Arbitration Under The British Columbia Labour Code
Joseph M. Wefler*
I. Introduction
Certain American members of the National Academy of Arbi-
trators seem concerned about an impending decline in the status
of the arbitration process.’ Professor David Feller, the distinguished
lawyer and law professor who argued the Steelworkers Trilogy2 in
the United States Supreme Court, argued recently before the Aca-
demy that the virtual immunity from judicial review that arbitration
awards have enjoyed is ending. He suggested that the Collyer de-
cision,4 along with increasing legislative regulation of employment
conditions, must be productive of increased judicial review of
arbitral decisions.
Canadian arbitration awards have never enjoyed the degree
of immunity from review afforded those in the United States.
Rather, our judiciary has continually probed into the arbitral realm
– with dubious results.6 However, the British Columbia Legislature,
having investigated both the procedural and the substantive aspects
* Associate Professor, Faculty of Law, University of British Columbia, and
labour arbitrator.
1 See Feller, “The Coming End of Arbitration’s Golden Age” in Dennis &
Somers (eds.), Proceedings of the Twenty-Ninth Annual Meeting, National
Academy of Arbitrators (1976), 97 [hereinafter Golden Age]; Feller, Arbitra-
tion: The Days of its Glory are Numbered (1977-78) 2 Industrial Relations
L. J. 97 [hereinafter Glory]. Some American scholars argue that arbitrators
should not be concerned about appellate review in cases of statutory inter-
pretation (as opposed to the interpretation of contractual language): see,
e.g., St. Antoine, Judicial Review of Labor Arbitration Awards: A Second
Look at Enterprise Wheel and Its Progeny (1976-77) 75 Mich. L. Rev. 1137.
2 United Steelworkers of America v. American Mfg Co. 363 U.S. 564 (1960);
United Steelworkers of America v. Warren & Gulf Navigation Co. 363 U.S.
574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp.
363 U.S. 593 (1960).
3 Feller, Glory, supra, note 1, 106-10.
4 Collyer Insulated Wire 192 N.L.R.B. 837 (1971).
5 Feller, Golden Age, supra, note 1, 108-9.
6 See generally Adams, Grievance Arbitration and Judicial Review
in
North America (1971) 9 Osgoode Hall L. J. 443; Tacon, The Effect of Judicial
Review on Grievance Arbitration (1976) 14 Osgoode Hall L. J. 661; P. Weiler,
The ‘Slippery Slope’ of Judicial Intervention (1971) 9 Osgoode Hall L. J. 1; P.
Weiler, The Remedial Authority of the Labour Arbitrator: Revised Judicial
Version (1974) 52 Can. Bar Rev. 29.
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of grievance arbitration, has radically altered the review mechanism
in creating a partnership between the Labour Relations Board and
the Court of Appeal.1 Early indications point to a comfortable work-
ing relationship between these two adjudicative bodies. The ex-
periment is of great interest to other jurisdictions concerned with
the administration of collective agreements.
This paper will comprise a description of the statutory frame-
work and of the legislative history surrounding arbitration in the
British Columbia Labour Code; an analysis of the four year British
Columbia experience under this scheme, focusing particularly on
the roles that the judiciary and the Labour Relations Board have
played in developing the status and character of grievance arbitra-
tion; and a summation, from an arbitrator’s point of view, of the
effect of this scheme on the conduct of arbitration hearings and
on the development of the common law of the collective agreement.
II. The statutory framework for grievance arbitration in the
Labour Code
The British Columbia Labour Code, unlike those of other North
American jurisdictions, provides a comprehensive statutory scheme
under which disputes over the meaning and application of collective
agreements are to be resolved. As in other Canadian jurisdictions,
the Labour Code prohibits strikes and lockouts during the term of
a collective agreement,” and requires that every collective agreement
contain a provision for final and conclusive settlement of disputes
without stoppage of workf While arbitration is not mandatory, since
the parties may agree on other methods to peacefully resolve their
differences, the Labour Code recognizes
that arbitration is the
preferred mechanism.10
The basic premise of Part VI of the Labour Code is contained in
section 92(2):11
7 Labour Code of British Columbia Act, S.B.C. 1973 (2d Sess.), c. 122, Pt.
VI, ss. 92-111, as am. by S.B.C. 1974, c. 87, s. 22(h); S.B.C. 1975, c. 33, ss. 23-28;
S.B.C. 1976, c. 26, s. 8 [hereinafter Labour Code].
8 Ibid., s. 79.
9 Ibid., s. 93(2) as am. by S.B.C. 1975, c. 33, s. 23.
1OIbid.:”Every collective agreement shall contain a provision for final
and conclusive settlement without stoppage of work, by arbitration or such
other method as may be agreed to by the parties, of all disputes between the
persons bound by the agreement respecting its interpretation, application,
operation or any alleged violation of the agreement, including any question
as to whether any matter is arbitrable” [emphasis added].
11 As am. by S.B.C. 1975, c. 33, s. 23.
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 195
It is the intent and purpose of this Part that its provisions constitute a
method and procedure for determining grievances and resolving disputes
under the provisions of a collective agreement without resort to stoppages
of work.
From this starting point, the Labour Code proceeds to enunciate
the manner in which the arbitrator is to perform his function of
administering the collective agreement. The arbitrator is to “have
regard to the real substance of the matters in dispute and the re-
spective merit of the positions of the parties thereto under the
terms of the collective agreement”.’
In performing his task, the
arbitrator “.shall apply principles consistent with the industrial
relations policy of this Act, and is not bound by a strict legal in-
terpretation of the issue in dispute”.13
These provisions direct the arbitrator to the statutory basis of
the law of the collective agreement rather than to the common law
of contracts or the law of commercial arbitration. The arbitrator
in British Columbia is emancipated from the difficult task of in-
terpreting a collective agreement according to the often conflicting
dictates of modern arbitral jurisprudence or the traditional common
law doctrines derived from the context of the master-servant rela-
tionship. The Labour Relations Board has noted:
Collective agreements deal with the entire range of employment terms
and working conditions often in large, diverse bargaining units. The
agreement lays down standards which will govern that industrial establish-
ment for lengthy periods –
one, two, even three years. The negotiators
are often under heavy pressure to reach agreements at the eleventh
hour to avoid a work stoppage, and their focus of attention is primarily
on the economic content of the proposed settlement, not the precise
contract language in which it will be expressed. Finally, the collective
agreement though the product of negotiations over many years, must
remain a relatively concise and intelligible document to the members
of the bargaining unit and the lower echelon of .management whose
actions are governed by it.14
Because of these circumstances, disputes which reach arbitration
generally involve situations which the parties may have neither
clearly anticipated nor specifically covered in their contract. For
such issues, the parties expect a special attitude from their arbitra-
tor. The Labour Code recognizes and affirms these expectations by
directing the arbitrator, in interpreting a collective agreement, to
apply principles consistent with sound industrial relations policy.
12 Ibid., s. 92(3), as am. by S.B.C. 1975, c. 33, s. 23.
13 Ibid.
14Simon Fraser Univ. & Ass’n of Unii,. & College Employees, Local 2
[1976] 2 Can. L.R.B.R. 54, 59 (B.C.L.R.B.).
McGILL LAW JOURNAL
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The industrial relations setting requires an arbitrator to examine
the function of the disputed contract benefit according to his per-
ception of the typical expectations of an experienced negotiator.”
Another novel feature of the British Columbia Labour Code is
the significant role given to the Minister of Labour in monitoring
and assisting in the mechanics of grievance arbitration. The Minister
may make administrative arrangements for the conduct of arbitra-
tions,6 may make provision for the training and education of
labour arbitrators as well as for research and publication of in-
formation concerning labour relations, 17 and may provide for the
maintenance of a register of arbitrators and labour arbitration
chairmen.’ 8 These provisions are consistent with the legislative pre-
ference for arbitration as the primary vehicle of grievance resolu-
tion.19 In addition, provision is made for ministerial intervention
in cases of ineffectual arbitration, 20 of failure to appoint or consti-
tute an arbitration board,2
1 and of contract disputes requiring the
appointment of a special officer.’
The Labour Code also specifically deals with the payment of the
fees and costs of arbitration,23 the problem of unreasonable delay
in the rendering of awards,.2 and the powers of a board to receive
evidence under oath 25 and to issue a summons. 6 In the absence of
a majority, the decision of the Chairman is the binding decision of
the board.27 The award must be filed at the Parliament Building
within ten days,28 and it is enforceable as a Supreme Court judg-
ment when filed in the Court Registry.2 The significance of these
15 p. Weiler, “The Code, The Collective Agreement, and The Arbitration
Process: As Seen from The Labour Board” in Hickling (ed.), Grievance
Arbitration: A Review of Current Issues (1977), 7, 8.
6 Labour Code, s. 111(a).
17Ibid., s. 111(b).
18Ibid., s. 111(c).
‘ 9 For a further example of this preference, see ibid., s. 112, which provides
that the government shall bear one third of certain of the costs of arbitration
in prescribed circumstances.
20 Ibid., s. 94, as am. by S.B.C. 1975, c. 33, s. 24.
21 Ibid., s. 95.
22Ibid., s. 97, as am. by S.B.C. 1975, c. 33, s. 26.
23 Ibid., s. 99.
24Ibid., s. 100.
25 Ibid., s. 101.
26 Ibid., s. 102, as am. by S.B.C. 1976, c. 26, s. 8.
27 Ibid., s. 103.
28 Ibid., s. 105.
29Ibid., s. 110.
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 197
rather commonplace sections lies in their inclusion in a compre-
hensive labour relations statute.
The most interesting features of the Labour Code are, first,
the statutory recognition of the arbitrator’s authority;3 0 second, the
power granted to the Labour Relations Board to act as an arbitra-
ion board;31 and finally, the review authority given to the Labour
Relations Board3 2 and the Court of Appeal.P
A. The arbitrator’s authority
One major issue in the evolving law of the collective agreement
has been the courts’ antipathy to arbitrators’ endeavours to exercise
remedial authority. Arbitrators’ attempts to remedy collective agree-
ment breaches have been continually quashed by reviewing courts 4
The judiciary, differing radically from the profession in its view of
the proper role of an arbitrator, has often reduced the arbitrator to
little more than an “official reader of the agreement” 35 The Labour
Code sets out the following comprehensive statement of an arbi-
trator’s authority:
For the purposes set out in Section 92, an arbitration board has all the
authority necessary to provide a final and conclusive settlement of a
dispute arising under the provisions of a collective agreement [.]36
Section 98 is clearly designed to overcome the truncated notion
of grievance arbitration contemplated by the Supreme Court of
Canada in Port Arthur Shipbuildinge7 and its progeny;38 in addition,
30 Ibid., s. 98, as am. by S.B.C. 1974, c. 87, s. 22(h), and S.B.C. 1975, c. 33, s. 27.
31 Ibid., s. 96, as am. by S.B.C. 1975, c. 33, s. 25.
32 Ibid., s. 108, as am. by S.B.C. 1975, c. 33. s. 28.
33 Ibid., s. 109, as am. by S.B.C. 1975, c. 33, s. 28.
34 See, e.g., Union Carbide of Canada Ltd v. Weiler [1968] S.C.R. 966; Port
Arthur Shipbuilding Co. v. Arthurs [1969] S.C.R. 85; General Truck Drivers
Union, Local 938 v. Hoar Transport Co. [1969] S.C.R. 634.
35 The nature of this problem is clearly described in P. Weiler, The Re-
medial Authority of the Labour Arbitrator: Revised Judicial Version, supra,
note 6, 30.
SO Labour Code, s. 98, as am. by S.B.C. 1975, c. 33, s. 27 [emphasis added].
The remedial authority granted to arbitrators by s. 98(a)-(g) is not exhaustive,
as was made clear in Vernon Fruit Union & B.C. Interior Fruit & Vegetable
Workers’ Union, Local 1572 & Okanagan Federated Shippers’ Ass’n [1977]
1 Can. L.R.B.R. 21 (B.C.L.R.B.). The Board decided that s. 98 gave the arbi-
trator the power to order rectification of the document in which the
collective agreement was expressed, although the power of rectification is not
specifically mentioned in s. 98.
37 Supra, note 34.
38The legal impact of Port Arthur Shipbuilding is considered
in S.K.D.
Mfg Ltd (1969) 20 Lab. Arb. Cas. 231. This case also lists the relevant arbi-
tration decisions.
McGILL LAW JOURNAL
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many of the specific powers given to arbitrators by section 98
constitute a “legislative reversal” of judicial decisions which quashed
arbitral awards. An arbitrator may now award monetary damages,-”
direct that an employee be reinstated,4 0 substitute measures if he
finds the imposed discipline to be excessive,4
1 relieve against time
limits,42 dismiss or reject a grievance if the party’s delay has operat-
ed to the other party’s prejudice,43 and interpret and apply any
statute intended to regulate the employment relationship, notwith-
standing that its provisions conflict with the terms of the collective
agreement. 4
In specifically granting this broad authority to the arbitrator, the
Legislature has ensured that an arbitrator will be more than a
mere creature of the collective agreement. Insofar as he may exercise
his remedial authority irrespective of the particular contract under
which he is appointed, he has evolved from “the official reader of
the collective agreement” to the adjudicator of the contract dispute.
B. The role of the Labour Relations Board in the administration
of the collective agreement
A more radical reform is effected by the Labour Code’s grant to
the Labour Relations Board of authority to monitor the admini-
stration of collective agreements. Consistent with the Labour Code’s
overall centralizing thrust, by which the Board is given authority
to administer the entire body of labour law, the Board is empowered
to enter the arena of grievance resolution in any of three ways.
First, the Board’s jurisdiction to administer the law of strikes and
picketing 5 involves it
in mid-contract wildcat strikes over griev-
ances. The Labour Code envisages the Board as acting as informal
3 9 Labour Code, s. 98(a) (as am. by S.B.C. 1975, c. 33, s. 27), ratifying the
decision in Re Oil, Chemical & Atomic Workers & Polymer Corp. (1959) 10
Lab. Arb. Cas. 51.
40 Ibid., s. 98(b), as am. by S.B.C. 19.75, c. 33, s. 27.
41 Ibid., s. 98(d), as am. by S.B.C. 1975, c. 33, s. 27. Cf. the position in the
Port Arthur Shipbuilding case, supra, note 34.
42 Ibid., s. 98(e), as am. by S.B.C. 1975, c. 33, s. 27. Cf. the position in Union
Carbide of Canada Ltd v. Weiler, supra, note 34; General Truck Drivers
Union, Local 938 v. Hoar Transport Co., supra, note 34.
43Ibid., s. 98(f), as am. by S.B.C. 1975, c. 33, s. 27. For a discussion of the
doubtful authority of arbitrators to apply the equitable doctrine of laches,
see P. Weiler, supra, note 6, 49-50.
44 Ibid., s. 98(g), as am. by S.B.C. 1975, c. 33, s. 27. The precarious status
of this authority is dealt with in P. Weiler, The Arbitrator, The Collective
Agreement And The Law (1972) 10 Osgoode Hall L. J. 141.
45Ibid., s. 31(1)(b)(ii), as am. by S.B.C. 1975, c. 33, s. 8.
19792 ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 199
mediator in such circumstances, in order to effect a voluntary ac-
commodation whenever possible.’6 This arrangement constitutes a
major improvement over the use of cease and desist orders in the
handling of such illegal work stoppages.
Secondly, the Board may become involved in grievance resolu-
tion under its original jurisdiction over typical contract griev-
ances.47 Prior to the appointment of an arbitration board, a party
to a collective agreement has the right to apply to the Labour Re-
lations Board and request the appointment of an industrial relations
officer (I.R.O.) to assist in settling the dispute 8 If the officer is
unable to achieve a voluntary settlement, he makes a detailed report
to the Board of the circumstances of the grievance and the posi-
tions of the parties, and recommends an appropriate disposition
of the matter. The Board has discretion to decide the grievance on
the merits or to refer the matter back to the parties to be dealt with
under the arbitration procedures in the collective agreement 9 Ex-
perience has shown that I.R.O.’s have successfully achieved a
voluntary settlement in roughly two thirds of the disputes to which
they were appointed.5 The Board’s disposition of the unresolved
disputes has varied according to the nature of the dispute. When-
ever the issue involves a difference of interpretation –
capable of
constituting an important precedent –
of the meaning and effect
of a contractual clause, Board practice is to remit the matter to the
arbitration procedure contemplated by the collective agreement, as
this type of case requires a hearing, testimony under cross-examina-
tion, legal argument and carefully crafted reasons for decision. 1
If, however, the dispute involves only a question of fact and the
contract language is clear, the Board will cause a thorough investiga-
tion to be made and on its basis will issue an authoritative ruling
without reasons.9 While this procedure may seem contrary to the
rules of natural justice, parties to a collective agreement may con-
tract out of the application of section 96 to their situation.P More-
46 Ibid., s. 27, as am. by S.B.C. 1975, c. 33, s. 8; S.B.C. 1977, c. 72, s. 5.
47Ibid., s. 96, as am. by S.B.C. 1975, c. 33, s. 25.
48 Ibid.
49 See generally P. Weiler, Statement of Policy: Section 96 of the Labour
Code [1976] 1 Can. L.R.B.R. 17.
50 p. Weiler, “The Role of the Labour Board as an Alternative to Arbitration”
in Dennis & Somers (eds.), Proceedings of the Thirtieth Annual Meeting, Na-
tional Academy of Arbitrators (1977), 72, 80.
51 Ibid., 82.
52 Ibid.
Ma Labour Code, s. 96(2), as am. by S.B.C. 1975, c. 33, s. 25.
McGILL.LAW JOURNAL
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over, if they are unhappy with the particular ruling they may apply
to have the case reconsidered by the Board, ordinarily by way of a
full scale hearing before a different panel. 4
Thirdly, the Board may become involved in the arbitration pro-
cess through its primary responsibility, under section 108 of the
Labour Code, to review arbitration awards. The Legislature has
relieved the courts of most of their traditional authority to review
arbitral decisions and has transferred this jurisdiction to the
Labour Relations Board. The remainder of this paper will be de-
voted to an examination of this statutory experiment.
III. Review of grievance arbitration under the Labour Code
A. Legislative history
1. The situation prior to 1974
Prior to the enactment of the original Labour Code in January
1974, the power to review the awards of British Columbia arbitra-
tion boards belonged exclusively to the superior courts. 5 Arbitra-
tion was not mandatory under the old Labour Relations Act, 0 and
the parties were free to devise other methods of peaceful dispute
resolution. Arbitration boards were thus classed for legal purposes
as consensual or private bodies.5 7 Awards could be vacated on the
basis of bias, fraud, absence of natural justice, excess of jurisdic-
tion, or error of law on the face of the record.58 In theory, error of
law on the face of the record could not encompass the specific issue
referred to the arbitration tribunal.59 Collateral questions of law,
however, proved to be fruitful objects for judicial scrutiny.
The uneasy distinction between the “specific” as opposed to the
“collateral” issues of law created considerable confusion and, de-
pending upon the review court’s phrasing of the “specific” issue,
often resulyed in a broad scope of review. “Collateral” issues in
many cases included interpretations of the relevant collective agree-
54 Ibid., s. 36.
55 Arbitration Act, R.S.B.C. 1960, c. 14, s. 14(2).
N R.S.B.C. 1960, c. 205, s. 22 as am.
57 Howe Sound Co. v. International Union of Mine, Mill & Smelter Workers
(Canada), Local 663 (1962) 62 C.L.L.C. 15,407A (S.C.C.).
58 International Woodworkers of America, Local 1-71 v. Weldwood of Ca-
nada Ltd (1970) 70 C.L.L.C. 14,033 (B.C.C.A.).
69A.B.C. Sheet Metal & Plumbing Ltd & United Ass’n of Journeymen
& Apprentices of the Plumbing & Pipefitting Industry, Local 170 (1962) 62
C.L.L.C. 15,394 (B.C.C.A.).
1979J ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 201
ments;3 as one arbitrator noted, these judicial exercises constituted
“a spurious attempt to rationalize a full appeal on the merits”.6′
A court would also review an arbitral award on the basis of juris-
dictional error if it satisfied itself that the arbitrator’s interpretation
of the collective agreement was clearly wrong or one that the words
would not reasonably bearn 2 As noted by one commentator, this
criterion “had very few constraints” and those that existed “were
not of an objective variety”.P If a court felt strongly that an arbitra-
tor was wrong, reviewing was warranted –
an arbitrator “could be
wrong but not clearly wrong. To be clearly wrong was to lack
jurisdiction”. 64
2. The timid response
The Legislature, in the initial version of the Labour Code,65 did
not take significant measures to preclude judicial review. Rather
than ousting review altogether, the Labour Code sought to regularize
it and define its limits more succinctly.66 The Arbitration Act,67 with
certain modifications6 was made applicable to grievance arbitration
and a stated case procedure was inserted to expedite the determina-
tion of legal questions. 69 The Court of Appeal was given “exclusive
jurisdiction in all arbitration cases”, 70 in the hope that some degree
of predictability and consistency would emerge. Moreover, it was
anticipated that requiring a party to seek judicial review in the
Court of Appeal would involve a subtle but real disincentive, as
such an appeal was thought to involve a more ponderous procedure
than simple notice of motion (the then-current route to review in
the superior courts): 1 The substantive grounds for review continued
60 For an analysis of the leading cases, see generally Adams, supra, note 6,
493-95.
61 Ibid., 495.
62 A.B.C. Sheet Metal & Plumbing Ltd, supra, note 59.
03 Adams, supra, note 6, 497.
64 Ibid.
65 S.B.C. 1973 (2d Sess.), c. 122.
66 See generally Arthurs, “The Dullest Bill”: Reflections on The Labour
Code of British Columbia (1974) 9 U.B.C. L. Rev. 280, 293-301.
67 R.S.B.C. 1960, c. 14.
68 Labour Code of British Columbia Act, S.B.C. 1973 (2d Sess.), c. 122, s. 106.
69 Ibid., s. 107.
70 Ibid., s. 108.
71 The applicant would be faced with additional paperwork and expense
in filing notice and grounds for appeal and in preparing factums. The
writer’s information on this point was obtained from one of the persons who
drafted this part of the Labour Code.
McGILL LAW JOURNAL
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to be relatively open ended: misbehaviour of the arbitrator, error
of law affecting jurisdiction, and denial of natural justice. 2
When the first application for judicial review was sought under
the new provisions, counsel were informed by the Chief Justice that
the Court of Appeal would operate under the same procedure –
simple notice of motion –
as had pr’eviously been used in the
Supreme Court. 3 This, of course, effected a complete reversal of
the original expectations of the Labour Code’s draftsmen: rather
than constituting a built-in disincentive to a party seeking review,
the new provisions operated as a veritable incentive, as the inter-
mediate step of appearing before the British Columbia Supreme
Court had been eliminated. Since most applications f6r leave to
appeal to the Supreme Court of Canada would likely be rejected, a
party could go directly to the Court of Appeal by an expedited,
simple procedure, and obtain a conclusive ruling. Thus, contrary
to plan, parties were in effect encouraged to appeal the arbitrator’s
decision.
The Court of Appeal then decided the Weldwood case. 4 This
case involved the discharge of an employee for intoxication. The
arbitrator found the discharge to be without proper cause and
ordered reinstatement. The Court of Appeal reversed the arbitrator’s
decision on the ground that he had exceeded his jurisdiction in
asking himself whether the grievor was intoxicated by alcohol rather
than whether she was intoxicated, and that he had thus refused to
assume the jurisdiction to determine whether the impairment was
a proper cause in law for dismissal.1 5 The Minister of Labour was
so incensed by this example of the type of scrutiny in which the
Court of Appeal would engage under the rubric of “error of law
affecting jurisdiction” that the Ministry paid the legal costs of
both counsel in the appeal to the Supreme Court of Canada.7
Legislative reform soon followed.
72 Labour Code of British Columbia Act, S.B.C. 1973 (2d Sess.), c. 122, s.
108(1)(a)-(c). Arthurs, supra, note 66, 299, thought that as an attempt to
inhibit the full exploration of all legal issues, such an exercise was naive.
1 1 This information was obtained by the writer in conversations with
counsel.
4 Re Weldwood of Canada Ltd & Int’l Woodworkers of America, Local 217
U
(1974) 50 D.L.R. (3d) 439 (B.C.CA.); rev’d (sub nom. International Wood.
workers of America, Local 217 v. Weldwood of Canada Ltd) (1976) 67 D.L.R.
(3d) 544 (S.C.C.).
15 Ibid., 446-47.
76 This information was obtained by the writer in conversations with
counsel.
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 203
3. The 1975 amendments
The new scheme of arbitration review under the amended
Labour Code does not exolude the courts from -any review juris-
diction whatsoever but rather limits the review power of the Court
of Appeal to those issues of “general law” not reviewable by the
Labour Relations Board.r Judicial interference in arbitration pro-
ceedings by way of injunction, prohibition, or certiorari is spe-
cifically prohibited78
In conjunction with this limited judicial review, the amended
Labour Code provides for review of arbitration awards by the
Labour Relations Board. The Board is granted jurisdiction to set
aside an award, to remit the matter back to the arbitrator, to stay the
proceedings of the -arbitration board, or to substitute its own de-
cision for that of the arbitrator7 Grounds for review are the denial
or impending -denial of a -fair hearing to one of the parties or an
award inconsistent with the principles ‘of the Labour Code or any
other Act dealing with labour relations. 0
The administrative law features of this -legislative experiment
have yet to be canvassed by commentators and (as the amendments
were passed with little or no ‘discussion) the Government’s inten-
tions have never been clearly stated. However, the division of review
authority between the Court of Appeal and the Labour Relations
Board would seem to be based largely on the respective areas of
expertise of these two bodies. The Court is to review the -arbitrators
on questions of “general law”. It may be assumed that the judiciary
is comfortable with such issues, composing as they do a court’s daily
workload. The Board is to review awards on the basis of inconsisten-
cy with principles of labour legislation, which legislation the Board
is responsible for interpreting and applying.
77 Labour Code, s. 109(1), as am. by S.B.C. 1975, c. 33, s. 28: “On the
application of a party affected by a decision or award of an arbitration board,
the Court of Appeal may review the decision of an arbitration board where
the basis of the decision or award is a matter or issue of the general law
not included in section 108(1).”
78 Ibid., s. 109(3), as am. by S.B.C. 1975, c. 33, s. 28: “Except as provided in
this Part, the decision or award of an arbitration board under this Act is
final and conclusive and is not open to question or review in any court on
any grounds whatsoever, and no proceedings by or before an arbitration
board shall be restrained by injunction, prohibition, or any other process or
proceedings in any court or be removable by certiorari or otherwise into
court.”
79Ibid., s. 108(1), as am. by S.B.C. 1975, c. 33, s. 28.
80 Ibid., s. 108, as am. by S.B.C. 1975, c. 33, s. 28.
McGILL LAW JOURNAL
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This division of labour according to expertise does not provide
an immediate explanation of the Board’s review authority on the
basis of denial of fair hearing; the appellate court, rather than the
Board, would be expected to have the desired familiarity with the
requirements of natural justice. One may perhaps speculate that the
Legislature intended “fair hearing” to mean something other than a
hearing conducted according to the rules of natural justice, and
considered the Board to be the appropriate tribunal to set guide-
lines for the maintenance of due process in grievance arbitration.
B. The constitutional validity of arbitral review by a
provincial tribunal
The review of one administrative tribunal by another is of
questionable constitutional validity. The decisions of the Labour
Relations Board are sheltered from judicial review by the privative
clauses in sections 31, 32, 33 and 35 of the Labour Code. These
sections purport to preclude any possibility of appellate review,
even on jurisdictional grounds. Such clauses have been the subject
of considerable academic comment 81 and at least one significant
challenge in the courts.8 2 The argument for the invalidity of these
privative clauses depends on section 96 of the British North Ameri-
ca Act, 1867. Section 96 provides for the federal appointment of
judges of superior, district and county courts, and, it is argued, thus
precludes a provincial legislature from setting up a tribunal with
jurisdiction or powers analogous to those of these courts. 4 Lyon
argues that an essential characteristic of a “section 96” court is its
jurisdiction to -decide questions of law.8 Accordingly, while a pro-
vincial tribunal may rule on these questions in the course of its
original jurisdiction, there is a constitutional guarantee that final
81 See Hogg, Is Judicial Review of Administrative Action Guaranteed by the
British Nortk America Act? (1976) 54 Can. Bar Rev. 716; Arthurs, supra, note
66, 329-35; Lyon, Comment (1971) 49 Can. Bar Rev. 365; LeDain, Sir Lyman
Duff and the Constitution (1974) 12 Osgoode Hall L. J. 261, 325-36.
8 Robinson Little v. A.-G. B.C., case settled out of court.
8330-31 Vict., c. 3 (U.K.).
84 This argument led the Privy Council in Toronto Corp. v. York Corp.
[1938] A.C. 415 to hold that the Ontario Municipal Board, being an ad.
ministrative body whose members were not appointed in accordance with’
ss. 96, 99, and 100 of the B.N.A. Act, was not validly constituted to receive
judicial authority. The argument surfaced again in Labour Relations Board
of Saskatchewan v. John East Iron Works Ltd [1949] A.C. 134 (P.C.), but the
Privy Council there found that the functions of the Board were not analogous
to those of the s. 96 courts.
5 Lyon, supra, note 81, 368.
1979J ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 205
decisions on such issues must be made by a “section 96” court6
If this is so, then the privative clauses would be ultra vires.
It has also been suggested that there is a constitutional defect
in
the Labour Code insofar as it gives to the Labour Relations
Board the task of reviewing arbitrators. The argument holds that
as the task of defining the jurisdiction of inferior tribunals has
traditionally been performed by “section 96” courts, the provincial
Legislature is incompetent to grant to the Labour Relations Board
the jurisdiction to review arbitration boardsY
The point has yet to be firmly settled. The leading judicial pro-
nouncement in the general area is the decision in Seminary of Chi-
coutimi v. A.-G. Quebec.88 The Supreme Court in that case unani-
mously struck down a statute which purported to confer upon
provincially-appointed courts the power to quash municipal bylaws
for illegality. In reaching this decision, the Court noted that
on the eve of Confederation the Superior Court still exercised … the
special jurisdiction … to exercise a superintending and reforming power
and control over Courts of inferior jurisdiction … .89
[T]he jurisdiction conferred by the legislative provisions the constitu-
tionality of which is now being challenged is not, in a general way, in
conformity with the kind of jurisdiction exercised in 1867 by the Courts
of summary jurisdiction, but conforms rather to the kind of jurisdiction
exercised by the Courts described in s. 96.90
The jurisdiction to conclusively review arbitral awards would
appear to conform to the kind of jurisdiction possessed by “section
96” courts. On this reasoning, the Labour Code provisions granting
final review powers to the Labour Relations Board may be. invalidV1
86Ibid., 368-69. Professor Lyon’s thesis on the constitutional validity of
privative clauses has been questioned by other scholars, particularly Pro-
fessors Arthurs (see supra, note 66) and Hogg (see supra, note 81). It is not
within the scope of this paper to describe the details of the debate.
87 Sde Arthurs, supra, note 66, and Hogg, supra, note 81. The argument that
s. 108 of the Labour Code is invalid has not been raised to date in any
judicial proceeding, nor has it been discussed in any commentary on the
Labour Code.
the import of which appears
88 (1972) 27 D.L.R. (3d) 356 (S.C.C.).
S9 Ibid., 360-61.
90 Ibid., 364.
91 See also A.-G. Quebec v. Farrah (1978) 86 D.L.R. (3d) 161; 21 N.R. 595
(S.C.C.),
to be that a province may not
substitute its tribunal in place of a s. 96 court. The legislation in question
purported to empower a provincially appointed tribunal to hear and decide
any question of law on appeal from decisions of the Quebec Transport Com-
mission. Pratte J.’s decision (Martland, Ritchie and Beetz JJ. concurring;
Pigeon J. concurring with additional reasons) seems to endorse the possibility
of a provincial limitation of the superintending powers (i.e., the judicial
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The recent decision of the Supreme Court of Canada in Tomko
v. Labour Relations Board (Nova Scotia),92 however, indicates that
the remedial jurisdiction exercised by a labour relations board
cannot be analyzed without reference to the context in which the
remedies are being applied. From one perspective, a board’s cease
and desist order directed against an unlawful strike has the same
purpose and effect as a court injunction. Yet the Supreme Court
noted that:
What the John East case shows is that in the particular framework of the
legislation there in question there is no invasion of s. 96 in empowering an
administrative board to apply remedies which in another context are
obtainable from the ordinary courts.9 3
While drawing implications from Supreme Court decisions is a
risky enterprise, one reading of Tomko leads to the conclusion
that a new jurisdiction granted to a labour relations tribunal may
be constitutionally valid provided it can be adequately justified in
terms of the Board’s essential responsibility to administer labour
relations. As one commentator has suggested:
In other words, if the exercise of the power is necessary and incidental
to the performance of a board’s labour relations function, then there
is no violation of section 96 of the British North America Act, regardless
of whether a similar kind of power is exercised by a Superior Court.04
review powers) of a s. 96 court so long as this does not also involve the
wholesale transfer of those powers to a provincially-appointed body. Laskin
C.J.C. delivered a separate majority opinion (Spence, Dickson, and Estey JJ.
concurring). In his view, the flaw lies in the attempt to constitute the tri-
bunal “as an appeal agency which … is primarily concerned with questions
of law”: ibid., 166. The fault thus seems to lie in constituting an appellate
tribunal as a replacement for a s. 96 court. See also P6pin, Chroniques reguli-
res – Droit administratif (1978) 38 R. du B. 818; Dupl6, Le Contr6le de la
lgalitd: une competence exclusive des cours supdrieures (1978) 19 C. de D. 1069.
Nowhere does the Supreme Court indicate that under no circumstances
may a province validly set up a system under which one administrative tribunal
reviews another. The B.C. Labour Relations Board differs from the Quebec
Transport Tribunal insofar as the Board exercises primary jurisdiction in
an area (strikes and picketing) intimately related to the subject matter
adjudicated in grievance arbitration. Consequently, review of arbitrators in
matters of interpretation of labour legislation rests in a different institutional
setting from that existing in Farrah. However, Board review for denial of fair
hearing might fall afoul of the Farrah holding, as it would seem that this
sort of review falls into the head of “supervising and reforming powers”
exercised by superior courts in 1867 and still exercised today in many
jurisdictions in Canada.
92 (1975) 76 C.L.L.C. 14,221 (S.C.C.).
93 Ibid., 14,225.
94 Carter, The Expansion of Labour Board Remedies: A New Approach to
Industrial Conflict (1976), M5
1979J ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 207
The argument favouring the validity of the Labour Relations Board’s
review jurisdiotion holds that this jurisdiction is an integral part of
the Board’s labour relations function.95 Review for inconsistency
has an obvious labour relations component. Review for denial of
fair hearing is not so easily supported, since the labour relations
justification for removing this power from the courts is
less
apparent. In any event, the members of the British Columbia in-
dustrial relations community seem satisfied with the Legislature’s
judgment that the Board is the proper review institution; to date
there has been no challenge to the validity of section 108.98
IV. The review partnership
When two separate and partially competing jurisdictions exist in one
state a conflict between them is sooner or later inevitable.9 1
Less conflict than one might have expected has emerged under the
amended Labour Code. Both the Court of Appeal and the Labour
Relations Board have shown considerable restraint in exercising
their review authority over arbitration boards. Neither body has
imposed itself unduly on the private participatory institution of
arbitration. Consistent with the view that arbitration is an element
of industrial self-government, the judiciary and the Board have
refrained from “re-arbitrating” an arbitration issue; arbitration
awards are vacated only when the provisions of the Labour Code
clearly so demand. Sections 108 and 109 have been restrictively in-
terpreted by both bodies, and the scope of and grounds for review
have remained quite narrow.
A. The Court of Appeal
The leading judicial decision on the purpose and scope of the
Court of Appeal’s review jurisdiction is A.I.M. Steel 8 Chief Justice
Farris there decided that the Court had no jurisdiction to review an
award if it was based upon the interpretation of the particular
collective agreementY 9. In reaching this conclusion, his Lordship
95 Informal conversations with members of the B.C. Labour Relations-
Board leads the writer to believe that this argument would be used should
a constitutional challenge to the Board’s authority to review arbitrators be
launched.
The issue of the constitutional validity of s. 108 was raised not by the
parties but by Taggart J. in Re A.I.M. Steel Ltd & United Steelworkers of
America, Local 3495, unreported, April 9, 1976, B.C.C.A.; 6.
97Holdsworth, A History of English Law 3d ed. (1922), vol. 1, 459.
9 8 Supra, note 96, per Farris C.J.
SIbid., 3-4.
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rejected the idea that interpretation of a collective agreement is
a matter or issue of general law insofar as it involves the well-
known canons of construction.?0 0 The learned Chief Justice pointed
out that section 92(3) of the Labour Code specifically provides that
an arbitrator is not bound by the strict legal interpretation of the
issue in dispute. The Legislature could not have intended that the
arbitrator’s application of canons of construction be subject to re-
view by the Court as part of the general law, since the arbitrator
is “expressly instructed not to consider himself bound” by these
rules.:0 In an important obiter, Farris C.J. expressed -the opinion
that the common law of individual contracts was not included in
the phrase “general law” in section 109.102 Citing McGavin Toast-
master Ltd v. Ainscough’03 as authority, Chief Justice Farris accept-
ed the proposition that the common law of master and servant was
no longer relevant to employer-employee relations governed by a
.ollective agreement.1 4
In a concurring judgment in A.LM. Steel, Mr Justice Taggart
rejected the view that the phrase “general law” in section 109
provides the Court with a virtually unfettered scope of review.10
The appellant had argued that the phrase “general law” should be
given a ‘broad interpretation, since (unlike the situation under the
earlier provisions) the Court of Appeal’s review jurisdiction was no
longer specifically limited -to grounds of error of law affecting ju-
risdiction, misbehaviour, or denial of natural justice. Mr Justice
Taggart refused to accept this interpretation of section 109, noting
that it is “inconsistent with the tenor of the Labour Code as it
stood in 1973 and is certainly inconsistent with the Code in its
present form”.’4’ His Lordship was of the view that the effect of
the 1975 amendments was to “further restrict the jurisdiction of
this court to review arbitration awards.”‘1 7
In sum, the Court of Appeal rejected the view that judicial
review was available under section 109 on the bases of error in
interpretation of the language of the collective agreement, mis-
application of the rules of construction, or any of the other grounds
100 Ibid.
101 Ibid., 4.
102 Ibid.
103 (1975) 54 D.L.R. (3d) 1 (S.C.C.).
104 A.LM. Steel, supra, note 96, 4.
105 Ibid., per Taggart J., 5.
106 Ibid.
107 Ibid., 6.
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 209
in the Arbitration Act’08 under which British Columbia courts had
traditionally reviewed arbitrators. Instead the Court upheld a limit-
ed interpretation of the meaning of “general law” in section 109,
and emphasized that the effect of section 92(3) was to usher in a
new era of industrial relations jurisprudence unhampered by legal
doctrines transposed from other areas of general contract law. 09
The status and integrity of gievance arbitration were considerably
advanced by the Court’s restrained judgment in this case.
B. The Labour Relations Board
The language used in section 108 of the Labour Code is capable
of a broad interpretation. The task of defining “fair hearing” and
“inconsistent with the principles expressed or implied” in labour
legislation was given to the Labour Relations Board with no real
guidance in the Labour Code as to how these -phrases should be
interpreted. In assessing the Board’s jurisprudence in this area,
it is fair to say that, as has the Court of Appeal, the Board has
taken a restrictive view of the scope of its review jurisdiction.
In the Simon Fraser University case,-”
the Board rejected the
view that the Legislature intended to create a full-fledged avenue
of appeal from arbitration decisions. The Board decided that full
scale review under section 108 would be inconsistent with the con-
cept of arbitration as a relatively quick, inexpensive and informal
means of resolving contested grievances.”‘ Moreover, the Board’s
engaging in unlimited second guessing of arbitral decisions would
detract from the private, self-governmental character of the arbitra-
tion process.”‘ The Board indicated that so long as the arbitrator’s
decision was based on a construction of the language of the collec-
tive agreement it would not reverse this decision even if it found
the particular construction to be somewhat “farfetched”.” 3 The
reason for this restraint on the Board’s part is reflected in the
following observation:
[T]he question of interpretation of the collective bargaining agreement
is a question for the arbitrator. It is the arbitrator’s construction which
was bargained for; and so far as the arbitrator’s decision concerns con-
106 R.S.B.C. 1960, c. 14.
109 Supra, note 96, per Taggart J., 5.
” 0 Supra, note 14.
111 Ibid., 60.
112 Ibid.
113 Ibid., 61-62.
McGILL LAW JOURNAL
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struction of the contract, the courts have no business overruling him
because their interpretation of the contract is different from his.11 4
In general, the Board appears to have taken the view that
section 108, which gives the Board basic responsibility in directly
interpreting the Labour Code, also gives it the task of ensuring that
arbitrators adhere to the principles of the Labour Code in a coherent
way. However, the Board has indicated that it will stay within
this strictly limited mandate:
The Board will not assume any more supervision or [sic] arbitration
proceedings or awards flowing therefrom than was clearly intended by
s. 108 of the Code …. [Ilt is also essential that the Board avoid creating
an atmosphere which will unduly inhibit the labour arbitrator. The intent
_and purpose of Part IV [sic] of the Code would be defeated if arbitrators
were constantly “looking over their shoulders” at a second guessing
Board.” 5
Recent experience indicates that the Board is practising what it
preaches; the statutory jurisdiction to review arbitrators has been
narrowly construed.” 6 For example, the Board has refused to sub-
stitute its views for an arbitrator’s findings of fact; lacking access
to the evidence, the witnesses, and the transcript of the arbitration
proceedings, it cannot assume that its view of the facts would be
more accurate than that of the arbitrator:
We do not interpret the limited supervisory role afforded to this Board
under s. 108 as entitling us to find that alleged erroneous findings of
fact by an arbitrator may render its award “inconsistent with the prin-
ciples expressed or implied” in the Labour Code.” 7
The recent decision of the Board in Andres Wines”” contains the
clearest statement of the limited scope of review available under
section 108. In Andres Wines, the employer applied for review under
section 108 on the basis that the arbitration board had violated
“the principles expressed or implied” in the Labour Code by mis-
* construing and misapplying arbitral jurisprudence on the issue
of benefit entitlement during a layoff. No provision in the Labour
Code addresses itself to the application of contract benefits to
laid-off employees. The solution to the problem facing the arbitrator
114 United Steelworkers of America v. Enterprise Wheel & Car Corp., supra,
note 2, 599; cited in the Simon Fraser case, ibid., 62 [emphasis added].
“15 Lornex Mining Corp. & United Steelworkers of America, Local 7619
[1977] 1 Can. L.R.B.R. 377, 380 (B.C.L.R.B.).
31 See infra, text accompanying notes 117-122.
117 Wn Scott & Co. & Can. Food! & Allied Workers Union, Local P-162 [1977]
1 Can. L.R.B.R. 1, 6-7 (B.C.L.R.B.).
18 Andres Wines (B.C.) Ltd & Can. Union of United Brewery, Flour, Cereal,
Soft Drink & Distillery Workers, Local 300 [1978] 2 Can. L.R.B.R. 251 (B.C.L.
R.B.).
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 211
in Andres Wines lay in the “common law of the collective agree-
ment” as expounded in the existing arbitral jurisprudence. This
jurisprudence does not operate as a binding precedent, but rather
influences -through the persuasive force of its analysis.” 9 The arbi-
trator’s task is to use arbitral jurisprudence as one of several in-
terpretive tools in construing the language of the collective agree-
ment in question. 20 The Board in Andres Wines adopted this con-
ception’ 2 1 and concluded that section 108(1) was not intended to
confer any special authority on the Board to prescribe those con-
tract principles which must be followed by arbitrators:
The Board does have a vehicle for influencing the course of arbitral
jurisprudence in the Province, through its section 96 jurisdiction (as is
exemplified by decisions such as Penticton and District Retirement Ser-
vice, [1977] 2 Canadian LRBR, and Cominco Ltd., B.C.L.R.B. No. 14/77).
But the halting progress made with the peculiar problem raised in this
case, in over twenty years of reported arbitration decisions, demonstrates
how unfortunate it would be if that process could be frozen by a binding
Labour Board decision rendered in the early stages.’ 22
The Board has thus taken the position that the scope of arbitral
review under section 108 does not include a review for arbitrator
error in the interpretation or application of arbitral jurisprudence..
This position is consistent with the Board’s standing on arbitrator
error of fact and of collective agreement construction.
The Board has, however, made it clear that it will reverse an
arbitrator when it finds that his decision is inconsistent with the
principles of the specialized labour statutes referred to in section
108. 1 , The concept of arbitration as a feature of self-government is
subordinate to the Legislature’s intention that the principles of its
labour relations legislation be binding on the parties. The Labour
Relations Board has the task of overseeing compliance with these
statutes in the arbitration process. Section 108 is the vehicle by
which “a coherent and consistent implementation of the Legisla-
ture’s policies would … be achieved, whatever the forum in which’
employment disputes were initially aired”.124
Section 92(3), which describes the arbitrator’s mandate,
is
heavily .relied on by the Board in its review of awards for inconsis-
119 Consumers Glass Co. Ltd & United Glass & Ceramic Workers of America,
Local 257 [1977] 1 Can. L.R.B.R. 234, 236 (B.C.L.R.B.).
12 0 See supra, note 118, 254.
121 Ibid.
‘= Ibid., 262.
123 See infra, text accompanying notes 128-134.
” 4 Andres Wines, supra, note 118, 263.
McGILL LAW JOURNAL
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tency with statutory principles. 25 The Board has indicated that it
will give an arbitrator’s award a “sympathetic reading” based on
the premise that
arbitrators … were aware of the implication of the issues raised before
them and did in fact reach these conclusions which are logically im-
plied by their ultimate ruling …
. The Board should not analyze the
award from a purely external point of view … which requires that each
relevant issue clearly be adverted to and covered on the face of the award
or the ultimate decision will be found invalid. 2 0
Thus the Board will not assume, from their absence from his report,
that the arbitrator must have failed to consider certain evidence,
arguments of counsel, or provisions in the collective agreement, and
in so doing, must have denied the parties a fair hearing.117 However,
the Board will not hesitate to vacate an award if it is satisfied that
the arbitrator did violate the Labour Code’s directives. In
the
University of British Columbia case,1 2 the arbitrator, thinking him-
self bound by the common law approach to parole evidence in the
interpretation of written contracts, refused
to consider pardl
evidence of negotiation history in interpreting a collective agree-
ment. The Board decided that this perspective was not attuned to
the realities of the collective bargaining process, and vacated the
award. It held that the arbitrator must listen to extrinsic evidence,
if it is presented as relevant to the proper interpretation of a
collective agreement term, and then decide whether the evidence is
helpful:
Section 92(3) of the Code directs the arbitrator to have regard to the
“real substance” of the issues and the “respective merit … under the
terms of the collective agreement”. The parties do not draft their formal
contract as a purely literary exercise. They use this instrument to express
the real-life bargain arrived at in their negotiations. When a dispute
arises later on, the arbitrator will reach the true substantive merits of
the parties’ positions under their agreement only if his interpretation
is in accord with their expectations when they reached that agreement.
Accordingly, in any case in which there is a bona fide doubt about the
proper meaning of the language in the agreement –
and the experience
of arbitrators is that such cases are quite common –
arbitrators must
have available to them a broad range of evidence about the meaning
which was mutually intended by the negotiators. In our judgment, it is
not consistent with s. 92 of the Code for arbitrators to be prevented by
125 See, e.g., U.B.C. & C.U.P.E., Local 116 [1977] 1 Can. L.R.B.R. 13 (B.C.
L.R.B.).
2 Western Mines Ltd & United Steelworkers of America, Local 954 [1977]
1 Can. L.R.B.R. 52, 56 (B.C.L.R.B.).
M27 Ibid.
128 U.B.C. & C.U.P.E., supra, note 125.
1979] ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 213
artificial legal blinkers from looking at material which in real-life is
clearly relevant to an accurate reading of disputed contract language. 29
In the Wm Scott case,13 -the Board was called upon to describe the
purpose and effect of section 98(d) of the Labour Code which gives
an arbitrator the power to substitute a lesser penalty if he finds that
excessive disciplinary action was taken. The Board held that the
arbitrator has a statutory duty to probe beneath the surface of the
immediate events precipitating the disciplinary action and reach
a broad judgment on the merits of the particular case.’ 3′ Even
serious employee misconduct, the Board decided, does not auto-
matically constitute legal cause for discharge.’1
In the second
Simon Fraser University case,’ 3
3 the arbitrator decided that he was
constrained by a provision of the collective agreement from sub-
stituting what he thought was an appropriate penalty in a discharge
case. The award was vacated by the Board as inconsistent with the
specific authority to substitute provided by section 98(e). In the
Board’s words:
[TJhe significance of the new s. 98 of the Code is that British Columbia
arbitrators now have a remedial authority which goes beyond what the
parties have happened to confer under the arbitration clause in their
contract. Labour arbitrators in B.C. now have an inherent statutory
authority to adjudicate disputes within the framework of the substantive
provisions of the collective agreement …. 13
[T]he intention of the legislature is clear that the arbitrator derives his
remedial authority from the statute and cannot be prevented from exer-
cising it by the terms of a particular collective agreement.’3 5
The Board has construed its review authority as embracing the
setting of procedural guidelines. The Labour Code amendments have
emancipated arbitrators from the rigid procedural practices used
in the ordinary courts and in private commercial arbitration; section
92(3) allows for the modification of these procedural doctrines to
suit the needs of modern labour arbitration. A procedure under
the Arbitration Act’ 36 –
the posing of abstract questions to the
arbitrator which would define the scope of his jurisdiction – was
129 Ibid., 17-18.
10 Supra, note 117.
131 Ibid., 6.
132 Ibid.
133 Simon Fraser Univ. & Ass’n of Univ. & College Employees, Local No. 2
[1978] 1 Can. L.R.B.R. 263 (B.C.L.R.B.).
134 ibid., 268, citing from its previous decision in Vernon Fruit Union, supra,
note 36, 26 [emphasis in original].
135 Ibid., 269 [emphasis added].
136 R.S.B.C. 1960, c. 14.
McGILL LAW JOURNAL
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one practice which the Board found wanting. 137 In the first Simon
Fraser case, the Board decided that this practice might artificially
constrain the arbitrator’s perception of the true substance of the
grievance and thus be inconsistent with the arbitrator’s mandate: 138
In practice, many parties still do attempt to frame the issues in the form
of a question and present such a question, either as a joint submission or
as their own version of the dispute, to the arbitrator. That is not only
understandable but in many instances is of assistance to the arbitrator.
It may let him know in general terms the nature of the case he is about
to hear. But any such “questions” notwithstanding that they may be
jointly worded, are not “submissions” as they used to be when labour
arbitrations were governed by the Arbitration Act. They do not define
the boundaries of the arbitrator’s jurisdiction. The labour arbitrator’s
function is no longer simply to “answer the question” as it might be
framed during discussions at the beginning of the hearing, not infre-
quently on the spur of the moment. Rather, in accordance with the
Code he is to go to the heart of the matter as disclosed by the facts
and the collective agreement. He is not simply to answer “the” question
(if one has been posed); rather, he is to answer “the real” question.139
The Board has also had considerable experience in reviewing
arbitrators for contravention of section 108(1)(a) –
denial of
fair hearing.140 Although arbitrators have been freed by the amend-
ments from slavish adherence to common law doctrines, they may
not use this freedom to contravene the requirement of a fair hearing.
In Board of School Trustees (Nanaimo),’41 the Board noted that the
relative immunization of arbitration awards from substantive re-
view should be complemented by the strict interpretation of the
fair hearing requirements of section 108:
A policy in favour of limited arbitral review of “issue determination”
requires as its corollary the provision to the parties of a full opportunity
to (present their case and to meet the case of the other side. It is
important for arbitration boards to recognize that their obligation to
grant a full and fair hearing can be frustrated rather than advanced
by a failure to critically evaluate the types of evidence it may receive
under the broad provisions of section 101(a) of the Code.’ 42
The Board made it clear that hearsay evidence was admissible
under the Labour Code and that the common law distrust of the
materiail went only to the weight that should be placed on this type
137Simon Fraser [I], supra, note 14, 62.
13s Ibid., 63.
’39 Lornex Mining Corp., supra, note 115, 381.
140 See Board of School Trustees (Nanaimo) & C.U.P.E., Local 606 [1977]
1 Can. L.B.R.B. 39 (B.C.L.R.B.).
141 Ibid.
142 Ibid., 42-43.
1979) ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR CODE 215
of evidence, 143 At the same time, arbitrators are under an obligation
to follow certain principles in using such evidence –
principles
formulated in order to allow the other side a fair hearing:
[A]n arbitration board cannot accept hearsay evidence over sworn direct
testimony unless it has been corroborated by other evidence. As well,
when an arbitration board allows hearsay evidence on a crucial issue,
that evidence should be given no weight unless it is corroborated by
other direct sworn testimony. In the Panel’s view this apprioach does not
offend the Legislature’s broad mandate of section 93(2) of the Labour
Code to “have regard to the real substance of the matters in dispute”.
Indeed the failure of the arbitration board in this case to observe either
of those rules ensured that “the respective merit of the position of the
parties” was not considered.” 4
V. Summary
When a losing party asks the Court of Appeal or the Labour
Relations Board to review an award, it is asking that the conclu-
siveness which is at the heart of the arbitration process be with-
held, despite the fact that parties have contracted, and the Legis-
lature has required, that awards be final and binding. The party
who resists adherence to the award is therefore seeking to be
relieved of its bargain. Whether the review body upholds or vacates
the award, an expedient resolution of the dispute is lost. Continued
resistance to theoretically conclusive awards and repeated appli-
cations for review can only decrease the esteem parties hold for
their private adjudicative forum. Lacking confidence in their own
mechanism for peaceful dispute resolution, parties may backslide
into work stoppages. Thus, to maintain the finality of the arbitra-
tion process is of great importance.
Certain risks are inherent in a non-interventionist policy of
arbitral review. Some “surprising” awards may be published; some
rough justice dispensed; “[b]ut those risks were considered by the
legislature as a reasonable price to pay in the effort to secure the
larger benefits to be derived from the private and presently less
legalistic system of grievance arbitration”. 145 Nor are the parties
left completely without recourse if they are unhappy with an
arbitration award. If they find the arbitrator’s interpretation of
their contract to be unpalatable, they may remedy the situation by
having the particular language rewritten in the upcoming contract
negotiations.
143 Ibid., 44.
144 Ibid.
145 Lornex Mining Corp., supra, note 115, 380.
McGILL LAW JOURNAL
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The Labour Relations Board has assumed the major share of
arbitral review responsibility, the Court of Appeal’s role having
been reduced to reviewing arbitral interpretations of non-labour
statutes. The Board’s review authority is limited to cases of denial
of fair hearing or rulings inconsistent with the principles of labour
legislation. Collateral issue, error of law affecting jurisdiction and
error of law on the face of the record no -longer constitute grounds
for arbitral review in British Columbia. The law of the administra-
tion of the collective agreement now rests on a firm statutory base.
The Labour Code recognizes the essential character of the collective
agreement as a system of industrial self-government. The mech-
anism by which the rules of this system are administered retains
this self-governmental flavour. Arbitrators are freed from unneces-
sary common law constraints, given a broad mandate, afforded a
range of remedial tools, and protected from overzealous review. This
scheme has helped to enhance both the integrity and the efficiency
of the arbitration process.
The Board has had considerable influence on arbitration, both
by way of its interpretation of the Labour Code provisions under
section 108 and in its capacity as an arbitration board under section
96. The Board’s interpretations of the arbitration provisions of the
Labour Code are binding on arbitrators and parties in British
Columbia. The Board has also attempted to sort out difficult prob-
lems of the common law of the collective agreement when such
opportunities have presented themselves. While not binding, deci-
sions on these matters have had a considerable educative effect on
British Columbia arbitrators; their compelling reasoning and legal
craftsmanship provide new standards of skill which arbitrators now
strive to emulate. Although the long range effects of the Legislature’s
attempt to provide a comprehensive labour relations code are still
unknown, arbitrators and other members of the British Columbia
industrial relations community are convinced of its ultimate success.
