Nova Scotia Union of Public Employees v. Dartmouth District School Board

Nova Scotia Union of Public Employees v. Dartmouth District School Board Court Court of Appeal Date 1994-01-13 Citation 1994 NSCA 14 Docket CA 02874 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Pugsley, Ronald N. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 02874 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.: Roscoe and Pugsley, JJ.A. Cite as: Nova Scotia Union of Public Employees v. Dartmouth District School Board, 1994 NSCA 14 BETWEEN: THE NOVA SCOTIA UNION OF ) Ronald A. Stockton PUBLIC EMPLOYEES ) for the Appellant ) Appellant ) ) - and - ) Philip M. Chapman ) for the Respondent, THE DARTMOUTH DISTRICT SCHOOL ) The Dartmouth BOARD, ERIC SLONE, ) District School Board ERIC DURNFORD, Q.C., AND JOHN ) D'ORSAY ) ) Respondents ) Appeal Heard: ) January 13, 1994 ) ) Judgment Delivered: ) January 13, 1994 ) ) THE COURT: Appeal dismissed and notice of contention also dismissed from decision of Chambers judge who dismissed an application to quash the award of an arbitration board, per oral reasons of judgment of Clarke, C.J.N.S.; Roscoe 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 the decision of Justice Gruchy dated May 21, 1993 and his order based thereon, whereby he dismissed an application by this appellant, as applicant, for an order in the nature of certiorari to quash the award of an Arbitration Board. This was a consensual Arbitration Board appointed under the provisions of the Collective Agreement and protected by a privative clause. The bargaining unit consists of one classification being teacher assistants employed at schools of the respondent where the students are handicapped by impairment. The Union grieved against the procedure followed by the School Board in June, 1988, alleging that it violated the Collective Agreement by assigning teacher assistants to these schools rather than first posting notices of pending vacancies. The Arbitration Board, by a majority, found otherwise and dismissed the grievance. After reviewing the record in this proceeding and considering the written submissions and the vigorous oral arguments of counsel that we have heard this afternoon, we have concluded that the Chambers Judge made no reviewable error that is reversible on appeal. Justice Gruchy referred to several of the applicable authorities and in particular the recent decision of this Court in Canada Post Corp. v. Canadian Postmasters and Assistants Association (1993), 121 N.S.R. (2d) 112, where Justice Hallett wrote at page 128, para. 39: The test for judicial review of an award of a consensual arbitrator protected by a privative clause is whether he exceeded or declined to exercise his jurisdiction, which question turns on the determination of the issue before him and whether he dealt with that question. If the issue before him involves the interpretation of clauses of the collective agreement the arbitrator must give to those clauses an interpretation the language will reasonably bear (Volvo). Finally, in exercising his jurisdiction, an arbitrator must comply with the recognized tenets of procedural fairness. If the arbitrator complies with these duties, his award is immune from judicial review even if it appears to be wrong or even patently unreasonable. After applying this test Justice Gruchy concluded that an order of certiorari would not issue. We agree. Accordingly, the appeal is dismissed. The respondent School Board filed a notice of contention alleging that the Chambers Judge erred in certain of the interpretations he placed upon the award of the Arbitration Board. This refers to that portion of his decision wherein Justice Gruchy stated that he did not agree with some of the observations reached by the majority. He proceeded to list five areas on which he commented negatively about the conclusions of the Arbitration Board. In the context of his decision, these comments are gratuitous and obiter. They are not a part of the ultimate result which, as we have stated above, was founded on right principles. Therefore, the notice of contention is also dismissed. The respondent School Board is awarded costs of $1,000.00. C.J.N.S Concurred in: Roscoe, J.A. Pugsley, J.A.