HomeMy WebLinkAbout1984-0570.Da Costa.85-01-151985 - OPSEU (DaCosta) & Ministry of Health, GSB#570/84, (Samuels)
IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befbre THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Employer: gate of
Hearinq: QPSEU (v, t. Da Costa) Grievo'r -and -The Crown in Right of Ontario (Ministry of Health) Emplo~yer~." W. Samuels :j<;; CYzi;-man I. Freedman !:.ezb e r 0. E. Middleton Member
M. Bali Counsel Crjrnish & Associates D. Wallace Regional Personnel Administrator Ministry of Health November 15, 1984
” DECIS~ION 2. This is yet another case which involves the vexing question of whether or not management's decision-making power is subject to any limitations. The grievor applied for
vacation during a particular period in 1984, and his request was refused. The period requestedhas long since passed, but the Union now asks for a declaration that the Deputy Minister's
fight to approve the application was subject to the obligation to exercise the power of approval reasonably; The Ministry raised the preliminary objection that the matter is inarbitrable
because there are no limits on the Deputy Minister's power to decide upon the request for vacation. Article 46.7 provides, inter alia: An, employee with over six (6) months of continuous
service may, with the approval of the Deputy Minister, take vacation to the extent of his vacation entitlement., and his vacation credits shall be reduced by any such vacation taken.
For this purpose, an employee may include any continuous service as an empioyee in the Public Service of Ontario immediately prior to his appointment to the civil service. The Union
acknowledges that the employee is not entitled as of right to take the vacation during any particular period. However, it is argued that the Deputy Minister must act reasonably in deciding
whether or not to approve ~the application. This Board has considered this question a number of times. In Buick, 64/79, the Board held: II . . ..the Employer is entitled for legitimate
business purposes to schedule vacations and tc alter schedules. Nothing in tne collective agreement dero:a:cs from that right. Accordingly, when the Employer chaages the schedule, the
employee is'bound by that change unie;S-~. reversed in the grievance procedure (Re Llack UiamGnd Cheese and Canadian Food & Allied \Jor~~?r-<,~~ai~~6% 51-.-A-~~~~)-m-(ora-)7-."ra~~~
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This language contemplates some limitation on the Deputy Minister's power to grant or withhold approval. The scheduling of vacations and alteration of schedules must be "for legitimate
business purposes". Furthermore, it is contemplated tha.; an employee has the fight to grieve a change in schedule. In Rivers, 310182, it was said: . . ..we are unable to find any support
for taking the next step urged upon us by the Union, i.e., to conclude that because an employee has an option to accumulate vacation days he has the right to designate those scheduled
vacation days he will accumulate. This right, we find, belongs exclusively to the Employer. (at page 3) It remains yithin the exclusive power of the Employer to determine how the remaining
vacation time of the employee will be scheduled." (at pages 6-7) I. It would seem from this language that the Board.considered the Deputy Minister to have an unfettered right to grant
or withhold approval of the request for vacation. In Changoor, 526/82, the Board considered the question of management's right to schedule overtime, and~commented: I'In a determination
of the merits of the Employer's preliminary objection, there can be no doubt that Management has the exclusive right to schedule overtime."(at page 7) It is not clear whether or not
this "exclusive" righ t is~ subject to any limitations Finally; in -R oy, 89183, there was a grievance alleging precisely the same Violation of the collective agreement as here. The
griever'; request for Vacation at a particular time had been refused. The War.2 dealt with a preliminary objection by the Employer tha t the Board did not have jurisdiction to ei!?eftairi
-4. the grievance on the ground that the matter of scheduling vacations is an exclusive Employer function and that the Deputy Minister has the right to give or withhold approval as he
may deem proper in the given circumstances. The Union argued that the discretion of the Deputy Minister had to be exercised within reasonable limits. The Board then ruled: "In our view,
these opposing views of the parties constitute a difference "arising from the interpretation, application, administration or alleged contravention of the Collective Agreement" within
the meaning of Article 27.1 of the Collective Agreement and accordingly the grievance, having been properly processed under Article 27, is one that falls within the jurisdiction of the
Board. In this connection, reference was made to the decision of the Board in Deborah A. Rivers, 310/82, where the Board, under the aegisbf Professor R.J. Roberts, reached a similar
conclusion with respect to. the difference between the parties as to the proper interpretation of Article 46.5 of the Collective Agreement. However, fin that case, the Board expressed
the opinion that the scheduling of vacations was an exclusive Employer function under the Crown Employees Collective Bargaining Act. With the greatest of respect for the panel of the
Board which dealt with that case, this view is contrary to the express provisions.of both Section 7 and subsection 18(l) of the Act. Section 7 authorizes the Union to bargain with the
Employer, inter alia, and excepting therefrom matters that are exclusively a function of the Employer under subsection 18(~1'), with ,respect to "pafd vacations“. Subsection IS(l) on
the other hand, stipulates that every Collective Agreement shall be deemed to provide that it is the exclusive function of the Employer to manage, which function, without limiting the
generality of the foregoing, includes the right to determine a number of matters, but not, even on a broad view, "paid vacations". In any event, the matter having been expressly covered
by Section 7, cannot fail within subsection 18(l) and is not an exclusive Em~ployer function in view of the absence of such a provision in the Collective Agreement. There being no exclusive
management rights clause in the Collective Agreement before us, cases such as Re M!Jfl~Cipality ___ of Metropolitan Toronto and Toronto Civic Empio$es Union, Local 43 ei-;j7;v/5) 05
KKIF.~~(Xj?XQiV.~~~~ . jdnh'?&isions FFthe Grievance Settlemerrt Board, SULI~ as the Sullivan case, 576/61, are not relevant and need mt be considere:r."(at pages 3-5)
5. At the least it would be fair to say that the Board's jurisprudence has been inconsistent, and that there has been no full consideration of'the matter in the light of the Ontario
Court of Appeal's recent decisions in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Police Association et al (1981), 124 D.L.R. (3d) 684, and Re Council of
Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No. 10 et al (1983), 42 0-R. (2d) 404. In our view it is necessary that the Board consider afresh the
point raised by the Ministry's preliminary objection, in light of all the recent jurisprudence. In Re;Metropolitan Toronto Eoard of Commissioners of Police, the grievance concerned the
distribution of overtime, and the management rights clause contained no express limitation on the Board's power to "manage the operation and undertaking of the Metropolitan Toronto Police
Force". The Ontario Court of Appeal held: 'In our opinion, the. management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred
on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found
in some provision of the collective agreement. . . . . . Having regard to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a term that the
management rights clause will be applied fairly and without discrimination. If such a term were to be implied, it would mean that every decision of management made under the exclusive
authority of the management fights clause would be liable to challenge on the grounds that it was exercised unfairly or discrininatively. In our opinion, this would be contrary LO the
spirit and intent of the collective agreement."(at page 667) In effect, this analysis susgected two r>Gssib!e sour&s CT iinitaticn ,on man~_jm ent ' i exclusive right to determine the
various matters within its p,zwer. ! n t 1e; f i I-s t passage quoted, the Court speak: of "ex;~r+ss" g,-jvi sioris -of the co) loctive i!;r?iZn:..
6. In the second passage, the Court has regard to "the nature of the agreement, and its provisions", and concludes that in the particular case, there is no necessity to imply a term
that the management rights clause will be applied fairly and without discrimination. In other words, there may be express provisions in the collective agreement which limit management's
rights, and it is also possible in certain circumstances for such a limitation to be inferred from the nature of the agreement and its provisions. A similar interpretation of this judgment
is found in the decision of a Board of Arbitration chaired by Mr. K. Swan in Re Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983), 9 L.A.C. (3d) 137:
'IAs is we11 known, arbitrators were beyinning to develop a "doctrine of fairness" based upon the administrative law principle of the same name, which appears first to have been aoolied
to an emolovment relationship by the Supreme Co& of Canada in' Re-Nicholson and Haidimand-Norfolk Regional Board of Com'rs of Police(1978), 88 D.L.R. (3d) 671, 78 C.L.L.C. para. 14,181,
L1979f I S.C.R. 311. In Re Municipality of Metropolitan Toronto and Toronto Civic Employees' Union, Local 43 et al. (19//), /9 0 . L . R. (Jd) 244 16 U . K. (Zd) /Xl .the Untarlo Ulvisional
Court appears to ha;e approved the notjon that there is to.be applied to ,a collective agreement a duty of fair administration. While it may be that the language chosen by the court
in that case was broader than it needed to be, many observers of the labour relations scene appear to have forgotten that the role of a court on an application for judic.ial review of
an arbitration award is not to create principles of general law, nor to say whether an arbitrator is right or wrong in an interpretation of a collective agreement, but merely to decide
whether the interpretation given to the collective agreement language is one which it can reasonably bear: -Once the arbitration award has, met that test, the court's jurisdiction is
exhausted, and any other comments which itmay make, however helpful in understanding the rationale for that determination, do not constitute binding principles of law to be followed
slavishly by arbitrators. The Ontario Court of Appeal appears to !>ave applied ex2ctly this principle in Re Metropolitan Torcnt-Board of Coc:'rs~of Police and MetropoTItan To~o~~~i~~~~~~~~~~e~Ca~~;~~
7~~~~~ TXtX-RTcm4:Xl C.L.L.C. ~~;aTT~-;TI~T-3~~ir.-F‘. (2d) 476 [leave to appeal refused O.L.R. lot. ';!t:., ti.R. lot. cit. (S.C.C.)].
2.. In that case, an arbitrator had considered herself bound by the observations of the Divisional Court in the Metropolitan Toronto case, supra, and had concluded that the management
rights clause of the collective agreement had to be exercised fairly and without discrimination. The Court of Appeal said [p. 6871: If . ..the majority of the Divisional Courtin the
[Metropolitan Toronto] case were purporting to lay down a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provisions
of the agreement must stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with respect we do not -~ agree. The'decisions
relied upon by Weatherston J. in the [Metropolitan Toronto] case, as that learned Judge rightly pointed out, dealt with procedural fairness in proceedings before domestic and statutory
bodies; they did not debl with the interpretation of collective agreements. In our opinion, the management rights clause gives management the exclusive right to determine how it shall
exercise the powers conferred on it by that clause, unless tbose powers ate otherwise circumscribed by express .provisions of the collective agreement. The power to challenge a decision
of management must be found in some provision of the collective agreement. What the Metropolitan Toronto Police decision decides, in our resoectful view, 1s slmolv that arbitrators exceed
their iurisdiction if they-purport'tb establish genera~l principles for the administration of collective agreements divorced from the language negotiated by the parties in the matter
before them, and that they commit errors in law if they purport to treat a judgment of the courts, refusing to interfere with an arbitration board on the basis that it did not give collective
agreement language a meaning which it could not reasonably bear, as binding expositions of the general law. Unfortunately, many arbitrators, and indeed some courts, have turned the rationale
of Metropolitan Toronto Police upside down, and-tiave taken it instead to mean that there can never be implied into a collective agreement a duty to exercise a management function or
prerogative in accordance with tests of fairness or reasonab-l~eness. The Metropolitan Toronto Police case does not and cannot alter the law ot contractual interpretation; every allegation
that an employer is in breach of the collective agreement mustbe considered individually, against the language which the parties themselves negotiated, and in accordance with the well-known
canons of construction. If, based on the general law of implied terms cf contracts, as the general law may be adapted to the particular case of c,!llective agreements, the implication
arises that a Pa:‘: i::ular nanagczment iunct!on must be exercised in a certain way, then an arbitrator is bound to -make that implication, since i!, arises irom the CoiiKtive agreement
from which the arbitrator draws 11ii. or kc jur‘istilCtlGf1 ailil whjcp constitutes the entic? h;,'g,ii:~ betw?en th+? paftles. To
8. whatever extent such cases as Re United Glass & Ceramic Workers of North America et al. and Libbey-St. Clair Inc. et al. (1981), -E'S D L H (3dJ iO2 33 0 R (a) /bU (0 t D .' j I appears
to suggest some other concl;sion, it wouYd'be'&-respectful submission that they should not be followed."(at pages 139-141) Then, in 1983, the Ontario Court of Appeal had the opportunity
to consider the matter again in Re Council of Printing industries of Canada. The grievances concerned management's decision to permanently classify certain employeesina particular way.
The Board of Arbitration had decided that the Employer's right to permanentlyclassify employees under Article 22 of the collective agreement had to be exercised in good faith, without
discrimination, and in a reasonable, -non-arbitrary manner (Re Photo Engravers and Electrotypers Ltd. and Toronto Pressmen and Assistants' Union, No. 10 (1980), 25 L.A.C. (2d) 88 (Adams),
at pages 100-l). The Divisional Court considered the management rights clause (Article 41, and decided that, fallowing Re Metropolitan Toronto Board of Commissioners of Police, there
wasno limitation on the Employer's fight to exercise these management rights. But the Oivision.al Court had missed the point. i It was not Article 4 which was in issue, and the Court
of Appeal makes this Clear. It was Article 22 that was in issue--a provision which read simply "The Employer shall permanently classify thirty-four (34) employees under this Agreement".
And the Court of Appeal decided that: 8, . . ..the interpretation placed on art. 22 by the board in light of the whole collective agreement was one it could reasonably bear, or to use
the words of some of the authorities in this field, the interpretation is not "patently unreasonabie". Being of this view the court's jurisdiction is exhausted and the appeal must succeed."(at
page 411) In our view, in this judgment the Court of A'pp?al did not say that one interprets a general management rights cla,~se ~iii a differen~t way Lhan ori? ?festS ? clduib granting
some more specific p&r to the Er;,loysr. The issue 1” ihs
case was the interpretation of Article 22 of the collective agreement. The Divisional Court had erred in deciding the case according to Article 4. Looking at Article 22, "in light of
the whole collective agreement", the decision of the Board of Arbitration was not patently unreasonable. In other words, the decision of the Board of Arbitration was one legitimate interpretation
of Article 22. The Court of Appeal did not say thaf if it had the power to decide the issue & novo, it would have come to the same decision as the Board of Arbitration. Since this second
decision of the Court of Appeal,at leastone arbitrator has found the two decisions to be irreconcilable (see the unpublished decision dated August 24, 1984, in McKellar General Hospital
and Ontario Nurses' Association (Beatty), in the matter of-an association grievance on the employer's nepotism policy;and Professor Beatty's "The Role of the Arbitrator: A Liberal Version"
(1984), 34 U. of T.L.J. 139). But, with great respect, we disagree. In both decisions, the Court of Appeal has expressed.the same approach to a collective agreement--if management's
powertomake any particular decision is fettered in any way, the limitation must be found in the express Ianguage of the collective agreement or must be implicit, in light of the collective
agreement as a,whole. There is no doctrine of fairness or reasonableness independent of the collective agreement itself. The collective agreement is the bargain made by the parties.
They have defined their relationship. But not a!1 of that bargain will be expressly set out in the collective agreement-.~+There may be terms which are implicit, and which will have
to be made explicit by a court or board of arbitration called upon to interpret the collective agreement. Indeed, this was the approach taken by the board of arbitration in -R-e Photo
En_g_r-a--v ers, which was upheld by the Court of Appeal in Council of Printing Industries. 1
the Crown Employees Collective Bargaining Act, R.S.O. 1980, ch. 108: Every collective agreement shall be deemed to provide that it is the exclusive f!unction of the employer to manage,
which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment,'appointment, complement, organization, assignment, .discipline, dismissal,
suspension, work methods and procedures, kinds and locations of equipment and classification of'positions; and (b) merit system, training and development, appraisal and superannuation,
the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come with~in
the jurisdiction of a board. But to considerfhis section would be to make the same error as was made by the Divisional Court in the Council of Printing IndusWies case. It is not section
18(l) which isin issue here (as it was not Article 4 which was in issue in the -C PI case). It is Article 46.7 of the collective agreement which is in issue, and the nature of the power
to approve given to the Deputy Minister. There is no express limitation on the Deputy Minister's power in Article 46.7. The issue for us is whether or not the coilective agreement as
a whole indicates that implicitly there is some limitation on the power to grant or withhold an application for vacation. In oui' view, the collective agreement does imply some limitation
on this power. Firstly, it is clear thatsome vacation must be granted. The Deputy Minister does not have the right to deny ali vacation. An em:].oyee-is.entitled to vacation to the exterlt
of his vacation entitlement. The Deputy Niri~ s:er IWS: approve a vacation for the employee. Secondly, sectiort 7(1 ) c,f the Crow _i.m_.p._io yee--s. Collective Barg_a-_in ing----.
Act provic?s that the Ur~iorl riay har;;a;n i:~r “Pditi vdCdtlNS”.
Il. This must be taken to mean real vacations, or effective vacations. It would not make sense for the Union to bargain for vacations and then permit management -to effectively preclude
any real vacation through capricious scheduling of vacations, or scheduling done in bad faith or in a discriminatory fashion. Thirdly, in the Preamble to their collective agreement,the
parties make it clear that the purpose of the agreement is "to establish and naintain...satisfactory working conditions". This purpose would be defeated in part if management could schedule
vacations in an arbitrary manner, or in bad faith or in a discriminatory fashion.' Having set out their purpose in the Preamble, the agreement goes on "The parties, therefore, agree
as follows" (emphasis added). That.is, they-intend to establish and maintainsatisfactory working conditions, and in order to do so, they have agreed to the specific terms of the collective
agreement. It is implicit that one must read the specific terms of the agreement in a way which fulfils their intention, rather than in a way which defeats it. Another way of looking
at this matter is to ask what would the parties have replied if asked by an officious bystander whether management could deny a vacation request on the basis that the employee was of
a certain religion or of a ;.qeftain color, or merely because the foreman didn't like the employee. This is the approach suggested by the English Court.of Appeal in the classic case
0~ implied terms in the law of contracts generally -Shirlaw v. Southern Foundries (1926) Ltd., [19391 2 K.B.'206, at 227. Surely, the parties would have responded that management could
not act in this way. The mutual expectation of the parties must have been that there would be some limitation on management's power in this regard. Management's decis,ion would have
to be based on "legitimate business purposes" (to use the language of this Board in Buick, W/79, at page 0.). This is not to say that an arbitratc:r can StiLl';titute his Of h?r d?CiSion
for that of management. It is management's right to make the decision. But in making the decision, management must engage in a real exercise of managing the undertaking. The decision
must be made in the interest of the undertaking, rather than to further some other ends, such as discrimination against people of a particular color or race. One way of expressing this
is to say that the decision must not be arbitrary, butmust be made in good faith and without discrimination. :; Management must take into account relevant factors in coming to its decision,
and must not base its decision on factors unconnected with legitimate.business purposes. If this is done, then the decision cannot be questioned. It has sometimes been suggested that
the classic arbitral pronouncement to this effect is the following: )'In this and every like case where there is room.for honest difference of opinion, if it appears -as'here admitted
to be a facts-that the employer has acted honestly, we do not feel that a Board of Arbitrators wouid be justified in. interfering, by reversing the employer's decision, for tne reason
that to do so would result in management by arbitrators rather than management by the employer. Inthis and every.such like case where there is evidence on which a reasonable employer,
acting reasonably, could have reached the decision such as is here challenged by the Union, no Boardof Arbitrators should .. interfere?' (excerpt from Re Canadian lndustries Ltd., Nobel
Works, and United Mine Workers, Local 13031 (1348), I L . A , C. 234 (Roach), i;t 237, and quoted in Re Photo Enqravers and Electrotypers Ltd. and Toronto Printinq Pressmen and Assistants'
Union, No. 10 (1980), 25 L.A.C. (Zd) 88 (Adams), at page 100) However it is put, the essential idea is that an arbitrator is not to ask whether or not management was Correct in its decision.
Managementhas the right to make the wrong decision. But management's decision-making must be an honest 2X2rCiSQ in managing the undertaking, and no more. Minister honestly r?fused the
griever's request for vaia:ion at 2 parLiCular time for reasons related to the business ;t the Ministry. In light of the COllfCtIVe
the act of the Deputy Minister to this extent. And for these reasons, the Ministry's preliminary objection is refused. Finally, given that the requested vacation period has long passed,
it does not seem necessary for this Board to reconvene in thismatter. But we will leave open the possibility of reconvening if we have misperceived the situation, and it is necessary
for us to hear further evidence and argument; Done at London, Ontario, this 15th day of 'Jaozal-:., .., J.W. Sakuels, Vice Chairman "I dissent" (see attached) D.B. Middleton, Member-,~..
DISSENT Re: 570/84 (Da Costa) and the Crown/Ontario (Ministry of Health) I have now had the opportunity to review the Majority Award in the above matter, relevant case histories and
my hearing notes and exhibits. It is clear to this Member from the issue as dealt with at our hearing, and the supposftion of the majority Board in the final sentence (page 13) of the
award that this is a test case involving Management's discretionary powers in Art. 46.7 of the Contract and not a question of Vacation ellzibility affecting the grievor. Those concerned
with what is now referred to among interested parties as the 'Doctrine of Fairness' will undoubtedly benefit from the careful analysis on pages 1 -9 of the majority award of the birth
and progress of said doctrine. -It is an undoubted exercise on the part of certain interests to use the' Arbitration process to erode in systematic fashion wha,t might appear on the
face of the Contract to be the unfettered rights or powers of the Crown and its Ministries. In this instance Art. 46.7 is the target. On page 10, after preliminaries, the Majority Board
gets dotin to cases a& we read: "It is Article 46.7 of the Collective Agreement whic,h is in issue, and the nature of the power to approve given to the Deputy Yinister. There is no express
limitation on the Deputy Minister's power in Art. 46.7. The.issue for us is whether or not the Collective Agreement as a whole indicates that implicitly' (emphasis added) there is some
limitation on the power to grant or withold an ay:lfct.:icc for. vacation." In contrast it is the considered opinion of this Member that going to the Contract as a whole is an unnecessary
extension of arbitral authority, simply because Art. 46.7 iscomplete as it stands, and the natural force of its language certifies the discretionary powers of the Deputy Minister without
limitation. Brown and Eeatty supports this interpretative norm in Sect. 4:ZlOO which reads in part: "In searching for the parties' intention with-respect to a particular provision in
the agreement, arbitrators have generally 3ssll:ed that the larlguaye bc-fore th?m :houlJ he viewed ;;, its ;:or:ral or ordinary SCZT unless t:a: would
2 -lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in spme other sense. Furthermore, where there
are French ana English versions the interpretation to be sought is one which is coherent in both texts. It has been stated, however, that where there is no ambiguity or lack 0.f clarity
in meaning, effect must be given to the words of the agreement notwithstanding that the result may be unfair or oporessive." (Emphasis added). Nothing hinges on it but this Member cannot
find any evidence-for or allegation of unfairness or oppression by the Deputy Minister where Mr. DaCosta is concerned. While we are on the subject of accepted Canons of Construction
which have influenced this Me_mber.in coming to a dissent position, Brown and ... Beatty again 4:ZlOO Page 164 in part reads as follows: "As another general guide to interpretation,
it is accepted that in construing a collective agreement, it should be presumed that all of the words used were.+ intended to have some meaning., ,Horeover, it is to be presumed that
the parties do not intend the provisions of the collective agreement to be in 'conflict. However, if the only permissible construction leads to that result. the resolution of the resultino
conflict mav be made by applying the following presimptions or rules of interpretation: special or specific provisions will prevail over'genera? provisions:" (Emphas.is added). Again
before we start in to review the specific grounds adduced by the Majority Board, to justify inserting 'implicit' limitations on the powers of the Deputy Wnister as outlined in Sect.
46.7, we regard it as essential to remind all concerned of certain powers and limitations to ~those powers which are present in C.E.C.B.A. and the Contract under review that implicate
Arbitration Boards and their process. Sections 18.1 and 18.2 of C.E.C.B.A. are too well known to require repetition and 18.1 is considered and printed by the F!ajority Board at the top
of Page 10 of its award. Art. 27 of the Coniract', we suggest repays some further consideration than it obtains in the Majority Award. This Article not only.~,sets ~the stage for the
arbitral process~i~n'27.1, but also makes it clear that it may well be the duty of an Arbitration Board to rule that a matter is outside of its jurisdiction.
-3-In the second place there are limitations on the powers of Arbitration Boards in 27.14, and we are particularly interested in the prohibition affecting the enlargement of any provision
of the Collective Agreement. A case could well be made out and convincingly, that the ‘Doctrine of Fairness' as a whole, comes dangerously near to enlarging the Contract in violation
of 27.14; should be adopted with extreme caution; and on more substantive grounds than are present in this case. The position of this Member put simply is this, that to read in the 'implicit'
where a provision is 'explicit' contained and self-sufficient in the language used is in fact 'enlarging' the Contract, and that in this case the considerations used by the Majority
Board from the Contract as a whole to brl’ng in 'implied terms' are fragile in logic and unduly stretch the language of the Contract to do so. It remains for us to -examine the linguistic
and other instruments used by the Majority 6oard in justification of their finding that the Collective Agreement as a whole does imply some limitation on the discretionary powers of
the Deputy Kinister as set out in Section 46.7. The first consideration r'aised at the foot of Page 10 is that the Deputy Nnister must approve a vacation for an employee. Th-is never
was an issue in ort.h..i_s. case. Secondly, Section 7(l) of C.E.C.B.A. provided that the Union may bargain for "Paid Vacations", This minority Flember has read and re-read the text of
the Award covering this point and fails to grasp its relevance to the granting or withholding an application for vacation. Sect. 46.7 does not preclude the Union from bargaining on "Paid
Vacations" nor does the Section concerned give the Deputy Ministerany stance in the bargaining procedure. Thirdly the Majority Board seeks sustenance for its finding in the 'Preamble
to the Agreement'. Brown and Beatty deals adequately with the minimal weight to be attached to the Preamble on Page 163, 4:2100 as follows: "A preamble as well may be used'as a gu.ide
to _ i interpretation of the Agreement, but cf itself, it has no independent validity as a source'of rights or obligations nor can it override any provisions of the agreement., As noted
by one arbitrator. 138 'He are prepared to rule that a General Purpose clause, such as the one here, is in no sense a substantive prevision of the agreement and, while it might be a.guide
to the interpretation of a %\~bstantivr provision, i! rould not. of it-elf hc
-4 -Nith great respect these three considerations resemble a house of argumentative straw, and it is difficult for this Member to treat them seriously as having any impact that could
justify extending the explicit meaning of Section 46.7 in the manner suggested by the Majority Board. The Award now goes on to consider the remarks and questions of,an officious bystander
as a prelude to consideration of the power to imply particular,terms in the law of Contracts generally. Practitioners in industrial relations who administer a Contract in real li-fe
situations are not impressed by these horror stories which seem to depend on racial or religious discrimination for perpetuity. During a Contract term there are checks and balances in
effect which can effectively take care-of these oddball situations if they ever crop up; and, if by their repetition or nature a serious situation exists, they are better resolved at
the Bargaining Table than in an arbitra~tion court. Inany case this Member fails to understand the relevance of~the officious bystan.der, to the serious problem facing this Board as
a whole./" The 'bystander' however is apparently only a lead-in to more important argumentation by reference to 'implied terms' in the law of contracts generally. Shit-law v Southern
Foundries (1926) Ltd., (1939) 2 K.B. 206, at 227 is named as a classiccase. I am, attaching as Appendix 1 to this dissent an excerpt fro~m Burrows 'Interpretations of Documents ' 2nd
Edition which discusses the value to be attached to 'implied terms: and the correct environment in which such terms can properly be used in language understandable by students of Law
and laymen alike. The,following sentence taken from the full text of this Appendix appear to this Member to be strikingly relevant to the case before us: "The presumption is against
the adding to contracts of the term which the parties have not expressed, but there are cases where obviously some term is to be implied if the intention of the parties is not to be
defeated. The implications must arise inevitably to give effect to the intention of the parties." and "The Cour,t will only imply a term if, from the document or the :urrounding.circumstances,
such a term is essential to the business efficacy cf the transaction. Reasonableness is not the test". "~If J& ;d~o~cTuTm.~een.t~ mawhfi~ll ';.~-(~hCep;ii,f~~~~h~h~s~i;v. P~w~ai".udtd
~~~df, . .t .h ;! ~t?-~rm , No .~i c,o!l~ic-a~t-i on ~~---
-5-The Majority Board is also most concerned with the relationship of 46.7 to the whole Contract including even the Preamble. Cn this point again in 'Burrows" we read, Appendix 2 to
this Dissent: "The words of each clause should be so interpreted as to bring them into harmony with the general intention shown by the document read as a whole and with the other clauses.
But'for the purpose'the'context must be at least as plain as the words." (Emphasis added), and again we read: "As a rule, however, the part in which words are found indicates sufficiently
the force they are intended to have, and, in cases where the meaning is in doubt may determine the difficulty. Form, therefore, although of great use in interpretation, is not the dominant
consideration: whenever necessary-it must give way to substance". Consideration of these quotatl'ons in their context would scarcely support the conclusion in part of the i?ajority Award,
which reads: "The mutual expectation of the parties must have been that there would be some, limitation on Management's power in this regard". (See Page 11 of Award Penultimate Sentence
-emphasis added). Nothing prevented the negotiating parties who put Section 46.7 together from incorporating any limitation in plain language on the discretionary powers of the Deputy
Minister that they could agree to-and was appropriate but the plain fact is they did not do so. It is not impractical to surmise that these very negotiators could scarcely recognize
or remember what really happened at the bargaining table HSsn they read their intentions as outlined by my colleagues in their award. Overall this minori~ty Member finds the reasoning
of the Majority Board as somewhat less than substantial, and unpersuasive in end result. To this end we have endeavoured td evaluate the award as a whole and its various parts with helpful
candour. To sum up, this Member would have allowed the Elinistry's objection,~and ruled that the matter of inserting implied limitations not in the text to the discretionary power of
the Deputy Kinister in 46.7,was beyond the jurisdiction of the Eoard and therefore not arbitrable. All of which is respectfully submitted
ken rcjcctcd oo the ground iha, i, was inconsistcn, wi,h lhc provision of Ihe conlrac, ; i, would no, explain but va v x Where by sLBtu,e a word or expression IS gwco B par&u ar meaning
unless the context olherwisc permi,s “T requires, rho s,a,u,“ry mcaoing will bc given uoles11, x3 n ma,,cr ofcons,ruclion. the Court dccidco ,ha, some other mcilning is 1” be amlied.
\ /No evidence will be received as 10 Cnslish legal kcboical Lcrrm.’ Expn cvidcnce is nccdcd as ID foreign law. which the judge. and not ,he jury will find.’ When B documcn, has ID be
coos,rocd in xxordance with some syskm of foreign law. no, only is cvidenct admissible of the ,crm~ of art and’tbe ,ulcs of law applicable. bui also of my rule of wnrcructiori which
,hac sys,cm would use in intcrprcting ,hc document,’ sod ,hc Cow, will place upon the dc-am,cn, ,he c”nr,ruc,ion which ,hc foreiwn Jaw rc~uircs. As il rule B will oC movable property
is to be inkpreled in accordance wifh the lex dondcilii ’ unlcs the ~crm of ,he will otherwise provide expressly or by impliw,ion. lmmovcablen are governed by the lrx loci rel hire ’
and therefore prim” facie a will of immaveabla will bc iolcrprcled in lhe manner in which ,be Courts of ,bc counny whcrc the immoveables we si,ua,e would conslruc it. The expression
“implied wcm” ia used in ditl’crenl senses. Somclimu iI dcno,es some ,erm which depends on a rule of law, such zu the terms which, unlcs~ excluded. ,he law imports in con-. tracts 10
which ,hc Sale of Goods AcI. 1893.’ or ,he Maring Intrance Act. 1906: apptics. The law also in some circumstincea implies that a comrac, ia ,” bc dissolved if there i$ a vital change
of conditions. T3ere is nlso Ihe power lo imply particular Lcrm.3. ’ Movbro.~, Roblmon & Co. v. Row, (1922), 91 L. I. (r. n.) $24 ; and YIC P018r0vr. Brown &Son. Lid. v. S.S. Tudd. [I9221
I A. C. 397 ; Redcrl “k,. Acolw Y. HNlor(l926). 96 L. J. (I(. 8.) 186. 9 Short V. Wilson (1842). 9 Ct. dc Fio. 355, a, p. 512; Smlfnlrhv . Butchc, (1878). 10 Ch. D. III. ’ Supreme Cour,
of Judicaure AC,. 1925, 8. 102; Couo,y Courts AC,. 1934. ,. 94; lornrd Bmrhc,, d Co. v. Mldlmu, Bank. 11933) A. C. 289, at p. 298. . D, So,,, Y. Phi,,,pp, (Ig61). 10 H. L. ,3x 624. a,
pp. 6,3.639 ; Ma*,,% v. Fob,lza,(l77J). I Cow”. 161. at p. 174.. ’ Rc Fugwron’, W//r, 119021 I Ch. 483. a, p, 486. * F,irkr Y. Cnrbrry (187,). L. R. 16 PA,. 46,. B, pp. 466. 467. 1 I,
Halrbury’s Stalulcs 612. 0 9 Halsbur.“‘, S,a,“,cs 851. . . *.; . I..
-_ CANONS OF CONSTRUCTION 49 In a subsequent chapter an acccunt is given of the parts of certain clasps of dccuments. mattcn of intcrorcmtion the eencral where a recital s,a,cs an intcnlion.
byl ,hc opera,ive parl dca no, mention it. In tha, case the diflicul, question arises whcIhcr the wording of ,he rsilal is such Ihal the Court can hold ,ha, i, arncun,~ ,c an cr)cra,ivc
par, and lhus give cffecl,c ,l,c in,cn,ion. The division of B document into par& especially in the WY of conveyances and similar documents for which usage has nhncs, imposed a rccogniscd
order and division, is of grca, UM in underrunding any doamen, which is mere ,han a very simple one. I: is important char a dccumcn, xhculd be ccnsis:eo, wi,h itself and Ihat each car,
should bc ccnsiucnt wilh ,he whole and wirh ,hc pe.r,s x&,hci~ordcr lnrcr se i3 wt,lcd by long usage. bu, wan, of skill or ncglcc, of forms will no, of itself cpcra,c tc defeat an inlcction
which i3 olhcrwisc clear. Thus n r&al. which should conlain only imroductory s,a,cmcnts. has been held 10 take CRC, as a ccvcnml ’ or ici the cxeculion of a pcwcr a or as a declaration
10 bar dower: But where a recital stated an in,cn,ion to se,,le properly on ,hti sarw trusts as contained in a will bu, Ihe operative part was not so cxprcswd 8~ 10 carry cut such an
in,ention, i, WBP held impossible ID supply words so a~ 10 make ,bc operalive pan carry cut ,he intention stated in the recitals. for wberc the opcrativs part is clear i, cannot be conlrcllcd
by Ihc rcci,al.* As a rule however. the ,xW in which words are found indsaiee=A Jhc force lhcv arc wended ,c Ii&m-&-caws whcrc ,bc mcamng IS tn doubt. may dc,erm,nc ,l -,Me -i--L. ICU
,y. --...._