Adjudicator had duty to apprise parties that interpretation not contemplated by them was being considered

Arbitration

Adjudicator had duty to apprise parties that interpretation not contemplated by them was being considered

Applicant grievor was required by employer to travel internationally to carry out systems repairs on ship. Employer paid applicant for hours travelled at double time rate, under clause 17.03(a) of collective agreement governing compensation for days on which employees travelled but did not work, leading to total amount of pay equating to 22 hours straight time. Applicants argued that he was entitled to pay for 15 additional hours under clause 17.03(d) of collective agreement, governing travel pay where employees travelled overnight and no sleeping accommodation was required, while employer believed he was only entitled to seven more hours. Applicants’ grievance was dismissed on basis that applicant was only entitled to compensation under clause 17.03(d) and not under clause 17.03(a) of collective agreement. Applicants applied for judicial review. Application granted. Adjudicator ignored parties’ common interpretation of clause 17.03(a) of collective agreement and shared view that issue to be determined was how much additional compensation he could receive under clause 17.03(d) of agreement. Adjudicator had duty to apprise parties that he was considering interpretation of clause 17.03 of collective agreement that neither party had contemplated. Applicants and employer had no indication whatsoever that their common and accepted interpretation could be questioned. Procedural fairness dictated that they should have been put on notice and afforded opportunity to address issue and adduce evidence to counter adjudicator’s interpretation of clause 17.03(d) of collective agreement. Since collective agreement governed relationship between parties, it was critical that parties be afforded opportunity to be heard since they must live by terms of their contract. Both parties had vital interest in adjudicator’s interpretation of their collective agreement. Adjudicator came to different interpretation of clause 17.03(d) without any input from parties on how that interpretation could possibly impact on application of clause 17.03 generally. As matter of procedural fairness, parties should have been given opportunity to present arguments and adduce evidence on such determinative issue.
Arsenault v. Canada (Attorney General) (June 14, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-436-15) 268 A.C.W.S. (3d) 431.