1. Simulate an actual arbitration hearing and representing your side(employer),illustrate the key facts of the case,citing relevant jurisprudence to support your arguments.
2. In your assignment, describe the Arbitrator's ultimate ruling,outlining the circumstances that led to their decision.
3. As well, explain your key learning and/or"take-aways"from this case,

Supreme Court ofCanada

BellCanadav. Office & Professional Employees' Union, [1974] S.C.R. 335

Date: 1973-05-28

BellCanada(Plaintiff) Appellant;

and

Office and Professional Employees' International Union, Local 131(Defendant) Respondent.

1973: March 8, 9, 12; 1973: May 28.

Present: Martland, Judson, Ritchie, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour lawEmployee retired under company pension planGrievance describing retirement as dismissalArbitrator's decision that retirement form of dismissal and grievance therefore arbitrable under collective agreementJudge of first instance and Court of Appeal refusing to review decisionWhether error of law on face of award and excess of jurisdiction.

A member of a unit for which the respondent union was certified as bargaining agent was retired by the appellant company under the company's pension plan. The employee submitted a grievance that he had been dismissed without sufficient and reasonable cause. The company replied that he had been retired, not dismissed. The union, which had entered into a collective agreement with the company, gave notice to the latter that it was submitting the grievance to arbitration.

The company and the union agreed that the only matter that the arbitrator would deal with at an initial hearing would be the preliminary objection of the company that the grievance was not arbitrable. The arbitrator determined that retirement was a form of dismissal; that the grievance was covered by the collective agreement and was therefore arbitrable. The company's appeal from this decision was dismissed by the judge of first instance and a further appeal was dismissed by the Court of Appeal. With leave, the company then appealed to this Court.

Held(Laskin J. dissenting): The appeal should be allowed.

PerMartland, Judson, Ritchie and Spence JJ.: The Court of Appeal erred in failing to observe "the distinction between a case where disputes are

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referred to an arbitrator in the decision of which a question of law becomes material from the case in which a specific question of law has been referred to him for decision. In the first, the Court can interfere if and when any error of law appears on the face of the award but in the latter case no such interference is possible upon the ground that it so appears that the decision upon the question of law is an erroneous one.

This was not a case where the parties by agreement ousted the jurisdiction of the courts to determine a question of law by choosing to have that question determined by a judge of their own making. This matter came up in the ordinary course on the hearing of a grievance which was characterized by the employee as a dismissal and by the company as a retirement on pension. The preliminary objection to jurisdiction was all that was done on the first hearing before the arbitrator. He made his decision to proceed with the arbitration. There was nothing to prevent the company from asking the Court for an immediate review of this decision. The arbitrator's decision was one which the Court ought to have reviewed and reversed.

The arbitrator erred in law in finding that the employee had been dismissed, and the decision was made without jurisdiction under the collective agreement.

PerLaskin J.,dissenting: The exception of non-interference with awards of arbitrators should be liberally construed and, moreover, interference by the Courts should be confined to gross error.

Accepting, as did this Court in theFaubert and Wattscase that theAbsalomcase should be followed to preclude review where a specific question of law is referred rather than a general issue, the present case was a "special type of case where a different rule is in force, so that the Court will not interfere even though it is manifest on the face of the award that the arbitrator has gone wrong in law." The fact that the arbitrator might, as a result of his determination of the specific question of law, have to go on to a further issue of fact and law (namely, whether there was "sufficient and reasonable cause") did in no way alter the fact that he was expressly enjoined to determine and make an award on the question whether the termination of the grievor's employment (there being no facts in dispute as to this) was a dismissal under the collective agreement.

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However, even on the view that the whole issue was submitted to the arbitrator to be dealt with as a whole, his award should equally be left undisturbed. It could not be accepted that, in the context of the collective agreement, the arbitrator had made an error of law on the face of the record by concluding, after an examination of various authorities and by reference to the relations of the company and the union, that the term "dismissal" in the agreement was broad enough to embrace compulsory retirement of an employee against his will.

[Government of Kelantan v. Duff Development Co. Ltd.,[1923] A.C. 395;F.R. Absalom, Ltd. v. Great Western (London) Garden Village Society, Ltd.,[1933] A.C. 592;Faubert andWattsv. Temagami Mining Co. Ltd.,[1960] S.C.R. 235, referred to.]

APPEAL from a judgment of the Court of Appeal forOntario[1], dismissing an appeal from a judgment of Morand J. Appeal allowed, Laskin J. dissenting.

B.M.W. Paulin, Q.C., for the appellant.

Raymond Koski, for the respondent.

The judgment of Martland, Judson, Ritchie and Spence JJ. was delivered by

JUDSON J.The issue in this appeal is whetherBellCanada, having retired one of its employees at the age of 61 years in accordance with the provisions of its company pension plan, must go to arbitration on a grievance that described this retirement as dismissal. None of the facts in the case are in dispute.

In 1917,Bellinstituted a company pension plan for its employees. All payments into the plan are made by the company. Section4(1) (a) of the plan provides that all male employees who have reached the age of 60 and have worked 20 years or more for Bell "may, at the discretion of the Committee, be retired from active service and shall thereupon become entitled to and shall be granted pensions, which pensions are designated as 'service pensions'."

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This provision has been in the plan since its inception.

In 1966, the respondent on this appeal, the Office and Professional Employees' International Union, Local 131, was certified as the bargaining agent of certain employees of the company. OnJuly 6, 1970, the union and the company entered into a collective agreement effective January 1, 1970. The two following articles dealing with dismissal or suspension and grievances are the central matters of this appeal:

Article 8Dismissal or Suspension

The Company may dismiss or suspend an employee for sufficient and reasonable cause.

Article 14Grievances

Section6...

A grievance which is not related to the interpretation or alleged violation of this Agreement may not be referred to an arbitrator.

Neither the retirement of employees due to age nor the pension plan are referred to in the collective agreement.

OnApril 10, 1970, L.V. Garvin was retired byBellwith a pension under the company pension plan. He was 61 years old, and had worked forBellfor almost 36 years. He was a member of the unit for which the union was certified as bargaining agent.

On December 31, 1970, he submitted a grievance that he had been dismissed without sufficient and reasonable cause.Bellreplied that he had been retired, not dismissed. Pursuant to art. 14 of the collective agreement, the union gave notice toBellthat it was submitting the grievance to arbitration, and suggested that Paul C. Weiler be appointed arbitrator. In a letter to the union, counsel forBellacknowledged receipt of the notice to arbitrate, but added:

In such acknowledgment, however, we must make it clear that we do not acknowledge that the grievance

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is a proper grievance for arbitration under the collective agreement. Our client's position is that no arbitrator appointed under the agreement will have any jurisdiction to consider the matter because, by the express terms of the collective agreement, the right to arbitration does not extend to any matters other than those concerning the interpretation or alleged violation of the agreement.

Having said this, we are prepared to agree to the appointment of Paul C. Weiler as arbitrator without prejudice to our client's position as outlined above.

The company and the union agreed that the only matter that the arbitrator would deal with at the first hearing would be the preliminary objection of the company that the grievance was not arbitrable. The arbitrator determined that retirement was a form of dismissal; that the grievance was covered by art. 8 of the collective agreement and was therefore arbitrable. The company appealed from this decision. Both the judge of first instance and the Court of Appeal dismissed the appeal on the very narrow ground that the case was one in which a specific question of law had been referred to an arbitrator for decision and that the Court could not intervene even if it appeared to the members of the Court that the arbitrator's decision upon this question of law was erroneous.Government of Kelantan v. Duff Development Co. Ltd.[2]andF.R. Absalom, Ltd. v. Great Western (London) Garden Village Society, Ltd.[3]were cited as authorities for this decision.

These cases were considered by Kerwin C.J. in a unanimous decision of this Court inFaubert and Watts v. Temagami Mining Co. Ltd.[4], at p. 241. His comment is as follows:

The authorities are all mentioned in the 16th ed. of Russell on Arbitration but reference might be made particularly to the judgment of the House of Lords inAbsalom Ltd. v. Great Western (London) Garden Village Society Ltd.Lord Russell with the concur-

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rence of Lord Buckmaster and Lord Tomlin, at p. 607, points out that the authorities make a clear distinction between a case where disputes are referred to an arbitrator in the decision of which a question of law becomes material from the case in which a specific question of law has been referred to him for decision. In the first, the Court can interfere if and when any error of law appears on the face of the award but in the latter case no such interference is possible upon the ground that it so appears that the decision upon the question of law is an erroneous one.

My opinion is that the Court of Appeal erred in failing to observe this distinction noted by Kerwin C.J. This is not a case where the parties by agreement ousted the jurisdiction of the courts to determine a question of law by choosing to have that question determined by a judge of their own making. This matter came up in the ordinary course on the hearing of a grievance which was characterized by the employee as a dismissal and by the company as a retirement on pension. It is obvious from the letter which the company wrote when it consented to the appointment of the arbitrator that there would be a preliminary objection to jurisdiction. This was all that was done on the first hearing before the arbitrator. He made his decision to proceed with the arbitration. There was nothing to prevent the company from asking the Court for an immediate review of this decision. The arbitrator's decision was one which the Court ought to have reviewed and reversed.

Article 8 of the collective agreement reading, "The Company may dismiss or suspend an employee for sufficient and reasonable cause", cannot possibly be read as "dismiss, or suspend, or retire on pension". Until the words "retire on pension" appear in art. 8 of the collective agreement, there can be no basis for the arbitrator's decision. Dismissal, suspension and retirement on pension are three different and distinct concepts.

The result is that the arbitrator exceeded his powers. By art. 15(3) of the collective agreement, he has no power "to alter or change any

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of the provisions of this Agreement, or to substitute any new provisions for any existing provisions thereof, or to add any new provisions, and in reaching his decision he shall be bound by the terms and provisions of this Agreement."

I would allow the appeal, quash the decision under appeal and declare (a) that the arbitrator erred in law in finding that the employee had been dismissed, and (b) that the decision was made without jurisdiction under the collective agreement. Pursuant to the company's undertaking when leave to appeal was granted, there will be no order for costs in this Court and in any other of the proceedings in this matter.

LASKIN J. (dissenting)OnDecember 31, 1970, an employee of the appellant company lodged a grievance under art. 8 of its collective agreement with the respondent union, complaining that he had been dismissed without sufficient and reasonable cause. Article 8 limits the company's power to dismiss or suspend by stipulating that it be "for sufficient and reasonable cause". The company replied to the grievance that the employee had not been dismissed but had been retired under its pension plan. This plan, unilaterally instituted and operated, antedated the establishment of collective bargaining relations between union and company, and it remained outside of the collective agreements negotiated between the parties after the certification of the union on July 28, 1966.

The matter came ultimately to arbitration, and the company took the position that it was not arbitrable. It founded itself on the contention that retirement was not comprehended by the collective agreement; and since s.1 of art. 13 confined arbitration to matters concerning the interpretation or alleged violation of the collective agreement, it alleged that there was no subject-matter for the arbitrator. The parties agreed that the arbitrator should decide the

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question of arbitrability first. If his decision was adverse to the union that would end the matter so far as arbitration under the collective agreement was concerned; if adverse to the company, there would still be the question whether it had "sufficient and reasonable cause" to dispense with the employee's services as it did.

The arbitrator decided, after a canvass of many cases, including judicial decisions as well as arbitration awards, that compulsory retirement of an employee was in this case a "dismissal" within art. 8, because it involved termination of employment against the employee's will. He remitted his award to the parties on the question of arbitrability, indicating that he would reconvene them to hear argument on the merits.

The company brought a motion for an order "declaring and determining the rights of the parties under [the] preliminary arbitration award". It contended that there was error of law upon the face of the award and excess of jurisdiction. Although the notice of motion did not say so, I am prepared to treat it as requesting an order to set aside the award. I refer in this connection to the reasons on this point inPort Arthur Shipbuilding Co. v. Arthurs[5], at pp. 9495.

The company failed before Morand J. and similarly before the Ontario Court of Appeal. Neither the judge of first instance nor the Court of Appeal made any finding that there was error of law on the face of the award, nor did they even mention that the arbitrator's jurisdiction was in question. They proceeded on the view (in the words of Schroeder J.A. speaking for the Court of Appeal) that

the dispute referred to the arbitrator is not one in which a question of law only became material in the decision of the issue before him, but rather one in which a specific question of law has been referred to

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him for decision. It follows that this Court cannot intervene even if it appeared to the members of the Court that the arbitrator's decision upon the question of law was erroneous.

The company subsequently sought and was given leave by the Ontario Court of Appeal to come to this Court on terms of renouncing all costs if successful.

Conceding that the arbitrator in the present case was a consensual non-statutory arbitrator, counsel for the company took issue with the judgments below on two main grounds. He urged, first, that even if a specific question of law had been referred to the arbitrator, it was open to the Court to set aside the determination of that question by the arbitrator for error of law on the face of the record and for excess of jurisdiction, both of which, he alleged, were evident in the challenged award. Second, it was his submission that this was not a case where a specific question of law was referred to the arbitrator but rather one where a general question arose of his jurisdiction to entertain the grievance under the collective agreement; and in such a case, so counsel's argument went, the Courts could review the award on the issue of jurisdiction and on errors of law as well. Counsel for the union supported the judgments below on the basis on which they proceeded, and beyond that he contended that the arbitrator had addressed himself to the issue committed to him and had resolved it within the framework of the collective agreement; there was accordingly no error of law or excess of jurisdiction.

Although both parties proceeded in this appeal on the footing that in the case of awards of a consensual arbitrator the scope of judicial review depends on whether or not a specific question of law was referred to the arbitrator, they differed on what is meant by a reference of a specific question of law, they differed on what

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was the scope of judicial review if there was such a reference, and they differed on the application of this distinction to the present case.

To begin at the beginning, it is my opinion that the company was wrong in asserting prior to the arbitration that an issue of arbitrability was involved if by that it meant that the arbitrator's jurisdiction depended on whether the termination of services was a dismissal. Whether it was a dismissal within art. 8 of the collective agreement was at the core of the grievance, involving an interpretation of a term of that agreement; and I can see no difference between that issue and any other issue involving the construction of a term of the agreement which may result in rejection of the grievance without consideration of its merits. This holds for reliance on art. 13 herein no less than for reliance on art. 8.

What the parties agreed to in this case was that the arbitrator should first determine and make an award upon the question whether, as a matter of construction of art. 8, it comprehended under the term "dismissal" unilateral compulsory retirement of an employee by his employer. I hold that this was a reference of a specific question of law, within the meaning of the distinction taken in such cases asF.R. Absalom, Ltd. v. Great Western (London) Garden Village Society, Ltd.[6], and inFaubert and Watts v. Temagami Mining Co. Ltd.[7]The Ontario Courts correctly applied this distinction in rejecting the company's motion to quash the award.

Whether the distinction is a sensible one in relation to labour-management arbitrations in Ontario, whose legislation excludes the application thereto of the provincialArbitration Act,is to me a highly arguable question. It must also be

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kept in mind that we deal here with arbitration that does not involve attempted ousting or the postponing of the jurisdiction of the Courts because the Courts in this country have not claimed any original authority to interpret and enforce collective agreements. They have only claimed to review awards of arbitrators under such agreements for want of jurisdiction or errors of law on the face of the record. I am content in the present case to consider the award under those rubrics and, for reasons set out below, I do not find any want of jurisdiction or any reviewable error of law to justify interference with the award. Before turning to those reasons, I wish to expand on my view that what I may call for convenience theAbsalomdistinction has been correctly applied by the Courts below.

That distinction, creating an exception to the reviewing power of the Courts, was itself the product of a development in which review for error of law on the face of the record arose originally as an exception to a rule of non-interference with awards of arbitrators: seeKent v. Elstob[8]. Oft cited in this connection is the dictum of Williams J. inHodgkinson v. Fernie[9], where he said (at p. 202 of 3 C.B. (N.S.) and p. 717 of 140 E.R.):

The law has for many years been settled, and remains so at this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact... The only exceptions to that rule, are, cases where the award is the result of corruption or fraud, and one other, which, though it is to be regretted, is now, I think, firmly established, viz. where the question of law necessarily arises on the face of the award, or upon some paper accompanying and forming part of the award. Though the propriety of the latter may well be doubted, I think it may be considered as established.

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This dictum extended a much narrower basis of intrusion by the Courts reflected in earlier cases. For example, inKnow v. Symmonds[10], Lord Thurlow L.C. said (at p. 370 of 1 Ves. Jun., p. 391 of 30 E.R.):

A party to an award cannot come to have it set aside upon the simple ground of erroneous judgment in the arbitrator; for to his judgment they refer their disputes; and that would be a ground for setting aside every award. In order to induce the Court to interfere there must be something more; as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by evidence: but in case of mistake it must be made out to the satisfaction of the arbitrator; and the party must convince him, that his judgment was influenced by that mistake; and that, if it had not happened, he should have made a different award. But this relates only to a general reference to arbitration of all matters in dispute between the parties... Upon a general reference to arbitration of all matters in dispute between the parties the arbitrator has a greater latitude than the Court, in order to do complete justice between the parties;...

This position was followed by the House of Lords as late as the last decade of the 19th century: seeW.&T. Adams v. Great North of Scotland Ry. Co.[11], at p. 39. None the less, the wider basis of review noted inHodgkinson v. Fermie, supra,took hold in England and was followed in this country: seeJohn A. McRae & Co. v. Lemay[12];A.-G.Man.v. Kelly[13].

The considerations which originally persuaded the English Courts not to interfere, and certainly not save for grave reasons, with awards of arbitrators, namely, the evident wish of the parties for a non-curial determination and the desire for expedition as well as finality, without courting appeals, gave rise to an exception from what became the general rule, although the general rule was itself originally an exception. The

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words of Wilde C.J. inDoe d. Stimpson v. Emmerson[14]appear to be addressed to this matter when he spoke as follows:

The Court has no more authority to review the arbitrator's decision upon a point of law referred to him than upon a point of fact. Whatever may have been formerly the understanding, it is enough to say that in modern times the decisions are distinct and uniform; that if parties choose to refer a matter of law to an arbitrator, his decision upon the matter is final.

This view was restated, on the footing of it being an exception to a general rule, by Channell J. inRe King and Duveen[15], at p. 35, as follows:

It is no doubt a well-established principle of law that if a mistake of law appears on the face of the award of an arbitrator, that makes the award bad, and it can be set aside... [note how watered down the exception has become] but it is equally clear that if a specific question of law is submitted to an arbitrator for his decision, and he does decide it, the fact that the decision is erroneous does not make the award bad on its face so as to permit of its being set aside. Otherwise it would be futile ever to submit a question of law to an arbitrator.

I question whether the concluding sentence, stating the rationale for the exception, is any less valid in relation to the submission of a general issue to arbitration. Be that as it may, the whole development indicates to me that the exception of non-interference should be liberally construed. Moreover, if the general law of arbitration and reviewability of awards is to be applied to labour-management arbitrations under collective agreements, where the Courts have no original jurisdiction, it appears to me to be plain sense to confine interference to what, for want of precise definition, I would call gross error. Especially in a situation of ongoing collective bargaining relations, where the parties themselves legislate for the common enterprise and provide their own supervisory and administrative machinery without judicial oversight,

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they should be equally left pretty well alone with their adjudicative machinery.

I would, accordingly, be inclined not to submerge the exception in order to find a ground of review. That there can be difficulty in determining when a specific question of law has been referred to arbitration is evident fromGovernment of Kelantan v. Duff Development Co., Ltd.[16], where Viscount Cave L.C. held that a specific question of law had been referred, Lord Trevethin held that there was no such specific reference, and Lord Parmoor held that it was unnecessary to decide that question.

Accepting, as did this Court in theFaubert and Wattscase,supra,that theAbsalomcase should be followed to preclude review where a specific question of law is referred rather than a general issue, I am of opinion that the present case falls squarely within the words of Lord Wright, as follows (at p. 615 of [1933] A.C.):

...there is the special type of case where a different rule is in force, so that the Court will not interfere even though it is manifest on the face of the award that the arbitrator has gone wrong in law. This is so when what is referred to the arbitrator is not the whole question, whether involving both fact or law, but only some specific question of law in express terms as the separate question submitted; that is to say, where a point of law is submitted as such, that is as a point of law, which is all that the arbitrator is required to decide, no fact being, quoad that submission, in dispute.

In the present case, the fact that the arbitrator might, as a result of his determination of the specific question of law, have to go on to a further issue of fact and law (namely, whether there was "sufficient and reasonable cause") does in no way alter the fact that he was expressly enjoined to determine and make an award on the question whether the termination of the grievor's employment (there being no

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facts in dispute as to this) was a dismissal within art. 8.

Apart from bias or fraud, there is no half-way house under the distinction accepted by this Court in theFaubert and Wattscase to support review on some limited legal ground where a specific question of law alone is referred for determination and award. I make this point because of a contention to this effect by counsel for the appellant, relying,inter alia,on the reasons ofLordCavein theKelantancase which were quoted with approval and applied by the Ontario Court of Appeal inRe MetropolitanTorontoBoard of Commissioners of Police and MetropolitanTorontoPolice Association[17], at p. 800. The quotation fromLordCave's reasons is as follows:

No doubt an award may be set aside for an error of law appearing on the face of it; and no doubt a question of construction is (generally speaking) a question of law. But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegallyfor instance, that he has decided on evidence which in law was not admissible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent of the Court from the Arbitrator's conclusion on construction is not enough for that purpose.

This position was neither quoted nor discussed by this Court in theFaubert and Wattscase which adopted the distinction as laid down in theAbsalomcase. As there laid down, it is not in the diluted form expressed byLordCavein theKelantancase. I would add that even on the view expressed byLordCave, the arbitrator neither acted on inadmissible evidence nor on principles of construction which the law does not countenance.

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However, even if the other view be taken, namely, that the whole issue was submitted to the arbitrator to be dealt with as a whole, his award should equally be left undisturbed. In short, I cannot agree that, in the context of the collective agreement, an arbitrator has made an error of law on the face of the record by concluding, after an examination of various authorities and by reference to the relations of the company and the union, that the term "dismissal" in art. 8 is broad enough to embrace compulsory retirement of an employee against his will.

The review of the arbitrator's decision by a Court is not an appeal in which a Court may properly substitute its own opinion on the correctness of the arbitral determination. Whether I as an arbitrator or as a judge would have come to the same conclusion is not a dominant consideration. Is it so clear that a unilateral discretionary termination of service, such as occurred under the company-administered plan, must be held, as a matter of law, not to be a dismissal because the company refers to it as a retirement? "Retire" is both intransitive and transitive in the dictionaries, and certainly the grievor did not retire but was retired. In plain English, he was put out of his job. An arbitrator who concludes that he was dismissed, but without deciding the question of "sufficient and reasonable cause" is, in my view, not giving an outrageous meaning to the term "dismissal" under a collective agreement providing for the amicable settlement of grievances and, ultimately, for the arbitration of grievances "relating to the interpretation or alleged violation" of the collective agreement. The arbitrator in the present case is not the first one who has held that compulsory retirement at the instance of the employer alone is arbitrable as a discharge. His reasons cite cases in which other arbitrators, indeed judges acting as arbitrators, have so held.

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The considerations which to me are material on this point are these. First, the collective agreement is a comprehensive document dealing with the employment relations of the company and members of the bargaining unit. Second, art. 8 does not deal with dismissalsimpliciterbut with dismissal "for sufficient and reasonable cause". There is, therefore, no compelling reason to contrast (as being mutually exclusive) dismissal with retirement at the unilateral instance of the company any more than there would be compelling reason to contrast dismissal with termination of services because of alleged redundancy. In all these cases, there is termination of service involved, and the question that arises is not whether the employer is deprived of its initiative to bring about that termination but whether its decision should be subject to the grievance and arbitration machinery of the collective agreement.

I repeat my opinion that it was open to an arbitrator to conclude that an employee should have the benefit of the grievance and arbitration machinery whenever his employment is terminated, and not be exposed to an arbitrary distinction between dismissal and retirement based on a unilateral employer policy and on a unilateral use of language which had never been incorporated into the collective agreement to make the distinction which is now put forward as being a matter of law.

It remains to comment onCanadian Car & Foundry Co. Ltd. v. Dinham[18], which was urged as an authority in favour of the appellant's contention on the merits that there was error in law on the face of the record in the arbitrator's conclusion in the present case. TheDinhamcase originated in a grievance claiming a violation of the seniority clause in the compulsory retirement of a number of employees under an employer pension and retirement plan which was not part of the collective agreement but was introduced during its currency. The matter went

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to arbitration in respect of an employee Dinham and the employer's position was sustained. This determination was not challenged by any petition for reviewand, in my opinion, such a challenge would not have succeededbut an independent action was brought by Dinham for damages for wrongful dismissal. This Court held, when the case came before it on appeal from a judgment of the Quebec Court of Appeal in the plaintiff's favour, that he was bound by the arbitration decision. Abbott J. speaking for the Court added that in any event he was in agreement with the decision of the arbitrators. He expressed himself in this connection as follows:

The determination of a mandatory retirement age, applicable to all employees, is clearly a function of management. While it may well be that the age at which such compulsory retirement should become effective could be made the subject of a collective agreement, the agreement under consideration here, does not touch upon it.

As will be seen from perusal of the agreement, seniority rights have no direct relationship to the age of an employee, but generally speaking are based upon length of service of such employee in a particular department or classification. A man 65 years of age might well have less seniority than a very much younger man. In my opinion, compulsory retirement at age 65 is not a violation of the clauses in the collective agreement respecting seniority rights, nor did appellant violate any other provision of the collective agreement when, during the pendancy of that agreement, it established, as company policy, that all employees in all divisions of the company should be retired upon attaining the age of 65 years.

This expression of opinion, related mainly to seniority protection afforded by a particular collective agreement, is far from a holding that, on judicial review of an arbitrator's decision on the construction of a discharge clause, there is inevitably error of law on the face of the record if the arbitrator has concluded that "dismissal" embraces compulsory termination of service

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under an employer-operated retirement plan which is not part of the collective agreement under which the arbitrator acted.

Re Sandwich, Windsor and Amherstburg Railway Co.[19]is not of any assistance here because, as McGillivray J.A. pointed out in dissent, retirement had been bargained for to some extent, and the concern was with the scope of the retirement provisions. The fact that there was a dissent and that the majority reversed the refusal of Spence J., then a member of the Ontario Supreme Court, to interfere with award of a board of arbitration indicate to me the restraint with which a Court should approach review of an award which is not patently unjustifiable.

I would, on the grounds set out and for the reasons given, dismiss the appeal with costs.

Appeal allowed, LASKIN J. dissenting.

Solicitors for the appellant: White, Bristol, Beck, Toronto.

Solicitors for the respondent: Robins & Robins, Toronto.