The Nova Scotia Court of Appeal has dismissed an appeal by the Nova Scotia Government and General Employees Union (NSGEU) over a salary dispute with the Nova Scotia Health Authority (NSHA).
It ruled that the matter must be dealt with through bargaining, not grievance arbitration.
The dispute arose when a salary increase negotiated for one job classification of nurses was not applied to others, leading to grievances filed by the NSGEU. The union argued this was a breach of the collective agreement covering public sector nurses in Nova Scotia.
The core of the disagreement stemmed from a 2020 negotiation where a 12 per cent salary increase was granted to Licensed Practical Nurses (LPN) employed by the former Capital District Health Authority, effective as of March 17, 2014.
The NSGEU claimed that the increase should also apply to Licensed Practical Nurses working in different classifications, such as Continuing Care Referral Assistants and Operating Room Technicians, across the province to maintain wage parity — a principle they argued was fundamental in Nova Scotia’s health sector.
Arbitrator Susan M. Ashley initially sided with the NSGEU, finding the NSHA’s decision not to extend the wage increase as unreasonable and in breach of the collective agreement. However, Justice Glen G. McDougall of the Nova Scotia Supreme Court later quashed this award, deeming it unreasonable and ordering a new hearing with a different arbitrator.
The appeal court, upholding Justice McDougall’s decision, found that the arbitrator’s ruling did not meet the standards of reasonableness. It was noted that the arbitrator failed to provide a clear reasoning path to justify the decision as a breach of the collective agreement by the NSHA, specifically addressing the management rights clause.
It also said the matter should not be remitted for reconsideration by another arbitrator.
“Where it is evident a particular outcome is inevitable, remitting the matter for reconsideration serves no useful purpose,” the Court of Appeal said. “Although such a scenario is not common this is a circumstance where nothing would be accomplished by having the grievance reconsidered. Article 14.17 of the CBA prohibits an arbitrator from amending or modifying the CBA and this is, in effect, what the NSGEU is seeking.”
The grievance asks for a declaration NSHA breached the CBA by not paying a higher wage to the CCRA classification as well as compensation for the affected employees.
“Even if the arbitrator agrees the differential treatment is unfair, increasing the rates in appendix “A” of the CBA must be dealt with through bargaining, not grievance arbitration,” it said.
The appeal was dismissed. NSHA advised it was not seeking costs, so none were awarded.
For more information, see Nova Scotia Government and General Employees Union v. Nova Scotia Health Authority, 2024 NSCA 42 (CanLII).
