Nova Scotia Teachers Union v. Cape Breton District School Board, (1985) 71 N.S.R.(2d) 371 (TD)

• Judge: Richard, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 16, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 71 N.S.R.(2d) 371 (TD)

Teachers Union v. Cape Breton School Bd. (1985), 71 N.S.R.(2d) 371 (TD);

    171 A.P.R. 371

MLB headnote and full text

Nova Scotia Teachers Union v. Cape Breton District School Board

(S.H. No. 50357)

Indexed As: Nova Scotia Teachers Union v. Cape Breton District School Board

Nova Scotia Supreme Court

Trial Division

Richard, J.

December 16, 1985.

Summary:

A teacher retired in 1983 after teaching for the school board since 1945 except for the year 1959-60, when she retired to have a child. She was paid a service award under the collective agreement, but only for the years since 1960. Her grievance was dismissed by an arbitrator, who ruled that the number of years of service must be consecutive. The union applied to quash the arbitration award.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 68 N.S.R.(2d) 56; 159 A.P.R. 56, allowed the application and held that the arbitrator erred in ruling that years of service must be consecutive and remitted the matter to the arbitrator.

The arbitrator again dismissed the grievance, but for different reasons. The union applied to the same judge of the Trial Division to determine whether the arbitrator complied with the remittal order.

The Nova Scotia Supreme Court, Trial Division, ruled that it had no jurisdiction to consider or review its previous order. The court held that the appropriate procedure was for the union to apply for an order to quash the arbitrator's second award.

Arbitration - Topic 8580

Judicial review - Practice - Remittal of award - Review of decision on remittal - A judge of the Nova Scotia Supreme Court, Trial Division, remitted an arbitration award to the arbitrator after ruling that the arbitrator misconstrued the collective agreement in dismissing a grievance - The arbitrator's second award again dismissed the grievance, but for different reasons - The grievor applied to the same judge for determination of whether the arbitrator complied with the remittal order - The Nova Scotia Supreme Court, Trial Division, held that the appropriate procedure was for the union to apply for an order to quash the arbitrator's second award.

Courts - Topic 2191

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Remittal orders - Review of decision on remittal - A judge of the Nova Scotia Supreme Court, Trial Division, remitted an arbitration award to the arbitrator after ruling that the arbitrator misconstrued the collective agreement in dismissing a grievance - The arbitrator's second award again dismissed the grievance, but for different reasons - The grievor applied to the same judge for determination of whether the arbitrator complied with the remittal order - The Nova Scotia Supreme Court, Trial Division, held that the appropriate procedure was for the union to apply for an order to quash the arbitrator's second award.

Cases Noticed:

Toronto v. Thompson (1932), 41 O.W.N. 341 (C.A.), consd. [para. 11].

International Woodworkers, Local 1217, and Industrial Mill Installations Limited, Re (1972), 51 D.L.R.(3d) 318, consd. [para. 11].

Broom v. Pepall (1911), 23 O.L.R. 630, consd. [para. 14].

Boutilier et al. v. Traders General Insurance Co. (1968), 1 D.L.R.(3d) 379, consd. [para. 15].

Credit Foncier Franco-Canadian v. Fort Massey Realties Limited et al. (1981), 49 N.S.R.(2d) 646; 96 A.P.R. 646, consd. [para. 15].

Lunenburg v. Public Service Commission of Bridgewater (1983), 59 N.S.R.(2d) 23; 125 A.P.R. 23, consd. [para. 15].

Little v. Little (1980), 40 N.S.R.(2d) 83; 73 A.P.R. 83, consd. [para. 15].

R. v. G.M. Holdings Ltd., [1941] 3 All E.R. 417, consd. [para. 15].

Friesen et al. v. Sask. Mtge. and Trust Corp. et al., [1926] 4 D.L.R. 496, consd. [para. 16].

Statutes Noticed:

Judicature Act, S.N.S. 1980, c. 55, sect. 38(7) [para. 10].

Counsel:

Frederick P. Crooks, for the applicant;

Charles Broderick, for the respondent.

This case was heard at Halifax, Nova Scotia, before Richard, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on December 16, 1985: