Zwirner v. Board of Governors of University of Calgary, Barrass and McGown, (1977) 6 A.R. 271 (CA)

• Judge: McDermid, Prowse and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 01, 1977
• Citations: (1977), 6 A.R. 271 (CA)

Zwirner v. Calgary Univ. (1977), 6 A.R. 271 (CA)

MLB headnote and full text

Zwirner v. Board of Governors of University of Calgary, Barrass and McGown

Indexed As: Zwirner v. Board of Governors of University of Calgary, Barrass and McGown

Alberta Supreme Court

Appellate Division

McDermid, Prowse and Morrow, JJ.A.

September 1, 1977.

Summary:

This case arose out of the submission to arbitration of various collective bargaining matters between the Faculty of the University of Calgary and the University. Certain matters which could not be agreed upon were referred to a tripartite arbitration board, which rendered an award. Because some questions arose in interpreting the award, it was agreed between the parties that the matters would be referred back to the board for interpretation and modification. The Faculty requested not only interpretation but modification of the award. The board issued a modified award, which was signed by only two of the arbitrators, because the chairman became fatally ill before the award was prepared. The Faculty appealed from the award.

The Alberta Court of Appeal dismissed the appeal and refused to disturb the award. The Court of Appeal held that the award as modified was a valid award, because the parties had consented to the modification procedure followed by the award - see paragraphs 10 to 11.

The Court of Appeal held that the modified award was valid because it was signed by two arbitrators who constituted a majority. In any event the Court of Appeal held that the decision was that of the chairman because he had agreed with the substance of it before it was prepared - see paragraphs 19 to 30.

Arbitration - Topic 1104

The submission - Effect of the submission on powers of the arbitrator - Effect of consent of the parties - The Alberta Court of Appeal held that, if the parties to an arbitration reference agree and consent to a certain procedure to be taken by the board, they will be bound by the procedure - See paragraphs 10 to 11.

Arbitration - Topic 5566

The award - Arriving at the award - What constitutes a decision of an arbitrator - After a tripartite arbitration board held a hearing and met and agreed on an award, the chairman became fatally ill - The award was prepared in writing by the other two members in accordance with the consensus of the three and was issued without the signature or participation of the chairman - The Alberta Court of Appeal held that in the circumstances the award was that of the chairman as well as the other two board members - See paragraphs 24 and 30.

Arbitration - Topic 5570

The award - Arriving at the award - Majority award - Validity of - Where arbitrator unable or unwilling to concur - After a tripartite arbitration board held a hearing and met and agreed on an award, the chairman became fatally ill - The award was prepared in writing by the other two members in accordance with the consensus of the three and was issued without the signature or participation of the chairman - The Alberta Court of Appeal held that, where an arbitration is before three arbitrators with two empowered to make an award and the three have met, heard the evidence and the submissions of the parties and have thereafter deliberated and consulted together, then, if one of the arbitrators refuses or is unable to concur in the award, the remaining arbitrators have the right to sign the award in his absence - See paragraphs 26 to 29.

Arbitration - Topic 5606

The award - Requisites of a valid award - Signing of award - The Alberta Court of Appeal held that there is no requirement that the arbitrator sign a written award to render it valid - See paragraphs 19 to 23.

Cases Noticed:

Hale v. Matthison (1833), 3 O.S. 78 (C.A.), appld. [para. 10].

Baker v. Dumaresq, [1934] S.C.R. 665, appld. [para. 10].

Re Pratt (1884), 12 Q.B.D. 344, appld. [para. 10].

Lewis v. G.T.P. Railway Co., 4 W.W.R. 1246, not folld. [para. 22].

Doig v. Holley, 1 Man.L.R. 61, appld. [para. 23].

Re Pering and Keymer (1835), 3 A. & E. 245; 111 E.R. 406, appld. [para. 26].

Berry v. Perry (1616), 3 Bulst. 62; 82 E.R. 54, appld. [para. 26].

Sallows v. Gerling (1612), Cro. Jac 277; 79 E.R. 238, appld. [para. 26].

While v. Sharp (1844), 12 M. & W. 712; 152 E.R. 1385; 6 Corpus Juris Secundum 310, appld. [para. 26].

Statutes Noticed:

Arbitration Act, R.S.A. 1970, c. 21, Sched. A [para. 22].

Counsel:

K.E. Helmer, for the appellants;

R.S. Dinkel, for the respondents.

This case was heard before McDERMID, PROWSE and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On September 1, 1977, PROWSE, J.A., delivered the following judgment for the Appellate Division: