Cité de Jonquière v. Munger et al.

procks et la majorit6 des juges de la Cour d'Appel, et sur cette question de responsabilit6, comme d'ailleurs celle d6rivant de 'art. 1053, ot il ne s'agit que de questions de faits, je crois qu'il n'y a pas lieu que cette Cour interet al. Vienne.

Taschereau L'appel doit 6tre rejet6 avec d6pens si les intim6s les JC demandent.

CARTWRIGHT J.:-This appeal is brought, pursuant to leave granted by this Court, from a unanimous judgment of the Court of Queen's Bench (Appeal Side) of the Province of Quebec, which reversed the judgment of the learned trial judge and gave judgment in favour of the respondent for $889.24 with interest and costs.

The facts are not in dispute. For a number of years the respondent has been employed by the appellant as a truck driver (snow-blower and watering truck, Class A) and the mis-en-cause, Le Syndicat National Catholique des Employ6s Municipaux de Jonquibre Inc., has been duly certified by the Labour Relations Board of the Province of Quebec as the bargaining agent of all employees of the appellant.

Prior to December 31, 1952, the working conditions of the respondent were governed by the terms of a collective 1 [19621 Que. Q.B. 381.

R.C.S.

labour agreement made between the appellant and the mis-en-cause, which terminated on the last mentioned date. The appellant and the mis-en-cause were unable to agree o upon the terms of a new collective labour agreement and the dispute was referred to a Council of Arbitration, hereinafter referred to as "The Council", set up in accordance with the provisions of An Act respecting Municipal and School Corporations and their employees, Statutes of Quebec, 13 Geo. VI, c. 26, hereinafter referred to as "The Act". The Council heard the parties and made its award on February 1, 1954.

.By this award the Council prescribed the working conditions which were to be in force between the appellant and its employees for the two-year period from January 1, 1953 to December 31, 1954. Attached to and forming part of the award was the text of a collective labour agreement to which the award referred as follows:

The award was signed by all members of the Council although the member appointed by the union appended a report dissenting in part; it was delivered on February 1, 1954, to the clerk of the Council to be communicated to the parties and was immediately communicated to them. The relevant terms of the collective agreement created by the award, particularly those relating to hours of work and wage scales, are set out in the reasons of Montgomery J. and need not be repeated.

The opening paragraph of art. 20 of the agreement reads as follows:

It was argued by the appellant at the trial and in the Court of Queen's Bench that the whole agreement was null because it was made retroactive for thirteen months while under s. 12 of the Act it could not be made retroactive for more than twelve months. I did not understand this argument to be pressed before us but, in any case, I would reject it for the reasons given by the learned trial judge which were quoted and accepted by Montgomery J. The effect of s. 12 in the circumstances of this case is to render the agreement retroactive to February 1, 1953, instead of to January 1. This view was apparently taken e by the legal advisers of the respondent as his claim was J-restricted to the period from February 1, 1953 to February 1, 1954.

I agree with Montgomery J. that the terms of the agreement are clear and unambiguous and that under them the respondent is entitled to the amount which has been awarded to him.

The question on which there has been a difference of opinion between the learned trial judge and the Court of Queen's Bench is whether the terms of the agreement forming part of the award of February 1, 1954, were validly varied by a document dated February 24, 1954, signed by two members of the Council, under the following circumstances. On or about February 6, 1954, the appellant gave notice to the members of the Council of a motion asking that the Council c6rrect a manifest clerical error in the award concerning the retroactivity of the provisions as to hours of work. The member of the Council appointed by the union notified the Council that he refused to take part in the hearing of the motion on the ground that the award as delivered represented the decision arrived at by the Council and that it was without jurisdiction to alter it. The remaining members of the Council heard the motion and on February 24, 1954, purported to deliver a judgment amending the award and the agreement forming part thereof to provide that all the provisions as to hours of work should become effective only as of February 1, 1954. I agree with the unanimous opinion of the Court of Queen's Bench that the Council had no power to make this alteration.

I wish to adopt the following passage in the reasons of Montgomery J.: