The Supreme Court of Nova Scotia has upheld an arbitrator’s decision requiring Halifax Regional Municipality (HRM) to compensate a police officer for injuries sustained on duty, placing him in the position he would have been in had the collective agreement not been breached.
Justice Campbell ruled that arbitrator Susan Ashley’s award was reasonable and within her jurisdiction, dismissing HRM’s application for judicial review. The case centres on HRM’s failure to recognize that Constable K.J. was entitled to compensation under the collective agreement for injuries sustained while performing his duties with the Halifax Regional Police (HRP).
Background
The dispute originated when Cst. K.J. filed a grievance on December 16, 2016, alleging that HRM had breached the collective agreement by denying him On-the-Job Injury (OJI) benefits for certain injuries. The injuries in question included Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) stemming from his attendance at a wildfire scene in 2009, as well as neurological issues related to chronic neck, arm, and hand pain.
After a lengthy arbitration process spanning 17 days from December 2018 to March 2021, the arbitrator issued the Grievance Arbitration Award on June 10, 2021. She found that the psychological and neurological issues constituted on-the-job injuries under Article 44 of the collective agreement, entitling Cst. K.J. to OJI benefits. However, an eye injury sustained at home was not deemed compensable.
Supplemental award – remedy
Despite the initial arbitration award, the parties could not agree on its implementation, leading to further arbitration proceedings. In the Supplemental Award – Remedy dated December 11, 2023, the arbitrator addressed the disagreement over whether Cst. K.J. should be included under amendments to Article 44 made through a Memorandum of Understanding (MOU) signed on October 8, 2019.
The MOU transitioned new on-the-job injuries to coverage by the Workers’ Compensation Board as of Sept. 1, 2019. Officers already receiving OJI benefits as of that date, listed in Appendix “A” of the MOU, were entitled to an additional benefit allowing them to retire three years past their earliest retirement date. Since Cst. K.J. was not receiving OJI benefits on Sept. 1, 2019—due to HRM’s breach of the collective agreement—his name was not on the list.
The arbitrator found that “had it not been for the breach of the collective agreement, [Cst. K.J.] would have been receiving OJI Benefits on the effective date.” She concluded that the appropriate remedy was to place him “in the position he would have been in if not for the breach.”
HRM’s position
HRM argued that the arbitrator exceeded her jurisdiction by effectively amending the collective agreement, which specifically listed the names of officers entitled to the additional benefit. They contended that including Cst. K.J. would have changed the cost implications and possibly altered the negotiated agreement. HRM maintained that the arbitrator’s award was unreasonable and should be quashed.
Court’s decision
Justice Campbell dismissed HRM’s application for judicial review, finding that the arbitrator’s decision was reasonable and within her authority. The court emphasized that the arbitrator did not amend the collective agreement but exercised her broad remedial powers to award damages that made the grievor whole.
“The arbitrator’s reasoning path on that issue is clear,” Justice Campbell stated. “She noted that there had been no evidence of a mutual intention to amend the collective agreement to add [Cst. K.J.] to the list in Appendix ‘A’. She could not rectify the agreement. She noted that she had authority to make [him] whole by making an order for compensation.”
The court also addressed HRM’s argument that the arbitrator speculated about whether the agreement would have been different if Cst. K.J. had been receiving OJI benefits on the effective date. Justice Campbell found that the arbitrator reasonably declined to speculate on this point, instead basing her decision on the actual circumstances.
“It was reasonable for the arbitrator to anchor her decision in the real world of what had actually happened,” the judge noted. “It was reasonable to infer, in those circumstances, that the quid pro quo would have been agreed upon and that [Cst. K.J.], like every other officer receiving OJI Benefits at the time, would have been part of it.”
Costs
The parties agreed on costs, with the Halifax Regional Police Association entitled to $2,500 plus reasonable disbursements as the successful party.
For more information, see Halifax (Regional Municipality) v. Halifax (Regional Police Association), 2024 NSSC 302 (CanLII).
