2016 NLCA 46, 2016 NLCA 46

Hotel Employees & Restaurant Employees International Union, Local 779 (appellant) v. Sodexo Canada Limited (respondent) (14/100) Indexed As: Hotel Employees & Restaurant Employees International Union, Local 779 v. Sodexo Canada Limited 2016 NLCA 46 1 C.A.N.L.R. 18 Court of Appeal of Newfoundland and Labrador Rowe, White and Harrington JJ.A. September 15, 2016

Summary: The respondent Sodexo Canada Limited, provided accommodations and catering services to contractor personnel and trades persons engaged in the construction of iron ore mining and milling facilities in western Labrador for a major international company.

Various unionized construction tradespersons were engaged in the project with their terms and conditions of employment governed by collective agreements negotiated under the auspices of the Construction Labour Relations Association (CLRA), which by statutory recognition holds the bargaining rights for all unionized construction employers in the industrial, commercial and institutional sector and negotiates collective agreements on their behalf with unionized employees in the various trade sectors.

The Union filed a grievance seeking to have an arbitrator rule that Sodexo was bound by a provincial collective agreement negotiated by the CLRA. An arbitrator appointed by consent ruled in favour of the Union. Sodexo applied for judicial review. The applications judge allowed the judicial review, concluding that (

i) the question of whether Sodexo was bound by the CLRA’s collective agreement regarding its workers was within the exclusive jurisdiction of the Labour Relations Board (LRB) and (ii) that the arbitrator had no jurisdiction, exclusive, concurrent or otherwise, to decide the issue and proceed to rule on the merits of the grievance. The Union appealed. Held: Appeal allowed, arbitrator’s ruling restored.

Harrington J.A. (Rowe and White JJ.A. concurring): The appeal raised questions regarding the jurisdictional lines between two specialized tribunals which also fall into the exceptional category of a true question of jurisdiction. The correctness standard of review applied to this question. In the case on appeal, the Court was dealing with the question of jurisdiction within a single statute where there are two statutorily recognized tribunals involved, the LRB and a consensual arbitrator.

The mandate of the latter normally arises under the provisions of a collective agreement. ______________________________ Leave to appeal to SCC refused, 37289 (March 9, 2017). However, arbitrators may resolve legal issues incidental to their function of interpreting and applying the collective agreement.

Dealing specifically with the jurisdiction of a labour arbitrator to interpret a collective agreement, the Supreme Court of Canada has held that if the statute provides that an arbitrator may determine what is “arbitrable”, unless the statute expressly provides that the Labour Relations Board has “exclusive jurisdiction” to determine the issue, the labour arbitrator and the Board shall have concurrent jurisdiction to determine whether or not a collective agreement is in force between the parties. This authority dealt with a statute of another province, but is persuasive. Implicit in

Section 89 of the Labour Relations Act, RSNL 1990, c. L-1 is that an arbitrator and the LRB have concurrent jurisdiction. The

section states that an arbitrator “may refer” to the LRB “the existence of a collective agreement”. This implies the arbitrator may refer the matter to the LRB or may choose not to refer. The arbitrator also concluded that jurisprudence arising under the Act has broadened the definition of “construction industry” to permit the inclusion of catering and accommodations personnel who are unionized. This question was within the arbitrator’s expertise and subject to review for reasonableness.

The arbitrator’s decision having an adequate evidentiary basis and the arbitrator having provided sufficient reasons for his conclusion, the result came within the range of rational outcomes and was reasonable at law. The appeal was

allowed and the arbitrator’s decision restored. Cases cited: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R.185 Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 Parry Sound (District) Social Services Arbitration Board v. OPSEU, Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157 Dayco (Canada) Ltd. v. CAW-Canada, (SCC), [1993] 2 S.C.R. 230 North Atlantic Refining Ltd. v.

United Assn. of Journeymen and Apprentices of the Plumbers & Pipefitters Industry of the United Statesand Canada Local 740, 2007 NLTD 162, 270 Nfld. & P.E.I.R. 200 United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., (SCC), [1993] 2S.C.R. 316 International Brotherhood of Electrical Workers, Local 2330 v. G.J. Cahill & Co. (1979) (2002), (NL SC), 215Nfld. & P.E.I.R. 41 (Nfld. T.D.), aff’d, 2004 NLCA 10, 234 Nfld. & P.E.I.R. 115 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740v.

Marshall Industries Limited (1999), 49 C.L.R.B.R. (2d) 260 Counsel: Dana Lenehan Q.C. and Kenneth Jerrett, for the appellant; Harold M. Smith Q.C. and Ruth Trask, for the respondent. This appeal was heard on April 13, 2016 before Rowe, White and Harrington JJ.A.

The following judgment was delivered on September 15, 2016 by Harrington J.A. for the Court. ______________________________________________________________ Harrington J.A.: [1] This appeal arises from the decision of an applications judge of the Trial Division to set aside an arbitrator’s award which heldthat the respondent (Sodexo Canada Limited) an accommodations and catering contractor, was engaged in the industrial, commercial andinstitutional sector of the construction industry (ICI sector) and bound by a provincial collective agreement negotiated by the appellantUnion with the Construction Labour Relations Association (CLRA), a statutorily recognized body under the Labour Relations Act, RSNL1990, c.

L-1 (Act). CLRA holds the bargaining rights for all employers certified by the Labour Relations Board (LRB) in the ICI sectorto negotiate collective agreements with construction trade unions representing workers in the ICI sector. [2] A grievance respecting Sodexo’s compliance with the collective agreement arose, and the parties agreed to select a singlearbitrator to resolve it. He ruled that the Union was providing its services at a construction project site which was within the ICI sector ofthe provincial construction industry.

He found that Sodexo was bound by the existing province-wide collective agreement governingemployees engaged in catering and accommodations services at the site in western Labrador for construction of an iron ore mining andmilling site (worksite). [3] On judicial review, Sodexo applied to have an applications judge set aside the arbitrator’s award.

The judge concluded that (i)the question of whether Sodexo was bound by the CLRA’s collective agreement regarding its workers was within the exclusivejurisdiction of the LRB and ii) that the arbitrator had no jurisdiction, exclusive, concurrent or otherwise, to decide the issue and proceedto rule on the merits of the grievance. The Union appeals that ruling. Sodexo filed a cross-appeal which was withdrawn before thehearing. For reasons which follow, I would grant the appeal, set aside the decision of the applications judge and affirm the decision ofthe arbitrator.

BACKGROUND [4] Sodexo provided accommodations and catering services to contractor personnel and trades persons engaged in the constructionof iron ore mining and milling facilities in western Labrador for Tata Steel Inc., a major international company. Various unionizedconstruction tradespersons were engaged in the Project with their terms and conditions of employment governed by collectiveagreements negotiated under the auspices of the CLRA, which by statutory recognition in the Act holds the bargaining rights for all

unionized construction employers in the ICI sector and negotiates collective agreements on their behalf with unionized employees in the various trade sectors. The Union made an application for certification to the LRB to represent Sodexo’s workers and the LRB issued a certification order. The Union took the position that upon certification by the LRB, Sodexo was bound by a provincial collective agreement between the Union and the CLRA. Sodexo did not negotiate another collective agreement with the Union and rejected any claim that it was bound by the provincial CLRA agreement.

The Union filed a grievance seeking to have an arbitrator rule that Sodexo was bound by the CLRA agreement. [ 5 ] Initially, both parties agreed upon the appointment of a consensual arbitrator and his jurisdiction to arbitrate the grievance. At an ensuing hearing Sodexo argued that it was not conducting an operation within the ICI sector of the construction industry and thus was not bound under the Act to apply the wages and benefits set forth in the CLRA provincial collective agreement.

Sodexo argued that it was providing services to an established permanent accommodation and catering building intended to support permanent mining and mill operations upon completion. Sodexo claimed it was entitled to negotiate salaries based on lower provincial pay rates and benefits applicable to non-ICI construction projects. In written reasons, the arbitrator defined the primary issue as follows: … whether there is a valid CLRA/HRW Local 779 collective agreement in place, which binds “Sodexo Canada Ltd. to its terms and conditions in these particular circumstances.

This conclusion was preceded by reservations expressed by the arbitrator about his jurisdiction in the following terms: Indeed, it might also be argued that, since the arbitrator’s jurisdiction to deal with a grievance is provided by the collective agreement, in the absence of a collective agreement, he would have no jurisdiction to hear the Union’s grievance . In my view, that circumstance is of even more fundamental labour relations concern than an arbitrator’s right under the Labour Relations Act to determine whether a grievance is arbitrable.

Such a determination could not be made in the first place if the right to grieve did not exist. Therefore, in my respectful opinion, this dispute should have been heard by the Labour Relations Board from the very beginning . (Emphasis added.) [ 6 ] Notwithstanding this comment, the hearing proceeded to a conclusion of evidence and legal submissions by both parties. Following the 5-day hearing, the arbitrator rendered a lengthy written decision in favour of the Union.

He held that the primary activity being conducted at the Tata Steel operation on the date that the LRB issued a certification order was for construction work within the ICI sector. He held that Sodexo was bound to apply the existing provincial CLRA collective agreement with the Union regarding wages and benefits. [ 7 ] On judicial review, the applications judge set aside the award having found that the central issue was that of jurisdiction.

He found that the LRB had exclusive jurisdiction under the Act to resolve the dispute since the core issue related to the existence of collective bargaining rights and not the determination of rights under a collective agreement which would be the subject matter for an arbitration. He held that in order for the arbitrator to have had jurisdiction to arbitrate, the parties had to be bound by the existing province-wide collective agreement between the CLRA and the Union.

The applications judge reasoned: Regardless of how it was framed by the parties, the fundamental issue before the arbitrator was this: Was Sodexo bound by an agreement to which it is not a party by virtue of the accreditation order and the operation of

section 63 of the Act ? [ 8 ] The applications judge determined that the LRB and not a consensual arbitrator had exclusive jurisdiction to determine whether or not the nature of the work being performed by employees of Sodexo at the industrial mine and mill site in Labrador was in the nature of “construction activity” in the ICI sector resulting in the application of the existing collective agreement between the CLRA and the respondent with respect to wages, benefits and working conditions under the provincial collective agreement.

ISSUES [ 9 ] The issues on this appeal are: 1) Did the applications judge err in selecting the proper standard of review to be correctness? 2) Did the applications judge err in finding that the LRB had exclusive jurisdiction over the issue in dispute? DISPOSITION SOUGHT [ 10 ] The Union seeks to have the decision of the applications judge set aside and the decision of the arbitrator affirmed.

Sodexo argues that the LRB has exclusive jurisdiction as found by the applications judge and requests that the decision of the applications judge to quash the arbitrator’s decision be upheld. [ 11 ] The appellant submits that the applications judge erred by finding that no standard of review was engaged before him because the central issue was one of jurisdiction. The Union submits that the applications judge reached an incorrect conclusion that the LRB had exclusive jurisdiction to decide whether or not the parties were bound by the CLRA collective agreement.

The appellant further argues that a review standard of reasonableness applies to the review of the arbitrator’s decision. [ 12 ] The appellant submits that the applications judge erred in law in finding that “questions of arbitrability” do not include considerations as to whether a collective agreement applies to one party.

It further submits that the parties agreed to a consensual arbitration to decide whether Sodexo was bound by the CLRA collective agreement covering catering and accommodations personnel, given that the LRB had initially issued a certification order in favor of the Union as one of its primary functions.

The parties then agreed to submit the issue of the application of the CLRA collective agreement to a single consensual arbitrator. [ 13 ] The Union says that the applications judge ought to have accepted its submission that the arbitrator had concurrent jurisdiction with the LRB regarding the nature of the bargaining rights applicable to the Tata Steel project and ought to have upheld the decision by

the arbitrator in favor of the Union who found that the project was within the “ICI sector of the construction industry” on the date of the LRB certification order. [ 14 ] The appellant’s grounds of appeal are as follows: 1) The applications judge erred in law in concluding that exclusive jurisdiction over the matter in dispute resided with the LRB and that it possessed exclusive jurisdiction to decide the issues placed before the arbitrator; 2) The applications judge erred in fact and law in concluding that the dispute between the two parties triggered broad questions of labour relations policy that were to be decided by the LRB; and 3) The applications judge erred in law and in fact by disregarding the agreement of the parties to proceed with a consensual arbitration process to resolve the dispute between them. [ 15 ] Sodexo’s submission, accepted by the applications judge, is that an arbitrator’s jurisdiction to decide a dispute can only come from an existing collective agreement.

Further, Sodexo argues that where the existence and applicability of the collective agreement is challenged, an arbitrator has no jurisdiction to determine whether or not the agreement applies, as it would be a ruling on his or her jurisdiction. Sodexo argues that only the LRB can decide this fundamental question and the applications judge accepted this submission. STANDARD OF REVIEW [ 16 ] The applications judge held that the standard of review applicable to this question is correctness. I n Canadian National Railway Co. v.

Canada (Attorney General) , 2014 SCC 40 , [2014] 2 S.C.R. 135 at paragraphs 53-55 , the Supreme Court of Canada stated as follows: Dunsmuir is not limited to judicial review of tribunal decisions (paras. 27-28; Public Mobile , at para. 30). Rather, in Dunsmuir , the standard of review analysis was discussed in the context of “various administrative bodies”, “all exercises of public authority”, “those who exercise statutory powers”, and “administrative decision makers” (paras. 27-28 and 49).

This Court has applied the Dunsmuir framework to a variety of administrative bodies (see, for example, Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 , at paras. 13 and 35 , per McLachlin C.J.). The precedents instruct that the Dunsmuir framework applies to administrative decision makers generally and not just to administrative tribunals. The Dunsmuir framework thus is applicable to adjudicative decisions of the Governor in Council.

The Applicable Standard of Review It is now well established that deference will usually result where a decision maker is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity ( Dunsmuir , at para. 54; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 , at para. 28 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , at para. 30 ).

In such cases, there is a presumption of deferential review, unless the question at issue falls into one of the categories to which the correctness standard applies: constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and the exceptional category of true questions of jurisdiction ( Dunsmuir , at paras. 58-61, and Alberta Teachers’ Association , at para. 30, citing Canada (Canadian Human Rights Commission) , at para. 18, and Dunsmuir ). (Emphasis added.) [ 17 ] This appeal raises questions regarding the jurisdictional lines between two specialized tribunals which also fall into the exceptional category of a true question of jurisdiction.

The applications judge therefore did not err in deciding that the correctness standard applies to this question. [ 18 ] If it is decided that the arbitrator does have jurisdiction to decide on his own jurisdiction, the second question raised by this appeal is whether the arbitrator’s decision on the merits should be restored. In this case the crux of the matter is whether or not Sodexo is a participant in the “construction industry” within the meaning of sections 64 and 92 of the Act .

By agreement of the parties, this task was passed to a consensual arbitrator to interpret a statute giving rise to his jurisdiction, a task which is reviewable on a standard of reasonableness. ANALYSIS [ 19 ] Prior to the dispute that gave rise to these proceedings, the Union obtained a certification order from the LRB in relation to Sodexo’s employees who were providing accommodation and catering services to workers employed by various contractors engaged in the construction of an iron ore mining and milling operation in Labrador West.

Sodexo became a unionized employer resulting from a certification order of the LRB. The grant of a certification order gave rise to the question of the applicable collective agreement. The matter crystallized when the Union took the position that Sodexo was bound by the current CLRA province-wide agreement applicable to catering and accommodation employees operating within the ICI sector of the provincial construction industry. Powers of Board and Arbitrator [ 20 ] The focus of the analysis in this appeal is derived from statutory powers granted to the LRB and to an arbitrator.

As a first step therefore, reference to relevant sections of the Act is necessary. [ 21 ]

Section 18 (

k) of the Act states: In relation to a proceeding before it … the board may:

… decide a question that may arise in a proceeding, or under an application made to it , or referred to it by the minister, including a question as to whether … (vi) a collective agreement has been entered into, (vii) a person or organization is a party to or bound by a collective agreement , (viii) a collective agreement is in operation , (Emphasis added.) [ 22 ] Sections 92(1) and (2) read as follows: 92.

(1) This

section applies only to the construction industry .

(2) Where an employer or employers' organization has entered into a collective agreement, then, notwithstanding anything to the contrary in this Act or in the collective agreement, a dispute or difference between the parties to the collective agreement, including persons bound by the collective agreement, relating to or involving (

a) the

interpretation, meaning, application or administration of the collective agreement or a provision of the collective agreement ; … (

d) a question whether a matter is arbitrable, shall be submitted for final settlement to arbitration in accordance with this

section in substitution for an arbitration or arbitration procedure provided for in the collective agreement . (Emphasis added.) [ 23 ]

Section 54 of the Act provides: 54.

(1) In this Division, (a) " accredited employers' organization" means an organization of employers that is accredited under this Act as the bargaining agent for a unit of employers in the construction industry ; (b) "construction industry" means the on-site constructing, erecting, altering, decorating, repairing or demolishing of buildings, structures, roads, sewers, water mains, pipe lines, tunnels, shafts, bridges, wharves, piers, canals or other works; (c) "sector" means the following divisions of the construction industry, namely: (

i) the industrial and commercial division, … and includes other divisions of that industry that may be determined by the board ; (d) "unionized employee" means an employee on behalf of whom a trade union or council of trade unions has been certified as bargaining agent under this Act or voluntarily recognized by an employer, where the certification has not been revoked or the bargaining rights have not been terminated; and (e) "unionized employer" means an employer of unionized employees in the geographic area and sector concerned. [ 24 ] Section 63(1) provides with respect to the CLRA: 63.

(1) Where an employers' organization has been accredited and after the date of the accreditation order, a trade union or a council of trade unions is certified for or voluntarily recognized by another employer in the sector and area covered by the accreditation order, the bargaining rights, duties and obligations of that employer, whether he or she becomes a member of the accredited organization or not, are vested in or imposed on the employers' organization and the employer is bound by a collective agreement in effect or subsequently negotiated between the accredited employers' organization and a trade union or council of trade unions in that sector. [ 25 ]

Section 64 provides: 64.

(1) A collective agreement entered into between an employers' organization and a trade union, or council of trade unions, is binding upon the employers' organization, employers whose bargaining rights have been acquired by the employers' organization engaged in the construction industry in the sector and area covered by the accreditation order, the trade union, council of trade unions and employees within the scope of the collective agreement.

(2) A collective agreement shall not be individually negotiated between an employer in the sector and geographic area in respect of which an employers' organization has been accredited and a trade union or council of trade unions, and, where a collective agreement is

entered into, it is void. (Emphasis added.) [26]

Section 89 of the Act reads: 89.

(1) Where a question arises in connection with a matter that has been referred to an arbitration board relating to the existence of acollective agreement, or the identification of the parties or employees bound by a collective agreement, the arbitration board may referthe question to the board for a hearing and determination and the board may hold a hearing. (Emphasis added.) Jurisdiction [27] The jurisdiction of a labour arbitrator flows from the statute and the collective agreement between the parties. In Quebec(Commission des droits de la personne et des droits de la jeunesse) v.

Quebec (Attorney General) 2004 SCC 39, [2004] 2 S.C.R. 185 atparagraph 6 the Chief Justice wrote for the majority that federal and provincial legislatures “introduced grievance arbitration to providefor a quick and efficient resolution of disputes arising under collective agreements” and “[n]ot surprisingly, this conferral of authority ongrievance arbitrators sometimes leads to disputes about the proper scope of their jurisdiction”. [28] The Chief Justice referred to the Supreme Court of Canada’s decision in Weber v.

Ontario Hydro, (SCC),[1995] 2 S.C.R. 929 where the Court recognized that three approaches were possible in terms of categories of cases where jurisdictionalissues arise: 1) the concurrent jurisdiction model; 2) the overlapping jurisdiction model; and 3) the exclusive jurisdiction model. [29] Of relevance to this appeal are the comments made by the Chief Justice at paragraph 11 of Quebec Commission where she wrote: … In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario LabourRelations Act, R.S.O. 1990, c.

L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdictionover the dispute. However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction inemployer-union disputes.

Depending on the legislation and the nature of the dispute, other tribunals may possess overlappingjurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction. … As stated in Weber, supra, at para. 53,“[b]ecause the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorizethe classes of case that will fall within the exclusive jurisdiction of the arbitrator.” (Emphasis added.) [30] The Supreme Court suggested that the way the question was posed in Weber presupposed exclusivity.

The Court pointed out thatthere is no legal presumption of exclusivity in the abstract and held at paragraph 14 that: The question in each case is whether the relevant legislation applied to the dispute at issue taken in its full factual context, establishesthat the labour arbitrator had exclusive jurisdiction over the dispute. [31] In Quebec Commission the Court concluded that the model that applies in a given situation “depends on the governinglegislation, as applied to the dispute viewed in its factual matrix”.

In this context, the Supreme Court held that the first analytical step isto look at the relevant legislation and what it says about the arbitrator’s jurisdiction.

Secondly, consideration is to be given to the natureof the dispute to see whether the relevant legislation indicates that there is exclusivity to the arbitrator (at paragraphs 11 and 15). [32] The Supreme Court preferred an effort to facilitate a “better fit between the tribunal and the dispute” and “to ensure thejurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties in line with the principlesoutlined in Weber (at paragraph 15). [33] Since the decisions in Weber and Quebec Commission, arbitrators as opposed to the courts have often been found to haveexclusive jurisdiction to determine disputes in the area of labour law.

However, that is increasingly not the case in respect ofadministrative tribunals. On many issues, arbitrators have been found to have concurrent jurisdiction with administrative tribunalsincluding labour relations boards. [34] A considerable amount of jurisprudence with respect to jurisdiction has turned upon the nature and application of two or morestatutes.

Such is the case where an issue arises as to whether jurisdiction falls to a labour relations board as opposed to a human rightscommission. [35] In the case on appeal, this Court is dealing with the question of jurisdiction within a single statute where there are two statutorilyrecognized tribunals involved, the LRB and a consensual arbitrator.

The mandate of the latter normally arises under the provisions of acollective agreement as the member of an agreed labor arbitration panel or as a single consensual arbitrator chosen by the parties to acollective agreement to resolve a specific grievance. [36] The reasoning in Quebec Commission requires a review of the legislative mandate in this case as it applies to the LRB andconsensual arbitrators dealing with matters arising in the construction industry which has special applicable legislation for the settlementby arbitration of disputes outlined in

section 92 of the Act respecting various issues including the “application or administration of thecollective agreement” and “a question whether a matter is arbitrable”. [37] The Supreme Court of Canada has recognized that arbitrators may resolve legal issues incidental to their function of interpretingand applying the collective agreement. (See Quebec Commission at paragraph 25 quoting Parry Sound (District) Social ServicesArbitration Board v. OPSEU, Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157).

[38] Dealing specifically with the jurisdiction of a labour arbitrator to interpret a collective agreement, the Supreme Court of Canadain Dayco (Canada) Ltd. v. CAW-Canada, (SCC), [1993] 2 S.C.R. 230 held that if the statute provides that an arbitratormay determine what is “arbitrable”, unless the statute expressly provides that the Board has “exclusive jurisdiction” to determine theissue, the labour arbitrator and the Board shall have concurrent jurisdiction to determine whether or not a collective agreement is in forcebetween the parties.

In Dayco, the Supreme Court reviewed the development of the law on this issue: Until 1961, the Act had assigned to the Labour Relations Board the exclusive jurisdiction to determine "whether a collective agreementhas been made or as to whether it is in operation": The Labour Relations Act, R.S.O. 1960, c. 202, s. 79(1)(d).

Although this provisionwas repealed in 1962 (An Act to amend The Labour Relations Act, S.O. 1961-62, c. 68, s. 13), arbitrators continued to refuse to proceedwith an arbitration when one of the parties challenged the existence of the collective agreement at issue: see Re Bricklayers' & Masons'Union, Local 1, and Wilchar Construction Ltd. (1962), 12 L.A.C. 347; Re Fortune Footwear and United Textile Workers of America,Local 369 (1980), (ON LA), 25 L.A.C. (2d) 350. The prevailing view was that arbitrators did not even have thepower to decide the question, and the right to be wrong was never reached.

This view may perhaps have been a carryover from theperiod when s. 79(1)(

d) was in force, although the practice continued for some time. As late as 1978 the courts seemed obliged to statethat exclusive jurisdiction for the board was "no longer the case"; see Re Carpenters' District Council of Toronto and Vicinity andEngineering Structures and Components (1978), (ON SC), 19 O.R. (2d) 445 (Div. Ct.), at p. 447; see also Re BellCanada and Communication Workers of Canada (1980), (CA LA), 27 L.A.C. (2d) 163, at pp. 170-71. However,during this period some arbitrators developed the practice of pressing forward with the merits of a grievance, despite a challenge tojurisdiction.

It was this practice that was approved in Bradburn, first by the Ontario Court of Appeal (1976), (ON CA),13 O.R. (2d) 56, and ultimately by this Court. The grievance in that case was triggered by a strike that, according to the employer, waswaged during the currency of a collective agreement. The issue for the arbitrator was whether the collective agreement was in fact inexistence, which in turn required an

interpretation of both the agreement and the Act. The arbitrator decided that point, a practice whichwas approved by the Court of Appeal, at pp. 61-62: The final argument on behalf of the appellant was that a board of arbitration does not have the power to determine the very existence ofthe collective agreement. But here the board had to determine that threshold question and make the necessary preliminary assumption. It assumed that the agreement continued in operation and then proceeded with the hearing.

It was a correct assumption and theproceedings were valid. … The Supreme Court was unanimous in finding that the arbitrator in Bradburn had the power to determine the existence of the collectiveagreement, but divided on the appropriate scope of judicial review.

Estey J., writing for the majority, endorsed the finding of the Courtof Appeal, at pp. 854-55: The threshold problem which reared its head at each level on which this debate has occurred is whether or not an arbitration board mayproperly interpret a collective agreement so as to determine whether the agreement was in effect at the time of the arbitration; in otherwords to determine whether or not the Board itself was properly constituted and was acting within the contractually conferredjurisdiction.

Counsel for the appellant, in fairness to him, did no more than present the argument which I find sufficiently answered bythe terms of s. 37(1) [now s. 44(1)] of The Labour Relations Act which make all matters subject to arbitration including "any question asto whether a matter is arbitrable." There is no other practical solution to this question because if the Board cannot determine whether theagreement continues in effect and hence its own proper existence, it is difficult to find the jurisdiction elsewhere.

Of course if the Boardis wrong in law as to the pendence of the collective agreement, its decision is a nullity, and thus within the reach of a court of law. [Emphasis added.] Estey J. found that the board had jurisdiction in the sense of having the authority to decide the question of whether a collectiveagreement was in existence, and such authority was granted by the arbitrability provisions of s. 44(1). However, the board'sdetermination was reviewable to a standard of correctness….

The conclusions that emerge from the wording of the statute are confirmed by considering the role of the arbitrator within the arbitrationscheme established by the Act. While there had been an historical unwillingness of arbitrators to even consider the kind of question thatarises in this case, it is important to note that this reluctance was not out of some sense of deference to the courts, but out of deference tothe LRB which was thought for a time to have exclusive jurisdiction in the area.

It will be recalled that until 1961 the Act reserved to theLRB the jurisdiction stipulated in what was then s. 79(1) in the following terms: 79.

(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act, and, without limiting thegenerality of the foregoing, if any question arises in proceedings, . . . (

d) as to whether a collective agreement has been made or as to whether it is in operation or as to who the parties are or who are boundby it or on whose behalf it was made; . . . the decision of the Board thereon is final and conclusive for all purposes . . . With the repeal of this provision in 1961, the jurisdiction over determinations of the status of collective agreements was uncertain.However, practice belied any uncertainty, as arbitrators continued to defer to the board: see Re De Havilland Aircraft and UnitedAutomobile Workers (1976), (ON LA), 13 L.A.C. (2d) 401, at pp. 404-7. A significant development occurred in1975, with the addition of s. 112a to the Act; see

An Act to amend The Labour Relations Act, S.O. 1975, c. 76, s. 30. This provision,which today is s. 124, gives the board power to hear grievances in the construction industry in exactly the same fashion as grievancesfiled with arbitrators under s. 44. In effect a "parallel jurisdiction" was established; see Re Carpenters' District Council, supra.

(Emphasis added.) [39] Proceedings in this Province have applied Dayco in determining an arbitrator’s jurisdiction under our Act: North Atlantic RefiningLtd. v. United Assn. of Journeymen and Apprentices of the Plumbers & Pipefitters Industry of the United States and Canada Local 740,2007 NLTD 162, 270 Nfld. & P.E.I.R. 200 at para. 63.

See also United Brotherhood of Carpenters and Joiners of America, Local 579 v.Bradco Construction Ltd., (SCC), [1993] 2 S.C.R. 316. [40] Our Act must nonetheless be examined to determine whether, contrary to Dayco, our legislature intended to vest the LRB withexclusive jurisdiction to determine a collective agreement is binding upon the parties. [41] Other than the case at bar, the only Newfoundland and Labrador case to consider this issue, International Brotherhood ofElectrical Workers, Local 2330 v. G.J.

Cahill & Co. (1979) (2002), (NL SC), 215 Nfld. & P.E.I.R. 41, aff’d, 2004NLCA 10, 234 Nfld. & P.E.I.R. 115, found that the LRB and the arbitrator have concurrent jurisdiction to determine the applicability ofa collective agreement related to the construction industry (at paragraph 27). [42] In Cahill, Adams J. conducted judicial review of an arbitrator’s decision arising from a preliminary issue raised as to whether thearbitrator has jurisdiction to determine the main issue as to whether the employees of Cahill on a particular construction project werecovered by the CLRA collective agreements regarding the various trades.

The preliminary issue was whether the arbitrator hadjurisdiction to determine the main issue, or even if he did, whether he should refer the matter to the LRB. The arbitrator held that neitherhe nor the LRB had jurisdiction. [43] Adams J., on judicial review, set aside the arbitrator’s order and remitted the matter to a different arbitrator. He concluded atparagraphs 26 and 27: The jurisdiction of the Labour Relations Board was not a question which was before the arbitrator or which he had jurisdiction toanswer.

He was asked to decide if he as an arbitrator had jurisdiction to hear the grievance, and if he did whether it was appropriate casefor him to adjudicate and whether he ought to refer the matter, or some part of it to the Labour Relations Board. If he found that he had jurisdiction, he would then have had to consider whether to refer the issue for determination by the Board. Hewas not obliged to do so. He essentially had concurrent authority with the Board to determine the issue of the applicability of the CLRAagreement (see sections 89 and 92 of the Act).

This would likely have required him to review the special project order and/or the specialproject agreement, even though those documents had not been directly referred to him in his agreement. (Emphasis added.) [44] In this proceeding, the applications judge relied on the language in

section 18(k)(vii) of the Act to reach a conclusion that theLRB has exclusive jurisdiction to decide the question of whether an “organization … is bound by a collective agreement”. Theapplications judge reasoned that the LRB had exclusive jurisdiction regarding the subject matter in dispute since he found that it relatedto the acquisition of bargaining rights and to the application or

interpretation of provisions of a collective agreement. [45] Notwithstanding the reasoning of the applications judge, I find Dayco and Cahill persuasive and conclude that, under the Act, anarbitrator has concurrent jurisdiction to determine whether or not a collective agreement exists between the parties. [46] There is no doubt that the LRB also has jurisdiction with regard to the determination of bargaining rights arising fromapplications for certification by a trade union.

Section 18(

k) of the Act permits the LRB to consider a question of whether a party isbound by a collective agreement.

However, the jurisdiction and procedure becomes more complex when the LRB has exercised itsjurisdiction and issued a certification order and the issuance of that gives rise to either the application of an existing industry-widecollective agreement such as the CLRA agreement with the respondent or to a collective agreement to be negotiated by the parties. [47] In this proceeding, the LRB received an application for certification from the appellant for the certification of employees workingin accommodations and catering operations for Sodexo.

That application was granted and a certification order was issued by the LRB. [48] Following certification, the issue became whether or not the unionized workers employed by Sodexo were part of a CLRAconstruction project in the commercial and industrial sector at the Tata Steel location in Labrador West and covered by the existingCLRA provincial agreement affecting these unionized workers in the sector.

If not, the Union and Sodexo would be required tonegotiate a separate collective agreement outside of the existing CLRA rates and benefits consistent with existing agreements in otherworkplaces outside of the ICI sector. [49] Both parties agreed to the appointment of an experienced arbitrator to determine whether or not the CLRA agreement applied tothe workers in the bargaining unit given the nature of the project and the composition of the construction tradespersons’ workforce beingemployed by the employers on site. [50] Like the statute at issue in Dayco, the Act provides in

section 92, that an arbitrator may determine matters which are arbitrable.While this is a strong indicator that the arbitrator has the power to determine whether or not a collective agreement binds the parties, it isnot the end of the matter. The Supreme Court in Dayco at paragraphs 31 and 32 explained that the questions of arbitrability andjurisdiction are not identical: To summarize, while the concepts of arbitrability and jurisdiction will frequently overlap, they are not synonymous.

This distinction isillustrated by the reasons of the arbitration board in Re Goodyear Canada Inc. and United Rubber Workers, Local 232 (1980), (ON LA), 28 L.A.C. (2d) 196. There, the union alleged the breach of three successive collective agreements, in that theemployer wrongfully deprived its employees of premium pay during the continuance of these agreements. The employer argued that thearbitration board had jurisdiction only as regards the current agreement, and the board accepted that position, clarifying the scope of itsdecision in the following manner, at p. 197:

The parties agreed that the board should determine the preliminary issue of its jurisdiction before proceeding to the merits of thegrievance. This award is therefore restricted to that issue. For the purposes of clarity, it should be emphasized that the issue is whetherthis board is properly constituted to hear the grievance in relation to the expired collective agreements.

That is a question separate anddistinct from whether the grievances should, having regard to delay, the conduct of the parties or any other factor, be found to bearbitrable by a board of arbitration properly constituted to hear them. [Emphasis added.] Thus "arbitrability" did not go to the larger jurisdictional question before the arbitration board in that case.

In the course of its reasons,the board made the following comments, at p. 200: . . . it is entirely proper for a board of arbitration constituted by the parties under an agreement or its statutory extension to rule on itsown jurisdiction to hear a grievance arising out of the same agreement. . . . When a board of arbitration that has been constituted by the agreement of the parties under a given collective agreement rules on its ownjurisdiction to hear a grievance arising under the same agreement it does no procedural violence to the statutory scheme wherebydisputes between the parties are to be resolved.

The question is whether it does so when it goes beyond the bounds of that agreement. [Emphasis added.] [51] I take the comments of the Supreme Court to mean that where a statute provides the arbitrator with the power to determinearbitrability, by necessary implication it confers a jurisdiction to decide any related or preliminary issues. That does not mean that amatter will always be arbitrable at the end of the day. In this sense the issue of jurisdiction is “more fundamental” than that ofarbitrability, as noted by the arbitrator and the applications judge.

At the same time, simply because a matter may prove not to bearbitrable does not mean an arbitrator is deprived of jurisdiction over it. [52] Moreover, like the statutory provisions at issue in Dayco, there is nothing in our Act which expressly affirms that the LRB hasexclusive jurisdiction regarding the question of “the existence of a collective agreement”. All of the sections relied on by theapplications judge and set out in these reasons either use permissive language or leave the possibility of concurrent jurisdiction open.

Iconclude, as in Dayco, that if the LRB has traditionally decided questions about the applicability of a collective agreement, this hasarisen as a matter of practice only and is not mandated by the Act. [53]

Section 89 of the Act makes clear the intention of the legislature to confer jurisdiction on both the LRB and an arbitrator. Thesection states that an arbitrator “may refer” to the LRB “the existence of a collective agreement”, the matter in question here. If thearbitrator “may refer” this to the LRB, it necessarily follows that: (1) the arbitrator may choose not to refer the matter to the LRB which entails that the arbitrator has jurisdiction to deal with thequestion himself/herself; and (2) the arbitrator may choose to refer the matter to the LRB which entails that the LRB also has jurisdiction to deal with the question. [54] Thus, implicit in

section 89 is that an arbitrator and the LRB have concurrent jurisdiction. Accordingly, the applications judgeerred regarding the jurisdiction issue. [55] While the parties could have elected to refer the matter to the LRB, they chose a more expeditious means of dealing with thematter by referral to an experienced consensual arbitrator regarding the matter of the “application” and “interpretation” of the CLRAcollective agreement between the Union and Sodexo, pursuant to

section 92.2(

a) of the Act. [56] In Parry Sound, the Supreme Court affirmed that arbitrators were not to be placed in a straightjacket with regard to the mattersreferred to them whether by statute or consent. Iacobucci J. made reference to the decision of McLeod v.

Egan, (SCC),[1975] 1 S.C.R. 517, a case dealing with the effect of employment related statutes on the content of collective agreements at paragraph26 that “… an arbitrator must look beyond the four corners of the collective agreement in order to determine the limits on an employer’sright to manage operations”. [57] I am satisfied that the jurisprudence permits a flexible approach to jurisdiction particularly as between labour relations boardsand labour arbitrators acting within the same legislative enactment to permit the parties to engage in consensual arbitration process thatinvolves dispute resolution arising out of “interpretation, application, administration of collective agreements”.

Consensual Arbitration [58] The parties agreed to a process for the expeditious resolution of a substantial labour relations issue by a consensual arbitrator. Despite some late reservations expressed by counsel for the employer and even by the arbitrator, the consensual proceeding concludedwith the arbitrator writing a lengthy decision finding against Sodexo. The arbitrator held that at the date of certification, the workers inthe bargaining unit were providing support services predominantly to construction workers engaged in the construction phase of the TataSteel project.

He ruled that Sodexo was therefore bound by the CLRA collective agreement. [59] Sodexo argued that the accommodations and catering facility near the ongoing iron ore mine with a future mill facility underconstruction in Labrador was a permanent fixture and not a project construction site at the date of the certification application. Ifdetermined to be the former, Sodexo argued that it would fall outside the ICI construction sector and require collective bargaining of aseparate site-specific collective agreement.

The consensual arbitrator concluded that at the date of the certification order, the cateringand accommodation facility was primarily operated as a facility to provide catering and accommodation services to persons principallyinvolved in that construction industry and not engaged in operating an iron ore mine and mill facility. [60] The arbitrator concluded that jurisprudence arising under the Act has broadened the definition of “construction industry” topermit the inclusion of catering and accommodations personnel who are unionized. See arbitrator’s reasons at pages 104-113 and the

reasons of Orsborn J. (as he then was) in United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 v. Marshall Industries Limited (1999), 49 C.L.R.B.R. (2d) 260 pages 107-113) . [ 61 ] I conclude that the arbitrator’s decision is reasonable and the subject matter is squarely within his expertise. The arbitrator’s conclusion is transparent, intelligible and evidence-based. There being an adequate evidentiary basis for the arbitrator’s decision, the arbitrator’s decision having provided sufficient reasons for its conclusion and the result coming within the range of rational outcomes, the decision is reasonable at law.

SUMMARY AND DISPOSITION [ 62 ] The applications judge erred by: (1) finding that the LRB had exclusive jurisdiction to determine whether the CLRA collective agreement with the appellant applied to unionized employees of Sodexo at the Tata Steel worksite which bargaining unit had been certified by the LRB; (2) failing to find that the consensual arbitrator had concurrent jurisdiction to decide the core issue being which collective agreement would apply to the parties i.e. the CLRA collective agreement with the appellant or a collective agreement to be negotiated by the parties. [ 63 ] In the result I conclude that the applications judge erred in finding that the consensual arbitrator was without jurisdiction to determine the applicability of the CLRA agreement to the project.

Therefore, the decision of the applications judge is set aside and the decision of the arbitrator restored. The appellant shall have its costs on a party and party basis under column three of the scale of costs. Appeal allowed.