Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSCA 85

• Judge: Cromwell, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 05, 2006
• Jurisdiction: Nova Scotia
• Citations: 2006 NSCA 85;(2006), 246 N.S.R.(2d) 104 (CA)

NSGGEU v. Health Authority (2006), 246 N.S.R.(2d) 104 (CA);

    780 A.P.R. 104

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JL.034

The Capital District Health Authority (appellant) v. The Nova Scotia Government and General Employees Union (respondent)

(CA 261813; 2006 NSCA 85)

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

Nova Scotia Court of Appeal

Cromwell, Hamilton and Fichaud, JJ.A.

July 7, 2006.

Summary:

The Capital District Health Authority and the Nova Scotia Government and General Employees Union set up an interest arbitration board to determine various issues including employees' rates of pay. The board issued an award. The parties could not agree on how to implement the part of the award which dealt with the "catch-up" component of the wage increase. The board issued a supplemental award to resolve the matter. The union applied to set aside the supplemental award, arguing that the board was functus officio and that it had no further authority to address the "catch-up" issue.

The Nova Scotia Supreme Court, in a decision reported at 240 N.S.R.(2d) 221; 763 A.P.R. 221, granted the application. The court applied the correctness standard of review and found that the board was wrong to deal further with the "catch-up" issue. That part of the supplemental award was quashed. The Health Authority appealed.

The Nova Scotia Court of Appeal allowed the appeal and restored the board's supplemental award. The application judge applied the wrong standard of review. He should have reviewed the board's decision for reasonableness, not correctness. Applying that standard, the board did not make a reviewable error.

Administrative Law - Topic 554

The hearing and decision - Decisions of the tribunal - Finality (functus officio) - Power of tribunal to amend or reopen decision - [See Administrative Law - Topic 9006 ].

Administrative Law - Topic 9006

Boards and tribunals - Jurisdiction - General - Termination of (functus officio) - An interest arbitration board issued an award dealing with employees' rates of pay - The parties could not agree on how to implement the part of the award which dealt with the "catch-up" component of the wage increase - The board issued a supplemental award to resolve the matter - The union applied to set aside the supplemental award, arguing that the board was functus officio and that it had no further authority to address the "catch-up" issue - The application was granted - The application judge applied the correctness standard of review and found that the board was wrong to deal further with the "catch-up" issue - The employer appealed - The Nova Scotia Court of Appeal allowed the appeal and restored the board's supplemental award - The application judge applied the wrong standard of review - He should have reviewed the board's decision for reasonableness, not correctness - Applying that standard, the board did not make a reviewable error - The board was entitled to deal further with the "catch-up" issue in its supplemental award where it reasonably concluded that the language of the main award had failed to give effect to its manifest intent on that issue.

Arbitration - Topic 3590

The arbitrator - Powers - Termination or resignation - Functus officio - [See Administrative Law - Topic 9006 ].

Arbitration - Topic 7803

Judicial review (incl. appeals) - Nature of review proceeding (incl. standard of review) - [See Labour Law - Topic 9353 ].

Arbitration - Topic 7956

Judicial review - Jurisdiction of arbitrator - General - Exhaustion of jurisdiction (functus officio) - [See Administrative Law - Topic 9006 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - An interest arbitration board issued an award dealing with employees' rates of pay - The parties could not agree on how to implement the part of the award which dealt with the "catch-up" component of the wage increase - The board issued a supplemental award to resolve the matter - The union applied to set aside the supplemental award, arguing that the board was functus officio - The chambers judge applied the correctness standard of review and granted the application - The employer appealed - The Nova Scotia Court of Appeal applied the pragmatic and functional approach and concluded that the chambers judge should have applied a reasonableness standard of review - The critical question in the case was whether the language of the board's main award gave effect to the board's manifest intent - That issue was one of mixed fact and law, central to the board's purpose and close to the core of its labour relations expertise - However, the resolution of that question also defined the limits of the board's authority to act - That suggested that the resolution of the issue should not be afforded the highest level of deference - See paragraphs 25 to 53.

Labour Law - Topic 9702

Public service labour relations - Collective agreement - Arbitration - Jurisdiction - [See Administrative Law - Topic 9006 ].

Labour Law - Topic 9710

Public service labour relations - Collective agreement - Arbitration - Judicial review - [See Labour Law - Topic 9353 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 25].

ATCO Gas & Pipelines Ltd. v. Energy & Utilities Board (Alta.) (2006), 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 33].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 33].

Paper Machinery Ltd. v. Ross (J.O.) Engineering Corp., [1934] S.C.R. 186, refd to. [para. 36].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 38].

Rogers Sugar Ltd. v. United Food and Commercial Workers Union, Local 832 (1999), 140 Man.R.(2d) 258 (Q.B.), refd to. [para. 39].

Canadian Broadcasting Corp. v. Joyce and Canadian Media Guild (1997), 101 O.A.C. 266; 34 O.R.(3d) 493 (Div. Ct.), refd to. [para. 39].

Sydney v. Canadian Union of Public Employees, Local 933 (1985), 67 N.S.R.(2d) 62; 155 A.P.R. 62 (C.A.), refd to. [para. 39].

Saint John Policemen's Protective Association v. Saint John (City) (1995), 170 N.B.R.(2d) 222; 435 A.P.R. 222 (C.A.), refd to. [para. 40].

Canadian National Railway Co. v. National Transportation Agency and Bowater Mersey Paper Co. (1989), 96 N.R. 378 (F.C.A.), refd to. [para. 42].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 47].

Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2005), 231 N.S.R.(2d) 390; 733 A.P.R. 390 (C.A.), refd to. [para. 50].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 55].

Counsel:

Eric Durnford, Q.C., and Nancy Barteaux, for the appellant;

Raymond Larkin, Q.C., and Heather Totten, for the respondent.

This appeal was heard on June 5, 2006, at Halifax, Nova Scotia, before Cromwell, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Cromwell, J.A., on July 7, 2006.