SHP - 73



Canadian Pacific Limited

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J. W. Asprey

A. Manocchio



M.M. Yorston



A hearing in this matter was held in Montreal on April 9, 1980.



The grievance in this matter, dated September 15, 1979, was filed by the union on behalf of some eighteen employees and involves a claim in respect of work assigned during the vacation period.

The grievance was progressed through the grievance procedure in the usual way, and in accordance with the requirements of the collective agreement. It was declined at the last step of the grievance procedure on October 2, 1979. On December 10, 1979, the union wrote to the company requesting that the matter proceed to arbitration.

The company raises the preliminary objection that the grievance is not arbitrable, since the request for arbitration was made after the time set out in the collective agreement for making such a requestion had expired. The hearing in this matter was, by agreement, restricted to argument on the issue of arbitrability.

Rule 29 of the collective agreement provides, in its material clauses as follows:

29.1 A grievance concerning the interpretation or alleged violation of this agreement, or an appeal by an employee that he has been unjustly disciplined or discharged, and which is not settled through the grievance procedure may be referred by either the Railway Association of Canada or Division No. 4, Railway Employees' Department, A.F. of L. - C.I.O. herein defined as the parties to a single arbitrator for final and binding settlement without stoppage of work.

29.2 The party requesting arbitration must so notify the other party in writing within sixty calendar days following the date the decision was rendered at the last step of the grievance procedure.

29.3 Within forty-five calendar days of date of receipt of a request for arbitration the parties shall endeavour to agree on the name of the arbitrator. If agreement is not then reached, the party requesting arbitration may then request the Minister of Labour to appoint an arbitrator and advise the other party accordingly. Such request to the Minister of Labour must be made no later than fourteen calendar days following the 45-day period referred to in this paragraph.

* * *

It is clear that in the instant case the request for arbitration was not made within the time referred to in rule 29.2. This was acknowledged by the union in its letter requesting that the matter be referred to arbitration. The deadline was missed through inadvertence, in a period of very heavy workload. The company, however, declined to agree to submit the matter to arbitration.

The company cannot be said to have waived its right to object to the timelines of the request, nor is it estopped from making the objection. The fact that the grievance was dealt with in the grievance procedure has no relation to the validity of the present objection, which arises only with respect to the request for arbitration. The company made no representation, during the grievance procedure, with respect to any procedural objections that might arise in the future. When such an objection did arise (when the request for arbitration was made), the company's position was announced promptly.

The question to be decided, therefore, is whether or not the objection is valid in itself. The union did not notify the company, in writing within sixty calendar days following the date the decision was rendered at, the last step of the grievance procedure. Article 29.2, however, provides that "The party requesting arbitration must so notify the other party in writing within sixty calendar days". Such notice was not given, and the issue is whether, the requirement of timely notice is mandatory (meaning that the requirement must be met or the matter cannot proceed without the consent of the other party), or directory (meaning that although the requirement might not be met, the matter may still proceed if the request is made within a reasonable time).

To put the issue another way, it is this: did the parties, in agreeing to rule 29.2, set out a limit to the time in which a grievance could, without consent, be referred to arbitration, or did they simply give an indication of what was thought to be a desirable period for such references? To put the question even more crudely: were the parties serious when they agreed to article 29.2?

I am in agreement with the view that the determination of the question whether time-limit provisions are mandatory or directory is to be made having regard to the whole context in which the language appears. Where, for example, the parties set out what the consequence of non-compliance with a time limit is to be, then any ambiguity in this respect is usually resolved, whether or not the operative verb is the (usually) permissive "may" or the (usually) imperative "shall".

In the instant case the parties have not set out what the consequence of non-compliance with the time limit set out in rule 29.2 is to be. Where they have said, however, that the party requesting arbitration "must" so notify the other party within sixty days (a period of time allowing for ample reflection: the time-limit cannot be said to be unreasonably restrictive), the implication of such language appears to be clear: the notice is to be given within the stated period, or it cannot thereafter be effectively given at all (without the consent of the other party). To call the time limit set out here "directory" only would be, in effect, to conclude that because the parties did not spell out the consequences of non-compliance they intended that there should be no consequences! That conclusion is simply not one that can properly be drawn: to provide that notice must be given within a certain time is to provide, in effect, that if notice is to be given, it is to be given within the period stated, or it will not be valid. In the absence of some provision setting out different consequences, that is the clear implication of the language used in this agreement.

In a recent arbitration between this company and another union, the effect of the word "must" as used in an article similar to rule 29.3 of the agreement in this case was considered. In that decision, dated 16 January 1980, the arbitrator, F.R. Anton, held that the word "must" was imperative within the context of the clause in question. He referred to the recent Massey-Ferguson case (1979) 94 D.L.R. (3rd) 743, and the remarks of Reid, J., to the effect that the word "must" is a common imperative bearing no other connotation; in its present or future tense it expresses command, obligation, duty, necessity and inevitability, in contrast to the word "shall" which is equivocal and can express either command or simple futurity.

In the instant case, it is my conclusion that where, for whatever reason, a party fails to request arbitration of a grievance within time limits provided in rule 29.2, then it is no longer open to that party to proceed to arbitration of the matter without the consent of the other party. Where the other party waives the time limits or is, by reason of some representation estopped from objecting, then a different situation would arise, but that is not this case.

In some jurisdictions, the legislature has accorded arbitrators a power to grant relief, in appropriate cases, from the effects of non-compliance with time limits. The Canada Labour Code does not, however, confer any such power on arbitrators. I have, of course, no jurisdiction to alter or amend, the terms of the collective agreement, but rather am governed by those terms. In the instant case, as I have indicated, the collective, agreement does not permit the reference of this grievance to arbitration because notice was not given in conformity with rule 29.2.

For the foregoing reasons it must be my conclusion that the matter is not arbitrable. The grievance, is accordingly dismissed.

DATED AT TORONTO, this 14th day of April, 1980.

(signed) J.F.W. Weatherill