Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

NOVA SCOTIA UNION OF                          - and -                  HALIFAX REGIONAL SCHOOL

PUBLIC EMPLOYEES                                                                                                         BOARD

(Appellant)                                                                                                                       (Respondent)

(Respondent on Cross-appeal)                                                                  (Appellant on Cross-appeal)

CA 168292                                                  Halifax, N.S.                                      CROMWELL, J.A.

CA 168278

                                    [Cite as: Nova Scotia Union of Public Employees v.

                                     Halifax Regional School Board , 2001 NSCA 106]

APPEAL HEARD:                                         May 10, 2001

JUDGMENT DELIVERED:                        June 27, 2001

SUBJECT:      Labour law — jurisdiction of arbitrators — illegal provisions of collective agreement — remedies

SUMMARY:  The Public Sector Compensation (1994 - 97) Act, S.N.S. 1994, c. 11 provided that between April of 1994 and October of 1997 collective agreements could not be changed, pay rates could not be increased and, as of November of 1994, pay rates would be reduced by 3%.  In July of 1994, the appellant and the respondent signed two documents: a main collective agreement which provided for raises in pay effective January 1 of 1995 and 1996 and a letter (which was found to be part of the collective agreement) which provided that the wage increases that were to have been paid pursuant to the main collective agreement (but which were now precluded by the wage freeze legislation) would be paid as a lump sum following the expiry of the wage freeze on October 31, 1997.  After the freeze expired, the union demanded payment, but the employer refused on the basis that the agreement was illegal and of no force or effect.  The union grieved and, in a preliminary award addressing a number of preliminary issues, the arbitrator found the agreement to pay the increases was illegal but that a remedy at arbitration  in the union’s favour was not necessarily precluded as a result.  Both the union and the employer unsuccessfully challenged these findings in the Supreme Court and both appealed.

ISSUES:         1.  Was the agreement to pay the wage increases after the freeze expired illegal?

2.  If so, was a remedy in the union’s favour at arbitration precluded?

RESULT:       Union’s appeal dismissed and employer’s cross appeal allowed.  The agreement providing for payment was illegal and, by statute, was of no force or effect.  That being so, the arbitrator, whose jurisdiction to award remedies must be rooted in the interpretation, application,  administration, or alleged violation of the collective agreement, had no authority to award a remedy for breach of that agreement.