IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia Teachers Union v. Nova Scotia Community College
2005 NSSC 98
Date: 20050504
Docket: S.H. No. 233084
Registry: Halifax
IN THE MATTER OF: The Arbitration Act, R.S.N.S. 1989, c. 19
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IN THE MATTER OF: An Arbitration between: The Nova Scotia Teachers Union and the Nova Scotia Community College
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IN THE MATTER OF: An Application by the Nova Scotia Teachers Union for an Order to set aside the award of Bruce P. Archibald, Q.C. dated August 9, 2004
Between:
Nova Scotia Teachers Union
Applicant
v.
Nova Scotia Community College
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Frank Edwards
Heard: April 21, 2005 in Halifax, Nova Scotia
Subject: Judicial Review: Application to have Arbitrator’s award set aside; Burden of Proof
Factual Background
and Issue: This case involves an analysis of an Arbitrator's decision in order to ascertain whether he correctly applied the
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onus of proof. The factual background is a "she says/he says" allegation of inappropriate sexual touching.
Result: Application allowed. The Arbitrator inadvertently shifted the burden of proof to the Grievor by employing an either/or approach in selecting the Complainant’s version of the event over that of the Grievor. The Arbitrator should have employed a three step test similar to that set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). An example of the formulation of the W.(D.) analysis for a civil standard is set out in L.S.U.C. v. Neinstein (2005) ONSLAP 1.
Cases Noted: Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.)
R. v. B.(R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.)
R. v. Strong, [2001] O.J. No. 1362
R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.)
Law Society of Upper Canada v. Neinstein, 2005 ONSLAP 1
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.
QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.