Miners Memorial Manor v. IUOE, (2010) 300 N.S.R.(2d) 78 (SC)

Judge:Duncan, J.
Court:Supreme Court of Nova Scotia
Case Date:June 01, 2010
Jurisdiction:Nova Scotia
Citations:(2010), 300 N.S.R.(2d) 78 (SC);2010 NSSC 464
 
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Miners Memorial Manor v. IUOE (2010), 300 N.S.R.(2d) 78 (SC);

    950 A.P.R. 78

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Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.001

Miners' Memorial Manor (applicants) v. International Union of Operating Engineers, Local 968B, and David J. MacDonald, Arbitrator (respondents)

(317814; 2010 NSSC 464)

Indexed As: Miners' Memorial Manor v. International Union of Operating Engineers, Local 968B et al.

Nova Scotia Supreme Court

Duncan, J.

December 29, 2010.

Summary:

An investigation initiated upon complaint determined that an employee at a residential care home had been abusive to the residents. As a result, the employer terminated her employment. The employee's union filed a grievance, alleging an unjust discharge. An arbitrator agreed that the employee was guilty of some of the allegations that constituted abuse, but set aside the employee's dismissal and imposed a six month suspension without pay, but with no loss of seniority. The employer applied for judicial review.

The Nova Scotia Supreme Court allowed the application, set aside the arbitrator's award and remitted the matter for rehearing in accordance with the court's decision.

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - An investigation initiated upon complaint determined that an employee at a residential care home had been abusive to the residents - As a result, the employer terminated her employment - The employee's union filed a grievance, alleging an unjust discharge - An arbitrator agreed that the employee was guilty of some of the allegations that constituted abuse, but set aside the employee's dismissal and imposed a six month suspension without pay, but with no loss of seniority - The employer applied for judicial review, asserting that, inter alia, the arbitrator erred by stating that there were different levels of civil proof depending on the nature of the case and by adopting a higher standard than the law called for - The Nova Scotia Supreme Court agreed - The decision in F.H. v. McDougall (S.C.C.) predated the arbitrator's decision and continued to be the prevailing law respecting the civil standard of proof - There was only one civil standard of proof and that was proof on a balance of probabilities - There was no doubt that the arbitrator intended to apply a standard that was inconsistent with the law - Further, the arbitrator's language supported the conclusion that he rejected the employer's evidence while applying a higher test than the law called for - He was not required to state in relation to each finding that he applied the correct standard - However, where he initially adopted an incorrect test, there should have been some discussion that demonstrated that he had correctly instructed himself as he applied the test to the facts as found - That did not happen - Instead the language used was more consistent with his incorrect conclusion that there was a higher threshold to meet in view of the nature of the allegations - See paragraphs 38 to 43.

Labour Law - Topic 7052

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Evidence and proof - [See Evidence - Topic 102 ].

Labour Law - Topic 7052

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Evidence and proof - An investigation initiated upon complaint determined that an employee at a residential care home had been abusive to the residents - The employer terminated her employment - The employee's union filed a grievance - At the hearing, the employer's lawyer asked the employee if "... she had done anything to a resident which could be considered a disciplinary default" - The employee replied in the negative - The lawyer sought to impugn the employee's credibility by cross-examining her on an allegation that the employee had been involved in a prior incident that resulted in a resident being hospitalized - The arbitrator refused to allow the questioning - The arbitrator concluded that the employee was guilty of some abuse, but set aside the dismissal and imposed a six month suspension without pay, but with no loss of seniority - The employer applied for judicial review, asserting that, inter alia, the arbitrator erred in limiting the cross-examination - The Nova Scotia Supreme Court disagreed - Sections 43(1) and 16(8) of the Trade Union Act provided a broad discretion to the arbitrator to determine what evidence would be permitted, although he had to "give full opportunity ... to present evidence" (s. 43(1)(a)) - It was contrary to the goal of a fair yet expeditious proceeding if every adverse evidentiary ruling could be subject to a claim of a denial of natural justice - Here, both parties were permitted to make submissions and the arbitrator made a ruling - There was no procedural unfairness in the manner in which the dispute was argued and ruled upon - The question of whether the arbitrator gave the parties "full opportunity" to present evidence could only be assessed in the context of the information before the arbitrator and on which his decision was rendered - The employee had not volunteered evidence of her prior good character respecting her earlier treatment of residents - That issue was generated by the questions posed by the employer's counsel - The evidence that the employer sought to rely upon was of a collateral fact that went solely to credibility - It had not, apparently, been tested at the time it allegedly occurred - If the arbitrator had permitted the questioning, it would have invited a contested hearing of whether the earlier incident occurred, and under what circumstances - The arbitrator could reasonably have concluded that the intended questioning would offend the collateral fact rule - It was also within his discretion to admit the evidence - The court was concerned with the process, not the ruling - The decision limiting cross-examination did not amount to a breach of procedural fairness, but instead was a permissible exercise of the authority vested in the arbitrator to control the proceedings - Providing a "full opportunity" did not mean an unfettered or uncontrolled right to lead evidence - The legislature had empowered the arbitrator to make those decisions - Unless there was a breach of natural justice in the way in which that authority was exercised, the decision was not assailable on the grounds of procedural unfairness - See paragraphs 44 to 75.

Labour Law - Topic 7056

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Power to reinstate employee - An investigation initiated upon complaint determined that an employee at a residential care home had been abusive to the residents - As a result, the employer terminated her employment - The employee's union filed a grievance, alleging an unjust discharge - An arbitrator agreed that the employee was guilty of some of the allegations that constituted abuse, but set aside the employee's dismissal and imposed a six month suspension without pay, but with no loss of seniority - The employer applied for judicial review, asserting that, inter alia, the employee was discharged for cause (Trade Union Act, s. 43(1)(d)(i)), but that article 20.2 of the collective agreement was a specific penalty clause within the meaning of s. 43(1)(d)(ii) - The employer asserted that therefore the arbitrator lacked jurisdiction to substitute the discharge for another penalty - The Nova Scotia Supreme Court stated that it was very much a live issue as to whether article 20.2 was a specific penalty clause within the meaning of s. 43 - The arbitrator took the view that reading articles 20.2 and 23.4 (power to modify or set aside any unjust penalty of discharge) together was sufficient for him to vary the penalty - His analysis did not go far enough - He was obliged to consider whether article 20.2 was a specific penalty clause within the meaning of s. 43 and determine whether he had jurisdiction to vary, in consequence of that decision - His assumption of jurisdiction without addressing that issue was an error - See paragraphs 22 to 31.

Labour Law - Topic 7060

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Variation or alteration of disciplinary penalty - [See Labour Law - Topic 7056 ].

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Scope of review - The Nova Scotia Supreme Court stated that it was well established that a reviewing court should apply a reasonableness standard when reviewing an arbitrator's interpretation of a collective agreement - See paragraph 17.

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Scope of review - An investigation initiated upon complaint determined that an employee at a residential care home had been abusive to the residents - As a result, the employer terminated her employment - The employee's union filed a grievance, alleging an unjust discharge - An arbitrator agreed that the employee was guilty of some of the allegations that constituted abuse, but set aside the employee's dismissal and imposed a six month suspension without pay, but with no loss of seniority - The employer applied for judicial review, asserting that, inter alia, the employee was discharged for cause (Trade Union Act, s. 43(1)(d)(i)), but that article 20.2 of the collective agreement was a specific penalty clause within the meaning of s. 43(1)(d)(ii) - The employer asserted that therefore the arbitrator lacked jurisdiction to substitute the discharge for another penalty - The Nova Scotia Supreme Court stated that s. 43 of the Trade Union Act imposed restrictions on an arbitrator's jurisdiction to vary a penalty where there was a specific penalty clause - Since the arbitrator's authority to vary the sanction, in the face of a specific penalty clause, was a "true question of jurisdiction or vires", the arbitrator's decision to assume jurisdiction to vary the penalty had to be assessed on a standard of correctness - See paragraphs 18 to 21.

Labour Law - Topic 7120

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Natural justice - Denial of - [See second Labour Law - Topic 7052 ].

Cases Noticed:

Scott (Wm.) & Co. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1 (B.C.L.R.B.), refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 16].

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, refd to. [para. 16].

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. 17].

Industrial Union of Marine and Shipbuilding Workers of Canada v. Halifax Shipyard Ltd., [1995] N.S.L.A.A. 5, refd to. [para. 22].

Halifax Shipyard Ltd. v. Industrial Union of Marine and Shipbuilding Workers of Canada, Local 1 (1999), 57 C.L.A.S. 442, refd to. [para. 22].

Halifax Shipyard Ltd. v. Marine Workers Federation, Local 1 (2002), 72 C.L.A.S. 63, refd to. [para. 22].

Juan de Fuca Hospital Society v. Hospital Employees Union, Local 180 (1988), 35 L.A.C.(3d) 289, refd to. [para. 33].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 35].

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. 37].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 52].

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. 55].

Versa Care Ltd. v. Christian Labour Association of Canada, 2005 CLB 11021, dist. [para. 69].

Statutes Noticed:

Trade Union Act, R.S.N.S. 1989, c. 475, sect. 16(8) [para. 58]; sect. 43(1) [para. 57]; sect. 43(1)(d)(i) [para. 19].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 434 [para. 65]; 436 [para. 66].

Counsel:

Eric Durnford, Q.C., for the applicant;

Susan Coen, for the respondent, International Union of Operating Engineers, Local 968B;

David J. MacDonald, respondent, not participating.

This application was heard on June 1, 2010, at Halifax, Nova Scotia, by Duncan, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 29, 2010.

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