLellan, a l though both pa r t i e s a g r e e d to waive t h e t i m e l imi t s under t h e provisions
of Sect ion 103, t h e hearing was comple ted in o n e day.
Aside f r o m t h e Employer's des i re to c a l l many witnesses and present a very comprehensive a m o u n t of evidence, t h e r e was no reason advanced by h e r why s h e could no t p re sen t a more consol ida ted type of case. T h e r e w a s no suggest ion by h e r t h a t a n y of t h e knowledgeable people employed by Municipal we re no t avai lable. Her main point indeed was t h a t s h e knew nothing a b o u t t h e four gr ievances because of t h e t i m e span be tween t h e t i m e she received not ice a n d t h e t i m e of t h e hearing. In t h i s case, s h e rece ived no t i ce of t h e hear ing ove r twenty-four hours prior to its c o m m e n c e m e n t and t h e r e f o r e had a s much o r more not ice t h a n would normal ly b e t h e case in a Sec t ion 103 hearing. Aside f rom t h e comprehens ive plans made by both s ides to have a wide ranging hea r ing be fo re t h e Cons t ruc t ion lndus t ry Pane l a n d Mr. MacDougall, 1 see nothing to distinguish t h i s case with its one issue, f r o m any of t h e
o the r a r b i t r a t i o n s heard under Sect ion 103. Virtually a l l o f t he se a r b i t r a t i o n s require counsel to quickly be briefed, and round u p t h o s e witnesses who a r e avai lable w h o c a n best present t he i r s ide in a conc i se summary way.
T h e f a c t t h a t t h e r e is a n o t h e r pending a rb i t r a t i on hear ing before Mr. MacDougall deal ing with t h e s a m e issue would be very persuas ive to m e a s a reason f o r g ran t ing a n ad journment t o save t i m e a n d expense t o t h e par t ies because I th ink on t h e balance of convenience such a n ad jou rnmen t makes sense.
However, aga in Sect ion 103 (7) does no t g ive m e t h e d iscre t ion t o grant s u c h a n adjournment in t h e a b s e n c e of a n a g r e e m e n t by both par t ies .
A f t e r making his ruling on t h e prel iminary motion, t h e a rb i t r a to r a sked counsel of t h e Union to c a l l his f i r s t witness. Thereupon counse l of Municipal informed t h e a r b i t r a t o r she would
n o t be a t tending t h e remainder of t h e a rb i t r a t ion proceeding and she a n d her assoc ia te l e f t t h e hearing roam and did n o t return. The a rb i t r a to r continued with t h e hear ing a n d hea rd t h e evidence of t h e witnesses of t h e Union and t h e submiss iors of i ts counsel, H e rendered a n o ra l decision at 8:05 o'clock in t h e evening of November 19, 1987 in which h e found t h e four g r i evances succeeded. He awarded t h e Union damages which total led $ 84,433.90. Arb i t r a to r Kydd subsequently filed thir ty-four pages of w r i t t e n reasons on November 27. 1987. Municipal applied to t h e Trial Division f o r a n o r d e r in t h e na tu re of ce r t i o ra r i to quash t h e award of t h e a rb i t r a to r . T h e . At to rney Genera l of Nova Sco t i a intervened, as h e did in t h i s appeal , to suppor t the jurisdiction of t h e a rb i t r a to r and t h e manner by which h e exerc ised it. The t r i a l judge decided t h a t t he a r b i t r a t o r "did n o t c o m m i t a n e r r o r of law by failing to specify in precise language a finding t h a t t h e work being done at t h e four s i t e s w a s c o m m e r c i a l a n d industr ial work". T h a t finding became a n issue in t h e cross-appeal but i t was abandoned before t h e hearing of t h e appeal . Mr. J u s t i c e Davison concluded t h a t s. 103 (7) of t h e Acr is ccns is ten t with s. 15 of t h e C h a r t e r and t h a t no Charter violat ion resul ted. However h e found t h a t t h e a rb i r r a to r e r r e d in l aw in considering s. 103 (7) to be a mandatory provision r a the r t h a n d i rec tory . The t r i a l judge conc!uded t h e a rb i t r a to r had been' unfa i r in failing to g r a n t a n adjournment in t h e c i rcumstances a n d t h a t t h e a rb i t r a ro r
was en t i t l ed to t r anspor t t h e discret ion g iven P a r t 1 a rb i t r a to r s by s. 41 (1) (a) a n d ( c ) to P a r t Il a rb i t r a to r s under s. 103 (7). H e granted ce r t i o ra r i and quashed t h e decision of t h e a rb i t r a to r . T h e Union appeals f r o m t h e decision of Mr. J u s t i c e Davison on t h e ground t h a t h e e r r ed in law in quashing t h e decision o f Arbi t ra tor Kydd. Municipal cross-appeals c n t h e ground t h a t t h e t r i a l judge e r r ed in law in concluding t h a t s. 103 (7) of t h e A c t was valid under t h e Constitution. T h e At torney General , as in tervenor , contends t h a t t h e a rb i t r a to r was r ight in a11 respects . It is well established t h a t t h e c o u r t s have adopted a poiicy of curial de fe rence toward t h e decisions a n d awards of a rb i t ra t ion boards and labour re la t ions tribunals. They funct ion in a special ized f ield t h a t requires t h e prompt and e f f e c t i v e resolut ion of disputes. In Blanchard v. Con t ro l D a t a Canada Ltd. et a1 (1984). 14 D.L.R. (4th) 289 (S.C.C.) Mr. Jus t i ce L a m e r s t a t e d at p. 307: T h e cour t will only in tervene if i t is persuaded t h a t t h e a rb i t r a to r made a n unreasonable award. In coming to such a conclusion, t h e cour t s should always be mlndful of t h e f a c t t h a t an a rb i t r a to r is in a fa r be t t e r position to assess t h e impac t of t h e award . I t needs to be said aga in t h a t adminis t ra t ive rribunals ex is t to provide solutions to d isputes t h a t c a n be best solved by a decision-making process o the r t h a n t h a t avai lable in t h e courts. Of ten , too. t h e adminis t ra t ive "judge" is be t t e r t ra ined and be t t e r informed on t h e a r e a of his jurisdiction, and has access t o information which more o f t e n than not does no t find i ts way in to t h e record submi t t ed t o t h e court . T o t h i s must be added t h e f a c t t h a t t h e a r b i t r a t o r saw and hea rd t h e parties.
In Br i t i sh Colombia Telecommunicat ion Workers Union. [I9851 6 W.W.R. Lamber t of t h e British Columbia C o u r t of Appeal , wrote at p. 228:
Te lephone Company v. 214, Mr. Jus t ice
T h e basis f o r t h e principle of cu r i a l de fe rence is t h a t t h e r e is a dynamic in t h e resolut ion of a labour dispute t h a t requires t h a t t h e dispute be resolved by a process t h a t commands t h e respec t of a l l t h e part ies . I t is t h e adherance of t h e pa r t i e s to t h e process t h a t causes t h e m to a c c e p t t h e results. A resul t
t h a t is s e e n as being fo rced on o n e c.r t h e o t h e r pa r ty by t h e l aw o r by t h e cour t s may be perfec t ly s a t i s f ac to ry f o r a s t a t i c relationship, where t h e part iea d o not have t o l ive toge the r , day in, day out. But where t h e pa r t i e s have been in ter twined in t h e past , a r e en tangled in t h e present , and a r e going to be bound together in t h e fu ture , it is e s sen t i a l t h a t t h e y consent to and t r u s t t he process t h a t ad jus ts t he i r differences. If t h e y wan t t h e job to be done by a single a r b i t r a t o r under exceptional ly
wide te rms, then , in my opinion, t h e cour t s should be very re luc tant indeed to in tervene , because to do so does not only
a f f e c t t h a t part icular dispute; it undermines t h e process by which t h e part ies ad jus t all the i r differences. That , I think, is t h e principle to be derived f rom t h e decisions of t h e Supreme C o u r t of Canada In Zellerls (West.) Ltd. v. Reta i le rs , etc. Union and Douglas A i r c r a f t Co. o f Can. v. McConnelL This decision was a f f i rmed by t h e Supreme Cour t of Canada o n a p p e a l on December 8, 1988 ((1988), 88 N.R. 260). The right of judicial in tervent ion remains, however, where t h e a rb i t r a to r c o m m i t s jurisdictional e r r o r and denies t h e pa r t i e s t h e fairness t h a t is fundamen ta l to n a t u r a l justice. T h e a rb i t r a to r , and t h e t r i a l judge, made r e f e r e ~ c eto t h e decision of this c o u r t in Yorkdale Drywall Ltd. v. Uni ted Brotherhood of Ca rpen te r s & Jo ine r s o f America. Loca l 83 (1987), 79 N.S.R. (2d) 444. T h a t case involved a n award made by a n a r b i t r a t o r under s. 103 and raised t h e issue whether t h e s t a t u t e superseded c e r t a i n provisions in t h e co l l ec t ive agreement . In finding t h a t i t did, t h e cour t said of s. 103 at p. 447: When "any dlspute o r difference" a r i s e s be tween t h e par t ies , 6. 103 provides t h e procedure to be followed in bringing a b o u t a f ina l ~ e t t l e m e n t . In this way t h e Legislature h a s imposed s. 103 on t h e co l l ec t ive ag reemen t s in t h e cons t ruc t ion industry in this province. Counsel of both t h e appellant a n d respondents
say t h a t it has been e f f e c t i v e as a means of providing q u k k se t t l emen t s in t roublesome situations.
The Legislature, by adopt ing 6. 103, implemented a new reg ime for t h e handling of disputes and differences in t h e cons t ruc t ion industry "notwithstanding ... a n y provision in a col lec t ive agreement" (s. 103 (1)). In this case t h e f lung of t h e t w o grievances by t h e Union signalled t h e ex i s t ence of a dispute o r d i f fe rence and immediately triggered t h e provisions of s. 103 (1) and (3). If t h e par t ies were unable t o resolve t h e d k p u t e s or d i f fe rences by midnight of t h e day they arose , they were obliged by s t a t u t e to a g r e e upon t h e appoin tment
of a n arb i t ra tor . If t hey failed, then the Minister of Labour, upon being notif ied by one of t h e part ies of t h e ex i s t ence of t h e dispute, had t h e author i ty to appoint a n a r b i t r a t o r (s. 103 (4)). T h e a rb i t r a to r , whether appointed by t h e par t ies o r t h e Minister, is then possessed of t h e powers g ran ted by s. 103 (6) and may 'require "compliance with t h e co l l ec t ive a g r e e m e n t in t h e manner stipulated". In this way t h e Legts la ture imposed a procedure fo r t h e resolution of d i f ferences and disputes in t h e construct ion industry, notwithstanding t h a t t h e par t ies may have se t t l ed upon o t h e r procedures in the i r co l l ec t ive agreement . Where any conf l ic t exists be tween t h e provisions of t h e cc l lec t lve ag reemen t and s. 103 o f t h e Act , s. 103 is deemed to prevail.
Grievance is a t radi t ional t e r m used in labour re la t ions to describe a dispute o r a difference. A gr ievance is a compla in t in s ea rch of a resolution. The process intended by s. 103 is to g e t to t h e h e a r t of t h e issue quickly. In th is way i t e l imina te s
t h e intervening and t ime consuming steps t h a t appea r in many collect ive ag reemen t s and there in described as t h e gr ievance procedure. Sec t ion 103 shor t c u t s t he process and moves a dispute o r d i f f e rence s t r a igh t through t o t h e last s tep . T h e dispute or d i f fe rence is submit ted t o f inal a rb i t r a t ion "in
subst i tut ion for any arb i t ra t ion o r arbi trat ion procedure provided for in t h e col lec t ive agreement" (s. 103 (1)). It is unnecessary the re fo re to place e i the r weight or concern upon t h e f a c t a collect ive a g r e e m e n t in t h e construct ion industry conta ins a gr ievance o r abr i t ra t ion procedure. Simply put, it is a process designed by t h e Legislature and imposed by i t upon par t ies to collect ive ag reemen t s in t h e construct lon industry.
The respondent , Municipal, asser t s t h a t Arbi t ra tor Kydd had no r ight t o r e fuse t h e adjournment t o i t s counsel and to do so violated a fundamenta l principle of natural justice.
N a t u r a l justlce is not a dlff lcul t o r complicated concept. In Reld and David, Admink t r a t ive Law a n d P r a c t i c e , Second Edition, t h e au thors state at p. 213: Natura l jus t ice is a simple concept t h a t may be defined completely in s lmp le terms: na tura l just ice is f a l r play, nothing more.
N a t u r a l j u s t k e requires t h a t a pa r ty be made a w a r e of t h e case aga lns t hlm and be giver. a n oppor tuni ty to respond (see Nicholson v. Haldimand-Norfolk Regional Board of Commisisoners of Police, [I9791 1 S.C.R. 311; Scott et a1 v. R e n t Review Commission (19771, 23 N.S.R. (Zd) 504). I t is interest ing to n o t e t h a t although t h e rule of a u d i a l t e r a m p a r t e m does n o t a lways require a hearing, it does requlre t h a t t h e part ies be given a n oppor tuni ty to make their submlssions. Such w a s s t a t ed by Fauteux, J. of t h e Supreme Court of Canada in Quebec Labour Relat ions Board v. Canadian hge raoU Rand Co. Ltd. et aL (1969), 1 D.L.R. (36) 417 at p. 422: But, a s th is C o u r t has recently held in t h e unrepor ted decision of R. v. Quebec Labour Relations Board, Ex p. Koma Construct ion hc. [since reported, aate, p. 125, 119681 S.C.R. 1721, t h e aud i a l t e r a m par tem rule does n o t requi re t h a t t h e r e
must a lways be a hearing. What is required is t h a t t h e par t ies be given a n oppor tuni ty to put forward the i r a rguments .
Mr. J u s t i c e Davison considered Municipal had been t r ea t ed unfairly by t h e a r b i t r s t o r and t h a t by denying t h e adjournment, the rules of na tu ra l j u s t k e w e r e offended. In his reasons f o r judgment h e said: I confess t h a t I have sympathy f o r t h e position of t h e Applicant. If s. 103 (7) does ope ra t e to pe rmi t one pa r ty to a d i s ~ u t eto clandest inely prepare i ts case a n d then "sprlng" t h e arb i t ra t lon g rocess on t h e o the r side, i t L m y oplnion t h a t
tt.e resul t is manifest ly unfair regardless of whether o r n o t a par ty is required t o present a comprehensive o r a condensed case. I t of ten requires more t i m e t o prepare, in a proper fashion, a condensed c a s e than i t does a comprehensive cace.
Sympathy fo r t h e position counsel of Municipal found herself in these proceedings in understandable. However, t h e s a m e canno t be said for her cl ient , Munlcipal. Municipal was not a n o v k e in t h e f ield of 6. 103 expedited arb i t ra t ions . The record reveals t h a t a few months ear l ie r it had been involved in a dispute with t h e s a m e union concerning a similar issue before Arbitrator MacLellan who heard and disposed of t h e gr ievance within t h e forty-eight hours t i m e limit. In t h e cases of t h e grievances before Arbi t ra tor Kydd, Municipal knew of e a c h grievance on t h e day i t a rose and depending on t h e gr ievance t h a t was months in t h e c a s e of some, and weeks in t h e c a s e of o thers , before November 1987. I t knew t h e mer i t s of e a c h gr ievance as each was filed. I ts comptrol le r had preliminary discussions with t h e Union agent . On each occasion i t declined t o a g r e e upon t h e choice of an arb i t ra tor . Municipal knew t h e Minister of Labour had t h e author i ty t o appoint an a r b i t r a t o r under P a r t 11 of t h e A c t without fu r the r consultation. Apparently at no t i m e Cid Municipal avai l itself of t h e opportunity t o discuss any o r a l l o f these pending arb i t ra t ions with i t s counsel unti l the Minister appointed Arb i t r a to r Kydd. Further , in November 1987, Municipal had severa l d a y s not ice f r o m Mi. Langlois t h a t t h e Minlster was about t o appoint a n a r b i t r a t o r t o deal with these four grievances. Mr. Langlois apparent ly
Included t h e somewha t generous o f f e r to discuss t h e pendlng appo in tmen t wlth Munlclpal's counsel. Municipal dec l ined and i t becomes obvious f r o m t h e record t h a t Municipal did not consul t i t s counse l un t i l t h e Minister finally made t h e appo in tmen t a n d the reby engaged t h e s. 103 process. While counsel of Munlcipal may h a v e been placed in a n awkward positlon, t h e s a m e c a n n o t be said fo r her cl ient . And i t was Munlcipal, and not i ts counsel , who w a s a pa r ty t o t h e proceedings. I t c a n hardly be said t h e process was sprung on Municipal. I t Is necessary to re turn to t h e s c h e m e of t h e legislat ion to assess whether Munlcipal was denied na tu ra l justice. Arb i t r a to r Kydd sought to ob ta in t h e a g r e e m e n t of t h e pa r t l e s to e x t e n d t h e t i m e withfn which h e was obliged by s. 103 (7) to render a decision. T h e Union did n o t agree . T h e a rb i t r a to r t h e n concluded t h a t h e w a s obliged under t h e A c t to proceed and render his decis ion within forty-eight hours of his appointment . He was a w a r e of t h e a rgumen t Municipal advanced with r e spec t to s. 41 of P a r t I. T h e e f f e c t of his decision was t h a t s. 41, to which r e f e r ence is made in s. 103 (6). is modified by s. 103 (7). With this, 1 agree. T h e Legis la ture compressed t h e t i m e within which t h e las t s t e p of a g r i evance ar is ing in t h e cons t ruc t ion industry is processed. I t does no t permi t t h e m o r e leisurely pace of P a r t I a rb i t ra t ions . T h e Legis la ture h a s provided for expedi ted a r b i t r a t i o n in t h e cons t ruc t ion industry. This does no t mean t h a t t h e na tu ra l jus t ice has t.een displaced by s. 103. I t is s t i l l to b e observed and applied: t h e r e is just less t i m e ava i lab le in t hose c i r c u m s t a n c e s whe re t h e part ies do n o t a g r e e to e x t e n d t h e t i m e l imi ts ava i lab le to t h e a rb i t ra tor .
Arbi t ra tor Kydd did not act unfairly t o w a r d Municipal, g iven t h e c i r cums tances and t h e cons t r a in t s of s. 103. Municipal knew t h e case agains t it as set f o r t h in t h e fou r gr ievances. T h e r e is n o suggest ion t h a t Municipal's counse l did n o t understand o r a p p r e c i a t e wha t t h e issues were. T h e t r i a l judge cha rac t e r i zed t h e issues as a policy dispute. With respec t , whether or no t a n employer is using non-union labour o n a par t icu lar cons t ruc t ion job in violat ion of a n a r t i c l e in t h e co l lec t ive a g r e e m e n t is as spec i f i c a n issue as one will f ind in labour relations. Fo r t h e good of both pa r t i e s i t c a n n o t be l e f t to f e s t e r indefinitely. The sub jec t m a t t e r o f t h e s e gr ievances is a n e x a m p l e of t h e very kind o f i r r i t an t speedy a rb i t r a t i on in t h e cons t ruc t ion industry was in tended to resolve. Arbi t ra tor Kydd did no t r e f u s e Municipal t h e r igh t to be heard , o r t o cross-examine witnesses, o r to present ev idence o r to m a k e submissions. I t was t h e voluntary decision o f Municipal t h a t i t would withdraw f r o m t h e process and pa r t i c ipa t e in i t no longer. T h e a r b i t r a t o r was t h u s l e f t wi th no o t h e r a l t e rna t ive bu t to proceed. Arb i t r a to r Kydd concluded t h a t in t h e c i r cums tances before h im, s. 103 (7)did not give h im " t h e d iscre t ion to g ran t such a n ad journment in t h e absence of a n a g r e e m e n t by both parties". T h e t r i a l judge s t a t ed at p. 38 of h is decision: In my opinion, t h e a rb i t r a to r ' s finding t h a t s. 103 (7)is mandatory is n o t in accord wi th t h e ruling of Chief J u s t i c e MacKeinan in Unaic ipa l Spraying and ~oa&cting Limi ted v. ~ntetnati&l
Union o f Ope ra t ing Eagine-ers Loca l 1721 (1977). 21 N.S.R. (2di 351 (N.S.S.C.A.D.) at 358 and th is cons t i t u t e s a n e r r o r in law.
T h e judgment of Chief J u s t i c e MacKeigan, to which t h e t r i a l judge r e f e r r ed , was in response t o a n appea l whe re t h e Lsue was whether a sec t ion 103 a r b i t r a t o r had t h e power t o o r d e r t h e re ins ta tement , wi th compensa t ion , of t w o discharged employees. A f t e r providing a considered ana lys is of t h e law a n d t h e f a c t s i tuat ion, t h e Chief Jus t i ce , wri t ing f o r t h i s cou r t , concluded t h a t t h e power to re ins ta te is "conferred o n labour a r b i t i a t o r s in t h e cons t ruc t ion industry in Nova Sco t i a by s. 103 (6) o f t h e (Act)". (p. 358) He wen t on to r e f e r to s. 103 (1) and t h e n s t a t ed at p. 358: This sec t ion (103 (1)) imposes s t a tu to ry a rb i t r a t i on on t h e construct ion industry in p l a c e o f any consensual a rb i t r a t i on provided fo r in a co l l ec t i ve ag reemen t . In t h e present case t h e part ies did n o t obey 6-6. (3), which requi res t h e m to appoin t a n a rb i t r a to r by midnight of t h e day on which t h e d ispute o r difference a rose and t h e a r b i t r a t o r did no t render his decis ion within forty-eight hours of h i s appoin tment as required by
6-6. (7). Non-compliance wi th those d i r ec to ry subsect ions does not, however , a f f e c t t h e overr iding command of s-s.(l) t h a t all disputes "shall be s u b m i t t e d t o a rb i t r a t i on in a c c o r d a n c e
with this Section", nor does i t d e t r a c t f rom t h e powers con fe r r ed on t h e a rb i t r a to r by 6-6. (6). ... I t was submi t ted to a n d a c c e p t e d by t h e t r ia i judge and now advanced in a rgumen t on th i s appea l , t h a t Chief J u s t i c e MacKeigan's words, "Non-compliance with those d i rec tory subsections", a r e to be in te rpre ted as a ruling by th is cou r t t h a t 6. 103 (7) is d i rec tory . 1 a m unable to a c c e p t t h e a rgumen t f o r severa l reasons. The primary reason is t h a t nowhere in t h e judgment is t h e r e a n indication t h a t t h e non-compliance with 6-66. (3) and (7) was in issue before t h e cou r t o r t h a t t h e o u t c o m e o f t h e appea l depended in any way upon t h e cour t ' s judgment in t h a t respect . In t h e c i r cums tances to which t h e Chief J u s t i c e r e f e r r e d , i t would appea r t h a t t h e par t ies
must have agreed t o t h e extensions o r else t h e cour t would have had t o deal with them in a more substantive manner. There is nothing I can find in t h e judgment which required the cour t t o decide whether t h e provisions of 6-6s. (3) and (7) a r e directory or mandatory. Upon i t appearing tha t the case did not require the Chief jus t ice t o make a finding on the point. 1 would conclude t h a t his words a r e not t o be taken as a ruling by this cour t t h a t s. 103 (7) is nirectory. As mentioned eari ier in this decision, no person was more fully aware of t h e need for expet i ted arbitrat ion in t h e construction industry than Chief Jus t ice MacKeigan, for i t was he who first urged t h a t it be implemented. The clear and unambiguous language used by t h e legislators in s. 103 (7) bears repeating: The decision of the a rb i t r a to r shall be rendered within forty-eight hours of the t ime of appointment unless a n extension is agreed upon by t h e parties.
It is fair and reasonable tha t "the part iesn can a g r e e upon a n extension. Barring such s n agreement, the operative words a r e "shall be rendered". Not only is shall prima f a c i e mandatory, but t h e Interpretat ion Act, R.S.N.S. 1967, c. 151, s. 8 (3) provides: In a n enactment "shall" is imperative and "may" L permissive. The language of s. 103 (7) Is unmistakably mandatory. In addition, its mandatory nature mee t s the objective cf t h e legislators in overcoming t h e "mischief" they sought to end. Counsel appearing before this cour t on this and o the r occasions have observed t h a t s. 103 has been successful. In requiting the a rb i t r a t c r (and t h e parties)
t o g e t on with the process, the legislators have said when it will end. 1 see nothing wrong with that. The option t o d o otherwise is available t o the parties, but not t o one of them. In my opinion Arbitrator Kydd committed no error in e i ther the interpretation o r the exercise of his jurisdiction in refusing the preliminary motion of the respondent fo r a n adjournment and in doing so, no violation of natural justice occurred. I would allow this ground of appeal. 1 will next refer t o the Char te r issue raised in Munkipal's cross-appeal. I t asks the following question: Did t h e learned t r ia l judge e r r in concluding tha t section 103 (7) of the Trade Union Act does not contravene section 15 of the Canadian C h a r t e r of Rlghts and Freedoms?
The respondent submits in i t s factum: Thus, there a r e t w o distinct schemes under the Trade Union Act - one for the construction industry and one fo r al l o ther unionized industries. I t is the position of the cross-appellant tha t this legislative singling out of the construction industry contravenes section 15 of the Charter . I t is submitted tha t the imposition of two schemes c r e a t e s a n inequality between the construction industry and all other industries and tha t , in creating this inequality, section 107 (3) discriminates against members of the construction industry.
I t is the position of Municipal, on cross-appeal, t h a t the protection afforded by s. 15 of the Char te r extends t o distinctions based on association with a particular industry. In dealing with the issue of whether s. 103 (7) (of the Act) is inconsistent with s. 15 (1) of the Chart-, the t r ia l judge embarked upon an analysis as t o t h e proper interpretive approach t o be employed when considering s. 15 (1). He stated:
All of these changes would sugges t t h a t t h e g u a r a n t e e of equal i ty w a s to apply to human beings who have been historically t r e a t e d with discriminat ion aris ing f rom personal cha rac t e r i s t i c s and who have exper ienced preludice and s te reotyping . The purpose of s. 15 (1) is to gua ran tee equal i ty f o r individuals and to inval ida te legislat ion which d iscr iminates aga ins t individuals based on t h e enumera t ed grounds set f o r t h in t h e subsection o r o t h e r grounds akin to t h e enumera t ed grounds. The e n u m e r a t e d grounds a r e personal cha rac t e r i s t i c s of human beings by which they can be identified. Each charac ter i s t ic has been t h e ob jec t of prejudice in t h e past.
In making t h e s e observat ions, t h e t r i a l judge relied upon t h e decision in Smith. Kline and French Laboratories v. A t to rney Gene ra l of Canrrda (1986). 34 D.L.R. (4th) 584 (F.C.). The t r i a l judge continued: In my view, t h e proper i n t e rp re t a t ion of s ec t ion 15 of t h e C h a r t e r would preclude t h e suggest ion t h a t legislat ion which d i f f e ren t i a t e s on t h e basis of industry cons t i t u t e s a violation of t h e equal i ty guarantee ;
Mr. Jus t i ce Davison wen t on t b apply t h e "similarly s i t ua t ed t e s t " proposed in R. v. E r t e l (1987). 5 8 C.R. (3d) 252 (Ont. C.A.). H e concluded t h a t Municipal had no t sa t i s f ied t h e onus upon i t to show a similari ty of s i tua t ion be tween t h e cons t ruc t ion industry and o t h e r industr ies covered by t h e Act . H e concluded s. 103 (7) of t h e A c t is cons is ten t with s. 15 (1) of t h e Char t e r . Municipal makes t h e following s t a t e m e n t in i t s factum: ...i t is submit ted t h a t t h e discriminat ion in t h e present case is such as would tend , in t h e minds of a signif icant number of reasonably-minded people, to bring t h e Canadian just ice sys t em in to disrepute. Pa r t 11 of t h e T r a d e Union Act denies members of t h e construct ion industry procedura l safeguards a f fo rded members of o the r unionized indus t r ies and permi ts t h e invocation of t h e special procedures the re in in s i tuat ions where no reasonable person would consider t h e m justified.
Consequently, i t is respectful ly submit ted t h a t t h e l ea rned t r i a l Judge e r r e d in excluding t h e present case f r o m t h e
applicat ion of sec t ion 15 of t h e C h a r t e r and in rejecting t h e a .. p . proach of t h e On ta r io Cour t of Appeal in R, v. Ertel , supra , In Andrew6 v. Law Society of British Columbla, (1989),91 N.R. 255, t h e Supreme C o u r t of Canada discussed t h e appl ica t ion of s. 15 (1) of t h e Chaner. I t held t h a t legislation which bar red a n e n t l r e c lass of persons f r o m c e r t a i n f o r m s of employment solely o n t h e ground of a lack of c i t izenship s t a t u s infringed t h e equali ty r ights provided by s. 15. T h e major i ty found t h a t such leg is la t ion discriminated against t h e individual involved on t h e basis of a personal cha rac t e r i s t i c akin t o t hose enumera t ed in s. 15 - t h l s c h a r a c t e r i s t i c being one's nationaiity. Mr. J u s t i c e Mclntyre, whose ana ly t i ca l approach to s. 15 (1) w a s adopted by t h e majority, found t h a t t h e "similarly s i tua ted test" as enuncia ted in Canadian au tho r i t i e s s u c h as R. v. E n e l , supra, was seriously deficient . He s t a t e d , a t p. 293: Thus, m e r e equall ty of applicat ion to similarly s i t ua t ed groups o r individuals does n o t a f fo rd a realistic test f o r a violation of equal i ty rights. For , as h a s been said, a bad law will n o t be saved merely because i t o p e r a t e s equally upon those to
whom i t h a s application. Nor will a law necessari ly be bad because i t makes dist inct ions.
He continued at p. 294: ... t h e test cannot be a c c e p t e d as a fixed ru le c r fo rmula f o r t h e resolution of equal i ty quest ions ar is ing under t h e Char ter .
In formula t ing the proper approach to be fol lowed when considering s. 15 (1) of t h e Charter, Mr. J u s t i c e Mclntyre w r o t e at p. 294:
I t is not every distinction or differentiation in t r e a t m e n t a t law which will t ransgress the equality guarantees of s. 15 of the Charter. I t is, of course, obvious t h a t Legislatures may - and ro govern effectively - must t r e a t different individuals and groups In different ways. Indeed, such distinctions a r e one of t h e maln pre-occupations of Legislatures. The classifying of individuals or groups, t h e making of d i f ferent provisions respecting such groups, the application of different rules, regulations, requirements and qurliflcatlons t o different persons is necessary for t h e governance of modern society. As noted above, for t h e accommodation of differences, which is t h e essence of t r u e . e . q . uality, i t will frequently be necessary t o make c'.istinctions In reasons concurring with those of t h e majority, Mr. Justice La Fores t s ta ted at p. 269: ...I a m convinced t h a t it was never intended in enacting section -15 tha t i t become a tool fo r t h e wholesale subjectlon t o judicial scrutiny of variegated legislative choices in no way infringing t h e institutional competence of t h e courts: t h e role is t o p ro tec t against incursions on fundamental values, not t o second guess
policy decisions. (emphasis added)
The majority of t h e court adopted, from t h e reasons of Mr. Jus t ice Mclntyre, t h e following definition of discrimination to be applied t o a s. 15 (1) analysis:
o r limits access t o opportunities, benefits and advantages available t o other members of society. Distinctions based on personal character is t ics at tr ibuted to a n individual solely on t h e basis of association with a group will rarely escape t h e charge of discrimination, while those based on a n individual's merits and capacit ies will rarely be s o classed. (em~thasis added)
Applying Andrews t o thls appeal, s. 103 (7) of t h e Ac t does not vlolate t h e rights of Municipal as guaranteed by s. 15 of the Charrer. The protection afforded t o individuals under s. 15 prohibits discrimination on t h e basis of personal characteristics. The enumerated grounds in s. 15 (1) a r e indicative, but not exclusive, of t h e characterist ics upon which discrimination may be based. Membership in a particular industry, in chis case t h e construction industry, cannot be said t o be a personal characterist ic as contemplated by s. 15 (1). Though t h e t ime limit contained In s. 103 (7) of P a r t 11 of t h e Ac t causes t h e respondents t o be t rea ted differently from those t o which Par t 1 of t h e Act applies, this does not amount t o t reatment which transgresses the equality guarantees of s. 15 of t h e Charter. The "speedy arbitration" provisions contained in s. 103 of the Ac t were enacted by t h e Leglslature as a response t o continuing problems which were prevalert in t h e construction industry. Such action was clearly within the prerogative of t h e legislators and cannot now be tes ted by t h e court. In written and oral argument on t h e cross-appeal, counsel for Municipal argued chat a person's association with a particular industry is more clearly a "personal characteristic", worthy of s. 15 (1) protection, than t h a t of citizenship which was under consideration in Andrews. Counsel contended t h a t a flexible approach t o determining the range of situations involving "personal characterist ics" must be adopted and tha t a person's association with a particular group encompasses such a range. This submlssion, with respect, fails t o
recognize t h e basis upon which t h e Supreme Cour t of C a n a d a concluded t h a t ci t izenship is a personal cha rac t e r i s t i c akin t o t hose e n u m e r a t e d in 6. 15 (1) in Andrevs. Wilson, J. s t a t e d at p. 259 of t h e decision: Rela t ive to ci t izens, non-citizens a r e a group lacking in poli t ical power and a s such vulnerable to having the i r i n t e re s t s overlooked and the i r rights to equa l concern a n d respec t violated. They a r e among "those groups in soc ie ty to whose needs and wishes e l e c t e d officials have no appa ren t in teres t in at tending" ... 1 would conclude t h e r e f o r e t h a t non-citizens f a l l into a n analogous ca tegory to those specif ical ly e n u m e r a t e d in 6. 15 ... In this respect , Mr. J u s t i c e La Fores t added at p. 271: ... Discrimination on t h e basis of nat ional i ty has f r o m early t i m e s been a n inseparable companion of discriminat ion o n t h e basis of r a c e and nat ional o r e t h n i c origin which a r e l is ted in s ec t ion 15.
Members of t h e cons t ruc t ion industry d o n o t fal l within t h e a m b i t of a group in soc ie ty general ly lacking in power a n d "as such vulnerable t o having the i r ln teres ts overlooked". T h e final decision in Andrews had not been rendered when Mr. J u s t i c e Davison considered this case at tr ial . As a resul t of t h e Supreme Cour t of Canada's decision, t h e t r i a l judge now a p p e a r s t o have er red in adopting t h e "similarly s i tua ted t e s t " described in Ertel. However, 1 a g r e e wi th his conclusion t h a t s. 103 (7) of t h e T r a d e Union Act does not con t r avene t h e pro tec t ion a f fo rded pursuant to 6.15 (1) of t h e Char t e r of Rights and Freedoms.
Conclusion 1 would allow t h e appeal, dlsmlss t h e cross-appeal and restore the declslon and award o f Arbltrator W.H. Kydd, Q.C. 1 would further award the appellant Its costs on the appeal, the cross-appeal and at trial.
1 C.J.N.S. Concurred In: Hart, J.A. Macdonald, J.A. Matthews, 3.A.-Chlpman. J.A. L'.q<P