T-3943-75
Canadian Pacific Limited (Plaintiff)
v.
United Transportation Union (Defendant)
Trial Division, Dubé J.-Ottawa, March 23, 24
and 25 and April 1, 1977.
Jurisdiction - Labour relations - Whether terms of arbi
tration award of January 8, 1975 are part of current collective
agreement - Whether Court can review arbitrator's decision
- Maintenance of Railway Operations Act, 1973, S.C. 1973-
74, c. 32, ss. 13(2),(3), 16(1),(4) - Canada Labour Code,
R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18, ss. 107,
155, 156, 157, 159 - Federal Court Act, s. 23.
Plaintiff C.P. brought an action for a declaration that an
arbitration award dated January 8, 1975 (relating to a proposal
by plaintiff to reduce the number of brakemen on freight trains
from two to one) was part of the current collective agreement
between C.P. and defendant Union. On June 25, 1971 the
parties entered into two collective agreements for Eastern and
Western regions which expired December 31, 1972. The revi
sion of the agreements was the subject of a conciliation board
report to the Minister of Labour on August 24, 1973. Because
of a strike during that year by other railway employees, Parlia
ment enacted the Maintenance of Railway Operations Act,
1973, which extended the collective agreements to include the
period January 1, 1973 to December 31, 1974, or earlier if the
new agreements came into effect and provided for the appoint
ment of an arbitrator to resolve the issues.
The arbitrator was appointed September 13, 1973, and fol
lowing his preliminary report on January 16, 1974, the parties
entered into collective agreements expiring on December 16,
1974, which left open the "crew consist issue", among others,
until decided by the arbitrator. The arbitrator reached his
decision on December 3, 1974 but the decision on the "crew
consist issue" was not published until January 8, 1975. The
Court of Appeal dismissed a section 28 application by the
Union to review and set aside the award on the ground that it
was purely an academic issue because the effect of the award
had been spent. The parties have since entered into consecutive
collective agreements covering the period from January 1, 1976
to December 31, 1977. These agreements did not revise or refer
to the "crew consist issue". Plaintiff claims the latter is part of
the current agreement.
•
Held, the action is dismissed. The Court has no jurisdiction
to interpret the collective agreement, which is a matter that can
only be decided by the machinery provided in the agreement
between the parties and in the Canada Labour Code. Following
the decision of the Supreme Court in McNamara Construction
(Western) Ltd. v. The Queen it is clear that the Federal Court
does not have jurisdiction to grant relief in contract unless an
existing and applicable federal law can be invoked to support
the proceeding. Section 23 of the Federal Court Act provides
the Court with jurisdiction except where that jurisdiction "has
been otherwise specially assigned". Section 155 of the Canada
Labour Code provides for settlement "by arbitration or other
wise", and by agreement the parties have chosen arbitration.
The arbitrator does not constitute a statutory board and is not
subject to review by way of certiorari, once the parties have
agreed to settle by arbitration and not "otherwise".
Canadian Pacific Ltd. v. Quebec North Shore Paper Co.
(1976) 9 N.R. 471; McNamara Construction (Western)
Ltd. v. The Queen (1977) 13 N.R. 181; Howe Sound
Company v. International Union of Mine, Mill and
Smelter Workers (Canada), Local 663 [1962] S.C.R. 318
and Port Arthur Shipbuilding Company v. Arthurs [1969]
S.C.R. 85, applied.
ACTION for declaratory judgment.
COUNSEL:
C. R. O. Munro, Q.C., and T. Maloney for
plaintiff.
M. W. Wright, Q.C., and J. L. Shields for
defendant.
SOLICITORS:
Canadian Pacific Law Department, Montreal,
for plaintiff.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for defendant.
The following are the reasons for judgment
rendered in English by
DUBS J.: This is an action for a declaration that
the terms of the award of the Honourable Emmett
M. Hall dated January 8, 1975, relating to the
"crew consist issue" are part of the current collec
tive agreement between the two parties in respect
of the terms and conditions of employment of
trainmen. The "crew consist issue" may be broadly
defined as the proposal by the plaintiff railway to
reduce the number of brakemen from two to one,
that is to operate freight trains without the second
brakeman in the caboose under certain
circumstances.
On June 25, 1971, the plaintiff (hereinafter
"C.P.R."), and the defendant Union (hereinafter
"the Union") entered into two collective agree
ments, one for the Eastern and Atlantic regions,
one for the Prairies and Pacific regions and both
identical in all material respects, with reference to
the terms and conditions of employment of C.P.R.
trainmen. The agreements expired on December
31, 1972. After that date, the revision of the
agreements was the subject of proceedings before a
conciliation board which reported to the Minister
of Labour on August 24, 1973. During the year,
certain C.P.R. employees, but not the trainmen,
went on strike bringing the operation of the rail
way to a halt.
On September 2, 1973, Parliament enacted the
Maintenance of Railway Operations Act, 1973',
(hereinafter "the Act") to provide for the resump
tion of railway operations in Canada. The
preamble recited that it was "essential .. . that
operations of the railways be resumed immediately
and ... provisions be made for the resumption of
the processes of negotiation and mediation and for
the final settlement of terms and conditions of
employment for the years 1973 and 1974".
By virtue of Parts III and IV of the Act, the
collective agreements were extended to include the
period beginning January 1, 1973, and ending on
the day on which new agreements came into effect,
or on December 31, 1974, whichever was the
earlier (subsection 13(2)); the Governor in Council
was authorized on the recommendation of the
Minister of Labour to appoint an arbitrator (sub-
section 16(1)); in the event the arbitrator decided
any matter not agreed upon by both parties, the
agreements should be deemed to be amended by
the incorporation therein of such decision and the
new agreement thereupon constituted new agree
ments effective for a period ending not earlier than
December 31, 1974 (subsection 16(4)).
The arbitrator was appointed on September 13,
1973, and heard the parties on the "crew consist
issue" and other issues still in dispute. In his first
report, dated January 16, 1974, he recommended
certain preliminary actions be taken by both par
ties prior to June 30, 1974, following which he
would hear further representations and then issue
an award regarding the "crew consist issue".
The parties entered into collective agreements
revising the trainmen's agreement on February 1,
1974, to remain in effect until December 31, 1974,
' S.C. 1973-74, c. 32.
and thereafter until revised or superseded. The
new agreement contained this provision:
Reduction of Crew Consist in All Classes of Freight Service
The Company's demand—Reduction of Crew Consist in All
Classes of Freight Service—shall be dealt with in the manner
specified in the Report of the Arbitrator—Railways Arbitra
tion 1973—dated January 16, 1974.
At the examination for discovery held for this
trial on November 26, 1976, an officer of the
Union, George McDevitt, was asked whether the
agreement of February 1, 1974, gave "effect to the
January 16, 1974 award of Mr. Hall in so far as it
affected the operating employees of C.P. Rail
represented by the United Transportation Union"
and he answered in the affirmative.
In July and August of 1974, the arbitrator heard
further representations on the "crew consist issue".
On December 3, 1974, he reached a decision on
the four matters reserved in his first report, includ
ing the "crew consist issue", signed an award in
respect thereto and forwarded the same to the
Department of Labour. An official of the depart
ment, on or about that date, informed officers of
the Union that the award was more favourable to
C.P.R. than to the Union.
At the time, the Union was in the process of
conducting a referendum by ballot of its members
across Canada with respect to the ratification of
the new collective agreement. An officer of the
Union expressed concern, both to the arbitrator
and to an official of the department, that publica
tion of an unfavourable award at that particular
time might influence adversely the outcome of the
vote, which could be avoided by postponing the
publication for a brief period until after the ballot
had been completed. It was then decided by the
arbitrator and the department to break the award
into two parts: the three other issues to be reported
in due course and the "crew consist issue" to be
held back for publication early in the new year.
The "crew consist issue" award was in fact pub
lished on January 8, 1975, bearing that date.
Shortly thereafter, or on January 16, the Union
applied to the Federal Court of Appeal under
section 28 of the Federal Court Act to review and
set aside the "crew consist issue" award. The fact
that the award was dated and published after
December 31, 1974, was not a ground relied on by
the Union, but on the second day of the hearing,
during the address in reply of counsel for the
Union, the Court from the Bench, ex proprio
motu, expressed itself in the following terms 2 :
The award attacked in these proceedings does not appear to the
Court to affect operations of the Railways or collective agree
ments relating thereto after the end of 1974. Its effect, if it ever
had any, appears to be spent. The Court is therefore not
satisfied that the issues raised are other than purely academic
or that there is any relief that the Court can give.
Thereupon, counsel for the Union asked for and
obtained an adjournment and brought this situa
tion to the attention of the arbitrator. Following
consultations between counsel for both parties, the
matter was brought on for further hearing on
September 3, 1975, when counsel for C.P.R., with
the agreement of counsel for the Union, attempted
to file several documents. The Court refused to
admit the proffered material, reiterating its obser
vation that the issues were academic and called on
counsel for the Union to express his attitude there
to. He agreed to his application being dismissed,
and so it was. All these facts are agreed to by both
parties under their joint agreement as to facts.
And now returning to December 1974; on the
11th, both parties entered into collective agree
ments revising the previous agreements, effective
from January 1, 1975, for a period ending not
earlier than December 31, 1975.
And, to complete the sequence of events, on July
21, 1976, the parties entered into two further
collective agreements for the period from January
1, 1976 to December 31, 1977.
The agreements of July 21, 1976, as well as the
preceding agreements of December 11, 1974, did
not revise the terms of the then current agreements
with reference to the "crew consist issue". There is
no reference to the "crew consist issue" in the
documents.
It should be noted at this juncture, and merely
to dispose of the matter, that a memorandum of
2 Court No. A-15-75, July 9, 1975.
settlement was entered into by both parties on
November 7, 1974, between the railways signatory
thereto (including C.P.R.) and the Associated
Railway Unions (including the Union) which
included a provision that "the foregoing changes
are in full settlement of all requests ... and all
other matters in dispute as of the date of signing
this Memorandum of Settlement". That provision
was pleaded by the Union in its statement of
defence, but it related only to those matters in
dispute which were common to all railways and
unions, and is not relevant to the "crew consist
issue", an issue which concerns C.P.R. and the
Union only.
The question, in a nutshell, is whether or not the
arbitrator's award with reference to the "crew
consist issue" is part of the current collective
agreement.
C.P.R. claims it is, by virtue of the agreement of
February 1, 1974, binding on both parties and
unrevised in subsequent agreements, including the
current one: and by virtue of subsection 16(4) of
the Maintenance of Railway Operations Act, 1973
which reads:
16. (4) In the event that an arbitrator is appointed under
subsection (1) and decides any matter not agreed upon at the
time of his decision between the parties to a collective agree
ment to which Part I, II or III, as the case may be, applies,
such collective agreement shall be deemed to be amended by
the incorporation therein of such decision and the collective
agreement as so amended thereupon constitutes a new collec
tive agreement in amendment or revision of the collective
agreement to which Part I, II or III, as the case may be, applies
effective for such period ending not earlier than December 31,
1974 as may be fixed by the arbitrator.
Plaintiff claims that an arbitrator was appointed
and that he decided the "crew consist issue".
Therefore, the February 1, 1974, agreement, and
subsequent revisions thereto, incorporated the
arbitrator's award which is still currently binding
on both parties. Moreover, the Union admitted at
discovery that the agreement gave effect to the
award.
In his first line of defence, counsel for the
defendant alleges that this Court has no jurisdic
tion to determine the issue. A previous attack on
the jurisdiction of the Court has already been
launched by learned counsel by way of a motion to
strike out plaintiff's statement of claim, which
motion was rejected by my brother Cattanach
without written reasons. His decision was sus
tained by the Appeal Court and Heald J. said in
his reasons for judgment on behalf of the Court at
pages 4 and 5 of the unreported decision':
The appellant also makes a second submission, which is by
way of an alternative to its first submission. In this submission,
the appellant contends that if section 23 of the Federal Court
Act clothes the Trial Division of this Court with jurisdiction to
determine issues involving railway matters between subject and
subject, that on the facts here present, Parliament has "special-
ly assigned" the jurisdiction to deal with the interpretation of
collective agreements to an arbitrator by virtue of section 155
of the Canada Labour Code ... .
Thus, the appellant relies on the exception contained in section
23 of the Federal Court Act which reads as follows: "except to
the extent that jurisdiction has been otherwise specially
assigned."
The respondent's answer to this submission is that section
155 of the Canada Labour Code does not assign any jurisdic
tion to an arbitrator and, that it merely requires the parties to a
collective agreement to agree between themselves on a method
for finally settling certain differences between them, "by arbi
tration or otherwise". It is the position of the respondent that
the Canada Labour Code leaves it entirely to the parties to
determine how the differences between them shall be settled
and that this is quite different and distinct from a situation
where Parliament would "specially assign" jurisdiction to an
arbitrator to determine the matter.
One has only to state the submission of opposing counsel as I
have attempted to do supra in summary form to appreciate that
the statement of claim herein raises important questions of law.
The Trial Judge did not give reasons for dismissing the applica
tion. I am satisfied, however, that his decision is supportable on
the ground that the statement of claim raises a serious question
of law and this in itself would be a proper basis on which to
exercise a discretion to dismiss.
Counsel for defendant chose not to seek a deter
mination of the question under Rule 474, but to
await the trial before questioning again the juris
diction of this Court. In the intervening period, the
Supreme Court of Canada handed down two deci
sions which do affect the jurisdiction of this Court:
Canadian Pacific Ltd. v. Quebec North Shore
Paper Co. 4 and The Queen v. McNamara Con
struction (Western) Ltd. 5 It is clear from these two
decisions that the Federal Court does not have
jurisdiction to grant relief in contract, unless there
is an Act of Parliament under which the relief
sought in the action is claimed. It is not sufficient
that the enterprise contemplated by the agreement
Court No. A-31-76, released May 21, 1976.
° (1976) 9 N.R. 471.
5 (1977) 13 N.R. 181.
as a whole falls within federal legislative power,
there must be an existing and applicable federal
law which can be invoked to support any proceed
ing before this Court.
There are three federal statutes existing and
applicable which deal with the matter in dispute:
the special Act of Parliament to settle the railway
dispute, Part V of the Canada Labour Code 6 , and
the Federal Court Act.
As mentioned before, the Maintenance of Rail
way Operations Act, 1973, provides for the
appointment of an arbitrator, the making of
awards, and the incorporation of such awards in
the collective agreements. However, the Act does
not specify a remedy, but in subsection 13(3)
provides that Part V of the Code applies in respect
of the amended agreement. The key section 155 of
Part V reads:
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. [The underlining
is mine.]
Section 156 provides that every order of the
arbitrator is final, that no proceeding shall be
taken in any court. Paragraph 157(c) clothes the
arbitrator with power to determine whether a
matter referred to him is arbitrable. Section 159
outlines the procedure for enforcement.
Under a memorandum of agreement dated Sep-
tember 1, 1971 it is agreed between the railways
and the unions (including the two parties to this
action) that there shall be established in Montreal
the Canadian Railway Office of Arbitration, with
a single arbitrator to be appointed by the signato
ries. There is a person currently holding that
office.
6 S.C. 1972, c. 18.
Section 23 of the Federal Court Act provides
that the Trial Division has concurrent original
jurisdiction over certain matters, with an
exception:
23. The Trial Division has concurrent original jurisdiction as
well between subject and subject as otherwise, in all cases in
which a claim for relief is made or a remedy is sought under an
Act of the Parliament of Canada or otherwise in relation to any
matter coming within any following class of subjects, namely
bills of exchange and promissory notes where the Crown is a
party to the proceedings, aeronautics, and works and undertak
ings connecting a province with any other province or extending
beyond the limits of a province, except to the extent that
jurisdiction has been otherwise specially assigned. [The under
lining is mine.]
Counsel for the Union alleges that jurisdiction
over the matter in dispute has been assigned by the
Canada Labour Code, and by agreement between
the parties to an arbitrator, and that therefore this
tribunal has no jurisdiction. In support of his
contention he relies on a 1976 decision of the
Supreme Court of Canada in Brunet v. General
Motors of Canada Ltd.' where it was held that the
rights sought by an employee flowed from a collec
tive agreement and that no right of access to a
court of law existed. The suitable remedy was
recourse to arbitration as provided by section 88 of
the Quebec Labour Code 8 which reads as follows
as amended by section 28 of chapter 48 of the
1969 statute:
88. Every grievance shall be submitted to arbitration in the
manner provided in the collective agreement if it so provides
and the parties abide by it; otherwise it shall be referred to an
arbitration officer chosen by the parties or, failing agreement,
appointed by the Minister.
Defendant relies also on Close v. Globe and
Mail Ltd. 9 wherein the Ontario Court of Appeal
held that a claim involving the interpretation of a
collective agreement was a matter that can only be
decided by resort to the machinery provided in the
agreement and that the courts are unable to
entertain.
Ford v. Trustees of the Ottawa Civic Hospital 10
is another, more recent, Ontario case. The High
Court held that the plaintiff, an employee under a
collective agreement, was not entitled to maintain
7 (1977) 13 N.R. 233.
8 R.S.Q. 1964, c. 141.
9 (1967) 60 D.L.R. (2d) 105.
1 ° (1973) 37 D.L.R. (3d) 169.
an action but was required to settle his claim
through arbitration. Subsection 37(1) of The
Labour Relations Act of Ontario" provides that
every collective agreement shall provide for final
and binding arbitration:
37.—(1) Every collective agreement shall provide for the
final and binding settlement by arbitration, without stoppage of
work, of all differences between the parties arising from the
interpretation, application, administration or alleged violation
of the agreement, including any question as to whether a
matter is arbitrable.
But the respective sections of the Quebec and
Ontario Acts are not identical to section 155 of the
Canada Labour Code. The latter (reported supra)
provides that every collective agreement shall con
tain a provision for final settlement, by arbitration
or otherwise. Plaintiff claims that section 155 does
not impose arbitration.
Section 22 of the Labour Relations Act 12 of
British Columbia is closer, almost identical to
section 155 of the federal Code:
22. (1) Every collective agreement entered into after the
commencement of this Act shall contain a provision for final
and conclusive settlement without stoppage of work, by arbitra
tion or otherwise, of all differences between the persons bound
by the agreement concerning its interpretation, application,
operation, or any alleged violation thereof.
(2) Where a collective agreement, whether entered into
before or after the commencement of this Act, does not contain
a provision as required by this section, the Minister shall by
order prescribe a provision for such purpose, and a provision so
prescribed shall be deemed to be a term of the collective
agreement and binding on all persons bound by the agreement.
[The underlining is mine.]
Plaintiff relies strongly on a Supreme Court
judgment of 1962 which considered the above
British Columbia clause. In Howe Sound Com
pany v. International Union of Mine, Mill and
Smelter Workers (Canada), Local 663 13 , it was
argued that the provision in the agreement that the
decision of the board shall be final, read in the
light of subsection 22(1) of the British Columbia
Act, had the effect of prohibiting recourse to the
courts by either party. Cartwright J., delivering
the judgment on behalf of the Court, said this at
page 330:
1 R.S.O. 1970, c. 232.
12 S.B.C. 1954, c. 17.
" [1962] S.C.R. 318.
Even if the agreement did not contain article 25 and the
concluding sentence of the first paragraph of clause B of article
16, quoted above, it would be my opinion that words clearer
than those used in the agreement and in the statute would be
necessary to have the effect of ousting the jurisdiction of the
courts. In my view it is open to the parties should occasion
arise, to question the jurisdiction of the board or the validity of
any award it makes in such manner as is permitted by the
Arbitration Act, R.S.B.C. 1960, c. 14 or by the common law.
It would not, of course, be open to the parties in
the present action to press any claim in this Court,
including the validity of any award, under the
aforementioned Arbitration Act or the common
law. Any relief sought in this Court must be found
in a federal statute. And the words of the agree
ment binding both parties in the case at bar are
not obscure: paragraph 4 of the memorandum of
agreement of September 1, 1971, reads:
4. The jurisdiction of the Arbitrator shall extend and be lim
ited to the arbitration, at the instance in each case of a railway,
being a signatory hereto, or of one or more of its employees
represented by a bargaining agent, being asignatory hereto, of;
(A) disputes respecting the meaning or alleged violation of
any one or more of the provisions of a valid and subsisting
collective agreement between such railway and bargaining
agent, including any claims, related to such provisions, that
an employee has been unjustly disciplined or discharged; and
(B) other disputes that, under a provision of a valid and
subsisting collective agreement between such railway and
bargaining agent, are required to be referred to the Canadian
Railway Office of Arbitration for final and binding settle
ment by arbitration,
but such jurisdiction shall be conditioned always upon the
submission of the dispute to the Office of Arbitration in strict
accordance with the terms of this Agreement.
"Dispute" is defined in subsection 107(1) of
Part V of the Canada Labour Code:
107. (1) In this Part,
"dispute" means a dispute arising in connection with the enter
ing into, renewing or revising of a collective agreement, in
respect of which notice may be given to the Minister under
section 163;
The words in that memorandum of agreement
between both parties are really quite clear: they
embrace the very issue now before this Court,
namely whether or not the current collective
agreement includes the "crew consist" award.
That cannot but be a dispute respecting the mean
ing of a collective agreement.
The plain meaning of subsection 155(1) is that
every collective agreement shall contain a provi
sion for final settlement, whether it be by arbitra
tion or otherwise. The two parties in this case have
already agreed that it not be "otherwise", but that
it be by arbitration, as spelled out in the Septem-
ber 1, 1971 agreement. Moreover, the final settle
ment is to be of "all" differences, including the
"interpretation" or the "application" of the collec
tive agreement.
If a collective agreement does not contain a
provision for final settlement, then the board, not
this Court, shall under subsection 155(2) by order
furnish a provision for final settlement. If the
collective agreement does contain a proviso for
final settlement, and that proviso is not arbitra
tion, but "otherwise", then the Act does not pro
vide a specific remedy or procedure to be followed;
it does not inescapably follow that the relief would
be found in the Federal Court. In any event,
plaintiff has not established that an agreement
between both parties contains a provision for final
settlement other than by arbitration.
The Federal Court, being a statutory court, is
limited to the powers granted to it by the laws of
Parliament. The Code makes it mandatory that
disputes of interpretation be settled by arbitration,
when arbitration is provided, as it is clearly in this
case. Once the arbitrator, here the single arbitra
tor from the Canadian Railway Office of Arbitra
tion, has made his determination, as he is empow
ered to do under section 157 of the Code, then it
may be filed in the Federal Court under section
159. When so registered, it has the same force and
effect as if the decision had been obtained in this
Court.
In Port Arthur Shipbuilding Company v.
Arthurs 14 the Supreme Court of Canada held that
section 34 of The Labour Relations Act 15 of
Ontario was clear and unambiguous, it compelled
recourse to an arbitration board, there was no
alternative course of action to the parties, the
14 [1969] S.C.R. 85.
15 R.S.O. 1960, c. 202.
board was therefore a statutory creation and hence
subject to review in the courts by certiorari.
Judson J. said at page 92:
It is true that the British Columbia legislation is very similar
to that in effect in Ontario. But there are differences, the most
important of which is that the British Columbia legislation
provides for the settlement of disputes under the collective
agreement by arbitration or otherwise, whereas the Ontario
legislation provides for no alternative except arbitration. This
was recognized by Cartwright J., who expressly reserved his
opinion on whether the Court of Appeal of Ontario in Rivando
were correct in their interpretation of the Ontario legislation.
[The underlining is mine.]
Following these and other decisions of the
Supreme Court of Canada it is therefore estab
lished that, because of the "or otherwise" feature
of section 155 of the Code, the arbitrator provided
thereunder does not constitute a statutory board
and is not subject to review by way of certiorari.
Had C.P.R. brought this matter under arbitration
under section 155 it may not thereafter have asked
the courts to review the decision of the arbitrator.
Section 156 of the Code confirms that:
156. (1) Every order or decision of an arbitrator appointed
pursuant to a collective agreement or of an arbitration board is
final and shall not be questioned or reviewed by any court.
(2) No order shall be made, process entered or proceeding
taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review,
prohibit or restrain an arbitrator or arbitration board in any of
his or its proceedings under this Part.
(3) For the purposes of the Federal Court Act, an arbitrator
appointed pursuant to a collective agreement or an arbitration
board is not a federal board, commission or other tribunal
within the meaning of that Act.
But it does not follow from these decisions that a
party to a binding collective agreement containing
an arbitration clause under subsection 155(1) is at
liberty to ignore that clause and commence pro
ceeding before the courts. And, surely, section 156
cannot be used as a vehicle to bypass the arbitra
tion route agreed to between both parties under
section 155.
It was clearly the intention of Parliament, as
expressed in the preamble of the Code to extend its
support to and "encouragement of free collective
bargaining and the constructive settlement of dis
putes". Section 155 is manifestly intended to pro-
vide a method for "final settlement" of "all differ
ences between the parties".
I am of the view, therefore, that this Court has
no jurisdiction to entertain the interpretation of
the collective agreement between the parties as
this is a matter that can only be decided by resort
to the machinery provided in the agreement be
tween the parties and the Canada Labour Code.
Plaintiffs action is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.