“ARE QUEBEC ARBITRATION PROCEDURES OBSOLETE?”
A PANEL DISCUSSION
Chairnmn: PROFESSOR MAXWELL COHEN, Q.C.
Present: MR. MARc LAPOINTE.
MR. A. L. STEIN, Q.C.
MR. P. CUTLER.
topic “Are Quebec Arbitration Procedures Obsolete”-
EDITOR’S NOTE:-As a special added service, the McGill Law Journal
herewith publishes the following excerpts from the transcript of a panel
discussion-on the
which took place on Wednesday, March 1, 1961, at Chancellor Day Hall, Faculty
of Law, McGill University. The panelists were Messrs. Marc Lapointe, P.
Cutler and A. L. Stein, Q.C., prominent members of the Bar of Montreal and
widely-experienced lawyers in labor law matters. The chairman was Professor
Maxwell Cohen, Q.C. The Editors of the Joiernal feel that the views expressed
at this panel discussion are of interest and significance to all members of the
legal profession, in this province and beyond, and are particularly timely in view
of the proposed amendments to labour legislation in Quebec. The kind permission
of the panel members to print their views-which were orally presented and were
for the most part “off the cuff-is gratefully acknowledged.
THE CHAIRMAN: This marks one of the enterprising occasions when McGill
University has managed to have visit us people in a field of considerable interest
to this Faculty dealing with subjects of wide legal and social concern.
The subject of the Panel today –
“Are Quebec Arbitration Procedures
obviously poses the question of, first, determining the scope
Obsolete?” –
of arbitration in this province. It poses the question as to how far the practice
in this province of arbitration has been successful in solving disputes, how far
the relations of arbitral process and judicial process have impinged on each
other, and what the courts have said about the arbitral process. It also poses
the question whether the arbitral process is favoured or not favoured by manage-
ment or labour, and for what reasons.
(The Chairman then proceeded to introduce the panel members).
It gives me great pleasure to call on Mr. Lapointe.
MR. LAPOINTE: Mr. Chairman, first of all I shall assume that we will prolong
the mistake as far as terminology is concerned and we will include in this
McGILL LAW JOURNAL
[Vol. 7
discussion the type of arbitration which is not actually “arbitration”, properly
speaking, although it is given that name in Quebec. I am obviously talking of
interest disputes. We will include these in our discussions. In other words,
we shall be dealing with disputes, covered by the Labour Relations Acts,
between the parties when a contract is discussed for the first time after certifica-
tion and a collective agreement is sought as well as when one of these collective
agreements is renewed: in other words, in either case, when the parties do not
have any rights but have only interests.
We shall also cover today that type of dispute where the parties disagree
on an alleged violation or interpretation of an agreement that has already been
concluded. That is the real arbitration. In the Province of Quebec, there is a
non-statutory arbitration; the law forces the parties to go through an
“arbitration” setup which is not really an arbitration simply because the law
does not add that it has to be final and binding. However, conventionally the
parties always put a clause in their collective agreement whereby they agree
that they are going to be bound-that is conventional arbitration. Finally,
there is the third type, the true statutory type of arbitration, which exists in
the case of public services and their employees, and where the law states that
for any kind of dispute, both interest and rights disputes, there is going to be a
final and binding arbitration, provided for in the Act itself.
The question before us today is: Has this type of arbitration become obsolete
or is it obsolete? I say that I do not think it can be obsolete because it never
got off the ground properly as far as I am concerned. There should never have
been, I think, any attempt to force parties to go through that kind of procedure,
a procedure which is not final and binding. I have always.strongly disagreed
with this type of legislation which leads nowhere unless the parties agree
beforehand to submit to it. I admit, however, that it has served some kind of
purpose, in the case of a union which is not very militant or in the case of a
weak union. They have enjoyed this type of.procedure, where they can use
public opinion or publicity over an interest dispute in an attempt to get an
employer to sign an agreement to which they are going to be amenable. Outside
of that I do not think there is any justification for that type of system and
therefore I repeat, I do not think it is a question of being obsolete or not; I do
think it should never have been enacted. There is talk presently of amending
that whole area of labour legislation in the Province of Quebec.
Dealing with the second type, that is arbitration within a collective agree-
ment for disputes re the interpretation or alleged violation of a collective
agreement; in Quebec it is usual, conventionally, that the parties agree to be
bound. This type of arbitration may be achieved in two ways. I refer you again
to Section 24, second paragraph, of the Labour Relations Act. It states that
the parties may invent their own system of arbitration. We call that in this
field, the private arbitration system. Or the parties may refer to the system
found in the Quebec Trade Disputes Act, a three man board. In both instances,
No. 4]
QUEBEC ARBITRATION PROCEDURES
in the majority of cases where you have large firms and large unions, they agree
to be bound conventionally by that type of arbitration.
This experience, especially the first one where the parties invent their own
sustem of arbitration, has I think been very useful and has had very happy
results. The parties have learned through this experience with arbitration to
tighten up clauses and collective agreements. They have learned to respect
collective agreements. All these types of system have been extremely successful.
In the case where the parties have to. go to the Quebec Trade Disputes Act,
where the chairman may be appointed by the government if the parties fail to
agree, this type has also been successful although to my mind less successful
than private arbitration. The reason is that unfortunately, the delays seem to
be longer in the case of disputes that go through this process. The second
reason, I think, why there have been difficulties is because the Department of
Labour insists that when you adopt this system, the parties first go to a
conciliator. I have found out in practice that a conciliator can never achieve
very much where it is a case of interpreting whether it is right or wrong or
“black and white”, and sometimes he confuses the issue and actually creates
antagonism between the parties before they finally reach the adjudicating body,
that is the third person.
Finally, I come to the public services and their employees, e.g. school
teachers, municipal employees. There I will have to distinguish again between
interest disputes and rights disputes. Regarding
interest disputes, we have
found that this system of statutory arbitration has to a’grave extent killed
collective bargaining. The parties do not any more risk collective bargaining
because they know that eventually they may end up in an arbitration which is
going to be final and binding; i.e. it becomes like a judgment, it creates a title
in the beneficiaries of the arbitration award.
Apart from the fact that it has killed collective bargaining, we also have to
realise that it has resulted in long delays in the process because the government
when this law was enacted, had to constitute within a matter of one year
something like two or three thousand of these arbitration boards. This is due
to the semi-permanent character of these boards (2 years). Obviously the
government, having to find that many chairmen, could not do it and it had to
adopt a system whereby the province war zoned areas of jurisdiction were
assessed to judges. If one morning the various school commissions or municipal
corporations involved in a dispute with their employees were to ask for
arbitration, for these boards to sit, they would be completely flooded. In some
cases where they have had to face many arbitrations in a given zone it has
created tremendous delays which in turn has created a lot of irritation.
That leaves a last question. How competent are three men to decide accurate-
ly and finally whether a school teacher should get a $5.00 increase per week or
per month instead of $2.00 or $3.00? What are the criteria? Are we advanced
McGILL LAW JOURNAL
[Vol. 7
far enough to establish criteria in interest disputes? That is what they do.
The arbitrators substitute themselves for the parties in their collective
bargaining to a great extent and that is why it has killed collective bargaining.
Regarding rights disputes. I think arbitration in the public services has been
a very successful thing. As a matter of fact, we note as we progress in that area,
as well as in the. general area of industrial arbitration for collective agreements
between companies and unions, that we are very very rapidly approaching a
stage where it resembles more and more litigation in front of a normal court.
For instance, my confrre here may tell you that we have started recently, in
recent years to throw at each other jurisprudence, interpretation rules of similar
types of clauses in collective agreements from right across Canada, and I think
that is quite proper and quite correct and will probably develop as we go along.
If I-may summarise, I do not think we should say that arbitration of interest
disputes is obsolete. I do not think it should ever have existed. So far as
arbitration of rights disputes are concerned I think it is far from obsolete.
I think it has played a very useful role in the recent years. It has been the most
active and fortunate development in labour relations, and I think that the
proponents –
and there are proponents at this moment for labour courts,
real labour courts, similar for instance to the French tribunaux de Prudhomme
– of that ideal will have a hard time in rights disputes to substitute” courts for
Arbitration Boards.
MR. STmIN: Mr. Chairman, ladies and gentlemen, may I express my personal
and keen pleasure, and I am sure that of my colleague Mr. Cutler’s as well, at
the opportunity of being here before you and participating in the panel dis-
cussion with your lecturer, Mr. Marc Lapointe, particularly under the chair-
manship of your Acting Dean, Professor Maxwell Cohen.
The topic today is not a new one for me and yet, being compelled as we are
in matters of this kind to review the subject, it astounds me how many new
aspects, how many fresh points seem to arise in my mind. To cover the whole
area would be a very difficult task. Certainly it would be an undertaking I
could not attempt in a matter of ten or fifteen minutes, hence our plan is for
each speaker to confine himself to a different area.
It is my intention to deal with the provisions of the Quebec Trade Disputes
Act. I will try do so in a very brief and perhaps sketchy review.
May I point out at the outset that under the Labour Relations Act, as well
as under one or two other of the labour laws of this province, reference is made,
when dealing with conciliation or arbitration, but more particularly with
arbitration, to the Quebec Trades Disputes Act. In other words, under the
Labour Relations Act, for example, where certification is given to a union and
the union then attempts to negotiate with the employer, as it is compelled to
do by that Act, if the negotiations break down the law provides that they
(the parties) are compelled to go through the process of arbitration in ac-
No. 4]
QUEBEC ARBITRATION PROCEDURES
cordance with the Quebec Trades Disputes Act. Similarly in the case of the’
Public Services Employees Disputes Act. and other labour statutes. Of course,
as Mr. Lapointe has indicated, there are many conventional agreements, with
the provision, that in the event of disagreement, grievance or dispute, if the
parties cannot solve the problem it must be solved by the procedure set up.
under the Quebec Trades Disputes Act. Consequently, it is very important
for you to carefully review this Act and consider it in the light of our topic
–
“is it obsolete”?
It is my considered opinion that it is obsolete. The Quebec Trades Disputes
Act was consented to in 1901. -Ini essence it has not changed in sixty years. Hence
I think you are entitled to consider it, at Ieast, as fairly ancient. In sixty
years our country and our province have certainly advanced beyond the con-
ception of the legislative fathers who drafted this Act, for they had in mind
at the time, I believe, a simple formula for the prevention of strikes or lockouts.
I refer you, therefore, to the preamble of the Act, which is both interesting,
and revealing as to the intention of the legislators,
“Whereas the establishment of councils of conciliation and arbitration for the friendly
settlement of disputes between employers and employees will induce the culmination and
maintenance of better relations and more active sympathies between employers and employecs
and would be in the. public interest”
and this is most significant –
“by providing simple methods for prevention of strikes and lockouts.”
The Act basically comprises two parts, a part which sets up or establishes
a council of conciliation and a part which sets up a council of arbitration, as
they call it, but which we can call a board of arbitration to distinguish more
readily between the two.
A registrar is appointed to act for both parts of the Act. This registrar is
given some rather wide powers. It is interesting to not- the provision that he is
to be chosen from among persons performing other duties in public service. It is
a part-time job in effect. It is partly clerical and partly the work of a conci-
liator. He is given the power to “do all such other things as may be required
to carry out this Act and to perform all other duties prescribed by the Minister
of Labour.” He has the right to summon witnesses. He is appointed by the
Lieutenant Governor in Council. Note his name, particularly, as “Registrar”.
Subsequently, when you refer to Articles 13 and 14 of the Labour Relations
Act you will find a reference to a man called the “conciliation officer”.
I confess that I know of no official position called the “conciliation officer”,
other than that the registrar has, implicitly if you wish, the power to act as
a “conciliation officer”. Yet in practice you will find that there is a chief
conciliation officer for this district, of Montreal. Moreover, both he and his
deputies or assistants or, to be brutally frank, his clerks, young men of rather
limited training, frequently summon the negotiating parties to attend at the
McGILL LAW JOURNAL
[Vol. 7
so-called conciliation offices for the purpose of disclosing their differences, to
the conciliator whom they meet for the first time.
The Act also defines a trade dispute and, speaking very quickly, this means
when there is a strike or the threat of a strike. I think this definition is suffi-
cient for the purpose of our discussion today.
The registrar may be approached by either one of the disputing parties or
he may take cognizance of the strike or threatened strike himself by virtue of
the fact that he finds this out through newspapers or some other means. In
modern times, it is hardly likely that the registrar, if he is the conciliation
officer, reads every newspaper in the Province of Quebec. Consequently he is
now informed as to strikes in the various municipalities, particularly since today
we have many districts which are very far from the district office of the chief
conciliation officer.
The Act also provides for the composition of the council of conciliation.
It is supposed to comprise four members, two appointed by one disputing
party and two by the other. There is provision for their official appointment
by the Minister of Labour; upon a request from each side, cognizance is taken
of the appointments and such appointees are given the positions as members
of the council of conciliation.
What is amusing is the fee to be paid to such conciliation councillors; a
fee which has not been changed since 1901. For the preliminary meeting each
councillor is to receive $3.00, for a whole day sitting $4.00, and for a half-day
sitting $2.00 In twenty-five years I have yet to refer an industrial dispute in
which my clients have been interested, to a council of conciliation. Apart from
public service disputes where there might have been the possibility of using a
council of conciliation, I do not think there have been many cases of councils
of conciliation set up in the manner proposed under the Act. They have no
powers to speak of –
except “to try with all due dispatch to bring the parties
to an agreement or have them agree to arbitration, or failing such an agree-
ment to submit the matter to arbitration.” So much for the first part of the
Act, that is the part dealing with the establishment of a council of conciliation.
In my humble opinion, this entire section should be repealed; it is obsolete and
nobody in recent years has made use of the council of conciliation as it is
provided for under this part of the Quebec Trade Disputes Act.
We now come to the second section, which deals with the council of arbi-
tration or the board of arbitration. Here we have a council or a board of three;
of which the first two are appointed, one by each litigating or disputing party,
and the third or chairman by the two thus appointed. The first two appoint-
ments are madd known to the Minister of Labour who then approves their
nomination to the Board. These two meet within brief delay thereafter and
select from a list submitted to them, usually by the chief conciliation officer,
the third member of the Board or chairman. At one time the Department of
No. 4]
QUEBEC ARBITRATION PROCEDURES
Labour used to have a list of judges and other prominent people for this purpose.
Today there is a list of lawyers for the same purpose.
One of the provisions of the Act, Article 18, requires that the chairman,
if selected by agreement between the two arbitrators, should be a competent
person. No other qualification is required. On the other hand, if the parties
do not agree and the Minister then selects the impartial chairman of the board,
there is some further qualification required. In such case, it is necessary to
appoint an “experienced, impartial person not personally connected with or
interested in any trade or industry or likely by reason of his occupation, busi-
ness, vocation or other influence to be biased in favour of or against employers
I am intrigued by the words “not likely by reason of his
or employees.”
business, occupation, or vocation or other influence to be biased.”
The fee paid to these arbitrators is hardly in keeping, in my humble opinion,
with the kind of work which each of these arbitrators is required to do, nor
in keeping with the duties they are supposed to fulfill.
In my opinion there is no need for three arbitrators. It is useless to appoint
a representative of one of the litigants or disputing parties as an arbitrator.
Usually it necessitates two lawyers to act for the same client, one on the board
and one pleading in front of the board, Frequently I do not know which
position to take, whether I should be in front of the Board as a pleader, or
behind the scenes as an arbitrator, this depending largely on who the chairman
happ-ns to be! This is a contradictory position which should be eliminated.
The fees for arbitrators are limited to $20.00 a day now. It used to be $10.00
a day. Surely a busy lawyer could not afford to close his office for say, a period
of five days or a working week to earn the munificent fee of $100.00 for the week.
It would hardly pay for the weekly salary of a competent secretary today let
alone the other expenses of an office. Similarly, with respect to the chairman.
Here you need someone with considerable experience and training who can
render a decision in a trade dispute and it is suggested that someone of that
competence should act on a full-time basis at a fee of $30.00 a day! The Act
also provides that sittings of the arbitration board are to be public but may
be made private if the chairman so rules. I see no reason why, under Section 24
any of the sittings of an arbitration board, except when it deliberates, should
be private. Privacy is permitted in our judicial system in certain rare and well
defined cases, but certainly should not be a matter of the chairman’s discretion
in the case of an arbitration or a legal dispute between a union, and its members
and an employer or an association of employers.
Finally, there is a provision under the Act which says that the decision
of the Board of Arbitration shall be according to “‘equity and good conscience”.
But there may arise also questions of law and of contract and in such cases,
equity and good conscience, may not be applicable as the only rules to govern
the decision.
McGILL LAW JOURNAL
[Vol. 7
Then, we have the delays; the lengthy delays which occur at all times and
is one of the strongest criticisms against our present arbitration system.
A delay of three months for the Board’s decision is provided under the Act
with additional delays by the Minister, expressed in this manner:
“These extra, supplementary delays shall not exceed the delay suggested by the council
of arbitration.”
Finally the award of the Board of Arbitration is not binding, and this is
the most frustrating part of the whole Act. From beginning to end, this means
nothing but delay. This means going through the motions of arbitration only.
It is useless arbitration. It is intended in most instances to create a background
of public opinion, or colour. Considerable damage, meanwhile, may be done
to the bargaining position of one of the parties if the other party can take
advantage of a delay of six months and face the issue at hand six months later!
Business conditions might change. Consequently, unless an arbitration is
binding –
and there I agree wholeheartedly with your lecturer, Mr. Lapointe
it is useless to go through these motions between employers and employees.
–
There is another provision in the Act which intrigues me very much. No
paid agent is supposed to be present at an arbitration. Mr. Cutler, you will
have to clarify this matter for me because I wonder whether a union organiscr
is a paid agent? Perhaps even a lawyer is a paid agent! Yet the Act under
Article 28 says no paid agents are to be present.
I will take a few moments to discuss the creation of a labour court. As to
the present system of arbitration under the Act, it is my suggestion that it
should be repealed. In its place, I suggest we have a labour court, appointed
by the Lieutenant-Governor in Council, having the same powers as the Superior
Court with judicial districts, a chief justice and several judges, with a clerk,
with a stenographer attached to the court and paid for out of the revenue of the
government. There should be no appeals except in limited areas of the decisions
of the Labour Court. The judge of the Labour Court should be assisted by
two experts, one representing labour and one representing management in
cases where such experts are required. But I suggest the judgment should be
that of the judge, not of the experts. I suggest counsel should represent the
parties at these hearings; and that petitions or some other formal, but not too
formal, pleadings should be adopted as the procedure in writing. Issues should
be joined. There should be no ex-parte reports by investigators or inspectors
which we cannot control. Salaries for these judges should be adequate, at
least $20,000.00 per annum for a chief justice and at least $18,000.00 per annum
for the judges of the Court. Finally, I suggest that there should be no costs
awarded against contesting parties, except, perhaps, in cases where disburse-
ments may have been uselessly incurred as a result of proceedings. Such a Court
would function efficiently and in the public interest.
MR. CUTLER: (Mr. Cutler discussed severalfeatures of the law which, he maintained,
were far from obsolete. He then explained why he was opposed to the idea of a labour court.)
No. 4]
QUEBEC ARBITRATION PROCEDURES
“… it is my feeling that the litigants in labour disputes cannot be compared
to litigation generally. For example, if you have ever been involved in an
accident, it is probable that you were involved with someone you had never
seen before and, after judgment, would never see again. The distinction is
that in the case of the employer and employee they live side by side, and you
have a different type of situation. I venture to say we should get away from
the formalism of a court, that we should leave it to the parties to work it out
the best way they can, operating under the least possible amount of legislation.
MRt. LAoiNE: I want to make my position very clear. The part which I
believe has become, or has always remained, obsolete does not have to do at all
with real arbitration. The part that I think should be redrafted in the Act is
that part after “conciliation”. As you know, you have an eight-day notice;
you have a thirty-day period of negotiation; then a fourteen-day period of
conciliation. Where I really believe the process starts being obsolete is at that
point. The compulsion, as far as I am concerned, should stop at that point and
from thereon there should be the opportunity for the parties either to agree to
pursue the matter with the assistance of third parties or, if they do not want to
do so, then the immediate right or the immediate sanction of collective
In other words, there should be the almost
bargaining should intervene.
immediate possibility of lockout or strike. That is the part I believe to be
obsolete.
I never said I was against arbitration of rights disputes. On the contrary,
I am in favour. I think they should be developed more. I even said I was
afraid that I was far from being convinced that labour courts would be a good
thing. Let me ask my confrere Mr. Stein a question. What would be the type
of cases, what would be the jurisdiction that he would allow to go before the
Interest disputes and rights disputes or just rights disputes?
labour courts?
If the interest disputes are not allowed to go before labour courts, what does
he do with them?
MR. STEIN: I would suggest that the jurisdiction cover the entire province
and apply to all labour relations, interest as well as -rights disputes and even
other matters which might be declared as forming part of the jurisdiction.
In other words, I say the Act ought to provide a jurisdiction broad enough
to cover all those phases of the activities which we call labour relations now
provided for under the Labour Relations Act, under the Quebec Trades Disputes
Act and under the conventional disputes, where existing agreements provide
grievance procedure or arbitration procedure. All this could come under the
jurisdiction of a labour court.
THE CHAIRMAN: I cannot understand why Mr. Lapointe makes this profound
attack on interest arbitration when at some stages in disputes of some kinds,
clearly third party intervention is better than letting the parties slug it out.
It seems to me there is a lot to be said for intervention at some stage, even on
McGILL LAW JOURNAL
[Vol. 7
interest aatters. I do not know why you have such confidence, Mr. Lapointe,
in the ability of the parties to do a better job by negotiation when they keep
hammering at each other for weeks and get nowhere or why you think the
public interest is better served in not having third party intervention.
MR. LAPOINTE: I do not eliminate third party intervention. I do not eliminate
conciliation by conciliator. But in my system it would mean revamping the
whole system so that we do not have clerks staffing the conciliation department
any more. I see a complete rebuilding of the conciliation service and a group
of experts brought in, well paid, people the parties would respect, experts in
specific fields of industry that the parties would respect, and they would do the
work that the Conciliation Boards are supposed to do. I see no reason, when
the parties are very far apart, to submit them again to another third party
intervention. There are many arbitration boards on interest disputes, which
only seem to be effective because they happen to do the job which was supposed
to be done by professional conciliators.
If the parties are really far apart,
arbitration boards become a delay and retard the beneficial effect of the pressure
brought upon the parties by the threat of a stoppage of work.
MR. STEIN: In the conventional type of arbitration –
in other words where
there is an existing agreement between the parties and provision is made for it –
how would you sanction such a decision?
I did not mention the sections of the Code of Civil .Procedure, Articles
1431 to 1444, dealing with arbitrations. But under our provincial jurisprudence,
unless a specific dispute is detailed in the submission to arbitration, it has been
held that such an arbitration is not binding upon the parties. What are you
going to do with the contract which simply says that “We agree to submit a
grievance arising out of this agreement to arbitration”?
MR. LAvoiNm: Actually I go one step further than what you have just said.
Presently under the Labour Relations Act you could, in the Province of Quebec,
even for a rights dispute (that is, a dispute arising during the term of collective
agreement) have a legal strike in the Province of Quebec. That is why the
parties make a conventional agreement that they will be bound; in other words,
they-add to the Quebec Trades Disputes Act by their own personal agreement.
I You say “What is going to be the sanction?” Most of the collective agree-
ments, where it is stated that the parties agree that they will be bound by the
decision of the arbitrator, as far as I am concerned there is no sanction except
that you may go before a court and allege that there was according to the
agreement a compromise made, the juridical type of agreement called com-
promise, between the parties and it should be respected by the parties.
You have another solution. You may have one company or one union that
originally and conventionally agree to be bound by a final and binding decision
of an arbitration board but will not agree to be bound after the award is out.
The sanction is that from there on they will never be capable of inserting any
No. 41
QUEBEC ARBITRATION PROCEDURES
arbitration clause in their collective agreement, and that to me is a sanction
large enough to make or force the parties to agree to be bound and to respect
that agreement. I have seen it happen time and time again.
MR. STEIN: I disagree. An employer is at the mercy of the union which has
violated the agreement.
MR. LAPOINTE: How?
MR. STEIN: Because, notwithstanding that the union has apparently violated
the terms of the agreement, he has no recourse except, either to go out of business
or to settle with the strikers on their illegal stand. And my learned friend
Mr. Cutler has done that on many an occasion. A classic example occurred
two years ago when, before we could get together to settle the issue, we were
forewarned that there was going to be a strike, whether we agreed to the
demands or not. It was the predetermined policy of the union to have a strike
for moral effects.
MR. LAPOINTE: You jumped to an extreme here. Let us suppose that there
is a collective agreement with the final and binding arbitral clause in it. The
employees or the union alleges that the employer has violated a clause. They
go before an arbitration board, which, they agree, is going to render a final and
binding award. They plead their case. They lose it. This is one situation.
They do not have to go on strike necessarily. They may accept the award.
Now supposing they win a case for unjustified dismissal. The Board orders
the reinstatement of the employee and the employer says, “I won’t reinstate;
in spite of the fact that it is final and binding, I won’t reinstate. These guys
sitting on the board were crazy and therefore I won’t accept it despite what
you say.” There is a sanction to that right in the law. It is the right to strike
legally, Art. 24, second paragraph.
MR. STEIN: Yes, strike.
MR. LAP oINrE: Maybe more. It may be that in the next collective agreement
the union will say to the employer, “‘Never again will we agree to be bound,
since every time we have a dispute and after having gone through the formal
type of arbitration, we have to strike anyhow. According to the Act it need
not be final and binding. We will not agree to be bound by this type of arbitra-
tion and we can strike at any time in the term of the agreement.”
MR. STEIN: I agree that is a sanction 6n the part of the union. I agree.
Ma. LAPOINTE: The same with the employer.
(At this point Prof. H. D. Woods, Professor of Economics and Director of the
Industrial Relations Centre at McGill University, who had been sitting in the audience,
requested permission to speak.)
PROFESSOR WOODS: Possibly a reference to Ontario might clear up this.
There has been a very recent amendment. What you have there at the present
McGILL LAW JOURNAL
[Vol.- 7
time is this. First of all, the Labour Relations Act contains the requirement
that any dispute during the life of an agreement shall be submitted to a final
and binding procedure, arbitration if necessary. Also, the Act provides that if
the parties do not include such an arbitral clause in there, there is a clause in the
Act which is presumed to be in there; Finally, the Act says that there shall be
no strike or lockout during the life of the agremeent. So anybody who violates
what in the United States would be normally a violation of the agreement, in
Ontario all the way along the line it is violating the law as well.
MR. LAPOINTE: That is only in’ the case of rights disputes, not interest
disputes.
PRoFESSOR WOODS: That is right.
The recent amendment to the Ontario Act contained a clause which probably
covers Mr. Stein’s problem. The recent amendment says that if the parties
have submitted to arbitration and an arbitrator has ruled-and forty days,
I think it is, has elapsed-and the party who has been required to do something
by the arbitrator fails to do so, .thendiny party involved, the employees, the
company or the union, may file the arbitration award without reasons in the
Supreme Court of Ontario, and-the ‘award becomes an order of the court.
Anybody who then fails to live up to the arbitrator’s award is in contempt.
Coming back to Mr. Stein’s problem, I think Ontario also has given the
lead on that one because, as you know very well, in the case of a dispute where
the electrical workers went on strike, and also the power corporation, one of
our confr&es in the legal teaching profession ruled that because the union was
required to take every reasbnable step to prevent a wildcat strike during the
life of an agreement and such a wildcat strike had taken place, in his opinion
the union had not taken all reasonable steps and therefore he found them in
violation and he assessed damages against them. Recently the courts have
upheld his power as arbitritor to do that.
MR. LAPOINTE: One court; it is in appeal. I agree with your first point but
not with the second part.
MR. CUTLER: Professor Woods, I was upholding the laws only for the
purpose of saying they are not obsolete. I do not think the legislature is called
upon to regulate what a contract will contain, a contract that is going to be
arrived at freely between the parties.- If the employer does not want to sign a
contract unless it has a no-strike clause, let him not sign it. If a union conversely
wants it or does not want it, let them not sign the contract. But I do not think
the legislature has any call for coming in unless one adheres to the concepts
which I mentioned before Professor Woods came in, the distinction between
public servants and non-public servants. I think these are matters which should
be left to the parties side by side.
Coming back to the sanctions, I would think your clients would do well to
entrust you with getting damages in the Province of Quebec concerning the
No. 4]
QUEBEC ARBITRATION PROCEDURES’
matters you have referred to. I think you have no problem at all. If the parties
have made an agreement, they will have to live by that agreement and the
courts will see to it.
THE CHAIRMAN: Damages can be assessed.
MR. CUTLER: And there is more than damages involved, of course. Some-
times it is a question of dismissal and should a man remain dismissed or not.
I come back to this. I should like to see a minimum of legislation which
would be followed by a minimum of prerogative rights of any kind and judg-
ments because once we get into court, once we get into dotting the i’s and
crossing the t’s and trying to foresee everything as it may happen in a labour-
management situation that changes from minute to minute in a plant, I think
we are going to have to test every change and take it all the way up to the
Supreme Court, and no sooner do we get there than we have the same thing
as in taxation laws and start all over again.
Q.-I would like to ask Mr. Lapointe two questions.
I would like to know the relation of the percentage of lockouts and strikes.
When one reads the papers one hardly ever reads that a lockout has taken
place, but usually a strike has taken place. This leads me to the conc.usion
that the union has a far greater power behind it than the company.
MR. LAPOINTE: You have noticed in my lectures to you that I very often
use the words “stoppage of work” and I do it purposely. Everytime you read
the word “strike” I would venture to suggest that half the time it is not a
strike but it is an employer forcing a strike on the employees. By the position
he takes he makes it impossible for the union to get out of the situation except
by going on strike. It does not appear in the newspapers. What the newspaper
man sees is the picket line. But it is not a strike; it is a lockout. As a matter
of fact, in the language of personnel managers when they meet each other in
their clubs they will sometimes use the following expression: “Well, is your
company able to take a strike this year”
“Take a strike”: that is the common
language of personnel management. This situation is part of the tactics of the
company. When business is bad, they have a large stockpile and they do not
dare say to the clerical people and key people, “Stay home”; they like the
union to strike so that they will be able. to reduce the stockpile in the ware-
houses and avoid overhead expenses.
Therefore you cannot base yourself on what you read in the newspapers.
I would say that it is probably half and half and the situation depends on the
economic conditions.
Q.-You seem to feel that small unions cannot afford strikes whereas big
unions can. As a labour lawyer, can you not see anything else that would
be less destructive to society than this drastic step?
McGILL LAW JOURNAL
(Vol. 7
MR. L”oINmT: You must let me elaborate. I firmly believe that the im-
portant thing is not the strike. or the ‘lockout. The important thing is the
possibility and the immediate possibility of a stoppage of work. I believe in
collective bargaining and I believe the system of law that we have super-
imposed on collective bargaining is hampering the operation and effect of the
collective bargaining process. I say that if you want to keep on going this way
with more laws, let us forget about collective bargaining. That is my whole
point. But the idea is that if you submit the parties, immediately or after a
certain length of time, to the possibility of stoppage of work which is going to
hurt them, then the cooler heads will come forward and if there is actually no
dispute between the parties, there will not be a strike because the cooler heads
I claim that the system as it
will intervene and bring abouit ‘a compromise.
now exists plays havoc with the collective bargaining system because it permits
the parties to play around with it.
As a matter of fact, Mr. Cutler or Mr. Stein said that the parties stall for
time because they want to hit the season when the chocolate keeps well. If
the whole system was right, this could not happen or it would happen much
less. You say I am in favour of a strike; no, I am not, and I base myself, as I
said before, on experience in the United States. There, when the termination
date of a collective agreement is at midnight, both the employees and the em-
ployers use the expression: “no work, no contract” and “‘no contract, no
work”. You do not have more strikes there; you have less. Why? Because
the system is left to play freely. The unions know what a strike costs and the
workers know it, but at this moment they do not realise it because this system
is a screen in front of their eyes. If they knew that as soon as the contract
expired there was a possibility of a stoppage of work, they would attend the
general meetings.
Let me give you an illustration’. Today you had a meeting to set up your
wage demands. Some chaps go to that meeting; most of them stay home and
do not even go. Why? Because they know now from the experience of fifteen
years that no matter what is going to be put forward as far as demands are
concerned the important moment will be the post-arbitration time, the four-
teen days before the strike. That is the time when they will attend the meetings,
not now. So they do not go to the meetings, they do not take any responsibility.
MR. STEIN: I am very much in accord with Mr. Lapointe’s last remarks,
for the philosophical reason which he gives; namely, I do feel that this super-
structure which has been imposed by virtue of the Labour Relations Act arti-
ficially frustrates the direct negotiation between the parties.
I too feel that
the parties, if left to themselves, could directly negotiate and if they had the
proper alternative they could be brought to that decision quickly.
But there are certain points on which we disagree. First of all, I do not
consider that one excludes the other. I believe that we should have a board
No. 4]
QUEBEC ARBITRATION PROCEDURES
of mediation which is separate and apart from the labour court about which I
am talking. This board of mediation should be composed of qualified, trained
people. I am talking of men of the calibre of Professor Woods and others of
that kind who, with their prestige, and by their competence, are the men to
be chosen for this type of work. There should be a permanent staff. They
should be trained in economics; they should have prestige and enjoy the con-
fidence of both parties. They should be impartial and they should be truly
representative of the public interest, as the early Act says. This should be at
the initial stage of negotiation, to bring the parties together. In other words,
this should take the place –
this board of mediation – of the obsolete section
of the Quebec Trades Disputes Act which talks about a council of conciliation.
There should be a separate act dealing with mediation. They have that in
the United States; they have excellent boards of mediation.
MR. LAPOINTE: No.
PROFESSOR WOODS: Purely voluntary.
MR. STEIN: I am ‘suggesting that this is the calibre of mediation we should
have. If a man of that calibre came and sat beside Mr. Cutler, myself and our
clients we would have something to talk about, we would not be afraid of
our bargaining position. But when I have to sit down with a clerk who does
not know “tuppence-ha’penny” about the issue, and he has the nerve to suggest
to me and my client that we tell him at this point, how far we are prepared
to advance in our negotiations with the union, and tell him what position
we are prepared to take, and how much we are prepared to offer, although
he does not have the confidence of the other side either; this is nonsense. This
is not the type of mediation which we should have. We should have separate
mediation, distinct and apart from the functions of a labour court. I mean
a labour court which has a final and binding decision in the first instance,
with no appeals to higher courts except in very limited instances.
Q.-Where would you get conciliators? Are you going to have them
appointed too so there is a conciliation board or are you going to lead to a
laissez-faire situation of power between union and employer?
MR. LAPOINTE: On this point, I would keep the law as it is. First of all, the
parties have to negotiate for a certain length of time. By law they have to do
so. In the next step, I would have intervention by third persons, a conciliator,
of the civil service, compulsorily but initiated by experts.
Q.-Where would you get the experts?
MR. LAPOINTE: Offer $15,000.00 and you will get them.
Q.-This is a government board now?
THE CHAIRMAN: Mr. Lapointe is simply saying that a government depart-
ment could provide a conciliation service staffed by first class men as the Federal
McGILL LAW JOURNAL
(Vol. 7
Mediation Service does in the United States. You pay them good money and
have first class people.
MR. LAPoiNTS: The best mediators in the United St a’tes now working for
the American Institute of Arbitrators come from the Federal Mediation
Department.
From there on after that, it will be the end of the compulsion as far as I am
concerned. From there on the possibilities will be either a Conciliation Board
if the parties mutually agree to go on with another step, or the immediate
possibility of a stoppage of work.
PROFESSOR WOODS: May I make one observation? Again in Ontario they
have introduced another interesting experiment.
In the case of negotiations
disputes or interest disputes as Marc calls them, they have for quite a number of
years now given the Minister the discretion of not granting a conciliation
board, which we call a council of arbitration, and increasingly the Minister
has used that discretion to refuse a board when he is satisfied that the parties
have not genuinely negotiated.
THE CMamxMaot: In good faith?
PROFESSOR WooDs: In good faith. So there is always that threat that they
cannot go to a board. It is the uncertainty of the next step that makes people
negotiate in the present stage.
The other thing they have done is this. In a fairly recent amendment to
the Act in Ontario they have given the parties the freedom mutually to escape
from the whole conciliation procedure by agreeing to their own private
mediator. If for example you are negotiating-take for example the clothing
industry-nothing is more ridiculous, as you know yourself, than to have the
permanent umpire who is very close to the parties. But if he does not resolve
the conflict they have to go through the ridiculous nonsense at the conciliation
office. In Ontario if the parties agree to their own mediator the system is
completely private. Several other provinces have followed. How far they are
using it I am still trying to find out.
