Supreme Court

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Decision Content

                                     IN THE SUPREME COURT OF NOVA SCOTIA

 

                                      Citation: Nova Scotia (Transportation and Public Works) v.

                                 Canadian Union of Public Employees, Local 1867,  2004 NSSC 211

                                                                                                            

                                                                                                                                       Date: 2004 12 15

                                                                                                                                  Docket: S.H. 220214

                                                                                                                                        Registry: Halifax

Between:

                                                                                

                                           The Department of Transportation and Public Works,

                           representing Her Majesty the Queen in Right of the Province of Nova Scotia             Applicant

                                                                              and

 

CUPE Local 1867, representing the Nova Scotia Highway Worker’s Union

 

                                                                                                                                                Respondent

 

 

                                                                 LIBRARY HEADING

 

Judge:                        The Honourable Justice Gerald R. P. Moir

 

Heard: 18 August 2004

 

Subject:          Labour Law; Interest Arbitration, Jurisdiction to submit issues for arbitration; Interest Arbitration; Bias.

 

Summary:       Talks broke down and the union applied to the Highway Workers Employee Relations Board to establish a board of arbitrators.  In addition to requiring arbitration, the Highway Workers Collective Bargaining Act places some limits on the issues that can be submitted for arbitration.  The union also asked the Board to settle those issues.  The board settled the issues for arbitration and appointed an arbitration board that included the union nominee, against whom the government alleged bias.  He is a lawyers, whose firm represents CUPE and who represented the Highway Workers when talks broke down the last time.

 

Issues:             Before the Board and upon review the government contended (1) the Court of Appeal has exclusive original jurisdiction to determine what issues are arbitral, (2) in any event, the Board wrongly determined that a number of issues as being arbitral, and (3) and Board was required by natural justice to exclude the union nominee for reasonable apprehension of bias.

 

Result: (1) The statute gives the Board original jurisdiction to receive evidence and determine what issues are arbitral.  (2) The parties agreed that the Board had to be correct in those determinations.  It was.  (3) The principles regarding exclusion for bias cannot apply to nominee arbitrators, especially not nominee interest arbitrators, in the same way they apply to adjudicators required to show neutrality.  In this case, the statute itself provides the criteria for exclusion and the union nominee was well within the statutory limits.

 

 

 

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