S.C.A. No. 02723
NOVA SCOTIA COURT OF APPEAL
Cite as: Glace Bay Community Hospital v. Canadian Brotherhood of Railway,
Transport and General Workers, Local 607, 1993 NSCA 22
Clarke, C.J.N.S.; Chipman and Pugsley, JJ.A.
BETWEEN:
GLACE BAY COMMUNITY HOSPITAL ) Eric B. Durnford, Q.C.
) for the Appellant
Appellant )
- and - )
) John C. MacPherson
) for the Respondent
CANADIAN BROTHERHOOD OF )
GENERAL WORKERS, LOCAL 607 )
)
Respondent ) Appeal Heard:
) February 18, 1993
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) Judgment Delivered:
) February 18, 1993
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THE COURT: Appeal dismissed from chambers judge's decision which dismissed an application to quash the award of an Arbitrator, per oral reasons for judgment of Clarke, C.J.N.S., Chipman and Pugsley, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
CLARKE, C.J.N.S.:
This is an appeal from a decision of Roscoe, J., as she then was, in chambers, dated June 25, 1992, dismissing an application for an order to quash the decision of Charles O'Connell, Q.C., a consensual arbitrator appointed by the parties pursuant to a collective agreement.
Arbitrator O'Connell allowed the grievance of Sharon Osborne, a member of the respondent union. He decided that she was entitled to be credited with the accrual of vacation time while she and other members of the respondent were on a legal strike from August 31, 1990 to October 18, 1990. In arriving at his decision the Arbitrator was required to interpret relevant provisions of the collective agreement and consider the evidence adduced at the grievance hearing. The record reveals that he did so.
In dismissing the application on the two issues before her, the chambers judge held on the first that it was inappropriate to challenge the jurisdiction of the Arbitrator at the time of the application when it had not been challenged at the grievance hearing, especially given that Arbitrator O'Connell provided the parties with the opportunity to do so. She referred to his award in which he stated:
"It was mutually agreed that the grievance was properly processed to this point in time and there was no preliminary or jurisdictional objections."
The second issue alleged the Arbitrator erred in his interpretation of the collective agreement by determining that vacation is based on years of service as opposed to days of work in the vacation accrual period. Of this, she wrote:
"In this case the Arbitrator considered whether there was any clear language in the collective agreement which interfered with the earned vacation benefit provided to the employees and determined that there was not. This is a situation where, because of ambiguous language, there is more than one possible interpretation to be given to the article, neither of which I find is an unreasonable interpretation."
She concluded the award of Arbitrator O'Connell was not patently unreasonable nor was his interpretation of the collective agreement one that it could not reasonably bear.
After reviewing the record and considering the written and oral submissions of counsel, we agree with the conclusions reached by the chambers judge and find that she did not err. We are satisfied the Arbitrator's decision reveals a rational basis for its result. (See CAIMAW, Local 14 v. Paccar of Canada Ltd. (1989), 62 D.L.R. (4th) 437 at 453, S.C.C.)
We should add, however, that simply because no jurisdictional issues have been raised at the grievance hearing, a court will not be precluded, in every case, from considering such issues on review. This, however, is not such a case because here the Arbitrator took his jurisdiction over this grievance from a valid collective agreement which was in full force and effect at the time of his appointment.
The appeal is dismissed with costs to the respondent of $1,000.00 plus its disbursements.
C.J.N.S.
Concurred in:
Chipman, J.A.
Pugsley, J.A.