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Labour relations – Grievances – Jurisdiction of arbitrator – Judicial review – Whether announcement by employer that it will be closing its establishment has effect of automatically terminating lockout imposed in conformity with Labour Code, CQLR, c. C-27 – Whether collective agreement is source of rights and obligations while right to strike or to lock out being exercised – Whether, where grievance arbitrator has interpreted statutory provisions that define bases of collective labour relations system in order to rule on very existence of his or her power to resolve dispute, there true question of jurisdiction requiring application of standard of review of correctness.

The applicant is a food distribution and retail business, and 450 of its employees were represented by the respondent Syndicat des travailleurs et travailleuses de Provigo, Entrepôt Armand-Viau (“the Syndicat”). The two parties were bound by a collective agreement for the period from February 2, 2005 to March 31, 2010, but were unable to agree on the renewal of that agreement. The agreement contained the following clause: [TRANSLATION] “28.02 This agreement, upon expiring, becomes an interim agreement subject to the rights of the parties until the signing of a new collective agreement.”

The following chain of events then took place. The applicant exercised its right to lock the employees out on April 2, 2010. The Syndicat called a strike against the applicant on April 8, 2010. On April 27, 2010, the applicant sent a notice of termination of employment to all the employees in question, and a notice of collective dismissal to the Minister of Employment and Social Solidarity. The Syndicat sent a return-to-work notice on May 12, 2010, after which it filed grievances on May 18 and June 7, 2010. On June 22, 2010, the applicant closed the establishment in question.

The grievances were submitted to arbitrator Côme Poulin, after which the applicant filed a preliminary objection to the arbitrator’s jurisdiction. The basis for the objection was that the collective agreement between the parties had ceased to be in effect as of the start of the lockout, and that the arbitrator consequently lacked jurisdiction over the Syndicat’s grievances. The arbitrator concluded that the notice of collective dismissal and the notice of termination constituted a unilateral act on the applicant’s part. This unilateral act had the effect of putting an end to the lockout, which meant that the provisions of the collective agreement were applicable by virtue of the maintenance clause (art. 28.02 reproduced above). The arbitrator accordingly held that he had jurisdiction over the grievances.