Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSSC 16

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 15, 2005
• Jurisdiction: Nova Scotia
• Citations: 2006 NSSC 16;(2006), 240 N.S.R.(2d) 221 (SC)

NSGGEU v. Health Authority (2006), 240 N.S.R.(2d) 221 (SC);

    763 A.P.R. 221

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JA.025

In The Matter Of: The Arbitration Act, R.S.N.S. 1989, c. 19

And In The Matter Of: An Application by the Nova Scotia Government and General Employees Union for an Order under Section 15(2) of the Arbitration Act to set aside a part of the Supplemental Award dated March 7, 2005 of an Interest Arbitration Board

The Nova Scotia Government and General Employees Union (applicant) v.

The Capital District Health Authority (respondent)

(SH 246169; 2006 NSSC 16)

Indexed As: Nova Scotia Government and General Employees Union v. Capital District Health Authority

Nova Scotia Supreme Court

MacAdam, J.

January 16, 2006.

Summary:

A Tripartite Interest Arbitration Board issued an award, concluding a three-year collective agreement between the Nova Scotia Government and General Employees Union and the Capital District Health Authority. The award provided for two types of wage increases, "economic increases" and "catch-up" adjustments. The award stated that "We remain seized with respect to the implementation of our award". The Health Authority sought the Board's clarification in determining eligibility for the next two catch-up adjustments. The Board held that it had a continuing jurisdiction with respect to the implementation of its award and that it would deal with the issues. The Board issued a supplemental award which dealt with eligibility for the next two catch-up adjustments. The union filed an originating notice (application inter-partes), seeking to set aside the supplemental award.

The Nova Scotia Supreme Court granted the application. The court held that the Board was functus officio with respect to the issue of eligibility for catch-up adjustments after it made its original award.

Administrative Law - Topic 554

The hearing and decision - Decisions of the tribunal - Finality (functus officio) - Power of tribunal to amend or reopen decision - A Tripartite Interest Arbitration Board issued an award, concluding a three-year collective agreement between the Nova Scotia Government and General Employees Union and the Capital District Health Authority - The award provided for two types of wage increases, "economic increases" and "catch-up" adjustments - The award stated that "We remain seized with respect to the implementation of our award" - The Health Authority sought the Board's clarification in determining eligibility for the next two catch-up adjustments - The Board held that it had a continuing jurisdiction with respect to the implementation of its award and that it would deal with the issues - The Board issued a supplemental award which dealt with eligibility for the next two catch-up adjustments - The Nova Scotia Supreme Court set aside the supplemental award, holding that the Board was functus officio with respect to the issue of eligibility for catch-up adjustments after it made its original award - See paragraphs 18 to 27.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - In August 2004, a Tripartite Interest Arbitration Board issued an award, concluding a three-year collective agreement between the Nova Scotia Government and General Employees Union and the Capital District Health Authority - The Health Authority subsequently sought the Board's clarification in determining eligibility for "catch-up" wage adjustments - In a letter dated January 13, 2005, the Board held that it had a continuing jurisdiction with respect to the implementation of its award and that it would deal with the issues - The Board issued a supplemental award dated March 7, 2005, which dealt with eligibility for catch-up adjustments - On May 6, 2005, the union filed an originating notice (application inter-partes), seeking to set aside the supplemental award - The Nova Scotia Supreme Court held that the time for reviewing the Board's decision, which included its interim decision in respect of jurisdiction, began to run from the filing of the supplemental award - The application was therefore not out of time under s. 16 of the Arbitration Act - See paragraphs 28 to 38.

Administrative Law - Topic 9006

Boards and tribunals - Jurisdiction - General - Termination of (functus officio) - [See Administrative Law - Topic 554 ].

Arbitration - Topic 3590

The arbitrator - Powers - Termination or resignation - Functus officio - [See Administrative Law - Topic 554 ].

Arbitration - Topic 7956

Judicial review - Jurisdiction of arbitrator - General - Exhaustion of jurisdiction (functus officio) - [See Administrative Law - Topic 554 ].

Arbitration - Topic 8602

Judicial review - Practice - Setting aside ruling or award - Application - Time for - Limitation period - [See Administrative Law - Topic 3342 ].

Labour Law - Topic 7060.2

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Functus officio - [See Administrative Law - Topic 554 ].

Cases Noticed:

Nova Scotia (Minister of Education and Culture) v. Nova Scotia Teachers' Union (2001), 196 N.S.R.(2d) 234; 613 A.P.R. 234; 2001 NSSC 113, consd. [para. 19].

Rogers Sugar Ltd. v. United Food and Commercial Workers Union, Local 832 (1999), 140 Man.R.(2d) 258 (Q.B.), consd. [para. 20].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, consd. [para. 21].

Nova Scotia Nurses' Union, Halifax Infirmary Local v. Halifax Infirmary Hospital (1989), 91 N.S.R.(2d) 384; 233 A.P.R. 384 (T.D.), consd. [para. 29].

Dominion Bridge Inc. v. Routledge et al. (1997), 161 Sask.R. 190 (Q.B.), consd. [para. 33].

Mississauga of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [2003] O.J. No. 3949 (Sup. Ct.), refd to. [para. 35].

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 99 D.L.R.(4th) 738 (Div. Ct.), refd to. [para. 35].

Roosma and Weller et al. v. Ford Motor Co. of Canada Ltd. et al. (1988), 29 O.A.C. 84; 66 O.R.(2d) 18 (Div. Ct.), consd. [para. 36].

University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), 28 O.A.C. 295; 52 D.L.R.(4th) 128 (Div. Ct.), consd. [para. 37].

Authors and Works Noticed:

Charney, Richard J., and Brady, Thomas E.F., Judicial Review in Labour Law (2004 Looseleaf Update, Release 7), paras. 10.1680, 10.4480 [para. 25].

Counsel:

Raymond F. Larkin, Q.C., and Heather L. Totton, for the applicant;

Eric B. Durnford, Q.C., and Nancy F. Barteaux, for the respondent.

This application was heard on December 15, 2005, at Halifax, Nova Scotia, before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 16, 2006.