Nova Scotia (Transportation and Public Works) v. Canadian Union of Public Employees, Local 1867

Nova Scotia (Transportation and Public Works) v. Canadian Union of Public Employees, Local 1867 Court Court of Appeal Date 2005-10-25 Citation 2005 NSCA 134 Docket CA 241062 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); MacDonald, J. Michael (Honourable Chief Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Nova Scotia (Transportation and Public Works) v. Canadian Union of Public Employees, Local 1867 - 2005 NSCA 134 - 2005-10-25 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Transportation and Public Works) v. Canadian Union of Public Employees, Local 1867, 2005 NSCA 134 Date: 20051025 Docket: CA 241062 Registry: Halifax Between: The Nova Scotia Department of Transportation and Public Works, representing Her Majesty in Right of the Province of Nova Scotia Appellant v. CUPE Local 1867, representing the Nova Scotia Highway Workers’ Union Respondent Judges: MacDonald, C.J.N.S.; Cromwell and Saunders, JJ.A. Appeal Heard: October 17, 2005, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring. Counsel: Dale A. Darling and Alicia Arana, for the appellant Lionel G. Clarke, for the respondent Reasons for judgment: [1] At the hearing of this appeal, the Court announced that the appeal was dismissed with reasons to follow. These are the reasons. [2] As a prelude to an interest arbitration between the parties, the Highway Workers Employee Relations Board (“Board”) determined three issues: first, that it had jurisdiction to decide whether matters were arbitrable terms and conditions of employment within the meaning of the Schedule to the Highway Workers Collective Bargaining Act, S.N.S. 1997 (2nd Sess.), c. 1, as amended by S.N.S. 2001, c. 4, s. 9 (“Act”); second, that certain matters were and were not arbitrable; and third, that the union’s appointment of its nominee to the arbitration board did not give rise to a reasonable apprehension of bias. The employer unsuccessfully challenged each of these conclusions before Moir, J. by way of an application for certiorari and mandamus. It now appeals the dismissal of that application. ( Moir, J.’s reasons are reported at (2004), 229 N.S.R. (2d) 68; N.S.J. No. 497(Q.L.)) [3] Since Moir, J.’s decision, the parties have entered into a new collective agreement. The result is that there is no longer a need to complete the procedure of appointing the arbitration board to deal with arbitrable terms and conditions of employment which gave rise to the proceedings before the Board, Moir, J. and now this Court. The disposition of the appeal by this Court will not resolve any live controversy which affects or may affect the rights of the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353. The appeal is therefore moot. Accordingly, the threshold question is whether this Court should exercise its discretion to hear this moot appeal. [4] Both parties agree that we should address the first issue decided by the Board, that of its jurisdiction to determine whether matters are arbitrable. We agree that it is appropriate for us to exercise our discretion to resolve this issue. There is a concrete, adversarial context within which to examine the question. It is a pure issue of statutory interpretation of a recurring nature in that it is relevant to every interest arbitration under the Act in which the parties disagree on the question of arbitrability. Its resolution does not depend on the particular facts of a specific case. Although the question is not particularly “evasive of review”(Borowski at 364), the parties are involved in an ongoing collective bargaining relationship of which this issue is a fundamental aspect. Waiting until it arises again risks delay in settling future collective agreements. Deciding it now will likely have some practical effect on the rights of the parties: Borowski at 360. Given these factors, and the agreement of both parties that we should address this point, we will do so. [5] The appellant asks that we address the other issues as well while the respondent says that we should not exercise our discretion to determine them. We agree with the respondent. Unlike the issue of the Board’s jurisdiction, these other points are anchored in the particular facts of this case and may never arise again in this precise way for decision in any setting. The parties are not in agreement that it would be helpful for their future relationship for us to resolve them now. We decline to address these moot and purely hypothetical issues, the resolution of which may never be of any practical value to the parties or anyone else. In declining to address these issues, we make no comment of any kind on Moir, J.’s resolution of them. [6] We turn to the jurisdictional issue. Moir, J. held that the Board has jurisdiction under s. 25(1)(b) of the Act to determine whether there are arbitrable terms and conditions of employment to refer to an arbitration board. The appellant submits he was wrong and that these questions may be determined only by this Court under the stated case provision in s. 45 of the Act. We do not agree with the appellant and reject this contention for the reasons given by Moir, J. at paras. 13, 14 and 16 of his reasons. The use of the word “may” in s. 45(2) further supports the judge’s conclusion that s. 45 does not provide for exclusive original jurisdiction in the Court of Appeal. We do not agree with the appellant that this use of the permissive “may” refers only to whether the case is stated on the adjudicator’s own motion or at the request of the parties. [7] The appeal is dismissed with costs fixed at $2000 plus disbursements. Cromwell, J.A. Concurred in: MacDonald, C.J.N.S. Saunders, J.A.