Majority
As pointed out by Kellock J. in Richardson's case (p. 67), the section does not purport to create a direct and A.
specific right in the Crown but simply purports to place the Crown in a recognized common law relation, and its rights J. are those arising from that relation under the rules of that law. I am of the opinion that the relation of master and servant existed between the Crown and soldiers and noncommissioned officers of the armed forces, whose employment is authorized and regulated by the National Defence Act within the ordinary meaning of these expressions, prior to the enactment of s. 50 and that that section does nothing more than declare that to be the case. This is not to say that such relationship supports an action per quod: but that it does is decided by the judgment of this Court. The earlier decision of this Court in Larose v. The King', dealing with the status of a member of the militia established under the Militia Act, R.S.C. 1886, c. 41, turned upon considerations which do not apply in the present matter.
I would dismiss this appeal with costs.
Judgment of the Court
CARTWRIGHT J.:-This appeal is brought, pursuant to leave granted by the Court of Appeal for Ontario, from a judgment of that Court' affirming a judgment of McRuer 1 [19611 O.R. 438, 28 D.L.R. (2d) 81, sub nom. Re Polymer Corporation & Oil Chemical & Atomic Workers International Union, Local 16-14.
S.C.R.
C.J.H.C. which dismissed the appellants' motion for an order of certiorari and prohibition directed to the respondents Laskin, Dubin and O'Brien, members of a board of a arbitration, hereinafter sometimes referred to as "the board". Cartwright j.
The respondent Polymer Corporation Limited, hereinafter referred to as "Polymer" entered into a collective agreement with Oil, Chemical and Atomic International Union, Local 16-14, hereinafter referred to as "the union", which was to remain in force from February 27, 1957, to July 7, 1958, and to be automatically renewed from year to year thereafter unless a specified notice was given.
The labour relations between Polymer and its employees are governed by the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152.
Paragraph 8.01 of the collective agreement is as follows: 8.01- The Union agrees that during the life of the agreement there will be no strike and the Company agrees that there will be no lockout. On February 7, 1958, there was a stoppage of work at the plant and on February 10, 1958, Polymer filed a written grievance with the union reading as follows:
This grievance is submitted to the Union under Article 6.05 of the Agreement.
The Company alleges violation of Article 8.01 of the Agreement by reason of the strike which occurred on Friday, February 7th, 1958. The Company claims full compensation for its losses suffered as a result of this violation.
The parties failed to settle the grievance and Polymer requested in writing that it be submitted to arbitration in accordance with article 7.01 of the agreement which reads as follows:
Both parties to this Agreement agree that any alleged misinterpretation or violation of the provisions of this Agreement, including any grievance which has been carried through the prescribed steps of the Grievance Procedure outlined in Article VI and which has not been settled, will be referred to a Board of Arbitration at the written request of either of the parties hereto, provided that such requests must be received not later than ten regular working days after a decision has been rendered as provided in step 3 of the Grievance Procedure. The board of arbitration was established in accordance with the relevant provisions of the agreement. By an award dated September 4, 1958, Messrs. Laskin and O'Brien, al. decided that there had been a violation of article 8.01 of the agreement, that the union was responsible for such e breach and liable in damages for it and directed that amount of damages be determined after a further hearing. Subsequently the union challenged the authority of the board to award and assess damages against the union for this breach of the collective agreement. After hearing further argument and receiving writteh submissions on this point, the board issued a majority award dated November 10, 1959, which rejected the challenge to the board's power to award damages and stated that the board would proceed to assess the damages at a hearing to be convened. The union then launched the motion which was heard by McRuer C.J.H.C. Other provisions of the collective agreement relevant to the question whether the board has jurisdiction to award damages are as follows:
The main argument of counsel for the appellant is that the agreement gives no express power to the board to award and assess damages and that the Courts below have erred in construing the agreement as giving such a power. He submits that the jurisdiction of the board in dealing with the dispute formulated in the written grievance filed by Polymer was limited to making a finding as to whether or S.C.R.
not the union had violated "the no-strike clause" in the Inu agreement and that the board was without power to award e.
any consequential relief.
On this branch of the matter I find myself, as did the Court of Appeal, in complete agreement with the reasons Jof McRuer C.J.H.C. and for the reasons given by him I would dismiss the appeal.
Before parting with the matter mention should be made of an alternative ground on which it is submitted in the factum of the respondent that the appeal should be dismissed. It is stated as follows:
While counsel for the respondent did not press this point he did not abandon it; in reply counsel for the appellant relied chiefly on the decision of the Court of Appeal for Ontario in Re International Nickel Company of Canada Limited and Rivando'.
It is not necessary to deal with this point and, in my opinion, we should not do so.
There is nothing in the reasons delivered in the Courts below to indicate that the point was taken there. Early in his reasons the learned Chief Justice of the High Court says: Had the point that certiorari does not lie been raised before the learned Chief Justice I think it certain that he would have mentioned it and probable that he would have dealt with it before considering on its merits the question whether the board had jurisdiction to award damages; but he would not have been bound to follow that course. If he had seen fit he might have first considered the merits and if on the merits the motion failed it would have become unnecessary to deal with the procedural point. If, on the other hand, he had reached the conclusion on the merits that the board did not have jurisdiction to award damages, it would then have become necessary to determine whether the board was a tribunal to which certiorari would lie.