Judgment of the Court — PIGEON J.
The judgment of the Court was delivered by
PIGEON J.—This is an appeal from a decision of the Court of Appeal of Quebec reversing the judgment of the Superior Court and ordering that a writ of evocation be issued against the award of the arbitration board composed of the mis en cause
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Roger Chouinard, Roland Boyer and Gilles Corbeil. This award was made on May 14, 1973, the arbitrator appointed by the employer dissenting. It allowed a grievance lodged by the appellant union against the failure of respondent, the Collège d’Enseignement général et professionnel du Vieux-Montréal (the CEGEP), to re-hire appellant Blanchard as a teacher.
The question in issue was submitted to the Superior Court by a motion for evocation under arts. 846 to 850 of the Code of Civil Procedure. This motion was dismissed in accordance with the second paragraph of art. 847, which reads as follows:
The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought.
The case is accordingly to be decided taking the alleged facts as proven. In substance they are as follows. Claude Blanchard was a probationary teacher employed by the CEGEP. On March 29, 1971, he was given written notice that he would not be re-hired for the 1971-72 school year. On April 23, 1971, the union and the CEGEP executed a collective agreement effective from September 1, 1970 to August 31, 1971, replacing a prior collective agreement dated 1968 and binding on the parties. In the 1971 agreement, the following clause dealing with failure to re-hire a probationary teacher is found:
[TRANSLATION] 5-2.12 When a probationary teacher is not to be re-hired, the College shall advise him of its intention, before April first (1). Upon the written and personal request of the teacher concerned, the College shall give him the reasons in writing for its decision, within ten (10) working days of receipt of the teacher’s request. The teacher affected by such failure to re-hire shall not be entitled to avail himself of the grievance procedure.
The grievance submitted to arbitration reads as follows:
[TRANSLATION] Mr. Blanchard’s priority of employment under clause 8-8.06 was not respected since new teachers were hired in the department of psychology.
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Mr. Blanchard was not re-hired in April, 1971 and the only official reason given was a shortage of students.
For a clearer understanding of the text, I think it will be useful to quote clause 8-8.05 as well as clause 8-8.06, mentioned in the grievance.
[TRANSLATION] 8-8.05 A permanent teacher released in this manner shall continue to have priority of employment at the College over any other person not already employed by it, provided he has the necessary ability.
The priority of employment provided for herein shall continue for one year from the date of release in the case of a probationary employee and for two (2) years in the case of a permanent employee.
8-8.06 A probationary teacher affected by the procedures provided for in this clause who has the required skills for a vacant position offered for the following school year shall, subject to the provisions governing re-hiring and permanent status, have priority of employment, after permanent teachers, over any other person who is not, at that time, employed by the College.
In brief, the argument submitted by counsel for the CEGEP at the hearing of the appeal was that such provisions of the collective agreement only apply to a teacher who has been “released”, and not to a probationary teacher to whom a notice of termination of employment has been duly given. It was argued that in the latter case clause 5-2.12 only was applicable and no grievance could be lodged. This point was not overlooked in the arbitration board’s award. The majority refused to accept the employer’s interpretation and relied on the relationship which it found between the agreement (known as C.1) that was in effect on March 29, 1971, when the notice of termination of employment was given, and the agreement of April 23, 1971 (known as S.1), which replaced it a few days later with detailed provisions for a measure of retroactivity to September 1970. They said:
[TRANSLATION] The tribunal sees a striking analogy between the text of clause 8-8.06 of the S.1 agreement and clause 18.20 of the C.1 agreement.
Mr. Blanchard’s rights were based on the C.1 agreement, as we noted earlier. There was nothing in the C.1 agreement to prohibit the grievance from being lodged,
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although this was contrary to clause 5-2.12 of the S.1 agreement, which would have prohibited it.
There remains another question: when could the union representing Mr. Claude Blanchard lodge the grievance? Before September or at least the end of August, no one could know whether new teachers would be hired for the department of psychology. In our opinion, any other reasoning would invalidate Clause 18.20 of the C.1 agreement and clause 8-8.06 of the S.1 agreement.
Counsel for the employer emphasized the fact that Mr. Claude Blanchard’s name had not been put on a waiting list in March 1971. However, we should note that there was no provision in the C.1 agreement for a waiting list in the case of teachers who had not been re-hired. Such a practice existed, there is no doubt as to that, but it was not based on any provision of the agreement in force, which defined the parties’ rights. Consequently, this argument cannot be used against the union or against Mr. Blanchard.
The evidence shows that new teachers were hired in the department of psychology, at least in September 1971. Exhibits S.3 and S.8 clearly prove this.
With respect to the “required skills” mentioned in clause 8-8.06 of the S.1 agreement, counsel for the union established that Mr. Claude Blanchard possessed them, since the academic council recommended renewal of his contract on May 18, 1971, as is attested by Exhibit S.3. By the same token, Exhibit C.6 shows that the academic council did not support the decision not to re-hire Mr. Claude Blanchard.
Neither the Superior Court nor the Court of Appeal accepted the CEGEP’s argument based on clause 5-2.12, and in my opinion there is no need to consider it further. It is true that an arbitration board must respect the provisions of the collective agreement that define its authority. This Court recently applied this rule in Air-Care Ltd. v. The United Steel Workers of America[1]. However, it is the duty of an arbitration board to interpret and apply the provisions of the agreement. A court may interfere with such interpretation and application only if they are an abuse of authority within the meaning of art. 846 C.C.P. In the case at bar, there is no need to consider at length what might constitute such an abuse, as was done in
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Toronto Police Ass. v. Board of Commissioners[2]. There is none to be found here. It was unquestionably the duty of the arbitration board hearing the grievance to decide how the new agreement would apply to a notice of termination given under the earlier agreement. Undoubtedly, the existence of this other agreement was one of the facts to be taken into account and the arbitrators certainly were not giving the new text a construction it could not bear when they said that, in the circumstances, a teacher who had not been re-hired was entitled to priority of employment as provided in clause 8-8.06. Like the trial judge, the Court of Appeal unanimously endorsed that conclusion. Crête J.A., speaking for the Court, said:
[TRANSLATION] For the 1971-72 year, what were Mr. Blanchard’s rights as a probationary teacher?
Clause 8-8.06 provides the answer:
‘A probationary teacher affected by the procedures provided for in this clause who has the required skills for a vacant position offered for the following school year shall, subject to the provision governing re-hiring and permanent status, have priority of employment, after permanent teachers, over any other person who is not, at that time, employed by the College.’
As is evident, Mr. Blanchard had “priority of employment” for the 1971-72 school year.
This is a fundamental difference from the automatic re-hiring ordered by the arbitration board.
Accordingly, it appears to me that the arbitration board clearly exceeded its jurisdiction when it ordered the re-hiring of Mr. Blanchard, particularly since clause 9-2.09 of the agreement states:
The Board shall rule on the grievances in accordance with the provisions of this agreement; it may not amend, add to or subtract from the agreement in any way.’
It is accordingly evident that the sole reason for the Court of Appeal’s conclusion that the arbitration board exceeded its jurisdiction was its finding that the latter had misconstrued and misapplied clause 8-8.06 by ordering the re-hiring of a teacher whose priority of employment had not been
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respected. With respect, this finding seems erroneous to me. There can be no doubt that, for a teacher, priority of employment means the right to be hired if he has the required skills, and in the award, it was clearly held that these facts had been proven. Accordingly, the arbitration board had to allow the grievance and the only remaining question concerned the remedy to be granted. In a case where the issue was specifically what should be the conclusion of an arbitration board allowing the grievance of a teacher who had wrongfully been denied re‑hiring, this Court unanimously upheld the award of the arbitration board invalidating the notice of dismissal and declaring that the teacher had not ceased to be employed by his employer for the following school year: Dame Lemieux-Bélanger v. St-Gervais[3]. In the case at bar, it should be noted that clause 9-2.15 of the collective agreement includes the following:
[TRANSLATION] 9-2.15 In cases of dismissal and of failure to re-hire, the arbitration tribunal shall have the following powers:
(a) to examine whether the procedure was followed;
(b) whether the alleged reasons are a just and sufficient cause;
(c) to cancel, where necessary, the notice of non-re-hiring or of dismissal;
(d) to order reinstatement, where necessary;
(e) to fix compensation, where necessary, taking into consideration any salary or fee the teacher may or could have received in the meantime.
In my opinion, the Superior Court judge correctly held in this regard:
[TRANSLATION] The collective agreement of April 25, 1971 provided, under clause 9‑2.15, that in case of dismissal or of failure to re-hire, the arbitration board had the power, where necessary, to cancel the notice of non- re-hiring or of dismissal and, where necessary, to order reinstatement. By deciding as it did, the arbitration board was certainly not exceeding its authority, since its power in this area had already been acknowledged.
While it is indeed true that clause 9-2.15 refers expressly only to cases of dismissal and of failure to re-hire, cannot this clause reasonably be applied to the failure to respect priority of employment? Even on an extremely strict interpretation of this
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provision, all that could be said would be that the agreement is silent on the point. Then, surely, the conclusion would have to be exactly the same as in Lemieux-Bélanger, where this Court was called upon to interpret a legislative provision that was silent on the extent of the powers of the arbitration board. I am accordingly of the opinion that the Court of Appeal erred in reversing the conclusion of the judge of the Superior Court.
Having reached the conclusion that the judgment of the Superior Court dismissing the motion for evocation should be restored, I see no need to consider the opinion expressed in the Court of Appeal by Lajoie J.A. who, while concurring in the conclusion of Crête J.A. that the judgment of the Superior Court shoud be reversed and a writ of evocation should be issued, would have appended the reservation that the judge at trial should not feel bound by that decision. This reservation was not expressed in the formal judgment of the Court of Appeal and it appears to me that from this it should be inferred that this questionable suggestion was not approved.
I conclude that the appeal should be allowed, the decision of the Court of Appeal be reversed and the judgment of the Superior Court dismissing the motion for evocation be restored, the whole with costs throughout against respondent.
Appeal allowed with costs.
Solicitors for the appellants: Laroche, Saint-Arnaud, Thibault, Desmarais & Ass., Montreal.
Solicitors for the respondent: Lapointe & David, Montreal.
Solicitors for the third party Boyer: Melançon, Cloutier & Hélie, Montreal.
Footnotes
- [1] [1976] 1 S.C.R. 2.
- [2] [1975] 1 S.C.R. 630.
- [3] [1970] S.C.R. 948.