Lisa McInnis Plaintiff v. Cape Breton-Victoria Regional Centre for Education, 2023 NSSC 397

SUPREME COURT OF Nova Scotia Citation: L. McInnis v. CBVRCE, Santana Contracting Ltd. , 2023 NSSC 397 Date: 20231031 Docket: 483873 Registry: Sydney Between: Lisa McInnis Plaintiff and Cape Breton-Victoria Regional Centre for Education (Formerly Cape Breton-Victoria School Board Defendant and Santana Contracting Ltd. Third Party Judge: The Honourable Justice Patrick J.

Murray Motion Heard: August 30, 2022 in Sydney, Nova Scotia Written Decision: October 31, 2023 Counsel: John McKiggan, KC, for Lisa McInnis Tipper McEwan for Cape Breton-Victora Regional Centre for Education Franco Tarulli for Santana Contracting Ltd. By the Court: Introduction [ 1 ] The Plaintiff, Lisa McInnis, is a teacher at Seton Elementary School, North Sydney. On January 12, 2015, an incident occurred while she was arriving at school for work. She alleges she slipped and fell in the parking lot and struck her head. [ 2 ] Ms.

McInnis has commenced an action in Court against the school board (the Centre for Education) claiming damages for personal injury. She claims she attempted a return to work, but her injuries were too serious. In her action she is seeking compensation from the Court. [ 3 ] The Plaintiff is a member of the Nova Scotia Teacher’s Union. Her employment therefore is governed by the terms of a collective agreement.

Among other things, the agreement requires her employer, the Cape Breton Victoria Regional Centre for Education, to maintain a safe working environment. [ 4 ] The teaching profession in this province is governed by legislation. The Teaching Profession Act , and the Teacher’s

Collective Bargaining Act contain provisions governing dispute resolution. These statutes, combined with the collective agreement, provide grievance procedures for a dispute or difference between a teacher (or the Union) and the Centre for Education. [ 5 ] The Centre, as Defendant, has filed a motion claiming this Court does not have jurisdiction to hear the Plaintiff’s action. They say there is binding authority from the Supreme Court of Canada that Ms. MacInnis’s claim is within the exclusive jurisdiction of an arbitrator. Accordingly, the Defendant seeks to amend its Defence to raise the jurisdictional issue.

Should the amendment be allowed, the Defendant asks the Court to dismiss Ms. McInnis’ action against the Centre, for lack of jurisdiction. Background Facts [1] [ 6 ] The Defendant provided a Request for Admission to the Plaintiff’s counsel on February 8, 2022. The facts in the request are now deemed to have been admitted under Rule 20.05. [ 7 ] The Plaintiff, Lisa McInnis is a teacher and a member of the Nova Scotia Teacher’s Union. She has sued her employer, the Cape Breton-Victoria Regional Centre (the “Centre”), for personal injury following a slip and fall at work.

The fall is alleged to have taken place in the parking lot of Seton Elementary School on January 12, 2015, at 8:15 a.m. [ 8 ] At that time there were two collective agreements in place. One was the 2012-2015 NSTU Provincial Agreement (the “first provincial agreement”). The first provincial agreement was in place at the time of the fall. Its term was from August 1, 2012, to July 31, 2015. [ 9 ] There was also a local agreement between the Nova Scotia Teacher’s Union and the Centre (the “local agreement”).

The local agreement was in place from August 1, 2012 – July 31, 2016. [ 10 ] The Statement of Claim alleges that Ms. McInnis went off of work in the Fall of 2015. At that time there was a new provincial agreement with a term lasting from August 1, 2015, to July 31, 2019 (the “second provincial Agreement”). [ 11 ] Articles 5, 26 and 42 in the first and second provincial agreements are identical. These articles deal with the employer’s responsibilities, such as injury on duty, and grievance procedures.

Since the relevant wording is the same, the first and second provincial agreements will be collectively referred to as the “provincial agreement”. [ 12 ] Articles 5 and 29, of the local agreement, deal with grievance procedure and occupational health and safety. [ 13 ] The action proceeded by away of discovery.

The Centre raised the question of jurisdiction in the course of responding to the discovery requests made by the Plaintiff and the Third Party. [ 14 ] The Centre has brought this motion seeking leave to amend its Statement of Defence to plead that the Court does not have jurisdiction over the Plaintiff’s action. (See attached Appendix “A” containing statutory provisions and articles of the collective agreements) Issues [ 15 ] The facts raise the following issues: (

i) Should the Defendant’s amendment be allowed? (ii) Does the Supreme Court of Nova Scotia have jurisdiction to hear Ms. McInnis’ claim? (iii) Does delay in addressing jurisdiction prevent the Defendant from relying on this defence? The Law [ 16 ] The following Civil Procedure Rules are applicable to this motion: 83.02 Amendment of notice in an action

(1) A party to an action may ament the notice by which the action is started, a notice of defence, counterclaim, or crossclaim, or a third party notice.

(2) The amendment must be made no later than ten days after the day when all parties claimed against have filed a notice of defence or a demand of notice, unless the other parties agree, or a judge permits otherwise.

(3) A pleading respecting an undefended claim in an action may be amended at any time, but the party claimed against is entitled to receive notice of the amended pleading in the manner provided in Rule 31 – Notice for notice of an originating document. 4.07 Lack of jurisdiction

(1) A defendant who maintains that the court does not have jurisdiction over the subject of an action, or over the defendant, may make a motion to dismiss the action for want of jurisdiction.

(2) A defendant does not submit to the jurisdiction of the court only by moving to dismiss the action for want of jurisdiction.

(3) A judge who dismisses a motion for an order dismissing an action for want of jurisdiction must set a deadline by which the

Defendant may file a notice of defence, and the court may only grant judgement against the defendant after that time. Position of the Parties The Defendant, Centre[2] [17] The Centre says that the amendment should be allowed. [18] Rule 83.02 permits a party to amend a notice of defence. Rule 83.02(2) permits amendment as of right in some circumstances,otherwise amendment may be made when permitted by a judge. [19] Amendments to pleadings should be granted unless the amendment causes serious prejudice that could not be compensated forby costs, or the amending party is acting in bad faith.

Prejudice that cannot be compensated for in costs is typically of an evidentiarynature and requires a consideration of whether documents or witnesses have been lost due to the passage of time. [20] The Defendant argues the statute is clear that final settlement of all differences “under the collective agreement shall be dealtwith exclusively by the arbitrator”. In addition, the Centre argues the collective agreement requires the employer to provide a reasonablysafe workplace and to comply with the Occupational Health and Safety Act.

Thus, the Plaintiff’s claim that the workplace is unsafe is,in substance, a claim for breach of the collective agreement. [21] Both parties have pleaded the Occupiers Liability Act in the Statement of Claim and Statement of Defence, but not theOccupational Health and Safety Act. The Plaintiff, Ms. McInnis[3] [22] The Plaintiff submits that the Defendant should not be allowed to amend their Notice of Defence this late in the proceeding. She concedes the amendment proposed does raise a justiciable issue and it does not appear the Defendant is acting in bad faith. [23] Ms.

McInnis argues there has been significant delay in proposing the amendment. The Statement of Defence was filed inMarch 2019, and she submits she was made aware of the Defendant’s position on the jurisdictional issue in February 2021. She claimsthe Defence is proposing to amend their pleadings three (3) years after the pleadings have closed. [24] The Defendant claims the jurisdictional issue only came to light, when the Centre was responding to undertaking requestsfollowing discovery examination. [25] The Plaintiff says the delay has prevented her from seeking full disclosure on the issue earlier.

The Defendant failed to raisethis issue during pleadings stage, or early in the disclosure process, where it could have been dealt with before subjecting the injuredPlaintiff to emotional and physical stress related to this litigation. [26] Neither the statute nor the collective agreements grant an arbitrator exclusive jurisdiction over her specific claims, says thePlaintiff. In addition, there is no dispute to grieve as an arbitrator has no power to decide whether to hear matters not specificallyaddressed in the collective agreements.

The various heads of damages sought by the Plaintiff are not subject to the grievance process. Inaddition, if the third party is responsible, there will be no means for the Plaintiff to recover compensation. If the analysis reaches Step 3of the test the Court should exercise its residual jurisdiction to hear the Plaintiff’s claim for damages. [27] Ms. McInnis says the prejudice will be absolute if the Board disallows her grievance for “waiting too long”. In addition, thereis a large list of tort remedies that are not covered under the collective agreement.

Because of the agreement, she says, she can claimsome but not all of her losses.

The Third Party, Santana Contracting[4] [28] Santana takes no position on the Centre’s motion to amend its Statement of Defence and adopts the Centre’s submissions withrespect to the jurisdiction issue. [29] The legislative framework, the provincial agreements, and the local agreement constitute a comprehensive statutory schemedesigned to govern all aspects of the relationship between the parties and the Court must be cautious not to undermine that statutoryscheme. [30] The involvement of a non-party to the collective agreement does not give a Court jurisdiction if the essential characteristic ofthe dispute at hand arises under the collective agreement.

Santana cites the decisions in Piko v. Hudson’s Bay Company (1998), (ON CA), 41 OR (3d) 729, and in Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, asauthority for its position.

Caselaw [31] It is useful at this point to discuss briefly the jurisprudence that has set out the requisite tests as to when it is appropriate for amatter to be heard by the courts or alternatively, a tribunal or arbitrator charged with that responsibility by statute or by agreement; mostoften by labour arbitrators in dealing with disputes arising from collective agreements. [32] The leading cases on the issue of jurisdiction in this vein (and concurrent jurisdiction) include: St. Anne Nackawic Pulp &Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704; Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Gillan v. Mount SaintVincent University, 2008 NSCA 55; and Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38. [33] A clear history of the jurisprudence on the issue of arbitral jurisdiction can be drawn from the decision of Justice Cromwell in

Cherubini: [16] Since at least the mid 1980's, the Supreme Court of Canada has recognized that the courts should be cautious not to undermine" ... a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting.": St.Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704at 721. To avoid doing "violence" to such a scheme, the courts ought to show "judicial deference" by not routinely hearing cases that fallwithin it: St. Anne at 721.

This hands-off policy applies not only where there are clear legislative provisions which expressly oust courtjurisdiction. It also applies where the scheme as a whole makes it clear that the courts were intended to have "... but a small role if any toplay in the determination of disputes covered by the statute.": Gendron v. Supply & Services Union of the Public Service Alliance ofCanada, Local 50057, (SCC), [1990] 1 S.C.R. 1298 at 1321. … [18] To carry out the required analysis, the court must address two main questions.

The first concerns the ambit of the disputeresolution scheme and the second concerns whether the dispute falls within it. The court must look at the essential character of thedispute, determined according to its full factual context, and not at the legal characterization which the parties have chosen to place on it:see, e.g., Morin at paras. 15-20; Vaughan v. Canada, [2005] 1 S.C.R. 14 at para. 11; Weber at para. 49. Any other approach wouldleave it open to innovative pleaders to evade the dispute resolution process established by the legislation and the collective agreement.

This would undermine the purposes of the legislative scheme and the intention of the parties: Weber at para. 49. As McLachlin, J., asshe then was, wrote for the majority in Weber at para. 43: ... the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding thedispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, definedlegally, is independent of the collective agreement, but rather whether the dispute is one “arising under [the] collective agreement”.

Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction toresolve it lies exclusively with the labour tribunal and the courts cannot try it. [Emphasis in original] … [34] For example, in Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1979), (ON LA), 23 L.A.C. (2d) 424 Arbitrator Shime noted abuse of the grievance process is expensive for both the employer and theunion and harmful to the grievance procedure as a whole.

Arbitrators, he reasoned, must have the authority to fashion a remedy that willprevent such abuse. See also, for example, Re Amalgamated Clothing Workers of America and Polax Tailoring Ltd. (1972), (ON LA), 24 L.A.C. 201 (Arthurs); Re Samuel Cooper & Co. Ltd. and International Ladies’ Garment Workers’Union et al., (ON SC), [1973] 2 O.R. 841 (Div. Ct.).

As the Divisional Court put it in Samuel Cooper, arbitrators havethe responsibility under the legislation and the collective agreement to bring about final and binding settlement of all differences arisingout of the collective agreement and they must, therefore, have the necessary powers to achieve that result. (

c) Allegations relating to occupational health and safety matters: [35] Turning to the claims based on the alleged failure to adhere to the occupational and safety processes, they too, in their essentialcharacter, arise out of the collective agreement. I agree with the appellants’ submission that

Article 12 of the collective agreementexpressly addresses the conduct at the heart of this dispute. At the root of the respondent’s claims is the allegation that the unions didnot adhere to the processes spelled out in the collective agreement for dealing with occupational health and safety issues. Those claims,in their essential character, relate to the

interpretation and alleged violation of these provisions. [34] The parties have agreed on the legal framework to be applied in the circumstances; and the governing principles that have beenset out in the recent decision of Horrocks. [35] First, the Court should consider whether there is a statutory process that gives the arbitrator exclusive jurisdiction. Second, theCourt should consider whether the dispute falls within that exclusive jurisdiction. Third, the Court should consider whether or not to useits residual discretion to hear the dispute to grant relief outside the arbitrator’s jurisdiction.

Issue #1- Should the Defendant’s Motion to Amend be allowed? [36] The Centre seeks to amend its defence, to allow it to plead that jurisdiction in this matter lies exclusively with a labourarbitrator under the grievance procedure in the collective agreement, and under the relevant statutes. [37] There is no contest between the parties as to the proper legal test for this Court to apply when considering a motion to amendpleadings.

[ 38 ] The test has always been that a party will be permitted to amend their pleadings, unless it can be shown that the amendment will cause serious prejudice to the opposing party that cannot be compensated in costs, or that the party seeking the amendment is acting in bad faith. (Robertson, J. in Altshuler v. Bayswater Construction Limited , 2019 NSSC 197 ) [ 39 ] Recently, in A nnapolis Group Inc. v. Halifax Regional Municipality , 2021 NSSC 344 , Chipman, J. discussed the test pursuant to Rule 83.02, and how it has developed, such that it includes the following requisites: 1.

Does the proposed amendment raise a justiciable issue? 2. Is the applicant acting in bad faith? 3. Would allowing the amendment subject the other party to serious prejudice that could not be compensated in costs? [ 40 ] The onus to establish the test has not been met is on the party opposing the amendment. [ 41 ] In this case, the Plaintiff concedes that the proposed amendment does raise a justiciable issue and that the Defendant does not appear to be acting in bad faith. Ms.

McInnis, however, submits that she will suffer serious prejudice if the amendment is permitted, being the third criteria above. [ 42 ] The Plaintiff submits that there has been delay and it is clear and obvious the delay has been significant, referring to the time frame within which the proposed amendment is sought. [ 43 ] Ms. McInnis says she became aware of the issue of jurisdiction in February 2021. This would in fact appear to be two (2) years after the Statement of Defence was filed in March 2019.

She says the issue could have been raised earlier, either in the pleadings or in the disclosure process, noting the Plaintiff had been subjected to the litigation for a considerable period. [ 44 ] The Plaintiff points to further prejudice she will allegedly suffer if the amendment is allowed. The time frames imposed in

section 42.03 and 5.04 of the provincial and local agreements with respect to filing a grievance have since passed.

In the result, she is prevented from seeking entitlement to benefits, as she was not informed by the “Board” or her union of such a time limit. [ 45 ] This is a point of contention as the Plaintiff submits the Centre intends to argue, if the motion is successful, that the Plaintiff’s right to file a grievance is time barred by the collective agreement. (Paragraph 41 of the Plaintiff’s Brief, Tab H of the Defendant’s admissions) [ 46 ] The Centre submits the amendment should be allowed pursuant to Rule 83.02.

It argues that prejudice that cannot be compensated in costs is typically of an evidentiary nature, such as where documents may have been lost, or witnesses are not available due to the passage of time. [ 47 ] These concerns are not present in the consideration of a jurisdictional issue, says the Defendant. Instead, the defence turns on the various collective agreements which are available. [ 48 ] Further, the Centre relies on Altshuler in submitting that non-compensable prejudice does not include prejudice resulting from a successful plea.

The prejudice must emanate from the amendment itself and not some other source. [ 49 ] In terms of justification for the amendment, the Centre submits the issue of jurisdiction came to light when it was preparing responses to undertakings given at discovery, acknowledging that it would have been preferrable to have raised the defence earlier. [ 50 ] Notwithstanding, the Centre submits that jurisdiction is a matter of law and must be dealt with. The parties cannot confer jurisdiction on the Court if the Court does not have jurisdiction.

The issue must be determined on the pleadings and the language in the collective agreements. [ 51 ] The Plaintiff has made the specific allegation of prejudice in the form of delay, citing Annapolis as authority for this position. In his decision Justice Chipman stated, “it took too long to bring this issue to the fore”. This was however, in relation to the issue of costs, and the Court in fact granted the amendment on the basis that it did not raise new allegations of fact.

His Lordship was not persuaded that the delay was undue or irrebuttable. [ 52 ] In this case, having considered the written and oral submissions, I am not satisfied the delay was so lengthy or the justification so inadequate, that prejudice will be presumed. [ 53 ] Regarding the specific allegation that the Plaintiff will be out of time to seek further remedies, the Defendant says this was already the case prior to the Plaintiff commencing her action. [ 54 ] I acknowledge that some prejudice will result should the motion be granted, I am not satisfied that the amendment will cause evidentiary prejudice.

While the jurisdiction issue is new, I find the proposed amendment raises a legal issue, and that prejudice flowing from it may be compensated in costs. [ 55 ] In the result the Defendant’s motion to amend is allowed. Issue #2- Does the NSSC have Jurisdiction to hear the Plaintiff’s Claim? Step #1- Exclusive Jurisdiction of Arbitrator (see C.P. Rule 4.07) [ 56 ] The Centre argues that the Teaching Professions Act and the Teacher’s Collective Bargaining Act give arbitrators exclusive jurisdiction over “all differences” arising from the collective agreements.

[ 57 ] This stems from what is referred to as the “exclusive jurisdiction model” of dispute resolution as confirmed by the Supreme Court of Canada in Weber , which processes are established under labour relations legislation.

As held by Justice McLachlin, as she then was, “ mandatory arbitration clauses… generally confer exclusive jurisdiction on labour tribunals to deal with disputes arising from the collective agreement”. (Emphasis added) [ 58 ] The essential character of the dispute is an important consideration under Step 2 of the test, namely determining whether a dispute falls within the scope of the collective agreement. [ 59 ] Under Step 1 , the issue is whether there is such a mandatory arbitration clause conferring exclusive jurisdiction on a labour arbitrator, as the method of resolving disputes or differences between the employee (or union) and the employer (Centre for Education). [ 60 ] Pursuant to the Teaching Profession Act, every teacher in Nova Scotia is a member of the Nova Scotia Teacher’s Union.

Under the Teacher’s Collective Bargaining Act there is a requirement that collective agreements contain provisions for “settlement of all differences between the parties”. Such a clause is contained in the provincial and local agreement here.

The Language of the Statute and the Collective Agreement [ 61 ] Section 29 (1)-(3) of the Teacher’s Collective Bargaining Act reads: Final settlement provision 29(1) Every professional agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.

(2) Where a professional agreement does not contain a provision as required by this Section, it shall be deemed to contain the following provision: Where a difference arises between the parties relating to the

interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or whether an allegation is made that this agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration. If the parties fail to agree upon an arbitrator, the appointment shall be made by the Minister of Labour and Advanced the Education for Nova Scotia upon the request of either party.

The arbitrator shall hear and determine the differences or allegation and shall issue a decision and the decision is final and binding upon the parties and upon any teacher or employer affected by it.

(3) Every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement. [Emphasis added] [ 62 ] The Centre submits these sections are substantially the same as ss. 42(1)-(3) of the Trade Union Act , which in turn are similar to those in the Ontario Labour Relations Act (s. 45(1)) considered in Weber , and in the Manitoba Labour Relations Act (s. 78) considered in Horrocks .

The Language in the Collective Agreement(s). [ 63 ] In Weber , the Court held that because the difference between the parties arose from the collective agreement, it had to be pursued through arbitration. [ 64 ] In Horrocks , the Court held that a labour arbitrator should decide all disputes under a collective agreement, including human rights disputes, unless another law states otherwise. [ 65 ] Ms.

McInnis argues neither the statute nor the collective agreements in effect in Nova Scotia grant an arbitrator exclusive jurisdiction over the specific claims made by the Plaintiff. [ 66 ] The Plaintiff argues Gillan is not relevant as there are key differences in the legislative framework and the agreements.

The arbitrator in Gillan had the power to determine whether matters not referenced in the collective agreement were arbitrable. [ 67 ] Further, unlike Gillan , the Plaintiff says an arbitrator would have no dispute to grieve, as there are “no differences” between the parties to the collective agreement because the Plaintiff has received her entitlements under the agreement. She argues the essential character of the dispute is her entitlement to damages following a workplace injury.

The Plaintiff says the various heads of damage sought by her are not subject to the grievance process, and therefore an arbitrator does not have exclusive jurisdiction. [ 68 ] The Plaintiff submits that Articles 42.01 and 5.03 of the agreements relate only to specific provisions in the agreements, none of which refer to her claims. [ 69 ] At this point, I would note the Plaintiff’s statement that an arbitrator would have no authority to decide what is arbitrable, is incorrect. It is true the jurisdiction clause is not the same as Gillan in that regard. However,

section 30(

c) of the Teacher’s Collective Bargaining Act states that an arbitrator has the power to decide “any question” as to whether a matter referred to him or a board is arbitrable. [ 70 ] Secondly, the Plaintiff’s submission in relation to the scope or heads of damages available in arbitration is better reserved for consideration under the second step of the process. [ 71 ] Having considered the provisions in the legislation and agreements, there is a strong preference that matters arising from the agreements be dealt with though the grievance process set out in the collective agreement(s).

[ 72 ] I find the statutory process here gives exclusive jurisdiction to an arbitrator. [ 73 ] I am satisfied the Defendant has met step one of the test. I turn to consider the second step as outlined by Horrocks , which is whether the dispute or difference is captured by the agreement. Properly stated, does the nature of the dispute fall within that jurisdiction. Step 2 – The Nature of Dispute [ 74 ] Under this heading the Plaintiff says there is no provision for making a claim for her injury beyond wage loss.

She alleges she has suffered a traumatic brain injury and seeks compensation for pecuniary and non-pecuniary loss. In short, she is seeking common law damages in tort for personal injury. [ 75 ] On the other hand, the Defendant says the collective agreements contain provisions that compensate an employee for a range of losses. These include paid leave from work due to injury, full salary, sick benefits, long term disability and other remedies that an arbitrator may decide are available to the Plaintiff. [ 76 ] The Plaintiff submits that

Article 26 of the collective agreement allows for up to two (2) years of wage loss. Other than that, there is little guidance as to other benefits beyond wage replacement. Further, the Plaintiff submits

Article 26.08 contemplates that teachers have the right to seek compensation other than the wage replacement benefits enumerated in the collective agreement. [ 77 ] The Plaintiff says the collective agreements and statute do not confer exclusive jurisdiction for negligence claims to the grievance and arbitration process. As stated, the Plaintiff submits the essential character of the dispute is Ms. McInnis’ entitlement to damages. [ 78 ] The Defendant relies on the fact that Ms. McInnis’ injury did occur in the workplace.

The injury, a slip and fall, is the same type of injury suffered by the Plaintiff in Gillan , where the Court held the nature and substance of the dispute was within the jurisdiction of an arbitrator, finding that the Court did not have jurisdiction over the subject matter of the dispute. [ 79 ] Once again, the Defendant says the mandatory dispute resolution clauses that exist here are sufficient to encompass the final settlement of “all differences” under the collective agreements and as such, are to be dealt with exclusively by an arbitrator. [ 80 ] The relevant

section of the Teachers Collective Bargaining Act requires a professional agreement to contain a provision for final settlement “by arbitration or otherwise”. Section 29(3) of that Act states that every person bound by such agreement and every person on whose behalf the agreement was entered into “shall comply” with the provision contained in the agreement. [ 81 ] Regarding the scope of an arbitrator’s jurisdiction, Horrocks says that “will depend on the precise language of the statute, but in general, it will extend to all disputes that arise, in their essential character, from the

interpretation, application or alleged violation of the collective agreement”. [ 82 ] In this case the Defendant points to

Article 5.01(ii) of the first provincial agreement which states that the employer/school board is responsible for “enforcing safety, health and fire regulations”. [ 83 ]

Article 29.01 of the local agreement requires “all parties to co-operate in the prevention of accidents, and the promotion of safety and health”. The same

article requires all parties to comply with the Nova Scotia Occupational Health and Safety Act . [ 84 ] Section 13(1)(

a) of the Occupational Health and Safety Act requires “every employer to take every precaution to that is reasonable in the circumstances” to ensure the health and safety of persons at or near the workplace. [ 85 ] The Centre says the combined effect of these provisions establishes that the essential character of Ms. McInnis’ claim is workplace safety.

This is coupled with provisions for injury in the workplace, providing full salary (Article 26.01) and a grievance procedure (Article 42.01) of the provincial agreement, and articles 5.01, 5.03, 5.10 of the local agreement. [ 86 ] In assessing the essential character of the dispute, the Court must analyze the provisions of the collective agreement, accounting for the factual circumstances underlying the dispute.

It is the facts underpinning the dispute and not the legal characterization that is relevant. ( Weber ) [ 87 ] In short, the Centre argues the collective agreement requires the employer to comply with the Occupational Health and Safety Act, as well as its own provisions for safety. [ 88 ] The Plaintiff argues the basis of her claim is not captured by the collective agreement, and therefore is not restricted to an arbitrator’s jurisdiction. Her brief states: 69. The duty set out in s. 13(1)(

a) of the Occupational Health and Safety Act , is essentially the same as the duty created by the Occupiers’ Liability Act in s. 4(1) to take reasonable care in the circumstances to see that each person entered on the premises is reasonably safe. [ 89 ] In terms of specific provisions, Ms. McInnis submits her entitlement under

Article 26.02 is limited to a maximum of two full years’ salary, being a person injured in the course of her employment. Otherwise, she says, the agreement is silent on all other entitlements, including pecuniary and non-pecuniary damages, available under common law. [ 90 ] It is significant the Plaintiff says, that in Gillan the plaintiff conceded that an arbitrator under the relevant collective agreements had the jurisdiction to award damages for pain and suffering. Otherwise, as the Plaintiff submits, there is not a single case in Nova Scotia that supports the Centre’s position. (See Frayn v. Quinlan , 2008 NSSC 63 and Lajoie v. Mount Saint Vincent University , 2002 NSSC 29 )

[ 91 ] In terms of the factual context underlying the claim, the pleadings are relevant in assessing the nature of the dispute and whether it is captured by the agreement. The Pleadings [ 92 ] I have reviewed the Statement of Claim, Statement of Defence, and Third Party Claim. [ 93 ] Paragraph 10 of the Statement of Claim alleges the Plaintiff was severely injured due to the carelessness and negligence of the Defendant, its agents and employees.

Paragraph 12 further alleges the negligence was caused by the Centre, in the ownership, maintenance, inspection and upkeep of the school parking lot and associated areas. (Paragraphs 12(a),(b),(c)) [ 94 ] The Plaintiff’s allegations are centred around the parking area of the school.

In total there are eight (8) allegations of negligence, all related to the Defendant’s ownership of the parking area, and which allege a failure of the Defendant to salt, sand, inspect and maintain with no system or warning signs in place, for prevention of ice and snow build up. [ 95 ] This is not, for example, a situation of harassment on the job ( Frayn ), alcohol dependency or human rights ( Horrocks ), or an alleged abuse of sick leave policy ( Weber ).

It is a situation similar to Gillan where the Plaintiff received injuries in a slip and fall in the workplace. [ 96 ] The Plaintiff specifically pleads the Occupiers’ Liability Act and the duty of an occupier to take such care to ensure that persons entering on the premises are reasonably safe as contained in s. 4 of that Act . (Paragraph 15 of the Statement of Claim) The Statement of Claim does not reference the Occupational Health and Safety Act unlike

Article 29 of the local agreement. [ 97 ] In terms of safety the Plaintiff alleges at paragraph 10: 10. Although the Plaintiff took every reasonable precaution for her safety, she was severely injured due to the carelessness and negligence of the Defendant, its agents, or employees. [ 98 ] In its Defence, the Centre denies the allegations of negligence and denies that it was an occupier. It pleads in the alternative “that the premises were reasonably safe at the time of the incident”.

The collective agreements do not specifically reference the Occupiers’ Liability Act . [ 99 ] It is undisputed that the Plaintiff claims a wide range of damages, including losses for pain and suffering, general and aggravated damages, and future loss of income. (Paragraph 17) [ 100 ] The Defendant submits a party cannot oust the jurisdiction of an arbitrator by the mere drafting of pleadings, nor can the measure of damages be determinative of jurisdiction.

The Centre submits there is no authority or principle for the Court to exercise jurisdiction because the benefits available under the collective agreement differ from the scope of damages available in tort. ( Giorno v. Pappas , 1999 CarswellOnt 164 and Gillan at paragraph 45 ) [ 101 ] On this point, I concur with the Defendant that this discussion is more appropriate in the consideration of whether the Court should exercise its “residual discretion” under step three (3). The Affidavits [ 102 ] The Defendant objects to the affidavits of Ms. McInnis and Mr. Berryman on the basis that they are irrelevant.

Jurisdiction, it says, is a question of law and the affidavits filed have no bearing on its determination. [ 103 ] The affidavit of Mr. Berryman is based on his personal knowledge. The jurisprudence says the Court should attempt to analyze the factual background in its assessment of the circumstances. Some paragraphs of the affidavit discuss the question the Court must answer. Those paragraphs are not admissible. On the whole, I find the affidavit of Mr.

Berryman is relevant to provide the Court with some evidence of past treatment of the statute and agreement. [ 104 ] Numerous paragraphs in the Plaintiff’s affidavit contain hearsay evidence, particular paragraphs 2, 18, 19, 20, 21, 22, 23, 24. In others, there is evidence as to the sequence of events following the accident and the steps taken by Ms. McInnis for recovery of benefits under the collective agreement. She argues these benefits have been exhausted. [ 105 ] Ms. King’s affidavit serves primarily to admit the relevant documents in this motion.

That said, like aspects of the other affidavits, it is it probative and provides a helpful understanding of the factual circumstances. [ 106 ] For the foregoing reasons, I have concluded that the essential character of the dispute or difference is a claim for compensatory damages for personal injury based on the Centre’s alleged failure to maintain a safe workplace. [ 107 ]

Article 42.01 clearly states that a dispute or difference in the

interpretation of any provision in the collective agreement or a dispute or difference of opinion with regard to any provision in the agreement shall proceed under the grievance procedure to arbitration. [ 108 ] There is clearly a difference of opinion as to what is arbitrable, including whether the arbitrator has authority to grant remedies in tort under common law. The Plaintiff has submitted it does not, which brings into question the “application” of the agreement. [ 109 ] While the Defendant acknowledges that an arbitrator is empowered to grant such relief, the Centre argues that this is not an appropriate case to do so. [ 110 ]

Section 30 of the Teacher’s Collective Bargaining Act gives an arbitrator the power to decide what is within his or her authority which, in my view, would include remedies sought by way of grievance.

[111] In

summary, I find the essential character of the dispute falls within the scope of the collective agreement including theprovisions in

Article 26 of the provincial agreement. Step 3 – Should the Court exercise its residual discretion to grant relief outside the jurisdiction of the arbitrator? [112] The Plaintiff says that should an arbitrator decline jurisdiction, she will be left without a remedy beyond the wage replacementprovisions of

Article 26.01-26.06 entitled, “Leave for Injury on Duty”. [113] Ms. McInnis submits that even if her claim is of a type that can be heard though the grievance process, the Court should exerciseits residual discretion to hear her claim because there is no provision for making a claim under the collective agreement, other than forwage loss. [114] The Defendant submits there is no basis for the Court to use its residual discretion to hear this claim because that discretion existsonly to grant remedies outside the power of an arbitrator.

Relying on Gillan the Defendant summarized the Court’s key findings in itsbrief: 78. In Gillan the Court of Appeal analyzed this issue at paragraphs 39-48. They key holdings of the Court were: (

a) The possibility that exemplary or punitive damages may not be available before a labour arbitrator is not sufficient to createjurisdiction of the Court, at paras 42- 43, (

b) The failure to file a grievance within the time prescribed in the Collective Agreement does not create jurisdiction for the Court, atparas 44 -45; and (

c) Where a plaintiff could have sought remedies under the Collective Agreement but did not, there is no need for the exercise of theCourt’s residual discretion, at paras 44 –46. [115] Citing Horrocks and Gillan, the Centre argues that arbitrators can deal with disputes giving rise to damages in tort or evenCharter challenges.

Further, it says the failure to file a grievance does not create jurisdiction for the Court given an arbitrator’s power todetermine its own procedure. (s. 30(a), TCBA) [116] The Centre submits the use of curial discretion is reserved for circumstances where it is necessary to provide an effective remedybeyond the arbitrator’s authority. [117] Statutory tribunals often deal with subjects that go to the core of their specialized training, such as a labour arbitrator dealing withlabour relations issues. What a tribunal should hear or not hear involves giving way to the legislative choice of the forum of resolution.

Exclusive arbitral jurisdiction has been extended to human rights issues even when the completing tribunal is the statutory bodyoverseeing such complaints. (Horrocks para.21) [118] In Horrocks, the Court had this to say on residual curial discretion: [23] A further caveat: the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grant remedies that lieoutside the remedial authority of a labour arbitrator, including interlocutory injunctions (Weber, at para. 67; see also Brotherhood ofMaintenance of Way Employees Canadian Pacific System Federation v.

Canadian Pacific Ltd., (SCC), [1996] 2 S.C.R.495; Bisaillon, at para. 42). This ensures that there is no “deprivation of ultimate remedy” (Weber, at para. 57, quoting St. AnneNackawic, at p. 723)… [73] Statutory tribunals are established by legislatures to carry out certain statutory mandates. They are given specialized jurisdiction and“assigned . . . tasks” for efficiency, access to justice, or other reasons (St. Anne Nackawic, at p. 719; see also J.-A. Pickel, “StatutoryTribunals and the Challenges of Managing Parallel Claims”, in E. Shilton and K. Schucher, eds., One Law for All?

Weber v OntarioHydro and Canadian Labour Law: Essays in Memory of Bernie Adell (2017), 175, at p. 178). When statutory tribunals are established,courts should give way to this special grant of jurisdiction so as not to undermine the benefits intended by the legislature — one suchbenefit is the provision of speedy and affordable dispute resolution with “a minimum of disruption to the parties and the economy”(Weber, at para. 46).

While courts of course retain residual jurisdiction to hear matters not conferred on other bodies (Regina PoliceAssn., at para. 26), statutory tribunals require jurisdictional space, so to speak, to do their jobs. [119] Common law remedies may not fit as neatly into a grievance process as do the more common workplace grievances. However, asstated above, the specialized authority is intended to achieve certain benefits with a minimum of disruption. [120] St. Anne Nackawic is recognized as a foundational decision in this area.

There the Court considered the dispute resolutionprovision in s. 55 of the New Brunswick Labour Relations Act, which contained language very similar to

section 29 of the Teacher’sCollective Bargaining Act: 55. Final settlement without stoppage of work, by arbitration or otherwise of all differences between the parties to, or persons bound byor on whose behalf it was entered into concerning its meaning or violation. (Emphasis added) [121] Under the Teachers Collective Bargaining Act even if a collective agreement is absent such a provision, it is deemed to containone, as a final means for the settlement of “all differences relating to the

interpretation, application or administration of this agreement,including any question as to whether a matter is arbitrable”. (Emphasis added) [122]

Article 42.01 of the provincial agreement speaks of a dispute or difference concerning any provision of the agreement. Article5.03 refers to a dispute regarding inter alia, the operation of agreement, or its application. [123] In St. Anne the dispute involved an employer’s civil action against a union for damages following an illegal strike. In Weber an

employer hired private investigators to determine whether an employee was abusing sick leave benefits. In Horrocks, the employee wassuspended for attending work under the influence of alcohol. Ms. Horrocks asserted her employer, the Northern Regional HealthAuthority failed to accommodate her disability. [124] In Horrocks, the Court had this to say about an adjudicator’s jurisdiction: [13] It is settled law that the scope of a labour arbitrator’s jurisdiction precludes curial recourse in disputes that arise from a collectiveagreement, even where such disputes also give rise to common law or statutory claims (St.

Anne Nackawic Pulp & Paper Co. v.Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704, at p. 721; Weber, at para. 54; New Brunswickv. O’Leary, (SCC), [1995] 2 S.C.R. 967; Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, at paras. 12-17; Goudiev. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at paras. 22-23; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R.666, at para. 30)… [125] Further the Court stated, in relation to “curial jurisdiction”: [19] In Weber, the Court elaborated upon the scope of exclusive arbitral jurisdiction identified in St.

Anne Nackawic, holding that it alsoousted curial jurisdiction over tort and Charter claims arising from a collective agreement. [20] The Court agreed that the matter fell within exclusive arbitral jurisdiction.

That jurisdiction, it explained, captures disputes that arefactually related to the rights and obligations under the collective agreement, even where those same facts give rise to other legal claimsbased in statute or the common law. (Emphasis added) [126] As to whether there is “room” for curial jurisdiction over the claim, the court stressed it is not how the dispute is defined legally,but how it is factually related to the rights and obligations under the collective agreement, that is relevant. [127] The Plaintiff asserts the factual basis of her action is a claim for damages at common law following “a workplace injury that wasentirely preventable.” She argues the collective agreements limit the arbitrator’s jurisdiction over this type of claim to wagereplacement.

The Benefits Available [128] In addition, the Plaintiff argues the “Board” and the Union were of the view that Ms. McInnis has exhausted the benefits that sheis entitled to receive in the collective agreements. They have no dispute with the board and nothing to recover through a grievance. [129] In his affidavit, William Berryman, a teacher since 1970 and a former Executive Staff Officer with the NSTU from 1996 to 2007,a union local president in West Hants, a member of the Provincial Executive and Union First Vice President, stated: 11.

Although I have assisted many teachers with grievances involving claims for injury on duty, in my 30 years with the Union I havenever filed a grievance or heard of anyone in the union filing a grievance, for compensation for pain and suffering as a result of an injuryon duty. [130] The Plaintiff’s action includes a claim for compensation for pain and suffering. She says the Supreme Court is a much better fitfor complicated claims of this nature.

The lack of guidance in the collective agreement demonstrates this. [131] She points to other reasons in support of this Court exercising its discretion such as the fact that two (2) years of litigation hasalready been conducted. [132] Ms. McInnis says there will be some incidents that occur in the workplace that will not arise from the collective agreement, andthis is such an incident. The mere fact that there is an employment relationship is not sufficient reason to exclude the Court’sjurisdiction. [133] In addition, there is a third party involved in this matter, Santana Contracting Limited.

The Plaintiff argues that an arbitratorwould have no jurisdiction over a third party and therefore, the Plaintiff would have no means to recover compensation should Santanabe found responsible. [134] The obvious concern is that Ms. McInnis will be deprived of the remedies she seeks, should the matter proceed to arbitration. Courts must be cautious to ensure this will not happen. Thus, the reason for the caveat expressed in Weber, (paragraph 57), St. Anne,(paragraph 22); and Horrocks (paragraph 23). What must be avoided is the real deprivation of the ultimate remedy. [135] Ms.

McInnis argues that if her claim is dismissed, she will be left without recourse, as there has been “no consent” from theDefendant that an arbitrator has the authority to allow her to recover compensation for her injuries. [136] The Centre submits the collective agreements are undistinguishable from those considered by the Court of Appeal in Gillan andby this Court in Frayn.

In Frayn the issue was alleged bullying in the workplace and in Gillan it was a slip and fall as in the case at bar. [137] In rebuttal, the Centre says that deficiencies in the potential amount of compensation between the arbitration and common law hasbeen held not to be a reason for the Court to exercise jurisdiction. (See paragraph 45 of Gillan; and paragraph 19 of Giorno) [138] Ms. McInnis’ argument that she could be left without redress is compelling.

In her affidavit she stated that in “April 2021 theBoard advised that it would not agree to allow me to grieve my claim”. (See Paragraph 25) [139] The same argument was advanced in Gillan, where it was contended that if the Court did not hear her claim in tort, she would beunable to recover all of her damages from the University. The Court of Appeal rejected this argument. [140] In Gillan, the University agreed that although an arbitrator could award general damages for pain and suffering, lost income,

future income, diminution of earning capacity and interest, he or she could not award aggravated or punitive damages. [ 141 ] The Plaintiff is claiming aggravated but not punitive damages.

She submits it is significant that in Gillan the University conceded that the arbitrator under the collective agreement had the jurisdiction to award general damages for pain and suffering and all the other common law damages that the Plaintiff would be entitled to pursue in this Court. [ 142 ] In regard to the trial judge’s reasons in Gillan , Oland, J.A. stated: 42 In his decision, the judge noted [¶ 46 Reasons] that the University agreed that while an arbitrator under the Collective Agreement could award general damages for pain and suffering, lost income, future lost income, determination of earning capacity and interest, he or she could not award aggravated damages or punitive damages. … 43 In my view, the judge did not err when he decided that the possibility exemplary or punitive damages might not be available would not be sufficient to create jurisdiction in the court. [ 143 ] The Plaintiff has submitted “the only way to avoid actual prejudice is if the Board agrees that an arbitrator has the jurisdiction to award all the damages the Plaintiff would have a right to recover at common law, if her claim was successful”. [ 144 ] The Defendant submits that potential differences in compensation such that a tort award may be greater than an arbitration award is not a reason for the Court to exercise jurisdiction.

What matters is that the arbitrator is empowered to remedy the wrong. Such a remedial gap must amount to an effective deprivation of a remedy sufficient to justify the assumption of jurisdiction by the court. ( A.(K.) v Ottawa City , citation, at paragraphs 20, 21) [ 145 ] The Defendant has acknowledged that in an appropriate case an arbitrator would have the authority to award the types of damages sought by the Plaintiff. At the same time the Centre submits that in this case, the benefits under the collective agreement provide “effective redress” for the Plaintiff, stating in its brief: 84.

The Provincial Collective Agreement includes benefits for: leave for injury on duty, including benefits for wage loss, medical treatment and medical services (Article 26); extended medical benefits (Article 34); and long-term disability benefits funded in part by the employer (Article 58). [ 146 ] The circumstances of this case indicate that:

i) There is a mandatory arbitration clause with respect to “all differences” including those that the arbitrator may decide are arbitrable. ii) There is a specific provision dealing with injury at work contained in the collective agreement providing for benefits including salary and long-term disability. iii) The collective agreement requires the Centre as employer to provide a safe working environment as required by the Occupational Heath and Safety Act , s. 13. iv) The Defendant argues that in an appropriate case the arbitrator would have jurisdiction to award common law damages, including general damages for pain and suffering, and further remedies.

v) The burden of persuading the arbitrator to provide such remedies arising from a breach of the collective agreement, would be on the “grievor”. [ 147 ] There is a lack of specificity and therefore some uncertainty as to whether an arbitrator will accept the Plaintiff’s claim. She, in fact, says that they have already refused to allow her to grieve her claim. [ 148 ] In Cherubini , Justice Cromwell stated: 70.

Thus, where a dispute otherwise falls within the exclusive jurisdiction of arbitrators, their remedial powers will be interpreted broadly and courts should intervene to provide additional remedies only in exceptional cases to prevent a real deprivation of an ultimate remedy. [ 149 ] Accordingly, the case law demonstrates a growing preference toward broader arbitrable powers.

There is no express provision in the legislation or agreements that common law remedies are outside of an arbitrator’s authority. [ 150 ] With regard to whether the Court should exercise its residual discretion to hear the Plaintiff’s matter, I decline to exercise such discretion at this time. I can find no reason to do so other than: 1) it does not seem to be a good fit for an arbitrator; and 2) there are few cases that have seen fit to accept that labour arbitrators should preside over personal injury claims for damages for pain and suffering.

These factors alone do not persuade me that I should do so. [ 151 ] The Plaintiff is not without recourse if the third party is found to be at fault, as the essential character of the dispute arises from the collective agreement. An arbitrator will have to consider whether the Centre took reasonable precautions to ensure the safety of persons at or near the workplace in contracting with Santana.

Issue #3 – Does delay in addressing jurisdiction prevent the Defendant from relying on it as a Defence? [ 152 ] The Plaintiff is of the view that a grievance under the collective agreement is not the appropriate forum for Ms. McInnis to

recover the relief sought in this matter. In the event that the Court determines otherwise, this option was never communicated, says the Plaintiff. [ 153 ] The Plaintiff argues the Defendant’s delay in bringing the amendment forward, places Ms. McInnis in a position of filing a claim for benefits not enumerated past the deadline for filing such a claim. This would completely eliminate her right to recover.

As such, it was incumbent on the Board to make teachers aware of the possibility of this grievance process and any relevant deadlines. [ 154 ] The Defendant, relying on Gillan , states the parties cannot confer jurisdiction upon the Court if as a matter of law jurisdiction does not exist.

In Gillan the court agreed with the University that the Appellant’s argument that unreasonable delay would lead to a finding of jurisdiction in the court was fundamentally flawed. ( Gillan at paragraph 55 ) [ 155 ] It must be said that the issue of whether undue delay can confer jurisdiction is a different issue than whether the Plaintiff is prejudiced by a missed deadline to file a grievance, although they are factually related, says the Plaintiff.

The Centre submits the time for filing a grievance had expired before the Complainant commenced her action. [ 156 ] I concur with the Plaintiff that she should not be held to a higher standard than the Centre.

It was most unlikely she would have expected that she would have to pursue a grievance through her Union after two years of litigation. [ 157 ] To this end, the Plaintiff asks that the Centre be estopped from raising any defence to the grievance based on a failure to file a grievance in a timely manner. [ 158 ] I have already found that the delay in seeking the amendment was not so long as to cause irreparable prejudice.

That was the Defendant’s submission. [ 159 ] Regarding the failure to file a grievance the Defendant says the arbitrator has the power to decide to hear the grievance as contained in s. 43D of the Trade Union Act , which powers would be held by an arbitrator under the Teachers’ Collective Bargaining Act . [ 160 ] Still, the Centre argues the Plaintiff is out of time to file a grievance, arguing that ignorance by the Plaintiff of the deadlines for filing is not a valid reason. [ 161 ] On the one hand, the Centre says the delay in addressing jurisdiction should not prevent it from raising this Defence.

On the other, the Centre argues the Plaintiff’s delay should prevent her from being able to file a grievance. I concur with the Defendant that the delay alone does not confer jurisdiction upon the Court. Nor can the Court grant the Order requested by the Plaintiff that the Board be estopped from raising time as a defence before an arbitrator. [ 162 ] I find the delay in raising the jurisdiction issue does not prevent the Defendant from relying on this Defence. [ 163 ] That said, the Court must be mindful of the impact of its ruling as to jurisdiction.

Many of the cases in this area place a good deal of emphasis on whether an employee will be left without a remedy, even potentially. ( Haughn v. Halifax (Regional Police Commission) , 2001 NSSC 117 , at paragraph 22 ; affirmed on appeal) [ 164 ] The scope of arbitrability has not yet been determined. Should the Court dismiss the Plaintiff’s Action? [ 165 ] The order sought by the Defendant, dismissal, is the severest form of prejudice. It would end the litigation in this Court, subject to an appeal.

It being the most grievous of remedies, the Court must be fully satisfied there is recourse, a clear path for the Plaintiff to pursue her remedies. [ 166 ] The Defendant agrees the right of the Plaintiff to pursue her claims through arbitration does exist, but it is up to her to convince an arbitrator to accept her grievance procedurally, and of the merits of her claim.

The key question is whether that avenue will be open to the Plaintiff, the Court having declined to exercise its residual jurisdiction. [ 167 ] I have decided, notwithstanding a lack of specificity as to the remedies sought, that a clear preference has been shown, to have all differences resolved through the grievance process.

There is still however, a degree of uncertainty in my view as to whether an arbitrator or board will acknowledge having the power to grant the full scope of remedies sought. [ 168 ] In its amended motion the Centre moves for an order: 1) to amend its pleadings; and 2) to dismiss the action against the Defendant for lack of jurisdiction. [ 169 ] In Cherubini , Justice Cromwell discussed whether time limits might prevent the respondent from getting effective redress through the grievance process and whether an arbitrator would lack jurisdiction over the parties.

The Court concluded that an arbitrator would not be powerless to address the merits of the respondent’s claims even in the face of the time limits. The Court of Appeal also found an arbitrator might apply the “discoverability principle” in interpreting when the event giving rise to the grievance occurred. The trial judge’s concern was not that an arbitrator would be unable to provide a remedy in damages or would lack the remedial authority to remedy the abuse of the collective agreement. [ 170 ] In the present case the Defendant intends to argue tht time limits prevent the filing of a grievance by the Plaintiff.

What arguments are open to them is beyond the grasp of this Court. It is questionable whether the Plaintiff may plead discoverability, for example. There are such issues in this case. (See paragraphs 130 and 139 herein) [ 171 ] Rule 94.06 gives a judge a discretion to grant the order or provide other relief that is in the judge’s discretion, when a rule permits a party to make a motion for an order. [ 172 ] For the above reasons, I find that the dismissal of the Plaintiff’s action prior to the arbitrator deciding what is arbitrable would not

be prudent. [ 173 ] In Haughn , MacAdam, J. ruled in similar circumstances: [ 33 ] Justice Cromwell, in Nova Scotia Union of Public Employees v. Halifax Regional School Board , supra, at para 40, in addressing the question of whether the appropriate relief was to stay or strike the proceeding, made the following comments: In this case, I have addressed only one question. It is whether the court action should not proceed because an arbitrator, and not a court, should determine at first instance the issue of arbitrability.

In light of my conclusion, it is not necessary for me to address the broader aspect of the employer’s substantive argument that the court has no jurisdiction regardless of the conclusion of the arbitrator on the question of arbitrability. That issue not having been decided in this appeal, it will be open to the parties to raise it again in the future, if for example, an arbitrator finds the dispute not to be arbitrable.

Out of an abundance of caution that these reasons not be seen as settling anything other than the narrow issue which they address, I think the wise course is to direct a stay of the action which could be lifted by a judge of the Supreme Court in appropriate circumstances in the future.

So as to avoid the possibility of the action being suspended indefinitely, I would add the proviso that if no application is made to lift the stay within two years of today’s date, the action will stand dismissed. [ 34 ] Similarly, the only issue addressed in these reasons is whether this court action should not proceed because an arbitrator has not, in the first instance, determined the issue of arbitrability. Broader issues as to the substantive rights of the plaintiffs, if any, have not been addressed.

As a consequence, I would, as Justice Cromwell did, stay the present proceeding, pending submission to arbitration or any other form of proceeding that is permitted under the statutory enactments applicable to the parties and the disputes in question.

Also, so as to avoid the possibility of this action being suspended indefinitely, I would add the proviso that if no application is made to lift the stay within two years of the date of these reasons, then this action will stand dismissed. [ 174 ] I find the appropriate remedy in these circumstances is to stay the present proceeding, pending submission to arbitration or any other form of proceeding that is permitted under the statutes applicable to the parties and the dispute in question.

I too would add the proviso that if no application is made to lift the stay within two (2) years of the date of these reasons, then the action will stand dismissed. Conclusion [ 175 ] The Defendant’s motion to amend its defence is granted. [ 176 ] Having considered the legislation and collective agreement(

s) in this case, it is clear that a very strong preference is shown for the dispute resolution process contained in Articles 42.01 and 5.03 of the provincial and local agreements to be followed. I concur that the definition of “dispute” in

section 2(

g) of the Teachers’ Collective Bargaining Act is broadly worded . [ 177 ] There is exclusive jurisdiction granted to an arbitrator to adjudicate the Plaintiff’s claim. I also find the nature of the claim falls within the provisions of the collective agreement pertaining to the workplace safety and injury on duty, including s. 13 of the Occupational Health and Safety Act , which is incorporated into the local agreement by

Article 29.01. [ 178 ] As was the case in Gillan , the injury received by the Plaintiff occurred in the workplace, on school grounds, when reporting for duty. There are provisions in the agreement for injury on duty, leave from teaching and salary continuation. These are contained in Articles 26.01-26.08 respectively. [ 179 ] The Court declines to exercise its residual jurisdiction to hear the matter at this time.

It cannot be said that the arbitrator lacks the authority grant the remedies sought by the Plaintiff unless an arbitrator rules otherwise. [ 180 ] Delay in raising the jurisdiction issue does not prevent the Centre from raising it as a Defence. [ 181 ] A stay of proceedings is entered in respect of this action, which will result in dismissal unless an application to lift the stay is made within two (2) years from the date of these reasons. Murray, J. APPENDIX”A” Provincial Agreement

Article 5 – Employer’s Responsibilities 5.01 The Employer and/or the School Board(

s) is/are vested with the responsibility of managing the Public School System and of operating its services. The responsibilities, subject to any Professional Agreement, include but are not limited to the following: (

i) hiring, promoting, demoting, transferring, disciplining, or suspending teachers, or terminating teachers’ contracts; (ii) enforcing safety, health and fire regulations; (iii) changing existing facilities; (iv) laying off teachers because of lack of work or discontinuance of a function; (

v) planning and controlling the quality of the teaching program.

5.02 It is agreed that the exercise of the responsibilities enumerated in 5.01, is subject to the provisions of any professional agreement between the Employer and the Union or between the Union and a School Board and that the Employer or School Board shall not in the discharge thereof act in a manner contrary to any said provision. 5.03 A School Board shall enter into the appropriate term, a probationary, or permanent contract with every teacher in its employ in accordance with the contract set forth herein. Leave for Injury on Duty s. 26.01 – 26.03 26.01 (

i) When injured in the performance of the teacher’s duties, which duties have been approved by a School Board or its representative, the teacher, on application to the School Board, shall be placed on leave with full salary until the teacher is medically certified able to continue teaching. (ii) A teacher will notify the teacher’s immediate supervisor as soon as possible of any injury incurred in the performance of the teacher’s duties. 26.02 Such shall not exceed two (2) years from date of the injury.

If the teacher is still unable to resume the teaching duties which had been assigned the teacher shall be entitled to use the teacher’s sick leave. 26.03 The salary paid as per 26.01, shall be reduced, during the two (2) year period as per 26.02 by the amounts paid the teacher under any disability or liability insurance settlements, towards which the School Board contributes premium. … 26.08 Upon receipt of compensation or benefits from any source (other than a disability or insurance policy toward which the teacher alone contributes premiums or CPP Disability Pension) in relation to articles 26.01, 26.02, 26.05, 26.06, or 26.07, the teacher shall immediately pay to the School Board the amount of such compensation or benefits, up to the amount received by the teacher under those articles or paid by the School Board to any other party.

Grievance Procedure 42.01 The parties agree that a grievance means a dispute or difference of opinion concerning the

interpretation or an alleged violation of any provision of this agreement. … 5.03 Where a teacher or the Union has a dispute with the Board or its representative regarding

interpretation, application, operation or any alleged violation of this Agreement, the dispute shall constitute a grievance and shall be processed according to procedure set forth in this Article. … 5.15 The decision of the arbitrator shall be final and binding upon the Board, the Union and the teacher(s). Local Agreement

Article 5 – Grievance Procedure 5.03 Where a teacher or the Union has a dispute with the Board or its representative regarding

interpretation, application, operation or any alleged violation of this Agreement, the dispute shall constitute a grievance and shall be processed according to procedure set forth in this Article. 5.10 If the Grievance Committee and the Director of Human Resources, or designate, are unable to settle the grievance as a result of the meeting in 5.08, then the Union may within ten (10) calendar days of receipt of the response pursuant to 5.09, advise the Director of Human Resources, or designate, in writing that the grievance shall be referred to an arbitrator. 5.12 The arbitrator shall not reach any decision inconsistent with the terms and conditions of this Agreement, nor alter, amend or modify any of the provisions thereof. 5.15 The decision of the arbitrator shall be final and binding upon the Board, the Union and the teacher(s).

Article 29 – Occupational Heath & Safety 29.01 The Board, Union and teachers agree to cooperate in the prevention of accidents and the promotion of safety and health. All parties agree to comply with all applicable provisions of the Nova Scotia Occupational Health and Safety Act . TCBA - Powers and duty of arbitrator or arbitration board S. 30 Any arbitrator or an arbitration board appointed pursuant to this Act or to a professional agreement, (

a) shall determine his or its own procedure, but shall give full opportunity to the parties to the proceedings to present evidence and make submissions to him or it;

(

b) has, in relation to any proceedings before him or it, the powers conferred on the Board in relation to any proceedings before the Board by the Labour Board Act and the Trade Union Act; (

c) has power to determine any question as to whether a matter referred to him or it is arbitrable; (

d) where (

i) he or it determines that a teacher has been discharged or disciplined by an employer for cause, and (ii) the professional agreement does not contain a specific penalty for the infraction that is the subject of the arbitration, (

e) has power to treat as part of the professional agreement the provisions of any enactment of the Province governing relations between the parties to the professional agreement.