International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd., (1979) 27 N.R. 502 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 28, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 27 N.R. 502 (SCC);[1980] 1 SCR 178;57 APR 22;33 NSR (2d) 22;99 DLR (3d) 193;27 NR 502;1979 CanLII 4 (SCC)

UAW v. Volvo Can. Ltd. (1979), 27 N.R. 502 (SCC)

MLB headnote and full text

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd.

Indexed As: International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd.

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

June 28, 1979.

Summary:

This case arose out of a grievance filed by a trade union pursuant to the provisions of a collective agreement. The union claimed that its members were entitled, during a lawful strike, to the accumulation of seniority for purposes of holidays referred to in the collective agreement. An arbitrator found that the collective agreement did not authorize the accumulation of holiday entitlement during a lawful strike.

The union then applied to the Trial Division of the Nova Scotia Supreme Court for an order to set aside the award of the arbitrator. MacIntosh, J., of the Trial Division, dismissed the application. See 18 N.S.R.(2d) 615; 20 A.P.R. 615. MacIntosh, J., stated that a specific question of law was referred to the arbitrator and that it was not open to review by the courts. The union appealed.

The Nova Scotia Court of Appeal in a judgment reported 18 N.S.R.(2d) 592; 20 A.P.R. 592, allowed the appeal. The Court of Appeal stated that the arbitrator failed to consider whether the employee was absent for a "justifiable reason" as provided for in the collective agreement. The Court of Appeal held that such a failure constituted reviewable error. The Court of Appeal set aside the arbitrator's award and remitted the matters referred to arbitration to the arbitrator for reconsideration. The employer appealed.

The Supreme Court of Canada allowed the appeal and held that the arbitrator's award should not be disturbed. Pigeon, J., with Martland, Ritchie, Beetz, Estey and Pratte, JJ., concurring was of the opinion that a question of law was not specifically referred to the arbitrator for decision and that accordingly the award should not be disturbed, where the interpretation placed upon the collective agreement by the arbitrator was one which the agreement would reasonably bear. See paragraphs 9 to 23.

Laskin, C.J.C., with Spence and Dickson, JJ., concurring, was of the opinion that a question of law was specifically referred to the arbitrator and that the arbitrator's decision on the question was not reviewable. See paragraphs 47 to 77.

Arbitration - Topic 3506

Arbitrator - Consensual arbitrator - Defined - The Trade Union Act, S.N.S. 1972, c. 19, s. 40, required that a collective agreement provide for final settlements of disputes under the collective agreement by arbitration or otherwise - Pursuant to s. 40 a collective agreement provided for the arbitration of disputes - In an attack on the award of an arbitrator appointed under the collective agreement it was accepted by the parties that the arbitrator was a consensual arbitrator - Laskin, C.J.C., in the Supreme Court of Canada, proceeding on the basis that the arbitrator was a consensual arbitrator, raised the question whether the arbitrator was a sonsensual arbitrator or a statutory arbitrator - See paragraphs 42 to 46.

Arbitration - Topic 8000

Judicial review - Jurisdiction of arbitrator - Error of law - Adjudication on question not specifically referred to arbitration - Under a collective agreement an arbitrator was referred a question of whether during a lawful strike seniority accumulated for the purpose of holiday entitlement under the provisions of the collective agreement - The arbitrator found that the collective agreement did not authorize the accumulation of holiday entitlement during a strike - The Supreme Court of Canada held that the question referred to the arbitrator was not the reference of a specific question of law - The Supreme Court of Canada held that the arbitrator's decision on the question should not be disturbed, where he placed an interpretation on the collective agreement which it could reasonably bear - See paragraphs 9 to 23, 26, 37.

Arbitration - Topic 8001

Judicial review - Jurisdiction of arbitrator - Error of law - Adjudication on question of law specifically referred to arbitration - The Supreme Court of Canada stated that, where a question of law is specifically referred to an arbitrator for decision, the decision of the arbitrator on the question may not be disturbed on the ground that the decision is wrong - See paragraphs 67 to 77, 27 to 36, 37 to 38.

Labour Law - Topic 6406

Collective agreements - Interpretation - Extrinsic evidence - Admission of - The Supreme Court of Canada affirmed the admission of extrinsic evidence by an arbitrator to resolve an ambiguity in a collective agreement - See paragraph 9.

Practice - Topic 9090

Appeals - Supreme Court of Canada - Leave to appeal by appeal court - Final judgment - What constitutes - Supreme Court Act, R.S.C. 1970, c. S-19, ss. 2(1), 38 -The Nova Scotia Court of Appeal held that an arbitrator failed to consider an essential question, set aside the arbitrator's award and remitted the matter to the arbitrator for reconsideration - The Court of Appeal granted leave to appeal to the Supreme Court of Canada - Although it was not disputed that the judgment of the Court of Appeal was a "final judgment" for the purpose of granting leave to appeal to the Supreme Court of Canada under s. 38 of the Supreme Court Act, Laskin, C.J.C., doubted whether the judgment of the Court of Appeal was a final judgment - See paragraph 40.

Cases Noticed:

Bell Canada v. Office and Professional Employees' Union, [1974] S.C.R. 335, appld. [para. 10].

Wentworth Arms Hotel et al. v. Hotel and Restaurant Employees and Bartenders International Union, Local 197 (1979), 24 N.R. 417, consd. [para 12].

Air Care Ltd. v. United Steel Workers of America et al. (1974), 3 N.R. 267; [1976] 1 S.C.R. 2, consd. [para. 15].

McLeod v. Egan, [1975] 1 S.C.R. 517, appld. [para. 17].

Stimpson v. Emmerson (1847), 9 L.T. (O.S.) 199, consd. [para. 21].

Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation (1979), 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, folld. [para. 22].

Metropolitan Toronto Police Association v. Board of Commissioners (1974), 2 N.R. 95; [1975] 1 S.C.R. 630, dist. [para. 23].

Kelantan v. Duff Development Company Limited, [1923] A.C. 395, consd. [paras. 23, 27].

F.R. Absalom Ltd. v. Great Western London) Garden Village Society Ltd., [1933] A.C. 592, consd. [paras. 23, 32, 62].

City of Vancouver v. Brandram-Henderson of B.C. Limited, [1960] S.C.R. 539, refd to. [para. 55].

Hodgkinson v. Fernie (1857), 3 C.B.(N.S.) 189, consd. [para. 37].

R. v. Duveen, [1913] 2 K.B. 32, appld. [para. 37].

Toronto v. Thompson, [1930] S.C.R. 120, refd to. [para. 40].

Re International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379, refd to. [para. 42].

R. v. Barber et al., ex parte Warehousemen and Miscellaneous Drivers' Union Local 419, [1968] 2 O.R. 245, refd to. [para. 42].

Howe Sound Company v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663 (1961), 29 D.L.R.(2d) 76, refd to. [para. 43].

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, [1970] S.C.R. 425, refd to. [para. 59].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, refd to. [para. 59].

Bradley v. Canadian General Electric Co. Ltd., [1957] O.R. 316, dist. [para. 61].

L'Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, dist. [para. 61].

Re Canadian Westinghouse Co. Ltd. and Local 164, Draftsmen's Association of Ontario, [1962] O.R. 17, refd to. [para. 62].

International Association of Machinists and Aerospace Workers et al. v. Hudson Bay Mining and Smelting Co. Ltd., [1968] S.C.R. 113, refd to. [para. 62].

Faubert and Watts v. Temagami Mining Co. Ltd., [1960] S.C.R. 235, consd. [para. 62].

N.S.W. Mining Pty. Ltd. v. Hartford Fire Ins. Co. (1972), 46 A.L.J.R. 391, consd. [para. 62].

R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] 1 K.B. 338, consd. [para. 63].

Kent v. Elstob (1802), 3 East 18; 102 E.R. 502, consd. [para. 63].

John A. McRae 7 Co. v. Lemay (1889), 18 S.C.R. 280, consd. [para. 63].

Bell Canada v. Office and Professional Employees' International Union, Local 131, [1974] S.C.R. 335, refd to. [para. 65].

Melbourne Harbour Trust Commissioners v. Hancock (1927), 33 A.L.R. 245, consd. [para. 68].

Attorney-General for Manitoba v. Kelly, [1922] 1 A.C. 268, refd to. [para. 71].

City of Vancouver v. Brandram-Henderson of B.C. Ltd., [1960] S.C.R. 539, consd. [para. 72].

Hitchens v. British Coal Refining Processes, Ltd., [1936] 2 All E.R. 191, consd. [para. 74].

Taylor v. Barnett, [1953] 1 All E.R. 843, consd. [para. 74].

Darlington Wagon Co. Ltd. v. Harding, [1891] 1 Q.B. 245, consd. [para. 74].

Barton v. Blackburn (1934), 150 L.T. 327, consd. [para. 74].

Statutes Noticed:

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 2(1), sect. 39 [para. 40].

Trade Union Act, S.N.S. 1972, c. 18, sect. 40 [para. 42].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 2, pp. 60 [para. 74]; 334 [para. 35].

Russell on Arbitration (18th Ed. 1970), pp. 357-60 [paras. 34, 74].

Counsel:

John Merrick and Daniel Potter, for the appellant;

G.J. McConnell and Ronald A. Pink, for the respondent.

This case was heard on October 18, 1978, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.

On June 28, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

PIGEON, J. - see paragraphs 1 to 24;

MARTLAND, J. - see paragraphs 25 to 36;

ESTEY, J. - see paragraphs 37 to 38;

LASKIN, C.J.C. - see paragraphs 39 to 77.

BEETZ and PRATTE, JJ., concurred with PIGEON, J.

RITCHIE, J., concurred with MARTLAND, J.

SPENCE and DICKSON, JJ., concurred with LASKIN, C.J.C.