Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd.

Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd. Court Court of Appeal Date 2010-03-18 Citation 2010 NSCA 19 Docket CA 314402 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Beveridge, Duncan R. (Honourable Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd. - 2010 NSCA 19 - 2010-03-18 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd., 2010 NSCA 19 Date: 20100318 Docket: CA 314402 Registry: Halifax Between: Communications, Energy and Paperworkers Union of Canada, Local 141 Appellant v. Bowater Mersey Paper Company Limited Respondent Judges: Hamilton, Fichaud, Beveridge, JJ.A. Appeal Heard: February 3, 2010, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Fichaud, J.A.; Hamilton and Beveridge, JJ.A. concurring. Counsel: Raymond F. Larkin, Q.C., and Meredith Wain for the appellant Richard Petrie and Melissa Grant, for the respondent Reasons for judgment: [1] A labour arbitrator was persuaded by a point in the union’s rebuttal argument and allowed the grievance. The chambers judge set aside the arbitrator’s award for breach of procedural fairness. He felt the arbitrator deprived the employer of the opportunity to present evidence and submissions. The union appeals, saying there was no breach of procedural fairness. 1. Background [2] The arbitration award described the parties’ backgrounds. Bowater Mersey Paper Company Limited (“Bowater”), runs a paper mill in the Town of Liverpool. Bowater recently has merged and changed its name to Abitibi-Bowater. This plant, established in 1929, sells primarily to offshore customers in South America, South East Asia and Europe. Bowater’s mill is Liverpool’s main employer, having 350 employees, some 300 unionized and 50 management. Three locals of the Communications, Energy and Paperworkers of Canada are certified to represent the mill’s employees. Local 259 represents a unit of papermakers. “Local 141 - Salaried Workers” represents a unit of clerical workers. “ Local 141” proper, the appellant, represents the unit of employees who work “inside the mill fence” performing operational and maintenance functions other than those done by the other two units. [3] Local 141 (“Union”) and Bowater signed a collective agreement for May 1, 2004 to April 30, 2009. Article 35 is the subject of this proceeding: SECTION 35 - CONTRACTING OUT The Company agrees not to contract out repair or maintenance work or minor installation and modification work (as distinguished from new construction or major modification), which is regularly performed by employees, for which the mill is equipped and which the employees are capable of doing. The Company will provide a list of planned capital work at the beginning of each year (January). This does not preclude the Company’s ability to introduce new capital work or special repair work throughout the year. When considering contracting out, the Company will advise the appropriate Unions at the time that bids are invited for the work. In addition, the Company will notify the Union at the time before the contract is let. Notification will either be in writing and/or at a meeting as is deemed appropriate by the parties. In addition, the Company will give written notice at the beginning of any month outlining the nature and extent of any work which is to be started by the contractors during that month. It is understood that the time provisions of the above two paragraphs may not apply to breakdowns of essential equipment. However, in such cases, the Company undertakes to keep the Unions fully informed. The Company states further that for several years it has maintained practically stable numbers of maintenance men, and that this has occasioned some contracting out. The Company agrees to increase crews when necessary to take care of work normally done by the maintenance crews and when the work diminishes, the Company will have to reduce the crews. If new employees are so taken on the work force, they may be eligible for layoff at the end of the project without recourse to seniority provisions of the Collective Agreement. During the life of this Agreement, Company policy shall be not to contract out the present production processes in the mill, although this shall not be taken to prevent such things as purchase of chips, the use of ready-mix cement, the buying of prefabricated piping or similar purchases of semi-processed materials, etc. [emphasis added] Numbers in the margin accompany the paragraphs in the collective agreement. The number “2485” accompanies article 35’s first paragraph, that includes the key wording, emphasized above. [4] Three grievances instituted this proceeding. First, Raymond Wolfe grieved: Company violated section 35 Par. 2485 (and others). Having signs made by outside contractor. Settlement desired: Full redress. Second was a Union policy grievance: Company contracted out the making of 6 small signs. Work always done [illegible]: (Pleasantville signs). Settlement desired: Full redress. The third, also a Union policy grievance, said: Contracting Out: Section 35 Par 2485 and others. Company contracted out 2 restricted area signs from Veinot’s Print: 2'x1' signs. P.O. # 124569 Settlement desired: Full redress. The grievance forms record “Management response” as “No Violation, grievance denied” on Mr Wolfe’s grievance, nothing legible on the first Union policy grievance and “No violation of CA” on the second Union grievance. [5] Other than these three grievance forms, the record for judicial review contains nothing, such as a pleading in a court proceeding, to identify, restrict or expand the issues. [6] The parties selected Bruce Archibald, Q.C. as the arbitrator. Article 31 named Mr. Archibald as one of four rota arbitrators under the collective agreement, and described the arbitrator’s powers: The arbitrator selected shall hear the case as soon as can be arranged after its referral to arbitration and shall render a decision, normally within one month of the hearing. If either party intends to raise a preliminary objection during an arbitration hearing, it will notify the other party, in writing, of its intention. It will specify the objection no later than seven days prior to the date set for the arbitration hearing. The arbitrator shall not have any jurisdiction to alter or change any of the provisions of this Agreement nor to substitute any new position. The decision of the arbitrator shall be final and binding upon both parties and the employees concerned. [7] The arbitrator conducted the hearing on April 9 and May 29, 2008 and issued a written award on September 8, 2008. 2. Award [8] As the award is unreported, I will summarize its reasoning in some detail. [9] The award quoted article 35 as the “primary section of the Collective Agreement relevant to this dispute”, and referred to two earlier awards between the Union and Bowater, one by Mr. Archibald, that dealt with identical language in the predecessor to article 35. [10] The arbitrator then set out what he termed the “five central aspects” of article 35: “(1) five types of protected work; (2) three limiting conditions on protected work; (3) the purchasing exemptions; (4) the rather extensive notice provisions; and (5) the ‘staffing up’ positions”. He identified the five types of protected work as “(i) repair work; (ii) maintenance work; (iii) minor installation work; (iv) minor modification work; and (v) present production processes in the mill”. The first four types of protected work derive from the first paragraph of article 35 and, according to the award, are subject to three conditions: that the work be “regularly performed” by bargaining unit employees, the mill be “equipped” to perform that work, and the bargaining unit is “capable of doing” the disputed function. The fifth type of protected work is discussed in the final paragraph of article 35. [11] The award labelled the first four categories of protected work (repair, maintenance, minor installation and minor modification) as “protected ‘maintenance department’ functions”, and then said “there is considerable evidence concerning the kinds of signs which maintenance personnel are capable of making”. [12] The award then analysed the purchasing exemption in the final paragraph of article 35, the notice provisions in the second, third and fourth paragraphs, and the “staffing up” provision in the fourth paragraph. [13] In short, the arbitrator interpreted all article 35’s components as a unit, having an integrated structure and logic. [14] The arbitrator then turned to what he described as the “non-controversial” aspects of the evidence. The grievances dealt with the contracting out of signage. The award noted the “important, and indeed critical, place of signage” for effective communication in this pulp mill with 350 employees. The arbitrator referred to the evidence of the mill’s signage, its purposes, content, location, duration and method of installation. Later [¶ 45(d)] I will give more detail of the arbitrator’s references to the installation of signage. The arbitrator noted the evidence of some contracted out signage to which the Union had no objection, because the signs failed one of the conditions of article 35, such as the condition that the bargaining unit forces be “capable of doing” the work. [15] The award then summarized the Union’s closing submission, after the evidence was in: 22. The Union then addressed the question of whether sign making was truly “maintenance work”. Here the Union’s argument was that making coreplast[sic] signs or signs with “stuck on lettering” was work “normally done by the maintenance crews” in the words of paragraph four of Section 35, and that it need not be shown to fall neatly within one of the four areas of prohibited contracting out in paragraph one of the section. In essence, the Union said the notion “work normally done by the maintenance crews” was a residual category of work protected against contracting out, going beyond repair work, maintenance work, minor installation and minor modification reserved for maintenance crews under paragraph one of Section 35. [emphasis added] [16] The award summarized Bowater’s reply submission respecting the opening paragraph of article 35: 27. . . . The Employer asserts that the parties were very precise about the definition of the four types of maintenance work which could be protected against contracting out by Section 35, subject to limiting conditions. The Employer says that it never agreed that Section 35 covered “all maintenance crew work”, and that these words in the “staffing up” paragraph were never intended to define the scope of the prohibition on contracting out. The Employer says that sign making is neither repair nor maintenance working in accordance with various standard dictionary definitions of these words which it advanced for consideration. Sign making, the Employer notes, does not relate to rectification of actual or potential problems in the system or machinery of production. Thus, asserts the Employer, sign making falls outside the definitional ambit of work protected against contracting out by the relevant provision of the collective agreement - paragraph one of Section 35. [emphasis added] . . . 31. In summary, the Employer urged that the Grievances be denied because the evidence did not prove on a balance of probabilities that it had breached Section 35. [17] The arbitrator then set out his analysis. He began with the principles from the existing arbitral jurisprudence, including earlier awards between the Union and Bowater under the same wording from the predecessor to article 35. He said: 32. . . . That is, contracting out by an Employer for bona fide business reasons in the interests of economic efficiency is legitimate unless prohibited by the language of the collective agreement. In this respect, the Employer is surely right when it says that the parties to this Collective Agreement have in Section 35, paragraph one, protected bargaining unit work only where it consists of repair work, maintenance work, minor installation or minor modification (or current production processes, under paragraph five, which are not at issue in this case). This is the context for interpreting the reference in paragraph four to “work normally done by the maintenance crews”. The union argument that the latter phrase is a residual category of protected work (i.e. that “normally done by maintenance crews”) surely amounts to reintroducing the idea of general union or maintenance crew “property in bargaining unit work” which was rejected in the Russell Steel, supra, and rejected again in this province by Arbitrator Christie in Canada Post Corp., supra. 33. We start then, with the strict wording of the categories of protected work in paragraph one of Section 35. Once again, the Employer is surely right that “sign making” does not constitute repair work or maintenance work per se. Even the Union was uncomfortable with arguments that signs are “repair” or “maintenance” in accordance with the standard arbitral jurisprudence in the area. Almost as an afterthought, in rebuttal, however, Counsel for the Union suggested that sign making and their subsequent installation could be just that: “minor installation” in the words of Section 35, paragraph one. Here is the germ of the solution to this case. Making and sticking durable lettering (or painting lettering) on walls, doors or beams on the one hand, or placing lettering on coreplast[sic] or some other durable background plaque which can be hung up or affixed to other structures or surfaces on the other, must surely constitute “minor installation”. It is only work protected by Section 35, however, if it meets the conditions laid out in the last phrase of the first sentence of paragraph one. [emphasis added] I have emphasized the award’s wording that sparked the judicial review. [18] In short, the Union’s closing submission was that the signage constituted “maintenance department” work protected residually – i.e. without targeting the four specific categories of work protected in the opening paragraph of article 35. Bowater submitted in reply that only the four types of work specified in the opening paragraph of article 35 were protected, and that the signage work “falls outside the definitional ambit or work protected against contracting out by the relevant provision of the collective agreement – paragraph one of section 35”. In rebuttal, the Union then contended that, if the four specific categories in the opening paragraph of article 35 governed, the signage was “minor installation” in the opening paragraph. The arbitrator agreed with the Union’s rebuttal submission. [19] The arbitrator then found that the signage covered by Mr. Wolfe’s grievance satisfied the three limiting conditions of the first paragraph of article 35 - regular performance by unit employees, the mill was equipped, and the unit employees were capable of doing the work. He allowed Mr. Wolfe’s grievance and, for similar reasons, allowed the Union’s policy grievance respecting Pleasantville Signs. He partially allowed the Union’s Veinot’s Print policy grievance by ruling that Bowater should have notified the Union under article 35. In each instance, the arbitrator allowed the grievance because he found that Bowater had breached article 35, the provision cited in the grievances. 3. Judicial Review [20] Bowater applied to the Supreme Court of Nova Scotia for judicial review. Justice Walter Goodfellow heard the application on March 25, 2009 and issued a written decision on June 18, 2009 (2009 NSSC 193). [21] The record for the judicial review comprised the three grievance forms, the award and the collective agreement. The only pleadings were the three grievances. The only record of the arbitration hearing was the award itself. There was no transcript or recording of proceedings before the arbitrator. The judicial review record included no exhibits from the arbitration other than the collective agreement. There was no affidavit to describe events that occurred during the arbitration hearing. [22] The judge set aside the award. He referred to s. 43(1)(a) of the Trade Union Act, R.S.N.S. 1989, c. 475 as amended, that says: An arbitrator . . . shall determine his . . . own procedure, but shall give full opportunity to the parties to the proceedings to present evidence and make submissions to him. . . . [23] The judge reasoned: [26] What transpired here is that the parties defined the issues based on the grievances and proceeded to conduct themselves in evidence and argument on the issues defined and placed before the arbitrator. There was no mention of what turned out to be the deciding issue, namely, the question of whether what transpired constituted “minor installation” until as the arbitrator stated, in the nature of an afterthought. [27] Not every issue or comment made by counsel in argument must be addressed by the arbitrator; however, whenever the arbitrator intended to give serious consideration to the afterthought then the duty to provide full opportunity to address an issue that heretofore was not on the plate but is now being considered by the arbitrator as the deciding issue arises. The statutory requirement of full opportunity to address it by way of evidence and argument arose. [28] In these circumstances, procedural fairness was not accorded to Bowater. The arbitrator’s award must be quashed. Issue No. 3 – Did the Arbitrator Commit a Reviewable Error When He Found the Employer Contravened Section 35 of the Collective Agreement? [29] Normally I would address this issue as fully as possible; however, in the circumstances where neither the Union nor Bowater presented any evidence nor advanced any argument, the determination by the arbitrator is without the benefit of a proper hearing on the deciding issue. It follows that his analysis and determination is based upon a foundation absent any real input by the Union no direct evidence was called on the issue of what constitutes a “minor installation”, no written submission related to it as an issue and no argument was advanced, merely an afterthought. Bowater did not have any awareness that this was going to be an issue let alone the deciding issue, and was not afforded any opportunity to call evidence on what constitutes a “minor installation” to consider cross-examination and calling into question whatever evidence the Union might have called. Bowater made no written submission on the deciding issue, nor was it provided an opportunity to address the issue orally. This rendered the arbitrator’s determination one that I have difficulty, if not an impossibility of determining its reasonableness. Result: [30] The arbitrator’s award is quashed and I would recommend to the parties that the matter be treated as at an end. If, however, either of the parties wishes the order to contain a provision directing a re-hearing before a new arbitrator, then I am inclined of the view that that is their entitlement. [underlining and bolding by chambers judge] 4. Issues [24] The Union appealed to the Court of Appeal. The issue is whether the judge erred by ruling that the arbitration denied procedural fairness to Bowater. [25] Bowater did not file a notice of contention to set aside the arbitrator’s award on other grounds, such as unreasonableness. Bowater’s factum to the Court of Appeal acknowledges “the analysis of the ultimate issue, the interpretation of the Collective Agreement, is not before this Court”. At the hearing in the Court of Appeal, Bowater’s counsel confirmed that procedural fairness is the only question for this court. So there is no issue in the Court of Appeal whether the award should be set aside on the alternative ground that the arbitrator offended the reasonableness standard in his interpretation of the collective agreement. 5. Standard of Review [26] In Dr. Q v. The College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at ¶ 43, the Chief Justice discussed the Court of Appeal’s role on appeal from a court that conducted a judicial review: At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision. As such, the normal rules of appellate review of lower courts articulated in Housen, supra, apply. [27] These normal rules of appellate review are that the judge must be correct on issues of law and not commit a palpable and overriding error on issues of either fact or mixed fact and law with no extractable legal error. Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at ¶ 8, 10, 19-25, 31-36; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at ¶ 4, 65, 69 and 72-74. In F.H. v. MacDougall, [2008] 3 S.C.R. 41, at ¶ 55, Justice Rothstein for the Court, quoting from H.L., said that an “appellate court is only permitted to interfere with factual findings when ‘the trial judge [is] shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence’ . . .” [28] The reviewing judge’s choice of a standard of review to the arbitrator’s decision is a question of law, for which the judge must be correct. Dr. Q., ¶ 43-44. The content of the duty of procedural fairness also is a legal issue, for which the Court of Appeal applies correctness to the analysis of the reviewing judge: e.g. Kelly v. Nova Scotia Police Commission, 2006 NSCA 27, ¶ 21-33; Nova Scotia (Community Services) v. N.N.M., 2008 NSCA 69, ¶ 40. 6. Analysis [29] I turn to the judge’s decision. [30] The judge [¶ 8] gave no deference to the arbitrator in the judge’s assessment of procedural fairness. With that, I agree. I note parenthetically that deference is not withheld because of any standard of review analysis. The judge is not reviewing the tribunal’s ultimate decision, to which a “standard of review” is accorded. Rather, the judge assesses the tribunal’s process, a topic outside the typical standard of review analysis. In Nova Scotia (Provincial Dental Board) v. Creager, 2005 NSCA 9, this court said: [24] Issues of procedural fairness do not involve any deferential standard of review: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at para. 74 per Arbour, J.; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paras. 100-103 per Binnie, J. for the majority and at para. 5, per Bastarache, J. dissenting. As stated by Justice Binnie in C.U.P.E, at para. 102: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. This point is also clear from Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Justice L’Heureux-Dubé (paras. 55-62) considered “substantive” aspects of the tribunal’s decision based on the standard of review determined from the functional and practical approach but (para. 43) considered procedural fairness without analyzing the standard of review. [25] Procedural fairness analysis may involve a review of the statutory intent and the tribunal’s functions assigned by that statute: eg. Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 at paras. 21-31; Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624 at paras. 31-32. But, once the court has determined that a requirement of procedural fairness applies, the court decides whether there was a violation without deference. To the same effect: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at ¶ 74; Nova Scotia v. N.N.M., ¶ 39; Allstate Insurance Company v. Nova Scotia (Insurance Review Board), 2009 NSCA 75, ¶ 11. [31] From the same perspective, in Kelly, Justice Cromwell described the two step approach to procedural fairness analysis: [19] The judge’s concern was not that the Board improperly exercised its discretion or that any decision or ruling it made was in itself reviewable. Those are the kinds of matters that we typically think of as engaging the standard of judicial review. The standard of review is generally applied to the “end products” of the Board’s deliberations, that is, to its rulings and decisions: see C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para 102. In this case, the judge was concerned that the process followed by the Board had resulted in unfairness – in other words, that the Board had failed in its duty to act fairly. This concern goes to the content of the Board’s duty of fairness, that is, to the manner in which its decision was made: C.U.P.E. at para. 102. [20] Given that the focus was on the manner in which the decision was made rather than on any particular ruling or decision made by the Board, judicial review in this case ought to have proceeded in two steps. The first addresses the content of the Board’s duty of fairness and the second whether the Board breached that duty. [32] Though the reviewing judge does not conduct “standard of review” analysis for procedural fairness, the judge must still determine the content of the duty of fairness. That duty does not just replicate the courtroom model. The duty’s content is context specific and depends on various factors, including the tribunal’s delegated room to manoeuvre that is contemplated by its governing statute, the nature of the tribunal’s decision and the decision’s importance to the parties: Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, at ¶ 21-31; Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624, at ¶ 31-32; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at ¶ 79; Moreau-Bérubé, ¶ 74-75; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, ¶ 21-28; Kelly, ¶ 21-33; Creager, ¶ 25, 100-107; Nova Scotia v. N.N.M., ¶ 40-98 and authorities there cited. [33] In this case, the arbitrator was governed by s. 43(1)(a) of the Trade Union Act, saying the arbitrator “shall determine his . . . own procedure, but shall give full opportunity to the parties to the proceedings to present evidence and make submissions to him...” The judge ruled, and both parties agree, as do I, that this is the applicable principle. The questions for the judge were (1) what does this “full opportunity . . . to present evidence and make submissions” mean in the context here, and (2) did the arbitrator deny Bowater that opportunity? The question in the Court of Appeal is whether the judge made an appealable error in his answers. [34] The arbitrator found that the signage work was “minor installation” within the opening paragraph of article 35. [35] The judge’s ruling that the arbitration denied procedural fairness was premised on the following findings, stated in ¶ 26, 27, 29 of the judge’s decision (above, ¶ 23): - “[T]he parties defined the issues based on the grievances and proceeded to conduct themselves in evidence and argument on the issues defined and placed before the arbitrator. There was no mention of what turned out to be the deciding issue, namely, the question of whether what transpired constituted ‘minor installation’ until as the arbitrator stated, in the nature of an afterthought.” ‑ The “minor installation” issue “was not on the plate but is now being considered by the arbitrator as the deciding issue”. ‑“[N]either the Union nor Bowater presented any evidence nor advanced any argument” on that point. ‑ The arbitrator’s “analysis and determination is based on a foundation absent any real input by the Union”. ‑ “[N]o direct evidence was called on the issue of what constitutes a ‘minor installation’ “. ‑ “[N]o written submission related to it as an issue and no argument was advanced, merely an afterthought”. ‑ “Bowater did not have any awareness that this was going to be an issue let alone the deciding issue”. ‑ Bowater “was not afforded any opportunity to call evidence on what constitutes a ‘minor installation’ to consider cross‑examination and calling into question whatever evidence the Union might have called”. ‑ “Bowater made no written submission on the deciding issue, nor was it provided an opportunity to address the issue orally”. [36] The judge extrapolated these findings entirely from ¶ 33 of the arbitrator’s award: Almost as an afterthought, in rebuttal, however, Counsel for the Union suggested that sign making and their subsequent installation could be just that: ‘minor installation’ in the words of Section 35, paragraph one. Here is the germ of the solution to this case. [37] Does the record support the judge’s findings? I will start with the grievances and evidence, then turn to the submissions. [38] First, a word about the record. No affidavit was filed for the judicial review. The arbitration record for the judge, and this court, was simply the three written grievance forms, the arbitrator’s award, and the collective agreement. A party on judicial review may enter an affidavit attesting to the events that the party alleges establish a violation of procedural fairness. Bowater chose not to do so. So any findings about prejudice to Bowater are inferable only from the grievances, the award and the collective agreement. (a) Full Opportunity to Present Evidence [39] The grievances are quoted earlier (¶ 4). Mr. Wolfe grieved that the “Company violated section 35 Par. 2485 (and others)” with the contracted sign making. The Union’s second policy grievance described the complaint as “Contracting Out: Section 35 Par. 2485 and others.” Article 35, ¶ 2485 says “The Company agrees not to contract out repair or maintenance work or minor installation and modification work” (emphasis added). So the grievance incorporated the “minor installation” point. Nothing in the grievances limited this plenary allegation. There was no amendment, statement of particulars, or later pleading to limit the ambit of the grievances. [40] Bowater’s “Management response” on the grievance forms was “No Violation, grievance denied” and “No violation of CA”. Bowater fully joined the issue – whether the “Company violated section 35 Par. 2485 (and others)” which, among other things, prohibits Bowater’s contracting out a “minor installation”. [41] After all the evidence was in, the Union submitted, before rebuttal, that the signage was “maintenance department” work protected residually. This Union submission first surfaced after the Union and Bowater had closed their presentations of evidence. So this Union submission did not affect, and could not have affected the scope of the grievances, or Bowater’s preparation for the arbitration, or Bowater’s calling of evidence, all of which occurred before the Union made its submission. [42] During the presentation of evidence, the written grievances were Bowater’s only guidance for cross examination of Union witnesses, introduction of Bowater’s own evidence and direct examination of Bowater’s witnesses. There is nothing in the judicial review record to gainsay Bowater’s full opportunity to present evidence on the grieved issue that Bowater had “violated section 35 Par. 2485”, a paragraph that explicitly prohibited contracting out of “minor installation”. The award noted that Bowater’s submission “asserts ... that sign making falls outside the definitional ambit of work protected against contracting out by the relevant provision of the collective agreement - paragraph one of Section 35” (quoted above ¶ 16) [emphasis added]. Bowater made this submission before the Union’s rebuttal argument cited “minor installation” from the opening paragraph of article 35. So Bowater found guidance in the opening paragraph of article 35, as directed by the grievances. [43] Had the Union raised the “minor installation” submission as an alternative argument in its initial closing submission to the arbitrator, instead of its rebuttal, there would be no issue of procedural fairness. Bowater’s counsel acknowledged this in response to questioning in the Court of Appeal. So the procedural fairness point does not involve Bowater’s opportunity to present evidence. The only ostensible fairness issue involves Bowater’s opportunity to make a reply submission to the Union’s “minor installation” rebuttal argument. [44] I agree with the judge’s observation (¶ 26) that “the parties defined the issues based on the grievances and proceeded to conduct themselves in evidence and argument on the issues defined and placed before the arbitrator”. But those grievances included “minor installation”. The judge’s premise, that “minor installation” was “not on the plate” until the Union’s rebuttal argument, was incorrect. In my respectful view, the judge erred in law by misinterpreting the written grievances as excluding any reference to “minor installation”. [45] The judge also said “neither the Union nor Bowater presented any evidence” on “minor installation” and “no direct evidence was called on the issue of what constitutes a ‘minor installation’”. My comments on these findings are: (a) The procedural fairness question, incorporating the standard from s. 43(1)(a) of the Trade Union Act, is whether Bowater had the “full opportunity” to present evidence. If a full opportunity existed, then whether either party chose to exercise it does not implicate s. 43(1)(a) or the duty of fairness. (b) The meaning of “minor installation” in article 35 is a question of law. One would not expect to see admissible evidence on the interpretation of words in a collective agreement. Rather, one would expect to see arbitral precedents that interpret the wording. As I noted earlier (¶ 9), the award referred to two such precedents which had been cited to the arbitrator. One was an unreported award dated July 14, 2000 between Local 141 and Bowater, also written by Mr. Archibald, which (p. 11) ruled that a minor fabrication and use “if . . . not maintenance, . . . would certainly fall within the concept of minor installation”. (c) There is no transcript or recording of the arbitration hearing. So, the judge had no source, outside the award, for his finding that there was total absence of evidence on minor installation. (d) The award recites substantial evidence of signage installation. The award says that signs were painted onto doors and walls, were placed onto panels that were hung or affixed, were laminated mechanically or computer generated onto adhesive material or coreplast for attachment to surfaces. The award (¶ 13) refers specifically to the grievor Mr. Wolfe’s signage made on adhesive material that “can be stuck directly on structural surfaces within the mill (beams, walls, doors, etc.)” or made on coreplast surfaces that “are now widely used throughout the mill for many purposes, replacing the old style free-standing lettering done on wood or metal backgrounds”. The award mentions particular types of signs with special applications, such as temporary emergency signs written with markers, or taped into place predominantly, but not exclusively, in clerical areas. The award (¶ 12-17) discusses these topics at some length, then says (¶ 18): “The foregoing description is generally non-controversial.” The deciding passage later in the award, on the “minor installation” issue, says: 33 . . . Making and sticking durable lettering (or painting lettering) on walls, doors or beams on the one hand, or placing lettering on coreplast[sic] or some other durable background plaque which can be hung up or affixed to other structures or surfaces on the other, must surely constitute ‘minor installation’. The modes of attachment cited in this passage are those described by the award’s earlier recitation of the “non-controversial” evidence. [46] In my respectful view, the judge made a palpable and overriding error by saying there was no evidence of installation. (b) Full Opportunity to Make Submissions [47] I turn to the judge’s ruling that Bowater was denied the full opportunity to make submissions. [48] As discussed earlier, the grievances put the “minor installation” issue “on the plate”. The Union made its rebuttal submission, with the “minor installation” point, during the arbitration hearing. Bowater was there, and its counsel heard the Union’s submission. The arbitrator did not unearth the point by covert reconnaissance outside his perimeter. [49] Bowater had available procedures to handle new submissions on rebuttal. [50] First, an opposing party, who wants to exclude the new rebuttal point from the arbitrator’s consideration, should object. Bowater could have objected that the Union’s “minor installation” submission was improper rebuttal. The arbitrator would have ruled on the objection. Then the arbitrator would be obliged to conform to his own ruling. [51] At the hearing in the Court of Appeal, Bowater’s counsel acknowledged that Bowater did not object. [52] Second, when a new submission is made during rebuttal, the other party is entitled, on request, to surrebuttal. Had the arbitrator rejected a request from Bowater for a surrebuttal to a new rebuttal point, the eventual deciding issue, clearly this would have denied Bowater both a “full opportunity to make submissions” under s. 43(1)(a) of the Trade Union Act and procedural fairness. [53] During the Court of Appeal hearing, Bowater’s counsel acknowledged that Bowater did not request a surrebuttal. He said this was because he thought, wrongly as it later unfolded, that the Union’s “minor installation” point did not “have legs”. Bowater’s counsel contended to the Court of Appeal that the arbitrator was obliged to tell Bowater that the Union’s new point “had legs”. Had the arbitrator done so, counsel said, Bowater would have requested a surrebuttal. During the hearing in the Court of Appeal, it became apparent that this contention was the fulcrum of Bowater’s procedural fairness argument. [54] I disagree that either procedural fairness or s. 43(1)(a) of the Trade Union Act entitles a party to a progress report from an arbitrator on the interim cogency of the opponent’s submission. The arbitrator may wait until all is done, then dissect the body of argument in the light of dawn. A quasi judicial tribunal is rightly wary of expressing a premature view, and no principle of procedural fairness requires it to do so. [55] Bowater had the full opportunity to object and obtain a ruling from the arbitrator on the propriety of the Union’s rebuttal submission. Then the arbitrator could have disallowed the Union’s submission or, more likely, received it accompanied by Bowater’s surrebuttal. Bowater had the full opportunity, with or without an objection, to request a surrebuttal. Had Bowater made the request, there is no doubt, and none was suggested by counsel in the Court of Appeal hearing, that the arbitrator would have heard Bowater’s submission on “minor installation”. Bowater chose to neither object nor request surrebuttal. This was not a denial of Bowater’s “full opportunity”. This was Bowater’s own choice not to exercise its full opportunity. [56] Had Bowater chosen to object or request surrebuttal, a minor procedural problem quickly would have resolved itself in the arbitration room on May 29, 2008, likely with a surrebuttal submission from Bowater. Having chosen to remain silent, and wait to see the result of the award before speaking, Bowater’s delay has now disabled the surrebuttal option. Bowater’s procedural challenge would now quash the award and generate a new arbitration before another arbitrator. The reason for the in-hearing procedures, objection and request for surrebuttal, is to avoid that scorched earth outcome. Bowater’s approach controverts a purpose of the Trade Union Act, to encourage speedy and effective resolution of disputes under collective agreements. [57] In my respectful view, the judge erred in law in his interpretation of the “full opportunity” to make submissions under both s. 43(1)(a) of the Trade Union Act and the principles of procedural fairness. 7. Conclusion [58] I would allow the appeal, and reverse the judge’s ruling that set aside the arbitration award. As there is no notice of contention from Bowater to challenge the award on other grounds, the result would restore the award. The judge ordered the Union to pay costs of $1,000 plus disbursements. I understand from counsel that those have not yet been paid. I would reverse the judge’s costs award, and order Bowater to pay the Union costs of $1,000 plus disbursements for the proceeding in the Supreme Court along with $1,500 plus disbursements for the appeal. Fichaud, J.A. Concurring: Hamilton, J.A. Beveridge, J.A.