Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2008 NSSC 7

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 08, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 7;(2008), 266 N.S.R.(2d) 1 (SC)

NSGGEU v. Health Authority (2008), 266 N.S.R.(2d) 1 (SC);

    851 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.015

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 to quash and set aside a portion of the Arbitration Award of Peter Lederman dated July 14, 2006.

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

(S.H. 270615; 2008 NSSC 7)

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

Nova Scotia Supreme Court

Moir, J.

January 10, 2008.

Summary:

The union sought arbitration of the rates of pay for what it considered to be two new or substantially altered job classifications. The employer took the position that the matter had to be dealt with as a grievance and it requested a preliminary ruling on the issue. The arbitrator ruled that there was no need to follow the grievance procedure and he went on to determine whether the collective agreement allowed him to set rates of pay for the new or substantially altered classifications. The arbitrator found that one of the classifications was not new, but was an existing classification with an existing pay rate. The union applied for judicial review.

The Nova Scotia Supreme allowed the application. The court set aside the arbitrator's decision that pay rates for one of the groups of employees was not subject to arbitration.

Administrative Law - Topic 221

The hearing and decision - Right to be heard - General - [See Administrative Law - Topic 2493 ].

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - The union sought arbitration of the rates of pay for what it considered to be two new or substantially altered job classifications - The employer took the position that the matter had to be dealt with as a grievance and it requested a preliminary ruling on the issue - The arbitrator ruled that there was no need to follow the grievance procedure and he went on to determine whether the collective agreement allowed him to set rates of pay for the new or substantially altered classifications - The arbitrator found that one of the classifications was not new, but was an existing classification with an existing pay rate - The union applied for judicial review - The Nova Scotia Supreme Court allowed the application and set aside the arbitrator's decision that pay rates for one of the groups of employees was not subject to arbitration - When the arbitrator asked himself whether he had the authority to set a pay rate for the two classifications, he went beyond the preliminary issue which the employer asked him to decide and he deprived the union of the opportunity to be heard by straying into an issue on which the union had no reason to believe it needed to call evidence or present arguments.

Administrative Law - Topic 2494

Natural justice - Procedure - At hearing - Opportunity to present evidence - [See Administrative Law - Topic 2493 ].

Arbitration - Topic 3668

The arbitrator - Duties of arbitrator - Procedural fairness - [See Administrative Law - Topic 2493 ].

Labour Law - Topic 9705

Public service labour relations - Collective agreement - Arbitration - Awards - Grounds for quashing - [See Administrative Law - Topic 2493 ].

Cases Noticed:

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 14].

Nova Scotia (Department of Human Resources) v. Nova Scotia Government Employees Union (2001), 68 C.L.A.S. 108 (Arbitrator), refd to. [para. 18].

Nova Scotia Government Employees Union v. Nova Scotia Civil Service Commission (1993), 33 C.L.A.S. 349 (Arbitrator), refd to. [para. 20].

Public Service Commission (N.S.) v. Nova Scotia Government and General Employees Union (2004), 223 N.S.R.(2d) 57; 705 A.P.R. 57; 2004 NSCA 55, refd to. [para. 20].

Acadia University v. International Union of Operating Engineers, Local 968B (1985), 66 N.S.R.(2d) 296; 152 A.P.R. 296 (C.A.), refd to. [para. 20].

Counsel:

Gordon N. Forsyth and Heather L. Totton, for the applicant;

Kenda L. Murphy, for the respondent.

This application was heard on February 8, 2007, at Halifax, Nova Scotia, before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 10, 2008.