Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108, 2011 NSCA 41

• Judge: Hamilton, Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 30, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 41;(2011), 303 N.S.R.(2d) 156 (CA)

Halifax v. CUPE (2011), 303 N.S.R.(2d) 156 (CA);

    957 A.P.R. 156

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MY.022

Canadian Union of Public Employees, Local 108, Halifax Civic Workers Union (appellant) v. Halifax Regional Municipality (respondent)

(CA 332801; 2011 NSCA 41)

Indexed As: Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108

Nova Scotia Court of Appeal

Hamilton, Fichaud and Farrar, JJ.A.

May 12, 2011.

Summary:

An employee's employment with a municipality was terminated. The union grieved. An arbitrator dismissed the grievance and confirmed the termination, subject to a condition subsequent permitting the union and the employee 30 days to present further evidence and to make further submissions regarding a possible disability by the employee and the municipality's duty, as the employer, to accommodate the disability. The municipality sought judicial review respecting the condition subsequent aspect of the award.

The Nova Scotia Supreme Court, in a decision reported at 292 N.S.R.(2d) 375; 925 A.P.R. 375, allowed the application. The court held, inter alia, that the arbitrator did not have jurisdiction to leave the door open for a further "kick at the can" by imposing a condition subsequent on his own final decision. The union appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Arbitration - Topic 3585

The arbitrator - Powers - Respecting remedies - An employee's employment with a municipality was terminated - The union grieved - During the arbitration, the arbitrator adjourned the proceedings so that the grievor could be psychologically assessed and the union would have the opportunity to present evidence of mental disability and assert the employer's duty to accommodate - When the hearing resumed, the union offered no evidence of disability and the grievor testified that he had not been assessed and had no intention of being assessed - The union made no final submissions based on mental disability or accommodation for disability - The arbitrator dismissed the grievance and confirmed the termination, subject to a condition subsequent permitting the union and the employee 30 days to present further evidence and to make further submissions regarding a possible disability and the employer's duty to accommodate - Article 16.04 of the collective agreement provided that the arbitrator "... shall have the power to modify penalties or dispose of a grievance by any arrangement which it deems just and equitable." - The municipality sought judicial review respecting the condition subsequent aspect of the award - An application judge allowed the application - The Nova Scotia Court of Appeal dismissed the union's appeal - The union was the grievor's exclusive representative in the arbitration - It controlled the presentation of the grievor's case - Art. 16.04 did not allow an arbitrator, on his own initiative, to inject an issue that the parties have decided to exclude from the submission to arbitration - Nor did it allow an arbitrator to transform what the parties expected to be the final award into a message with ongoing trial advice to one of the parties - No reasonable interpretation of "any arrangement which it [the arbitrator] deems just and equitable" in art. 16.04 authorized such a substantial departure, in these respects, from fundamental principles - See paragraphs 28 to 46.

Arbitration - Topic 7803

Judicial review (incl. appeals) - General principles - Nature of review proceeding (incl. standard of review) - An employee's employment with a municipality was terminated - The union grieved - An arbitrator dismissed the grievance and confirmed the termination, subject to a condition subsequent permitting the union and the employee 30 days to present further evidence and to make further submissions regarding a possible disability by the employee and the municipality's duty, as the employer, to accommodate the disability - The municipality sought judicial review respecting the condition subsequent aspect of the award - Article 16.04 of the collective agreement provided that the arbitrator "... shall have the power to modify penalties or dispose of a grievance by any arrangement which it deems just and equitable." - An application judge stated that the arbitrator's decision that the collective agreement provided him with the authority to subject his final decision to a "condition subsequent" was a matter of jurisdiction on which he was required to be correct - The Nova Scotia Court of Appeal disagreed with the choice of the correctness standard - The court applied the reasonableness standard to the arbitrator's use of art. 16.04 - See paragraphs 22 to 25.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - [See Arbitration - Topic 7803 ].

Labour Law - Topic 9675

Public service labour relations - Collective agreement - Grievances - Remedies - [See Arbitration - Topic 3585 ].

Cases Noticed:

Canadian Union of Public Employees, Local 2434 et al. v. Port Hawkesbury (Town) et al. (2011), 301 N.S.R.(2d) 123; 953 A.P.R. 123; 2011 NSCA 28, refd to. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 22].

Maritime Paper Products Ltd. v. Communications, Energy and Paperworkers' Union, Local 1520 (2009), 278 N.S.R.(2d) 381; 886 A.P.R. 381; 2009 NSCA 60, refd to. [para. 23].

Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933 (2006), 245 N.S.R.(2d) 219; 777 A.P.R. 219; 2006 NSCA 80, refd to. [para. 23].

Nova Scotia Government and General Employees Union v. Capital District Health Authority (2006), 244 N.S.R.(2d) 74; 774 A.P.R. 74; 2006 NSCA 44, refd to. [para. 23].

Nova Scotia Teachers Union v. Nova Scotia Community College (2006), 241 N.S.R.(2d) 183; 767 A.P.R. 183; 2006 NSCA 22, refd to. [para. 23].

Cape Breton-Victoria Regional School Board v. Canadian Union of Public Employees, Local 5050 (2011), 298 N.S.R.(2d) 258; 945 A.P.R. 258; 2011 NSCA 9, refd to. [para. 23].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235, refd to. [para. 24].

Nova Scotia Government and General Employees Union v. Capital District Health Authority (2006), 246 N.S.R.(2d) 104; 780 A.P.R. 104; 2006 NSCA 85, refd to. [para. 24].

Symington v. Halifax (Regional Municipality) et al. (2007), 258 N.S.R.(2d) 69; 824 A.P.R. 69; 2007 NSCA 90, refd to. [para. 24].

Newfoundland and Labrador (Treasury Board) et al. v. Newfoundland and Labrador Association of Public and Private Employees (2009), 284 Nfld. & P.E.I.R. 58; 875 A.P.R. 58; 2009 NLCA 15, refd to. [para. 24].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371, refd to. [para. 26].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199, refd to. [para. 26].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 27].

Kelly v. Police Commission (N.S.) (2006), 241 N.S.R.(2d) 300; 767 A.P.R. 300; 2006 NSCA 27, refd to. [para. 27].

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, refd to. [para. 27].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267, refd to. [para. 29].

United Steel Workers of America, Local 5885 v. Sealy Canada Ltd. (2006), 147 L.A.C.(4th) 68, refd to. [para. 29].

Cherubini Metal Works Ltd. v. United Steelworkers of America, Local 4122 (2008), 172 L.A.C.(4th) 1, refd to. [para. 32].

Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority, [1984] 1 S.C.R. 509; 53 N.R. 100, refd to. [para. 40].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, refd to. [para. 40].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304, refd to. [para. 40].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201, refd to. [para. 40].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006) (2010 Looseleaf Update), generally [para. 37].

Counsel:

Susan D. Coen, for the appellant;

Randolph Kinghorne, for the respondent.

This appeal was heard on March 30, 2011, in Halifax, Nova Scotia, before Hamilton, Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment on May 12, 2011.