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PROCESS AND PROCEDURE - Grievances - Continuing grievance

Friday, January 12, 2018 @ 7:05 AM  

Appeal by the Cape Breton Firefighters Association (Union) from the dismissal of its application for judicial review of the decision of an arbitration board chaired by Ashley (Ashley Board). The Union grieved a workplace restructuring undertaken by the Cape Breton Regional Municipality which closed a fire station and reduced the number of firefighters assigned to each shift. An arbitration board chaired by Girard (Girard Board) concluded that the Municipality failed to respect the requirement in the parties’ collective agreement requiring it to retain an overall minimum staffing level. Specifically, the Girard Board found that Article 27.01 of the collective agreement required there to be at least seven firefighters and three captains on shift at any one time in the community of Sydney. The Union sought only a declaration of breach of the collective agreement and the Girard Board granted that remedy. The Municipality continued to staff the fire station as the same levels as before the grievance, assigning only six firefighters and two captains to each shift. Accordingly, the Union brought another grievance, heard by the Ashley Board, alleging a continuing breach of the collective agreement. The Union sought an order compelling the employer to abide by the minimum staffing guarantees set out in Article 27.01, along with the payment of damages, including aggravated and punitive damages arising from the fact that the employer had intentionally disregarded the findings of the Girard Board. The Ashley Board dismissed the grievance, essentially finding that the issue had been addressed by the Girard Board and that the second grievance was nothing more than a request for an additional remedy, one which the Union had not sought before the Girard Board. Upon judicial review, the application judge found that the Ashley Board’s conclusion was reasonable.

HELD: Appeal allowed. The Ashley Board misunderstood the nature of the grievance before it and the application judge similarly misunderstood the nature of the issue the Ashley Board had been asked to address. The Union had argued before the Ashley Board that the Municipality’s failure to properly staff the fire stations, after the Girard Award, amounted to a continuing or new breach of the collective agreement which justified further sanctions against the Municipality. The Union was not seeking to enforce the Girard Board’s remedy, but was asking the Ashley Board to make a determination as to whether there was a continuing breach. The Ashley Board failed to address the actual grievance, as it never addressed whether the Municipality's continued failure to staff in accordance with the collective agreement represented a new or continuing breach of the collective agreement and whether it warranted further sanctions, including a compliance order. It also appeared that the Ashley Board misunderstood the distinction between declaratory relief and compliance orders. Declarations simply confirmed the rights of the parties, whereas compliance orders required some positive action be taken. Compliance orders were not generally granted in circumstances where there had been no persistent pattern of non-compliance. The Union reasonably assumed that the Municipality would comply with the collective agreement once the declaration had been issued by the Girard Board. The Union’s failure to request a compliance order at the first arbitration should have been of no consequence in considering the second grievance. The Ashley Board's characterization of the task they had to perform could not be discerned from any reasonable interpretation of the grievance. The decisions of the application judge and the Ashley Board were set aside and the matter was referred to a new Labour Arbitration Board for rehearing.

Cape Breton Firefighters Assn., International Assn. of Fire Fighters, Local 2779 v. Cape Breton (Regional Municipality), [2017] N.S.J. No. 492, Nova Scotia Court of Appeal, D.R. Beveridge, D.P.S. Farrar and C.A. Bourgeois JJ.A., December 15, 2017. Digest No. TLD-January82018010