1. The Grievor, Barry Green, was first employed as an air traffic controller with Transport Canada on May 3, 1971. Mr. Green had worked as an air traffic controller at the Sudbury Control Tower since June, 1982.

2. Mr. Green's employment was terminated for cause an May 29, 1995. At that time, Mr. Green was an operational air traffic controller at the Sudbury Control Tower (AI-02 classification level).

3. Mr. Green filed a grievance, which was denied by the employer (Appendix "A"). Subsequently, Rosemary Simpson, member of the Public Service Staff Relations Board, heard the matter. The PSSRB had jurisdiction to adjudicate all grievances in the Federal Public Service.

4. In a decision dated June 14, 1996, Ms. Simpson dismissed the grievance (Appendix "B"). The union filed for judicial review on July 18, 1996 to the Federal Court Trial Division.

5. Mr. Justice Cullen, in a decision dated July 8, 1997, allowed the application for judicial review and directed the matter back to the PSSRB to be heard before a new adjudicator on the sole issue of appropriate penalty (Appendix "C"). Treasury Board, the employer party in the application, filed an appeal to the Federal Court of Appeal.

6. In the interim, the civil air navigation system, including air traffic services, was transferred from the Public Service to NAV CANADA, a not-for-profit corporation under the Canada Corporations Act, Part II, as of November 1st, 1996. (Civil Air Navigation Services Commercialization Act, S.C. 1996, c-20, Appendix "D").

7. Following this transfer, the employer took the position it was not responsible for any grievances arising from terminations, disciplinary or non-disciplinary, by Transport Canada that were outstanding at the date of transfer, as these employees were not included on the list prepared by Transport Canada of designated employees for transfer to NAV CANADA. A total of twelve cases were affected, including Mr. Green's. The union presented a motion in the first of these cases to reach the PSSRB after transfer to add the employer as a party. A settlement was subsequently reached for that case and all others, including that of the Grievor (Appendix "E").

8. Following the Agreement in Appendix "E", the case was then heard for the second time by PSSRB Vice-Chairperson, Phillip Chodos, sitting as an adjudicator under the Public Service Staff Relations Act. In a decision dated April 6, 1998, he reinstated Mr. Green with a substituted penalty of three months suspension, plus a further three months without pay (Appendix "F"). Treasury Board applied for judicial review of the Chodos decision.

9. Neither the Federal Court of Appeal (appeal of the Cullen decision to remit the case back to the PSSRB) or the Federal Court Trial Division (judicial review application with respect to the Chodos decision to reinstate) have been heard to this date. Requisitions for dates have been filed for both matters. As of this date, CATCA is advised that the appeal of the Cullen decision will likely be heard some time in the late Fall or early 2000, and the judicial review will likely be heard some time this Fall.

10. In the interim, Treasury Board has reinstated the Grievor to the Public Service and CATCA and Treasury Board have resolved the compensation issues arising from the reinstatement. Mr. Green remains an employee today in the Public Service but with no actual job, given that all operational controllers and facilities were transferred to the employer on November 1st, 1996, including the Sudbury Control Tower.

11. Following the Chodos decision, the parties held discussions with respect to the implementation of the Agreement in Appendix "E". Following which, a formal demand was presented by the union to return Mr. Green to the Sudbury Tower as an employee of NAV CANADA. The employer refused (see correspondence, Appendix "G").

12. The union filed a grievance on behalf of Mr. Green on November 23, 1998 (Appendix "H") and, in due course, the present arbitration proceeding was scheduled. The employer has objected on the jurisdiction of the arbitrator to hear the matter. (See Appendix "I")

13. The parties agree that the preliminary issue of jurisdiction should first be determined, following which the parties may assess their position as required.

WHEREAS Barry Green grieved the termination of employment by Transport Canada;

WHEREAS CATCA sought to add NAV CANADA as a party to this grievance;

WHEREAS Barry Green, through his bargaining agent CATCA, CATCA and NAV CANADA wish to come to a full and final resolution of the issue in dispute;

NOW THEREFORE THE PARTIES agree as follows on a without publicity basis:

1. In the event that Barry Green is reinstated to the Public Service by an adjudicator of the Public Service Staff Relations Board as a result of the hearing of his grievance, he shall be offered employment as a new hire by NAV CANADA under the following terms and conditions:

(a) he shall be returned to the position that he held at the time of his termination; and

(b) his pay, service and seniority shall be determined and applied as if he had never left Air Traffic Services, but had transferred over to NAV CANADA as a continued employee.

2. NAV CANADA shall not be liable for and Barry Green shall not seek from Nav Canada any compensation, benefits, pension, leave or other cost arising from any order of reinstatement of Barry Green by the Public Service Staff Relations Board. No leave bank, including sick leave credits, shall be rolled over to NAV CANADA on rehire.

3. In consideration of the offer of employment by Nav Canada to Barry Green pursuant to the terms of para. 1 and 2 and on execution of this Agreement, CATCA, on behalf of Barry Green, will withdraw the motion to add NAV CANADA as a party to the grievance. Further, Barry Green and CATCA agree not to seek to add NAV CANADA as a party in the future, subject to completion of the terms of this Agreement.

4. This Agreement is between Nav Canada, CATCA and Barry Green and in no way is intended to effect the rights and entitlements of Barry Green or the Public Service (Transport Canada) in their relations with one another.

This is a grievance submitted on behalf of Mr. Green.

Mr. Green was an operational controller at Sudbury Tower (A1-02) when his employment was terminated by way of disciplinary discharge by Transport Canada on May 29^th, 1995. An adjudicator of the PSSRB, Rosemary Simpson (the Simpson Decision, June 14^th, 1996), dismissed the resulting grievance.

An application to the Federal Court Trial Division for judicial review was subsequently allowed (the "Cullen Decision", July 8^th, 1997) and the matter returned to a new adjudicator to assess penalty.

By a decision dated April 6^th, 1998, PSSRB Vice-Chairperson, Phillip Chodos, order that Mr. Green be reinstated to his position in the Public Service with a substituted penalty (the "Chodos Decision").

In the interval from discharge to reinstatement, the ATC system was transferred from Transport Canada to NAV CANADA. In early 1997, NAV CANADA took the position that it had no responsibility for any grievance with respect to individuals terminated by Transport prior to the transfer date (November 1^st, 1996), on the basis that such persons were not "designated employees" pursuant to the Civil Air Navigation Services Commercialization Act (CANSCA). There were some twelve cases affected by that position, one of which was the grievance of Mr. Green.

NAV CANADA and CATCA later reached a settlement with respect to our motion to add NAV CANADA as a party in the first of the affected cases to reach adjudication. As a result, an agreement was entered into requiring NAV CANADA to rehire Mr. Green under specified terms, in the event he was reinstated to the Public Service by an adjudicator. For reference, a copy of that agreement is enclosed.

By letter dated April 9^th, 1998, we advised Pat Brethour, Legal Counsel, Labour Relations for NAV CANADA, of the Chodos Decision and requested that the Agreement to rehire be accordingly implemented. We did not receive a written reply to that letter (copy enclosed), although some discussions later took place between Ms. Brethour and CATCA Legal Counsel, Peter Barnacle. A further letter was sent May 14^th, 1998 to which no reply was received.

Subsequent to our letters, however, we were advised by Treasury Board Legal Counsel that Transport would resist reinstatement, pending the determination of its appeal of the Cullen Decision to the Federal Court of Appeal and its application for judicial review of the Chodos Decision to the Federal Court Trial Division. That issue then became the focus as its resolution would impact on the application of the Memorandum of Agreement.

Treasury Board only abandoned that position over the summer and finally, by letter dated September 23^rd, 1998, reinstated Mr. Green to the Public Service. We so advised Ms. Brethour on September 29^th, 1998 and formally requested rehire pursuant to the Memorandum of Agreement (copies of Transport letter of September 23^rd and our letter to Ms. Brethour of September 29^th, enclosed).

Mr. Barnacle followed up with Ms. Brethour several times in October and November in order to receive NAV CANADA’s response to our rehire demand. By letter dated November 16^th, 1998, Ms. Brethour has now responded that NAV CANADA refuses to reinstate Mr. Green pending the judicial proceedings initiated by Transport and referred to above (copy enclosed).

It is our position that NAV CANADA has no legal basis to refuse to execute the Memorandum of Agreement. The Memorandum speaks only to an adjudication decision and that decision from Mr. Chodos to reinstate Mr. Green triggers NAV CANADA’s obligation to rehire regardless of any court proceedings. Further, such court proceedings do not act as a stay of the reinstatement order, as Treasury Board has now in effect conceded, and certainly cannot act as a stay on execution of the Memorandum of Agreement without the presence of an express provision to that effect in that Agreement.

Accordingly, and consistent with the Supreme Court of Canada’s direction in Weber requiring such matters to be pursued in the grievance and arbitration process, Mr. Green grieves the refusal to rehire him as a termination without cause contrary to the Collective Agreement.

As a discharge grievance this matter is immediately referred to the Final Level of the Grievance Procedure. Given the nature of the case, and the previous communications between CATCA and NAV CANADA on the matter, we request that NAV CANADA waive the thirty day period for response and agree to refer this file immediately to arbitration, should NAV CANADA not be now prepared to comply with the terms of the Memorandum of Agreement and rehire Mr. Green at this time. We are prepared to discuss immediate dates for arbitration.

OBJECTIVE:

The parties wish the grievance and arbitration procedure to address the real issue of each party’s complaints in an expeditious, efficient, economical and fair manner.

Failing settlement being reached at Step 2 or where the NCJC has reached an impasse on an issue which was referred to it, either party may refer their grievance to arbitration within thirty (30) days of the receipt of the Step 2 response or the expiration of Step 2 time limits, by advising the Employer’s Vice-President of Human Resources or authorized designate or the authorized Bargaining Agent representative, in writing by registered mail of its intention to refer the dispute to Arbitration. If a party does not choose to refer its grievance to Arbitration, the Authorized Bargaining Agent representative or the Employer’s Vice-President of Human Resources or authorized designate shall so advise the other party.

1. Powers of an Arbitrator

The final alternative is to accept that if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to and entertain an action in respect of that dispute. There is no overlapping jurisdiction. On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement. In considering the dispute, the decision-maker must attempt to define its "essential character", to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La Forest J.A. Sometimes the time when the claim originated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.), where it was held that the court had jurisdiction over contracts pre-dating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation (Bartello v. Canada Post Corp. (1987), 46 D.L.R. (4th) 129 (Ont. H.C.); Bourne v. Otis Elevator Co. (1984), 45 O.R. (2d) 321 (H.C.); Butt v. United Steelworkers of America (1993), 106 Nfld. & P.E.I.R. 181 (Nfld. T.D.); Forster v. Canadian Airlines International Ltd. (1993), 3 C.C.E.L. (2d) 272 (B.C.S.C.); Bell Canada v. Foisy (1989), 26 C.C.E.L. 234 (Que. C.A.); Ne-Nsoko Ndungidi v. Centre Hospitalier Douglas, [1993] R.J.Q. 536).

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Div. Ct.), at p. 258, per Osler J.; Butt v. United Steelworkers of America, supra; Bourne v. Otis Elevator Co., supra, at p. 326. Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra.

Against this approach, the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter.

The appellant Weber also argues that arbitrators may lack the legal power to consider the issues before them. This concern is answered by the power and duty of arbitrators to apply the law of the land to the disputes before them. To this end, arbitrators may refer to both the common law and statutes: St. Anne Nackawic; McLeod v. Egan, [1975] 1 S.C.R. 517. As Denning L.J. put it, "[t]here is not one law for arbitrators and another for the court, but one law for all": David Taylor & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843 (C.A.), at p. 847. This also applies to the Charter: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 597.

It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 50 D.L.R. (4th) 29, at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".

To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court's approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts: see Ontario (Attorney-General) v. Bowie (1993), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O'Brien J.