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APPEALS AND JUDICIAL REVIEW - Stay of arbitration award pending review

Thursday, June 22, 2017 @ 8:34 AM  

Application by the Union to lift the stay of execution of an order pursuant to Rule 15 of the Court of Appeal Rules, or in the alternative, for an order declaring that the judgment was not stayed except to the extent of the appeal taken by the Union. The Union represented Type 1 Wildland firefighters working for the province. Since 1999, the firefighters had been required to pass a fitness test. The Union and the province had agreed by a Letter of Understanding (LOU) that employees hired prior to April 1, 1999 would be “grandfathered” and not have to successfully complete the fitness test, known as the “arduous test”. In 2012, the province replaced the arduous test with a new fitness test, the “WFX-Fit Test”. The new test was implemented unilaterally and firefighters hired prior to April 1, 1999 were not exempted. The Union filed two policy grievances and argued that the new test was discriminatory against certain employees and that its implementation violated the terms of the LOU. The arbitrator found that the test was discriminatory against older male and female employees and that its implementation breached the LOU by failing to exempt grandfathered firefighters. On judicial review, the Chambers judge quashed the arbitrator’s decision in part, finding that the WFX-Fit Test was not discriminatory with respect to gender and age. The Union appealed the order setting aside the arbitrator’s finding that the new test was discriminatory. It applied to lift the stay imposed on the implementation of the portion of the arbitrator’s decision that was not quashed, specifically, the finding that the implementation of the new test breached the LOU. The Union pointed out that of 47 formerly exempt employees, only 20 of those employees passed the new test and that several lost work or feared losing work in the future if they had to complete the WFX-Fit Test.

HELD: Application for declaratory order allowed. The Union was only seeking to lift the stay in relation to an uncontested issue in which it succeeded in the Court of Queen’s Bench. Much prejudice would be avoided by granting the Union’s application to lift the stay, as there were several grandfathered firefighters whose employment could be adversely affected for the 2017 firefighting season if the province considered the whole judgment stayed and subjected these firefighters to the WFX-Fit Test requirements. Moreover, the province had not cross-appealed the grandfathering issue. Accordingly, the Court was inclined to lift the stay if necessary. However, since Rule 15(1) was concerned with the execution of judgments or orders against which an appeal had been taken, the rule only applied to judgments or orders pursuant to which something failed to be executed or enforced. The Chambers judge's order simply stated that the arbitrator's decision relating to the grandfathering issue stood, therefore it did not leave anything to be executed or enforced. Rather, the order was in the nature of a declaration that the Employer must act in accordance with the provisions of the LOU. Given that the decision of the Chamber’s judge was declaratory in nature, there was nothing to stay. As a result, there was no need to make the order to lift the stay sought by the Union. The decision of the arbitrator that the province breached the collective agreement by not honouring the 1999 LOU concerning grandfathered employees was in effect and any changes to the LOU were to be negotiated.

Saskatchewan (Ministry of Environment) v. Saskatchewan Government and General Employees' Union, [2017] S.J. No. 180, Saskatchewan Court of Appeal, P.A. Whitmore J.A., May 3, 2017. Digest No. TLD-June192017009