Volvo Canada Ltd. v. U.A.W., Local 720

Volvo Canada Ltd. v. U.A.W., Local 720
Collection
Supreme Court Judgments
Date
1979-06-28
Report
[1980] 1 SCR 178
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Nova Scotia
Subjects
Labour law
Decision Content
SUPREME COURT OF CANADA
Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178
Date: 1979-06-28
Volvo Canada Limited Appellant; and
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 720 Respondent.
1978: October 18; 1979: June 28.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Labour relations — Arbitration — Judicial review — Standard for judicial review — Grievance — Ambigui­ty — Extrinsic evidence — Nature of arbitration — Consensual or otherwise — Collective agreement — Justifiable reason for absence from work — Whether correct question addressed by arbitrator.
Following expiry of a Collective Agreement between the parties the employees were on a lawful strike be­tween June 21 and September 16, 1974. The strike ended when a new collective agreement was made retroactive to March 31, 1974. In this agreement there were provisions for paid holidays which referred to accumulated seniority. The Company took the position that seniority did not accumulate during the strike with regard to holiday pay. The matter was submitted in accordance with the Collective Agreement to a Sole Arbitrator who found that under the agreement employees did not accumulate seniority during the period of the strike. The Union's motion to have the award set aside was dismissed in the Trial Division. The Appeal Division however held that, because the arbitrator failed to consider whether the employees were absent for a "justifiable reason" as provided for in the agreement, there was reviewable error and the arbitration award was invalid.
Held: The appeal should be allowed.
Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: The trial judge was correct in holding that there was enough ambiguity to justify the reception of extrinsic evidence. This left only two questions on the appeal, the proper construction of the agreement (or the "correct question") and whether interference with the award is precluded because "the parties have referred a specific question of law to the arbitrator". As to the second question the Bell Canada case, [1974] S.C.R. 335, applies. The question came up in the ordinary course of a grievance against the decision of the Company and it turned out that the disagreement depended entirely on the proper construction of the agreement. This was not, any more than in the Bell Canada case, an agreement to refer a specific question of law to the arbitrator and did not become so just because both parties agreed what the issue raised was.
In a collective agreement grievance the grievor does not choose arbitration, neither party has a choice, but such commitment to arbitration is not meant to be an additional step before the matter goes to court. It is meant to be final and it is therefore imperative that decisions on such matters be approached by a court asking the question whether the arbitrator's conclusion is a "patently unreasonable" interpretation of the agreement.
Judged by the standard "that respecting the validity of the construction of a collective agreement by an arbitrator the question is whether it is one which the agreement would reasonably bear", the construction here adopted cannot be rejected. The arbitrator did not put the wrong question but properly stated it as "Did the employees accumulate seniority during the strike?" The matter of a "justifiable reason" was just something to be considered in answering that question, the arbitrator did consider it and clearly did not find that the strike came within what he called "the situations in the Agreement which extend seniority."
Per Laskin C.J. and Spence and Dickson JJ. (concurring in the result): While the arbitrator failed to determine explicitly whether the legal strike provided "other justifiable grounds" he did consider the no-strike clause and in referring to the article dealing with "justifiable reason" obviously ruled out its application. He did not answer the wrong question. It was in the Appeal Divi­sion that another question, a question within the main question, was raised and the majority there purported to make it the issue for determination. The term "wrong question" first arose in the Court in the Metropolitan Life case, [1970] S.C.R. 425, which took the term and concept from the Anisminic case, [1969] 2 A.C. 147, however talk about the right or wrong question is merely a euphemism for addressing the issue before the arbitrator. The arbitrator here met and determined the main and only issue before him. It is not for a Court to go behind such an issue before, as here, a consensual arbitrator to whom a specific question of law has been referred. The suggestion that such an award may be impeached if the arbitrator has given clauses of the collective agreement an interpretation which they will not reasonably bear is equally untenable. This has been a ground of review, open but cautiously approached, when statutory arbitration is concerned but to introduce it into consensual arbitration is to strike at the founda­tion of such arbitration.
The majority in the Appeal Division while agreeing that review was not open on the question of proper construction of the collective agreement were of opinion that review was open on the grounds set out by Viscount Cave in Kelantan, [1923] A.C. 395: " ... But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally—for instance, that he has decided on evidence which in law was not admissible or on princi­ples of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent of the Court from the arbitrator's conclusion on construction is not enough for that purpose."
This passage however must be considered in light of the common law development of arbitral review. In that light it would seem that Viscount Cave's grounds, which did not even at the time carry the majority of the Lords, have been laid to one side in favour of the views expressed in Absalom. The adoption of Viscount Cave's approach would eliminate any telling distinction be­tween review of an award on a general question or issue and review on a specific question of law. There is here a good case for affirming the hands-off policy of the Courts on awards of consensual arbitrators, subject to bias or fraud or want of natural justice and to jurisdic­tion in the strict sense which makes it indistinguishable from questions of law, In any event Viscount Cave's observations should not be followed. They are much too broad in respect of an award on a reference of a specific question of law. Per Martland and Ritchie JJ.: Although the case was dealt with in the Court below as a question of law submitted to the arbitrator as to construction of the collective agreement, the case is rather one in which a grievance has been referred to arbitration pursuant to the collective agreement as in Metro Toronto Police Association v. Metro Toronto Board of Commissioners, [1975] 1 S.C.R. 630. Even if the submission was as to a specific question of law while accepting the disposition of the appeal by the Chief Justice, his obiter dictum concerning the statement of the law in Government of Kelantan v. Duff Development Company, Limited, [1923] A.C. 395, is not accepted. In that case Viscount Cave held on the facts that there had been a specific reference and was not prepared to hold that the arbitrator had acted illegally. None of the members of the Court expressed any dissent from Viscount Cave's statement of the law. The subsequent case F. R. Absalom Ltd. v. Great Western (London) Garden Village Society, Ltd., [1933] A.C. 592, (H.L.) held that, while recogniz­ing the distinction between cases where a question of law has been specifically referred and those where it is involved incidentally, there had not in that case been a reference of a specific question of law and set aside the award because there had been an error of law on the face of the award. That case did not state a proposition of law different from that of Viscount Cave, whose statement should not be flatly rejected.
Per Estey J.: The arbitration board in this case was a consensual board as indicated by the Chief Justice. However, as stated in the reasons delivered by Pigeon J., the question referred was not a specific question of law. The standard of review of an award of a consensual board is as stated by the Chief Justice. The scope of review for error of law on the face of the record entails a review of the dicta of Viscount Cave in Kelantan.
[Bell Canada v. Office and Professional Employees' Union, [1974] S.C.R. 335; Bradburn v. Wentworth Arms Hotel, [1979] 1 S.C.R. 846; Air-Care Ltd. v. United Steel Workers of America et al., [1976] 1 S.C.R. 2; McLeod v. Egan, [1975] 1 S.C.R. 517; Stimpson v. Emmerson (1847), 9 L.T. (O.S.) 199; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Metropolitan Toronto Police Association v. Board of Commissioners, [1975] 1 S.C.R. 630; Kelantan v. Duff Development Company Limited, [1923] A.C. 395; F.R. Absalom Ltd. v. Great Western (London) Garden Vil­lage Society, Ltd., [1933] A.C. 592; City of Vancouver v. Brandram-Henderson of B.C. Limited, [1960] S.C.R. 539; Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189; The King v. Duveen, [1913] 2 K.B. 32; Toronto v. Thompson, [1930] S.C.R. 120; Re International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379; R. v. Barber et al., ex parte Warehousemen and Miscel­laneous Drivers' Union, Local 419, [1968] 2 O.R. 245; Howe Sound Company v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663 (1961), 29 D.L.R. (2d) 76, aff'd [1962] S.C.R. 318; Metropoli­tan Life Insurance Co. v. International Union of Oper­ating Engineers, [1970] S.C.R. 425; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; Bradley v. Canadian General Electric Co. Ltd., [1957] O.R. 316; L'Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Re Canadian Westinghouse Co. Ltd. and Local 164, Draftsmen's Association of Ontario, [1962] O.R. 17; International Association of Machinists and Aerospace Workers et al. v. Hudson Bay Mining and Smelting Co. Ltd., [1968] S.C.R. 113; Faubert and Watts v. Temagami Mining Co. Ltd., [1960] S.C.R. 235; N.S.W. Mining Pty. Ltd. v. Hartford Fire Ins. Co. (1972), 46 A.L.J.R., 391; Rex v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] 1 K.B. 338; Kent v. Elstob (1802), 3 East 18, 102 E.R. 502; Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189; John A. McRae & Co. v. Lemay (1889), 18 S.C.R. 280; Doe d. Stimpson v. Emmerson (1847), 9 L.T. (O.S.) 199; Re King and Duveen, [1913] 2 K.B. 32; Melbourne Harbour Trust Commissioners v. Hancock (1927), 33 A.L.R. 245; Attorney-General for Manitoba v. Kelly, [1922] 1 A.C. 268; City of Vancouver v. Brandram-Henderson of B.C. Ltd., [1960] S.C.R. 539; Hitchens v. British Coal Refining Processes, Ltd., [1936] 2 All E.R. 191; Taylor v. Barnett, [1953] 1 All E.R. 843; Darlington Wagon Co., Ltd. v. Harding, [1891] 1 Q.B. 245; Barton v. Blackburn (1934), 150 L.T. 327 referred to.]
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], allowing an appeal from a judgment of Macintosh J.[2] dismissing an application on motion for an order to set aside and quash an arbitral award on a griev­ance under a collective agreement. Appeal allowed, judgment of Maclntosh J. restored. John Merrick and Daniel Potter, for the appellant.
G. J. McConnell and Ronald A. Pink, for the respondent.
The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE (concurring in the result)—This is an appeal, which is here by leave of the Nova Scotia Court of Appeal, from a judg­ment of that Court, Cooper J.A. dissenting, allow­ing an appeal from a judgment of Maclntosh J. who dismissed an application by the respondent Union under s. 13(2) of the Arbitration Act, R.S.N.S. 1967, c. 12 to set aside an award made by a consensual arbitrator under the authority of a collective agreement between the appellant Com­pany and the respondent Union. The Nova Scotia Court of Appeal, in setting aside the award, directed that the matters in issue be remitted to the arbitrator for reconsideration, as permitted by s. 12(1) of the Arbitration Act.
Although the question whether the Nova Scotia Court of Appeal could properly grant leave to come here was not raised by the parties when this case came on for argument, there was, in my opinion, grave doubt whether the judgment in appeal was a "final judgment" under ss. 2(1) and 38 of the Supreme Court Act, R.S.C. 1970, c. S-19: see Toronto v. Thompson[3]. Nothing was finally determined by the judgment in appeal when the case was remitted for reconsideration. In the circumstances, the appeal having been argued on both sides in good faith and without counsel rais­ing the question or being alerted by the Court to the point that I have mentioned, I would grant leave nunc pro tune, pursuant to s. 41(2) of the Supreme Court Act. There are, in my view, impor­tant— issues in this case respecting the reviewability of awards of consensual arbitrators.
The case was argued below and in this Court on the footing that what was in issue was an award of a consensual arbitrator. The underlying principle in that respect has been that the parties, having chosen to have their dispute determined without recourse to the Courts, indeed, having contracted on that basis and being entitled to do so and to have their agreement carried out, there should be a minimum of interference by the Courts with the ultimate award. Of course, legislative intervention to prescribe areas of review, beyond what was open under the common law, would have to be accepted; in Nova Scotia, as in other jurisdictions in Canada which adopted the model of the English Arbitra­tion Act of 1889, provision exists for setting aside an award for "misconduct", this being provided by s. 13(2) of the Arbitration Act. Bias and fraud are among the categories of misconduct, and I would think a failure of natural justice, as for example, a refusal to hear submissions, is also included. How much further review is open has come to depend on the nature of the submission to arbitration: was a specific question of law referred to the arbitrator or a broader more general question in the course of which questions of law arise?
I leave this point for later mention in these reasons because what prompted the previous paragraph was considerable doubt on my part that the arbitration in this case fell into the class of consen­sual arbitration rather than statutory arbitration. The Nova Scotia Trade Union Act, 1972 (N.S.), c. 19, s. 40 provides that differences or grievances under a collective agreement, touching its meaning or violation, shall be dealt with through provision in the collective agreement for final settlement by "arbitration or otherwise" (the underlining is mine). The words "or otherwise" are not found in the Ontario Labour Relations Act, now R.S.O. 1970, c. 232, and it has long been held that the Ontario Act prescribes statutory arbitration, a conclusion reinforced by the fact that a statutory arbitration procedure is prescribed if a collective agreement fails to provide for compulsory arbitra­tion of grievances as final settlement thereof: see Re International Nickel Co. of Canada Ltd. and Rivando[4] and see also R. v. Barber et al., ex parte Warehousemen and Miscellaneous Drivers' Union, Local 419[5].
Strictly speaking, what was in issue in the Rivando case was whether certiorari lay to an arbitration board because alternative recourse to the provincial Arbitration Act was precluded by a statutory exclusion of this Act from any applica­tion to labour-management arbitration under a collective agreement. Some years later, the British Columbia Courts and this Court had to consider the question whether certiorari lay to an arbitra­tion board established under a collective agreement in British Columbia: see Howe Sound Com­pany v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663[6]. The rele­vant British Columbia Statute at the time was the Labour Relations Act, 1954 (B.C.), c. 17 which by s. 22(1) provided for final and conclusive settlement of differences under a collective agreement through provision therein for "arbitration or other-wise", the same formula found in the Nova Scotia Act. The parties in the Howe Sound case did provide for arbitration under their collective agreement. The British Columbia Act, unlike that in Ontario considered in the Rivando case, did not exclude the application of the provincial Arbitra­tion Act nor did it prescribe a statutory arbitration clause for the parties if they failed to provide for a means of final and conclusive settlement under their collective agreement. What the statute did say, in s. 22(2), was that if the parties did not provide a means of settlement by arbitration or otherwise, the responsible Minister was required to prescribe a provision for them, that is a provision for settling grievances by arbitration or otherwise. It was, accordingly, held in the Howe Sound case that certiorari did not lie, despite the fact that the parties had opted for arbitration. Section 22 was not apt, so it was held, to give the arbitration board in that case statutory status, especially when the Minister had not been required to act under s. 22(2). Recourse for review had to be, as Cart­wright J. (as he then was) said for this Court, to the provincial Arbitration Act. The implication was, therefore, that the parties in the Howe Sound case had consensual arbitration.
The Nova Scotia Trade Union Act stands in between the Ontario Act above-mentioned and the British Columbia Act considered in the Howe Sound case. Although it does provide, as in the Howe Sound case, for "arbitration or otherwise", nonetheless it goes on in s. 40(2) to provide for an arbitration clause which is to be deemed to be included in the collective agreement if the parties themselves fail to provide a means of final settlement of grievances under their collective agreement. In this respect, it is similar to the Ontario legislation.
It may be that there should be a reconsideration of the procedural issue on which the Howe Sound case turned, and it would be desirable to bring into account legislation such as the present Nova Scotia Trade Union Act. I do not, however, think it should be done here. The Courts below have treated the present case as one of consensual arbi­tration and so have counsel in the case. In these respects this case is similar to Metropolitan Toronto Police Association v. Metropolitan Toronto Board of Commissioners of Police[7] and as in that case so in this one, I am content to proceed on the footing that what is under review is the award of a consensual arbitrator. I turn therefore to the issues on this basis.
The parties agreed upon the arbitrator and agreed upon his jurisdiction to entertain and determine a policy grievance. It was filed by the Union under article 6.07 of a collective agreement, which was executed in fact on or about September 16, 1974 but was declared to be effective for a three-year period as of March 31, 1974, that being the date following the expiry date of the predecessor collective agreement between the parties. Upon expiry of the previous agreement the parties had negotiated for a new agreement but were then unable to conclude one, and a legal strike followed which endured until the consummation of an agreement on or about September 16. The issue submitted to arbitration revolves around the effect of the legal strike upon holiday pay entitlement of employees as provided by article 19 of the collec­tive agreement and, particularly, articles 19.04 and 19.05.
I would have expected the grievance in the exact form in which it was filed to be part of the record. It is nowhere reproduced in any of the judgments, nor in the award of the arbitrator. Cooper J.A. in his dissenting reasons notes that "the issue before the arbitrator was whether employees accumulated seniority during the period of the strike so as to entitle them to paid holidays under articles 19.04 and 19.05 of the collective agreement". Later on in his reasons he says this:
It appears, as I understand it, to be common ground here that the parties have referred a specific question of law to the arbitrator as found by Mr. Justice Maclntosh. The arbitrator was asked whether or not employees accumulate seniority during the period of a strike there-by entitling them to paid holidays under articles 19.04 and 19.05 of the collective agreement. There was no dispute as to the facts.
MacKeigan C.J.N.S., whose disposition of the appeal was concurred in by Coffin J.A., also took the view that what was referred to the arbitrator was a pure or straight question of law, one con­cerned with the construction of the collective agreement. Coffin J.A., in his short reasons, did not address himself to the point but I think it is implicit in what he said that he too proceeded on the basis that the arbitrator was seized of a specif­ic question of law. Although all four judges before whom this case came were agreed that a specific question of law was put before the arbitrator (as contrasted with an issue in the course of whose determination questions of law arise), they differed as to the reviewability of the arbitrator's award. The judge of first instance was of the opinion that even if there be error of law on the face of the award, the arbitrator's answer, whether right or wrong, is not reviewable, unless there be jurisdictional error. Maclntosh J. then was faced with submissions of the Union that there was jurisdictional error, an excess of jurisdiction, in the improper admission and consideration of extrinsic evidence and, also, in failure to take into account material relevant to the making of the award. He rightly, in my opin­ion, rejected this second alleged ground of jurisdic­tional error as being nothing more than an allega­tion of misinterpretation of the collective agreement and this was an unreviewable error of law. It is not clear, however, whether he viewed the issue of an alleged improper admission of extrinsic evidence as going to jurisdiction—in my opinion, it does not—because he evaded the question by find­ing that there was an ambiguity in the collective agreement so as to make extrinsic evidence, in this case an instance of past practice, admissible. In the result, he rejected the Union's attack on the award.
MacKeigan C.J.N.S. and Cooper J.A. took a different view as to the scope of review of the award of a consensual arbitrator concerned with answering a specific question of law. They agreed that review was not open on the question of proper construction of the collective agreement which lay at the base of the referred question of law, but both were of the opinion that review was open on the grounds set out by Lord Cave in Government of Kelantan v. Duff Development Co.[8], at p. 409 where he said this:
… But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally—for instance, that he has decided on evidence which in law was not admis­sible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent of the Court from the arbitrator's conclusion on con­struction is not enough for that purpose.
I shall return to this passage later in these reasons. It is enough to say at this point that the passage appears to me to negate what is said to be the governing principle where a consensual arbitrator's task is to decide a specific or straight question of law, namely, that his award is not reviewable for error of law on the face of the record.
MacKeigan C.J.N.S. and Cooper J.A., having adopted Lord Cave's position on reviewability of an award such as the one here, then differed as to how far review should go in this case. MacKeigan C.J.N.S. was of the opinion that review was open if the arbitrator committed "any legal or jurisdic­tional error" in deciding or failing to decide the question before him, such error being "so relevant and substantial as to invalidate the award". He included in such errors "failure to take relevant considerations into account, taking irrelevant ones too much into account, or just answering the wrong question". He also introduced as two other grounds of attack, indeed of direct attack on the arbitrator's determination of the specific question referred to him, namely, where a gross error has occurred in the decision of the very question referred and, second, where the arbitrator's inter­pretation of the collective agreement clauses which he is to construe is not one which the language of the clauses will reasonably bear. This latter ground of attack seems to me to blur the distinction between statutory arbitration and consensual arbi­tration, and I shall also return to this issue later in these reasons.
Cooper J.A. addressed himself only to the ques­tion whether the arbitrator wrongly considered extrinsic evidence and he agreed with Maclntosh J. that there was latent ambiguity in the relevant clauses of the collective agreement and that, accordingly, extrinsic evidence was admissible. Not without doubt, he concluded that the arbitrator had related the extrinsic evidence to the ambiguity. In the result, he affirmed the decision of Maclntosh J. that the award was not reviewable. Coffin J.A. agreed that there was ambiguity in the collective agreement but he also agreed with Chief Justice MacKeigan on the main point taken by the latter, namely, that the arbitrator had asked himself the wrong question and had failed to answer what the Chief Justice said was "the key and only question that needs to be answered".
I turn therefore to the reasons of MacKeigan C.J.N.S. on this issue. I should note, before doing so, that the Chief Justice also held the opinion, not shared by the other judges who heard the case, that the arbitrator had "also permitted himself to be influenced by extrinsic evidence which was wrongly admitted". MacKeigan C.J.N.S. was of the opinion that the arbitrator had not used the extrinsic evidence to resolve an ambiguity but rather, erroneously, to help him draw an inference against the position of the Union on the main issue. In the Chief Justice's opinion, there was no ambiguity to support the admissibility of extrinsic evidence.
Coming then to the basis of the majority judg­ment in the Court of Appeal that the wrong question was asked, I must repeat at the outset the agreement of all judges in the case (implicit though it be in Coffin J.A.'s reasons) that the arbitrator was required to determine a specific question of law which was whether the employees of the Company accumulated seniority during the period of their legal strike so as to entitle them, if they otherwise qualified, to paid holidays under articles 19.04 and 19.05 of the collective agreement. The arbitrator dealt with this question in a far from crisp fashion. He relied on, as extrinsic evidence, a back-to-work agreement of 1969, which was made part of the collective agreement then entered into and under which it was agreed that the employees who had been on strike would be considered as having been laid off, and thus entitled to continue to accumulate seniority during the strike period. The arbitrator emphasized that there was no such agreement made in respect of the 1974 strike. For him, the important question revolved around the meaning of the word "service", being time spent on the job for which pay was received, and he concluded that unless an employee was working he did not accumulate seni­ority save as express provision was made otherwise as under articles 9.04, 9.05 and 9,06 of the 1974 agreement. In the result, the arbitrator determined (to use his own words) "that seniority does not accumulate during the period of the strike with regard to holiday pay". This was a clear answer to the question before him.
The relevant terms of the collective agreement are articles 9.01, 9.02, 9.04, 9.05, 19.04, 19.05 and 25.03. They read as follows:
9.01 For the purpose of this agreement and unless otherwise stipulated herein, "seniority" means the length of service in the bargaining unit.
9.02 Seniority of an employee shall not count until he has completed an accumulated period of thirty-eight (38) days worked in the employ of the Company.
9.04 Whenever an employee with acquired seniority rights is away from work on a leave of absence or because of a disciplinary suspension or illness or injury or any other justifiable reason, his seniority shall accumulate during such absence, unless otherwise stipu­lated within the present agreement.
9.05 Whenever an employee is laid off, his seniority continues to accumulate during such period of time that his name appears on the recall list.
19.04 Subject to the provisions of Article 19.05, an employee is qualified to receive pay for the above hol­idays if he has attained seniority through completion of his probationary period and he has worked seven (7) hours on the work day immediately prior to, and seven (7) hours on the day after, each of the above-named holidays. Absence from work for reasonable cause on the day before or after the holiday will be counted as time worked in qualifying for holiday pay. 19.05 In no case shall the number of consecutively paid holidays (Christmas Holiday Period) exceed the number of full months of accumulated seniority attained on the day prior to commencement of said consecutively occurring holidays.
25.03 For the purposes of this agreement, the word "service" includes any period of time during which an employee accumulates seniority as well as any period of employment with the Company in any capacity whatsoever.
It is obvious from a reading of articles 19.04 and 19.05, taking these provisions alone, that employees on strike could not qualify for pay for any designated holiday occurring during the strike period. Certainly, the notion of a strike, a legal strike, taking place during the currency of a collec­tive agreement is alien to the collective agreement in this case under which the arbitration proceeded; article 7.01 is express on this point. Should it not then have been necessary, if the strike period was to be characterized as a lay-off or was otherwise to be regarded as not interrupting the accumulation of seniority, that express provision be made to that effect? None was made, but it was the view of the Court of Appeal majority that the retroactive effect given to the collective agreement made article 9.04 applicable and obliged the arbitrator to focus attention on its provision for continuing accumulation of seniority if an employee with seniority was away from work "on a leave of absence or because of a disciplinary suspension or illness or injury or any other justifiable reason". The Court of Appeal majority concluded that, there having been a legal strike during the speci­fied agreement period, although arising from the retroactive dating and effect of the agreement, the arbitrator ought to have considered whether it provided "other justifiable reason" for absence from work, and he failed to do this.
True, he failed to do this explicitly but he did consider the no-strike clause article 7.01, and he did refer to article 9.04 but obviously ruled out its application. Chief Justice MacKeigan states that the arbitrator asked himself "the wrong question" but I cannot find anywhere in his reasons what this wrong question was. It seems to me, and it is patent on the face of the award, that the arbitrator, not very elegantly perhaps, addressed himself to the very question he was asked to consider. In my opinion, it was Chief Justice MacKeigan and as well Coffin J.A. who raised another question, a question within the main question, and purported to make it the essential issue for determination, an issue which, in my opinion, the arbitrator con­sidered and decided against the Union's conten­tion.
I think it important to say a word here about the "wrong question" syndrome. The term "wrong question" first came into the vocabulary of this Court in Metropolitan Life Insurance Co. v. International Union of Operating Engineers[9]. This Court took the term and the concept that it repre­sented from the judgments of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission[10], especially the reasons of Lord Reid at p. 171, the reasons of Lord Pearce at p. 195 and those of Lord Wilberforce at p. 210. The Anismin­ic case was concerned, inter alia, with an ouster clause, a privative clause as it is usually called in Canadian case law, protecting "determinations" by a statutory tribunal from being questioned in any court. According to the majority of the House of Lords, there may be "determinations" in fact which are not so under the law governing the tribunal's exercise of authority. Considerable sub­tlety may be involved in the road to such a conclu­sion, as is evident when one considers the different view taken in the Anisminic case in the English Court of Appeal as reflected in the reasons of Diplock L.J., as he then was: see [1967] 3 W.L.R. 382 at pp. 391-413. Answering the "wrong ques­tion" according to the House of Lords amounts to a departure from jurisdiction, and Cartwright C.J.C. who delivered the judgment of this Court in the Metropolitan Insurance case, supra, at p. 435, adopted this view against the operation of a priva­tive clause which he said could not avail as protection. I am not concerned here to re-examine the Metropolitan Insurance case, which was con­cerned with the decision of a statutory tribunal, the Ontario Labour Relations Board, and not with that of a consensual arbitrator. In my opinion, talk about the right or wrong question is merely a euphemism for addressing the issue which is prop­erly before the arbitrator. It provides a form of judicial control which goes beyond error of law, as that has been hitherto understood, and it is fraught with the danger of substitution of judicial opinion for that of the tribunal which the Legislature has put in place or for that of the arbitration board or arbitrator selected by the parties. There may, of course, be cases, rare ones I would think, in which an arbitration board or an arbitrator in labour-management relations matters has completely misunderstood or misconceived the task before it or him; in short, it or he has not addressed the issue—I mean here, the main issue and not sub­sidiary or ancillary considerations—which has been committed for determination. That is not true in the present case. The arbitrator, whether cor­rectly or incorrectly, has met and determined the main issue, indeed the single question before him, and there is no room for interference on the ground that he had failed to address himself to the right question.
In my opinion, for a Court to go behind the issue before a consensual arbitrator to whom a specific question of law has been referred for determina­tion, which is the present case, and to find that a subordinate question has not been explicitly addressed, again as in this case, is to enlarge the scope of review open in respect of such consensual arbitration when it has been limited by judgments of this Court. Otherwise, there would be an equivalence with the scope of review generally open in the case of a statutory tribunal. This is subject, of course, to the operative effect of a privative provision which would exclude review of alleged errors of law but not of errors of jurisdic­tion, of which the typical one in the cases is a denial of natural justice: see Bradley v. Canadian General Electric Co. Ltd.[11]; L'Alliance des Pro­fesseurs Catholiques de Montreal v. Labour Relations Board of Quebec[12]. There are no such issues here.
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 con­cerned: see Re Canadian Westinghouse Co. Ltd. and Local 164, Draftsmen's Association of Ontario[13] 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. It may be different where an ordinary grievance is submitted to consensual arbi­tration, but even in such cases there has been a reluctance to interfere with the arbitrator's award in so far as it involved interpretation of a collective agreement: see International Association of Ma­chinists and Aerospace Workers et al. v. Hudson Bay Mining and Smelting Co. Ltd.[14] 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: see Faubert and Watts v. Temagami Mining Co. Ltd.[15], referring to F.R. Absalom Limited v. Great Western (London) Garden Vil­lage Society, Limited[16]; and see also N.S.W. Mining Pty. Ltd. v. Hartford Fire Ins. Co.[17], per Barwick C.J. at pp. 391-392.
I turn, finally, to the passage from the reasons of Lord Cave in the Kelantan case, referred to earlier. The passage must be considered in the light of the common law development of review of arbitration awards, a development which was necessarily adopted by Canadian courts when they were subject to the overriding authority of the Privy Council and, through it, of the House of Lords until appeals to the Privy Council were abolished in late 1949. As Lord Denning noted in his reasons in Rex v. Northumberland Compensa­tion Appeal Tribunal, ex p. Shaw[18], at p. 351, error of law on the face of the award as a ground for challenging the award, for example, by motion to set it aside or by resisting an action upon it, came into the common law through Kent v. Elstob[19], which added that ground of attack to corruption or fraud, which had theretofore been the recognized grounds for challenging awards of consensual arbitrators. Error of law on the face of the award was accepted, with regret, as a ground of challenge but held to be established in Hodg­kinson v. Fernie[20], at p. 202 C.B. (N.S.), at p. 717 E.R., per Williams J. This enlarged scope of review was accepted by this Court in John A. McRae & Co. v. Lemay[21], but in that case the award was good on its face and hence was not set aside.
An exception developed, however, to this by the middle of the nineteenth century, as appears from Doe d. Stimpson v. Ernmerson[22],