MacNeil v. Nova Scotia (Attorney General), 2010 NSSC 167

SUPREME COURT OF NOVA SCOTIA Citation: MacNeil v. Nova Scotia (Attorney General), 2010 NSSC 167 Date: 20100427 Docket: Hfx. No. 267469 Registry: Halifax Between: Wilfred A. MacNeil -and- The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia, The Nova Scotia Teachers Union and The Strait Regional School Board LIBRARY HEADING Judge: The Honourable Justice Robert W.

Wright Heard: April 14 and 15, 2010 in Halifax, Nova Scotia Written Decision: April 27, 2010 Subject: Labour and Employment - Court’s jurisdiction to hear action involving employment dispute where plaintiff was under a collective bargaining regime - Civil Procedure Rule 13.04 -

summary judgment motions on the evidence.

Summary: After working as a teacher for the Strait Regional School Board for approximately 20 years, the plaintiff became one of its directors in 1996 and later accepted a work secondment with an outside agency between 2000-2002. The secondment contract of employment provided that the plaintiff was to be returned to his position with the school board at the end of its term without abatement of his benefits, privileges or seniority.

The plaintiff was also a member of the Nova Scotia Teachers Union which was a party to collective agreements both with the Minister of Education and the local school board under the two-tiered collective bargaining regime established by the Teachers Collective Bargaining Act . When the plaintiff returned to active employment with the school board in 2002, he was demoted to the position of a Vice-Principal in the school system which he accepted under protest. His salary was subsequently reduced accordingly but the union declined to pursue his requested grievance.

After his retirement in 2005, he commenced this action in 2006 claiming damages against the school board and AGNS for constructive dismissal and damages against the union for breach of the duty of fair representation. He also claimed against the school board and AGNS for unpaid salary alleged to be owing to him under his employment secondment contract. All three defendants ultimately brought motions for

summary judgment on the evidence, although the motion by the union was discontinued during the course of the hearing. Issue: The main issue to be decided was whether the jurisdiction of the court to hear the action was ousted by the existence of the

collective bargaining regime in existence at the time. Held: Although the plaintiff principally based his claim on the wording of the employment secondment contract above recited (to which the school board was a party but AGNS was not) the essential character of the main dispute was the plaintiff’s placement in the school system upon his return to active employment with the school board at the end of his secondment. This main dispute fell within the ambit of the collective agreements which, under the legal principles established in the well-known case of Weber v.

Ontario Hydro 1995 CanLII 108 (SCC) , [1995] 2 S.C.R. 929 , ousted the jurisdiction of the court to hear that dispute. The second area of dispute, that for unpaid salary based on the employment secondment contract, fell outside the ambit of the collective bargaining regime and hence the court had jurisdiction to hear that part of the claim. The court was satisfied that the plaintiff had shown a real chance of success with respect to that part of the claim as against SRSB but not as against AGNS as a non-party to that contract.

The action will therefore continue against the union for breach of the duty of fair representation and against the school board for the unpaid salary claim. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THE COVER SHEET. SUPREME COURT OF NOVA SCOTIA Citation: MacNeil v. Nova Scotia (Attorney General), 2010 NSSC 167 Date: 20100427Docket: Hfx. No. 267469 Registry: Halifax Between: Wilfred A.

MacNeil Plaintiff -and- The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia, The Nova Scotia Teachers Union and The Strait Regional School Board Defendants Decision Judge: The Honourable Justice Robert W. Wright Heard: April 14 and 15, 2010 at Halifax, Nova Scotia Written

Decision: April 27, 2010 Counsel: Counsel for the Plaintiff - Donald Peverill Counsel for the Defendant (AGNS) - Dana MacKenzie Counsel for the Defendant (NSTU) - Gail Gatchalian Counsel for the Defendant (SRSB) - Peter McLellan, Q.C. Wright, J.

INTRODUCTION [ 1 ] On June 16, 2006 the plaintiff Wilfred MacNeil commenced this action against the Attorney General of Nova Scotia (“AGNS”), The Nova Scotia Teachers Union (“NSTU”) and The Strait Regional School Board (“SRSB”) following his retirement after a lengthy career as a teacher and administrator with SRSB and its predecessor and successor. [ 2 ] In essence, the plaintiff has sued SRSB and AGNS for damages for breach of contract on two footings, namely, constructive dismissal pertaining to his demotion to the position of a Vice-Principal in the school system upon his return to employment with the school board after a two year period of secondment under a contract of employment with Strait East Nova Community Enterprise Network (“SENCEN”), and unpaid salary and collateral claims under that individual contract of employment.

The cause of action plead against NSTU essentially is for breach of its duty of fair representation of the plaintiff as a union member over that demotion. [ 3 ] At this point of the proceeding, all defence pleadings have been filed and only the plaintiff has filed a List of Documents. The pleadings having closed, however, all three defendants have filed a motion for

summary judgment on the evidence under Civil Procedure Rule 13.04 as they are entitled to do. As will be explained later in this decision, NSTU discontinued its motion during the course of the hearing, leaving only the

summary judgment motions of SRSB and AGNS to be decided. OVERVIEW [ 4 ] The plaintiff was first employed as a teacher by the predecessor of SRSB in 1976. As plead in the Statement of Claim, he remained employed by SRSB and its successors at all relevant times, namely, until his retirement in February, 2005. He was also a member of NSTU and paid all relevant union dues as a teacher belonging to that union throughout that period. [ 5 ] Mr. MacNeil eventually became a Director of SRSB in 1996 and remained as such until the first of August, 2000.

As part of his duties during that period, he was seconded to the Cape Breton Growth Fund in 1998. [ 6 ] As of June, 2000 the plaintiff held the title of Director of Planning, Partnerships and School-Community Relations with SRSB, earning an annual salary of $91,620. At that time, SRSB was undergoing a major restructuring of its internal organization. Part and parcel of that restructuring was the plaintiff’s secondment to serve as the Chief Executive Officer of SENCEN for a three year term commencing August 1, 2000.

SENCEN was a separate organization which had been set up in partnership with SRSB and others in 1997 in pursuit of SRSB’s plan to pursue its goal of technology rich schools for students in the Strait Region.

[ 7 ] The terms of the plaintiff’s secondment were embodied in a Contract of Employment dated June 21, 2000 (hereinafter referred to as the (“SENCEN contract”). The parties to that contract were SENCEN as the named Employer, SRSB, and Mr. MacNeil as Chief Executive Officer. The salient terms of that contract are as follows: (

a) The term of employment was to be three years commencing August 1, 2000; (

b) As CEO, Mr. MacNeil was to devote his full time, attention and energy to the fulfillment of the contractual commitments therein; (

c) His annual salary was to be $95,000 with the salary payments to be made through SRSB (the arrangement as implemented was that salary payments were made to the plaintiff by SRSB who in turn sought reimbursement for those payments from SENCEN; (

d) The plaintiff was to be reimbursed for travel and other business expenses as specified; (

e) Notably, Clause 1.3 of the contract provided that “Upon the completion of the term of three years or any renewal thereof the Chief Executive Officer shall be entitled to return to his position with the Strait Regional School Board without abatement of his benefits, privileges or seniority”. [ 8 ] Mr. MacNeil avers in his affidavit that Clause 1.3 aforesaid was an important feature to him as he did not intend to give up his position as the then second senior director with SRSB, to accommodate the secondment request. Mr.

MacNeil also avers that he did not know what the plans for reorganization of the directors of SRSB were in June of 2000. [ 9 ] It is now known, through the uncontradicted evidence of Jack Beaton, Superintendent of SRSB, who was cross-examined on his affidavit filed for this motion, that Mr. MacNeil’s position as a director of SRSB was eliminated as part of the organizational restructuring which was approved by SRSB on June 21, 2000 (the same date as the signing of the SENCEN contract). [ 10 ] While on secondment, SRSB paid Mr.

MacNeil’s salary at the director level under the relevant collective agreement (which will be identified later in this decision) in the amounts of $90,000 in the first year and $91,620 in the second year, rather than at the annual rate of $95,000 set out in the SENCEN contract. [ 11 ] Towards the end of the second year of the SENCEN contract, Mr. MacNeil notified the school board of his intention to return to his employment effective August 1, 2002 because NSTU was apparently not forthcoming with approval for the third year of the secondment arrangement under a provision in the collective agreement.

To his dismay, he was formally advised that his former position as Director of Planning, Partnerships and Community Relations no longer existed as a result of the organizational restructuring in 2000 and that he would be offered the next most senior job position available which was said to be that of Vice-Principal of Richmond Academy (the latter being a disputed fact by Mr. MacNeil). Mr.

MacNeil objected to this, asserting his rights under Clause 1.3 of the SENCEN contract, but felt he had no choice but to accept the position assigned to him under protest. [ 12 ] During the first year of serving as Vice-Principal, Mr. MacNeil’s salary was “red circled” at a directors’ rate of pay but on August 1, 2003 his salary was reduced to $72,178 at the Vice-Principal level. His salary was subsequently increased to $75,750 on August 1, 2004 under the salary schedules attached to the relevant collective agreement and remained at that level until his retirement in February , 2005. Mr.

MacNeil took early retirement because of physical injuries he sustained while carrying out his Vice-Principal duties at school. [ 13 ] After his salary was reduced as of August 1, 2003 Mr. MacNeil made a formal request to NSTU to begin proceedings for a grievance on his behalf against the school board based on its failure to reinstate him to his position as director following his secondment, and the resultant loss of salary. NSTU declined to process or pursue such a grievance for reasons considered by Mr. MacNeil to be invalid and which have yet to be fully explored.

[ 14 ] As plaintiff’s counsel put it, these developments essentially left Mr. MacNeil to “twist in the wind”. He felt he therefore had no option but to commence this action not only against NSTU for breach of its duty of fair representation, but also against SRSB and AGNS (whose role will be discussed later in this decision) for damages for breach of contract including unpaid salary under the SENCEN contract, and more significantly, constructive dismissal arising out of his placement in the school system following the completion of his secondment under the SENCEN contract. TEST FOR

SUMMARY JUDGMENT [ 15 ] The test to be applied on a

summary judgment motion by a defendant has been firmly established in a number of recent appellate decisions (see, for example, Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) , 2007 NSCA 38 ). In that case, Justice Cromwell succinctly stated (at para 8) that “Summary judgment is appropriate when a defendant shows that there is no genuine issue of material fact requiring a trial and a responding plaintiff fails to show that its claim is one with a real chance of success”. As recognized in Vaughn v.

Hayden , 2009 NSSC 235 , that test has not been altered in any appreciable way by the implementation of the new Civil Procedure Rules effective January 1, 2009. [ 16 ] The Cherubini decision is of particular interest here because it turned on the question of whether the employer’s court action was to be dismissed because its claims against the union should have been pursued through the grievance and arbitration process under the existing collective agreement, rather than in court.

That is also the principal issue in the present case with respect to the plaintiff’s claims as against SRSB and AGNS. [ 17 ] Since the jurisdictional issue in Cherubini did not raise any arguable issue of material fact requiring trial, Justice Cromwell concluded that the question of the court’s jurisdiction over the action was a proper subject for consideration on a

summary judgment application. Such is also the case here and I therefore now turn to an examination of the collective bargaining regime which was in existence when the present dispute arose.

COLLECTIVE BARGAINING REGIME [ 18 ] The employment of teachers in Nova Scotia, whether in a classroom position or a supervisory or administrative position, is covered by a two-tiered collective bargaining regime pursuant to the Teachers Collective Bargaining Act , R.S.N.S. 1989, c.460 (the “ Act ”). [ 19 ] The Act defines “employer” to include either the Minister of Education or the school board depending on the matter involved (see s. 2(h)).

It is the individual school board, however, which is the employer of record, having a wide spectrum of powers and duties under s.64 of the Education Act , 1995-96, c.1 , including the responsibility to hire and pay the superintendent, principals, teachers and other staff. Overall, a school board is stated to be accountable to the Minister and responsible for the control and management of the public schools within its jurisdiction in accordance with the Act and regulations. [ 20 ] The Act defines “Teacher” in s. 2(

u) as meaning “a person holding a teacher’s certificate . . . but does not include a person in charge of a school system appointed by a school board be he a superintendent, supervisor of schools or principal . . .”. [ 21 ] “Teacher” is also a defined term under

Article 1.08 of the TPA where it is stated to mean “a person holding a teacher’s certificate . . . and employed by a School Board in Nova Scotia under a probationary, permanent or term contract pursuant to

Article 20 Tenure”. [ 22 ] The uncontradicted evidence of Mr. Beaton, supported by NSTU, is that the plaintiff was employed under a permanent contract in the prescribed form throughout the relevant period (although the plaintiff’s individual contract with SRSB was not in evidence). [ 23 ] It cannot be said that Mr. MacNeil relinquished his legal status as a teacher when he became a director of SRSB in 1996. By his own admission in his affidavit, that was an administrative post and

Article 44.05 speaks in terms of a teacher in a supervisory or administrative position. Such was Mr. MacNeil’s status when he became a director in 1996.

[ 24 ] Neither can it be said that Mr. MacNeil’s legal status as a teacher employed by a school board was extinguished by his secondment to SENCEN. One can have an employment relationship with more than one employer at a time. [ 25 ] The effect here was that Mr. MacNeil’s rights and obligations under the collective agreements were simply held in abeyance during his secondment to SENCEN and then re-activated upon his return to employment with the school board, without affecting his seniority. [ 26 ] During that secondment, Mr.

MacNeil remained a member of the bargaining unit belonging to NSTU which enjoyed exclusive bargaining rights for the teaching profession in Nova Scotia. [ 27 ] As alluded to earlier, the employment relationship of all teachers in the province was covered by two collective agreements. One of these agreements was made between the Minister of Education of the Province of Nova Scotia and the NSTU and was known as the Teachers Provincial Agreement (“TPA”).

In that agreement, the Minister of Education is named as the “employer” for purposes of that agreement vis-a-vis the union. [ 28 ] The other level of the collective agreement relationship was a professional agreement made between NSTU and each local school board (hereinafter referred to as the “local agreement”).

The local school board, here the SRSB, is the employer of record of the superintendent, principals, teachers and other staff in the bargaining unit by virtue of the Act and regulations. [ 29 ] Both collective agreements, as required by the governing legislation, contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation. The pertinent provision under the TPA is found at

Article 42 and in the local agreement at

Article 7.13. Both require any dispute regarding

interpretation, application, operation or any alleged violation of the agreement to be resolved by the grievance arbitration process. [ 30 ] A further link between the two collective agreements is embodied in

Article 3.01 of the TPA which deems that agreement to apply to, and be binding upon, the union, the teachers, the Minister of Education and the school boards. [ 31 ] There are two other germane provisions in the TPA which have drawn considerable focus on these motions. They are Articles 47 and 44, the core provisions of which read as follows:

Article 47.02 A secondment for the purpose of this Article, is defined as a temporary assignment to a position created by and for the School Board, for a defined and specific purpose, and for a specific period of time.

Article 47.08 When the period of secondment expires, the seconded teacher shall return to the assignment held by the teacher immediately prior to secondment, or to a mutually agreeable position. If the assignment held by the teacher, immediately prior to the secondment no longer exists, then the teacher shall return to an assignment that the teacher would have received but for the secondment.

Article 44.06 , A teacher in a supervisory position who is placed, for reasons other than those in 44.05(iii), in a teaching or supervisory position which results in a loss of salary: (

i) may grieve under the provisions of the Local Agreement, and (ii) shall require the Employer/School Board to show just cause for the placement.

[ 32 ] Further reference to these Articles will be made later in this decision when examining the essential character of the dispute and the ambit of the collective agreements. [ 33 ] There is one other dimension of the collective bargaining regime which should be included in its description, particularly as it pertains to the motion made by AGNS. By way of background, in 2001 the Minister of Education became concerned about the financial reporting and accountability of SRSB.

As a result, the Province created, as a separate body corporate, the Strait District School Board (“SDSB”) as a pilot project under ss. 10A to H of the Education Act . [ 34 ] Under that legislation, SDSB was mandated to carry out certain responsibilities previously held by SRSB. SRSB continued to exist pursuant to s.10F of the Education Act but its composition was solely that of a Chief Executive Officer. The person so appointed was Ken Meech who commenced his duties in December of 2001. Under that arrangement, SRSB was to remain Mr. Meech’s employer at all times, albeit that Mr.

Meech, like any other school board, was to be accountable to the Minister of Education as set out in s.10I. [ 35 ] As for the members of the bargaining unit, all teachers employed by SRSB became employees of SDSB by virtue of s. 10A(

d) of the pilot provisions aforesaid and their employment and seniority was deemed to continue with SDSB.

Furthermore, under s. 10A (h), any collective agreements were to continue in full force and effect and SDSB was deemed to be the employer under those existing collective agreements in so far as they affected teachers and other specified support staff. [ 36 ] It is further provided under s.10B(1) that a district school board was to have responsibility as the employer of teachers and the other specified support staff and was to carry out the duties of a school board set out in the various provisions of s.64 of the Education Act .

Under s.10F, support staff (with certain exceptions) remained with SRSB who continued its responsibilities for their human resources management and supervision. [ 37 ] The effective date of this pilot project in the Strait Region was April 5, 2002 and it continued until its dissolution in 2004. Following that dissolution, full responsibility for school boards in the Strait Region was once again vested in SRSB. [ 38 ] For convenience, I will refer to SRSB and its temporary successor SDSB collectively as “the school board” in now turning to a consideration of the respective motions made by the defendants.

SUMMARY JUDGMENT MOTION BY SRSB [ 39 ] The legal principle relied upon by SRSB as the mainstay of its motion was succinctly stated by Justice Cromwell at the outset of the Cherubini decision as follows: Disputes which, in their essential character, arise out of a collective agreement must be resolved through the grievance and arbitration process provided for in the agreement.

They cannot be the subject of a law suit. [ 40 ] Similarly as in Cherubini , the SRSB motion in this case turns on the question of whether this court action must be dismissed because the complaints advanced in it by the plaintiff should have been pursued at arbitration rather than in court. To answer that question, the court must determine the essential character of the dispute which underlies the court action and consider it in relation to the ambit of the collective agreement(s). There are, in the present case as well, no factual questions requiring trial at either of these two steps.

I am satisfied, from the established factual background outlined earlier in this decision, that the jurisdictional issue to be decided does not raise any arguable issues of material fact requiring trial.

[ 41 ] Both in Cherubini and the earlier case of Adams v. Cusack 2006 NSCA 9 (CanLII) , [2006] N.S.J. No. 25 , the Nova Scotia Court of Appeal summarized the general legal principles in this area, referring to Weber v. Ontario Hydro [1995] 2 S.C.R. 1929 as still being the leading case. Justice Cromwell set out the required analysis as follows: 18. To carry out the required analysis, the court must address two main questions. The first concerns the ambit of the dispute resolution scheme and the second concerns whether the dispute falls within it.

The court must look at the essential character of the dispute, 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 SCC 11 (CanLII) , [2005] 1 S.C.R. 146 at para. 11 ; Weber at para. 49 . Any other approach would leave 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., as she 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 the dispute between the parties, not on the basis of the legal issues which may be framed.

The issue is not whether the action, defined legally, 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 to resolve it lies exclusively with the labour tribunal and the courts cannot try it. [Emphasis in original] 19. The same idea was expressed by Bastarache J. in Regina Police Assn Inc. v.

Regina (City) Board of Police Commissioners, 2000 SCC 14 (CanLII) , [2000] 1 S.C.R. 360 at para. 25 : "... the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. ... If the essential character of the dispute arises either explicitly, or implicitly, from the

interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide." 20. The collective agreement need not deal with a matter explicitly, provided that the essential character of the dispute arises implicitly from the

interpretation, application, administration or violation of the agreement. [ 42 ] Dealing first with the ambit of the dispute resolution process, I have already outlined the relevant provisions of the two collective agreements at play which provide for a grievance process culminating in final and binding arbitration to resolve differences between the parties relating to the

interpretation, application or administration of those agreements. The question then becomes whether the claims made by the plaintiff in this court action are properly characterized as such disputes. This is the pivotal point on this motion. [ 43 ] The plaintiff’s claims in this action are principally based, apart from the salary shortfall claim, on Clause 1.3 of the SENCEN contract which provided that he “be entitled to return to his position with the Strait Regional School Board without abatement of his benefits, privileges or seniority”.

Although the action is framed in breach of contract in respect of that specific provision, the essential character of the dispute at its core is whether Mr. MacNeil was properly placed upon his return to the school board when he was assigned the position of Vice-Principal of Richmond Academy. [ 44 ] The focus of the dispute therefore should be on the plaintiff’s employment relationship with the school board post July 31, 2002 until his retirement. It should again be noted that that employment relationship was not severed by his secondment under the SENCEN contract.

Even though SENCEN became his active employer by virtue of that contract, the plaintiff’s employment relationship with the school board also remained in effect throughout. [ 45 ] In short, the plaintiff’s claim against SRSB for damages for constructive dismissal in this action is predicated upon issues of his placement with the school board effective August 1, 2002, his attendant seniority rights and his subsequent salary reduction. Such issues are the very stuff of collective agreements as typified by Articles 47 and 44 of the TPA. There can be no doubt but that the employment relationship between Mr.

MacNeil and the school board upon his return from secondment was covered by the exclusive bargaining relationship established by the Act . [ 46 ] What then is the import of Clause 1.3 of the SENCEN contract, to which NSTU was neither a party nor had any involvement with? The only viable

interpretation of that clause, given its language and surrounding circumstances, is that upon the completion of his secondment, Mr. MacNeil would return to active employment with the school board in the same position as he would have been in had the secondment never happened. [ 47 ] The word “position” in Clause 1.3 cannot be taken to specifically mean the plaintiff’s former position as Director of Planning, Partnerships and Community Relations. Indeed, the elimination of that position was approved by SRSB as part of its organizational restructuring on the same date as the execution of the SENCEN contract. Mr.

MacNeil may not have been specifically aware of the details of the restructuring at the time but his expectation, as evidenced by his affidavit, was that he would return to active employment

with the school board at the Director’s level. Clause 1.3 of the SENCEN contract should not be interpreted as guaranteeing that result, in my view. Rather, it should be interpreted as obligating the school board to return Mr. MacNeil to his position in the general sense by placing him in the school system exactly where he would have been had he never left on secondment. In other words, Mr. MacNeil was not to be prejudiced or disadvantaged in any way by reason of accepting the secondment. [ 48 ] This

interpretation is reinforced by the fact that SRSB had no authority to make an employment contract with an individual that would create terms of employment beyond the collective agreement with the union. It is the union who has exclusive authority to bargain the employment rights of members of the bargaining unit under the collective bargaining regime established by the Act . It follows that SRSB cannot confer individual rights of employment on a member of the bargaining unit without the participation of the union.

That is a basic tenet of the certification of unions as the exclusive bargaining agent for all members of the bargaining unit. [ 49 ] Even if it could be said that SRSB made a misrepresentation to Mr. MacNeil about the extent of his employment rights on his return from secondment (which is not plead as a cause of action in the Statement of Claim), that too would have been grievable as part of the dispute under the collective bargaining relationship. At the very least, its arbitrability could have been determined by an arbitrator pursuant to s.30 (

c) of the Act . [ 50 ] I conclude therefore that Clause 1.3 of the SENCEN contract did not create an independent actionable right at the suit of the plaintiff against the school board upon his return from secondment. Rather, any disputes arising from his return to employment with the school board were governed by the collective bargaining relationship between the school board and NSTU. [ 51 ] I recognize that whether Mr. MacNeil received the placement in the school system to which he was entitled under the seniority provisions of the collective agreements is very much a disputed fact.

However, that was an issue that could have been resolved through grievance arbitration, as could any related claims for damages.

The fact that it is now far too late to invoke the grievance arbitration process does not serve to confer the court with jurisdiction that it does not otherwise have under the legal principles articulated in Weber and applied in Cherubini and other cases. [ 52 ] To sum up, the dispute which is the subject of the plaintiff’s court action, in its essential character, centres around the alleged failure of the school board to give him a proper job placement in the school system upon his return from secondment with SENCEN in conformity with his seniority rights, and his subsequent salary reduction.

These issues fall within the collective bargaining relationship which governed the terms of employment between Mr. MacNeil and the school board as his employer. Because the dispute raises matters about the

interpretation, application and administration of the collective agreements post July 31, 2002, the resolution of that dispute falls within the exclusive domain of the grievance and arbitration process which, if successful, could have afforded effective relief to the plaintiff. I conclude that the plaintiff does not have a real chance of success of establishing otherwise. [ 53 ] I therefore, with some reluctance, grant the

summary judgment motion of SRSB as it pertains to the plaintiff’s claims for damages for constructive dismissal. I say with reluctance because courts generally do not like to see plaintiffs deprived of having their day in court to have an arguable case heard on its merits.

However, hardship cases cannot be permitted to make bad law and the plaintiff is therefore left to pursue his claim for these damages against NSTU for breach of the duty of fair representation (as will be addressed later in this decision). [ 54 ] The foregoing analysis produces a different result, however, in respect of the plaintiff’s claim against SRSB under the SENCEN contract for the shortfall in the salary he was paid during the life of that agreement.

We are here concerned, of course, with the secondment period during August 1, 2000 until July 31, 2002. [ 55 ] As noted earlier, this employment contract was made between SENCEN, SRSB and Mr. MacNeil. SENCEN is not a school board and hence NSTU had no involvement with this contract. It fell outside the collective bargaining relationship established under the Act and regulations and was created and performed independently from the collective bargaining regime. The dispute over the salary level paid to Mr. MacNeil during the life of the agreement does not raise matters about the

interpretation, application and administration of the collective agreements. Because this aspect of the dispute does not fall within the ambit of those collective agreements, the jurisdiction of this court to adjudicate that dispute is not ousted.

[ 56 ] Whether SRSB had a contractual obligation to ensure that the plaintiff was paid an annual salary at the rate of $95,000 as specified in the SENCEN agreement is clearly an arguable issue. I am satisfied that the plaintiff has demonstrated a real chance of success on that aspect of his claim with the result that the motion for

summary judgment by SRSB is denied to that extent.

SUMMARY JUDGMENT MOTION BY AGNS [ 57 ] The legal principles recited in the Cherubini decision are also the mainstay of the AGNS motion for

summary judgment. Under the required analysis, which need not be repeated at length here, the court must determine the essential character of the dispute which underlies the court action and consider it in relation to the ambit of the collective agreement in deciding the question of the court’s jurisdiction. [ 58 ] It should be noted at the outset that the only contract to which the Province was a party in this matter was the TPA.

The Minister of Education of the Province of Nova Scotia was named as the “employer” under that collective agreement for purposes of the collective bargaining relationship with NSTU under the Act . As noted earlier, the plaintiff was covered by the TPA when he returned to active employment with the school board effective August 1, 2002 (and the plaintiff has so plead in para 20 of the Statement of Claim).

That collective agreement contains the requisite dispute resolution clause through the grievance and arbitration process as recited earlier in this decision. [ 59 ] Turning to the second step of the required analysis, I have carefully reviewed the plaintiff’s claims as against AGNS set out in the Statement of Claim.

They are contained in paragraphs 4, 22 and 23. [ 60 ] It is plead in paragraph 4 that after AGNS created SDSB as the successor to SRSB in 2001 to carry out certain fiscal and administrative responsibilities, all actions in relation to those responsibilities, including actions with respect to the plaintiff’s employment, were determined by AGNS. [ 61 ] Paragraph 22 of the Statement of Claim pleads that AGNS has been acting throughout in conjunction with SRSB and NSTU to deny the plaintiff his appropriate remedies under the contract.

The word “contract” is defined earlier in the Statement of Claim as meaning the SENCEN contract dated June 21, 2000. [ 62 ] It is plead in paragraph 23 of the Statement of Claim that the plaintiff seeks damages from SRSB and AGNS for breach of contract including his unpaid salary claim under the SENCEN agreement and his claim for damages for constructive dismissal and ancillary claims arising from his placement to an inferior position of employment with the school board in 2002. [ 63 ] The Statement of Claim does not specifically plead any causes of action in tort, such as intentional interference with economic relations or inducing breach of contract. [ 64 ] In

summary, the plaintiff has advanced his claims against AGNS on a similar footing and under the same two categories as his claims against SRSB, namely, for unpaid salary under the SENCEN contract and damages for constructive dismissal. [ 65 ] As earlier recognized, the essential character of the dispute giving rise to the plaintiff’s claim for damages for constructive dismissal is his placement in the school board system as Vice-Principal of the Richmond Academy following the completion of his secondment under the SENCEN contract. That is a dispute which falls within the ambit of the TPA.

In the result, any such claim for constructive dismissal could have been pursued through the grievance and arbitration process which could have afforded effective relief to the plaintiff. It follows, under the legal principles articulated in Weber and Cherubini , that this court has no jurisdiction to adjudicate this dispute in like result to the claims made against SRSB. Likewise as in the SRSB motion, I am satisfied that the relevant legal

considerations in reaching this outcome do not depend on disputed facts. [ 66 ] Because the way the Statement of Claim is framed, however, it bears repeating that under the pilot project approved by Order in Council dated April 5, 2002, Mr. MacNeil became an employee of SDSB which was established as a separate body corporate. SRSB remained as a separate body corporate with its legislated areas of responsibility which were to be supervised and administered solely by the Chief Executive Officer in the person of Ken Meech. Mr.

Meech was thereby employed by SRSB, notwithstanding that he was accountable, like any other school board, to the Minister of Education. [ 67 ] Mr. MacNeil believes, without being able to provide any particulars or evidence, that Mr. Meech, whether through the direction of the Department of Education or otherwise, played a role in his placement to the inferior position of Vice-Principal of Richmond Academy once his secondment with SENCEN ended. That is only speculative on this motion but even if it were so, Mr.

Meech was then acting in his capacity as Chief Executive Officer of SRSB which was a separate corporate entity from the Province. The Province cannot be said to be vicariously liable for SRSB, nor have any tort claims been plead against it. [ 68 ] As I have already determined, whatever claims Mr. MacNeil had against SRSB arising out of his alleged constructive dismissal are covered by the collective bargaining regime then in place which serves to oust the jurisdiction of this court to hear that dispute. [ 69 ] I return briefly to the second category of Mr.

MacNeil’s claims against AGNS which is for the recovery of unpaid salary under the SENCEN contract during his period of secondment. Although that claim falls outside the ambit of the collective bargaining regime, it is based on a contract of employment to which AGNS was not a party, nor had any responsibility for. In the absence of any privity of contract, or any other specified cause of action, the plaintiff is unable to show any real chance of success at trial for recovery of this unpaid salary claim from AGNS. [ 70 ] In the result, the motion for

summary judgment by AGNS is granted in its entirety.

SUMMARY JUDGMENT MOTION BY NSTU [ 71 ] During the course of the hearing, the court made a ruling that in advancing his claim against NSTU for breach of the duty of fair representation, the plaintiff would not be restricted to relying solely on

Article 47 of the TPA. Rather, the plaintiff will be at liberty to also rely on

Article 44.06 of the TPA and any other relevant provision of the collective agreement. The plaintiff was also granted leave to make any necessary amendments to his Statement of Claim accordingly. [ 72 ] Counsel for the plaintiff also clarified that no claim was being brought or pursued by Mr. MacNeil against NSTU for the unpaid salary which accrued under the SENCEN contract (as particularized in paragraph 11 of the Statement of Claim). With those two developments, counsel for NSTU conveyed to the court that the NSTU motion for

summary judgment was then being discontinued. [ 73 ] In the result, this action will continue as against NSTU for breach of the duty of fair representation, coupled with the claim against SRSB for unpaid salary under the SENCEN contract. ANCILLARY MATTERS

[ 74 ] For expedience, I will ask that counsel for AGNS prepare the appropriate order for circulation to other counsel for consent as to form. I would also ask the remaining counsel to advise whether they wish to have a further order for directions from the court pursuant to Civil Procedure Rule 13.07(1) or whether that requirement will be waived. If costs of these motions are in issue, I will hear from counsel in that respect as well, either at a hearing for directions or by written submissions. J.