Cite as: Bakery, Confectionary and Tobacco Workers' International Union, Local 446 v. Ben's Ltd., 1988 NSSC 20 S.H. No. 65316
IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
IN THE MATTER OF: the Arbitration Act, R.S.N.S., 1967, Chapter 12 - and -IN THE MATTER OF: an arbitration between Ben's Limited and Bakery, Confectionery and Tobacco Workers' International Union, Local 446 - and -IN THE MATTER OF: an Application by the Bakery, Confectionery and Tobacco Workers' International Union, Local 446 to set aside the Arbitration Award of Judge J.A. MacLellan, Eric Durnford Q.C. and Rick Clarke. BETWEEN: BAKERY, CONFECTIONERY AND TOBACCO WORKERS' INTERNATIONAL UNION, LOCAL 446 Applicant, - and -BEN'S LIMITED Respondent HEARD at Halifax, Nova Scotia, before the Honourable
Mr. Justice John Davison, Trial Division on
October 25, 1988. (In Chambers)
DECISION October 25, 1988 (Orally at conclusion of hearing).
COUNSEL Gordon N. Forsyth, Esq., for the applicant
Ms. Karin McCaskill, for the respondent
S.H. No. 65316
IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
IN THE MATTER OF: the Arbitration Act, R.S.N.S., 1967,
Chapter 12
- and -IN THE MATTER OF: an arbitration between Ben's Limited
and Bakery, Confect:ionery and
Tobacco Workers' International
Union, Local 446
- and -IN THE MATTER OF: an Application by the Bakery,
Confectionery and Tobacco Workers'
International Union, Local 446 to
set aside the Arbitration Award
of Judge J.A. MacLellan,
Eric Durnford Q.C. and
Rick Clarke
BETWEEN: BAKERY, CONFECTIClNERY AND TOBACCO WORKERS ' INTERNATIONAL UNION, LOCAL 446 Applicant,
- and -BEN'S LIMITED
Respondent.
DAVISON J.: (Orally at conclusion of hearing)
This is an application for an order in the nature of
certiorari to set aside the arbitration award rendered by a
board on Zune 6, 1988, which dismissed the grievance of one
Blair Higgins, the grievor.
Ben's Limited, the employer operates a four year
apprentice program leading to the employee's journeyman's
papers. In 1984 the employer employed three journeymen, two
apprentices, (including the grievor) and one bodyman. Under the
progran; an employee would not be classified as a journeyman
unless there was a vacancy in the journeyman ranks. If no such
vacancy existed when the apprentice reached the stage in the
program when he otherwise would become a journeyman, he
continued to be an apprentice at the rate of pay of a third year
apprentice until he has moved up to the position of journeyman.
In 1984 the grievor received his journeyman papers, but
continued to be paid as a third year apprentice until 1985, when
the employer eliminated the position of bodyman and made. the
grievor and one other, apprentice journeymen. It was understood
that the journeymen would assume the responsibilities of the
bodyman.
This change in personnel classification did not work out,
and the employer returned to the previous system and hired a
bodyman. As a result, the grievor and the other apprentice were
reclassified as apprentices. The other apprentice was laid off
and the grievor, who was senior to that other apprentice, was
reclassified as a third year apprentice at reduced pay.
The grievor filed a grievance requesting he be returned to
the same level of pay as a journeyman. He performed
substantially the same type of work as an apprentice as when he
was a journeyman. The grievance was not resolved during the
grievance process and the matter proceeded to arbitration before
a Board, which by a majority decision, concluded:
The Employer acted within the terms
of the Collective Agreement and was
within its right to reclassify the
Grievor, because of a lack of work in the
journeyman classification. In
reclassifying the Grievor the Employer
did not violate any terms of the
Collective Agreement."
In reaching its conclusion, the Board apparently referred to the
evidence before it and, in particular noted, that the
apprentices regularly did the work of journeymen mechanics from
time to time and that the grievor had testified he did
approximately the same type of work before he was classified as
a journeyman mechanic as he did when he was reclassified as an
apprentice.
In a pre-trial conference, counsel agreed that before the
grievor was classified as a journeyman, he was a third year
apprentice, but doing the work of a journeyman and being paid as
a third year apprentice and that when reclassified as a third
year apprentice, he continued to do the work of a journeyman and
was paid that of a third year apprentice.
The following portions of the agreement are relevant:
"2.01 The Union acknowledges that it is
the exclusive function of the Employer
to:
(b) Hire, discharge, transfer, promote, classify, demote, discipline and assign work to employees, provided that a claim of discriminatory promotion, demotion or transfer or a claim that an employee has been discharged or disciplined without reasonable cause may be the subject to a grievance and dealt with as hereinafter provided;" Article 18.01 reads as follows:
"18.01 Attached hereto and constituting
part of this agreement are the following
schedules:
Schedule "D" - Job Classifications and Hourly Rates" Schedule "D" sets out wage rates for licensed journeyman
mechanics and the various levels of apprenticeship. 5.4 of
Schedule "D" reads as follows:
Third year apprentices who wish to
advance to the fourth year level of
apprenticeship shall be subject in such
advance to the existence of a vacancy for
a fourth year apprentice and/or licensed
mechanic in the Fleet Maintenance
Department of the Employer. Should a
vacancy not exist the third year
apprentice Fleet Maintenance employee may
continue with the apprentice program to
qualify for a vacancy when one occurs."
The Arbitration Board was a consensual arbitrator. The
authorities are clear that the court should not interfere with an
award by a consensual arbitrator, except in the most
extraordinary situations. Legislators intend arbitrators to be
the final decision makers and only when they abuse the powers
given to them, should a court interfere.
The scope of review was thoroughly canvassed in
International Union, United Automobile Aerospace and Agricultural
Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada
-Ltd. (1979) 99 D.L.R. (3d) 193. In that decision, Chief Justice Laskin stated at 210:
"Certainly, in the field o f
labour-management arbitration, which is
an ongoing process and not the episodic
process under which the common law rules
of review have developed, there is a good
case for affirming a hands-off policy by
the Courts on awards of consensual
arbitrators, subject to bias or fraud or
want of natural justice and, of course,
to jurisdiction in the strict sense and
not to the enlarged sense which makes it
indistinguishable from questions of law.
At least this should be so where specific
questions of law are referred. In other
cases of a reference to consensual
arbitration, the approach to review ought
also to be marked by caution in the light
of the fact that the parties to a
collective agreement have thereby
established their own legislative
framework for the regulation of the work
force engaged in the enterprise; have
designated their own executive and
administrative officers to apply the
agreement on an ongoing basis and have
provided for their own enforcement
machinery to resolve and, if need be, to
effect a final and binding settlement of
all differences arising under the terms
of the agreement."
During the course of his argument, solicitor for the
Union, made reference to a number of authorities including
Blanchard v. Control Data Canada Ltd. et a1 (1985) 14 D.L.R.
(4th) 289 and Canadian Broadcasting Corporation v. National
Association of Broadcast Employees and Technicians (1986) 70
N.S.R. (2d) 184. In my opinion the test used in the Control
-Data case dealt with the test normally applied when reviewing the decisions of administrative tribunals, and did not deal with
the scope of review for the decisions of consensual arbitrators.
In this respect I refer to the words of Laskin C.J.C. in the
Volvo case at 204:
In my opinion, equally untenable is the suggestion of Chief Justice MacKeigan that the award of a consensual arbitrator under a collective agreement, to whom a specific question of law has been referred, may be impeached if he has given clauses of the collective agreement an interpretation which their language will not reasonably bear. This has been a ground of review, open but cautiously approached, where statutory arbitration is ccncerned: see Re. Canadian Westinghouse Co. Ltd. - and - Local 164, Draftsmen's Ass'n of Ontario 119611, 30 D.L.R. (2d) 673, [1962] O.R. 17. TO
introduce it into consensual arbitration
is to strike at the very foundation of
such arbitration when it is concerned
with a specific question of law, that is
of construction of the collective
agreement."
The Chief Justice goes on to say:
"This Court has said quite plainly, and
has followed English cases to the same
effect, that even if the construction put
upon the collective agreement be, in the
view of a Court, a wrong one, the award
must stand ..." It seems clear to me that from these authorities and others to which I'll refer, that the role of the Court in deali!~g with
the Board of an Arbitrator should interfere in the administrative
process as little as possible.
The Supreme Court has equated the terms 'patently
unreasonable' with 'outrageous' or 'patently unjustific~ble'.
Again I refer to the words of Laskin C.J.C. in Shalansky et a1 v.
Board of Governors of Regina Pasqua Hospital, 145 D.L.R. (3d)
413, at 414, where he says:
"There being a . consensual arbitration, we are not trammelled by any certiorari question nor by any other statutory considerations. What is before us are certain terms of a voluntary collective agreement which gave rise to a dispute which the parties submitted to arbitration. Since the parties addressed the central issues before this court as turning essentially on whether a specific question of law was involved or a general question in the course of which questions of law could rise, I do not find this a DroDer occasion uoon which to consider Ghether the ~baalkm rule F.R. Absalom Ltd. v. Great Western (London) Garden Village Society Ltd., [I9331 A.C. 592, should no longer be held to apply to consensual labour arbitration. " Again at 415, referring to a decision of Chief Justice Bayda in
Bell Canada v. Office and Professional Employees' Int'l Union,
Local 131 (19731, 37 D.L.R. (3d) 561, Chief Justice Laskin said:
"I agree with Chief Justice Bayda
that there is no significant difference
in the meaning of the aforementioned
three terms. Indeed, it would be my view
that, apart from a question of emphasis,
the test of unreasonableness or test of
clearly wrong is also not different.
Bayda C.J.S. himself concluded that the
board was presented with two reasonable
constructions and hence was entitled to
choose the one it did rather than the one
preferred by the Chief Justice."
It should be noted that the three terms which Chief Justice
Laskin said have the same meaning are 'patently unreasonable',
'outrageous' and 'patently unjustifiable'.
The Appeal Division of our court commented on the
decisions in Shalansky and Volvo in Acadia University v.
I.U.O.E. Local 9688 (1985) 66 N.S.R. (2d) 296 and Canadian
Broadcasting Corporation v. National Association of Broadcast
Employees and Technicians (su~ra).
The applicant's solicitor indicated there was no dispute that the Board could re-classify but the question was whether it re-classified properly. He set forth a very persuasive and carefully analyzed argument. Nevertheless, the issue before the Board was one of fact. The management rights clause sets out the basic rights. The effect of the Board's decision is that Schedule ,a 38 does not prevent re-classification "downward". When I consi?er the agreement and the evidence, I cannot conclude the Board's decision was patently unreasonable. The application to quash is refused, with c@sts to the
respondent.
Halifax, Nova Scotia
October 25, 1988
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