IWK v. NSGEU, 2012 NSSC 276

SUPREME COURT OF NOVA SCOTIA Citation: IWK v. NSGEU , 2012 NSSC 276 Date: 20120723 Docket: Hfx No. 374059 Registry: Halifax Between: Izaak Walton Killam Health Centre Applicant v. The Nova Scotia Government & General Employees Union and William H. Kydd, Q.C. Respondents LIBRARY HEADING Judge : The Honourable Justice M. Heather Robertson Heard: April 25 2012, in Halifax, Nova Scotia Decision: July 23, 2012 Subject: Judicial Review of Labour Arbitrator ’ s award reclassifying certain members of the NSGEU - upward - the classification of “ genetic techs. ” Issue: Should the reclassification be set aside?

Did the arbitrator ’ s award lack the existence of justification, transparency and intelligibility? Was the “ bet fit ” analysis correct at law? Result: Arbitrator ’ s award upheld. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: IWK v. NSGEU , 2012 NSSC 276 Date: 20120723 Docket: Hfx No. 374059 Registry: Halifax Between: Izaak Walton Killam Health Centre Applicant v. The Nova Scotia Government & General Employees Union and William H. Kydd, Q.C. Respondents Judge: The Honourable Justice M. Heather Robertson Heard: April 25, 2012, in Halifax, Nova Scotia Decision: July 23, 2012 Counsel: Thomas W. Groves, for the applicant David C.

Wallbridge, for the respondents Robertson, J : [ 1 ] The Isaac Walton Killam Health Centre ( “ IWK ” ) seeks a judicial review of a labour arbitrator ’ s award, reclassifying a group of employees in response to a job classification appeal brought by the Nova Scotia Government and Employees Union ( “ NSGEA ” ) on behalf of its member employees of the IWK. [ 2 ] The employees are the cytogenetic and molecular diagnostic medical laboratory technologists (the “ genetic techs ” ). Genetic techs perform chromosome analysis and DNA testing in two labs at the IWK.

The genetic techs had shared the same classification as other medical laboratory technologists (the “ general techs ” ) whose work Arbitrator William Kydd found to be less complex, more routine and who required less education. [ 3 ] After hearing fourteen days of evidence, Arbitrator Kydd found that the genetic techs ’ duties warranted a distinction from the general techs and that the “ best fit ” for the genetic techs was in a higher classification.

[ 4 ] The IWK collective agreement, s. 24.03 provided for the single arbitrator and s. 24.06 provided that the arbitration award would be final and binding as provided by s. 42 of the Trade Union Act , R.S.N.S. 1989, c. 475. The classification appeal procedure was set out in s. 33.02 of the agreement. [ 5 ] The parties agree that the decision of Arbitrator Kydd should be reviewed on a standard of reasonableness.

His decision should not be set aside unless it lacks the existence of justification, transparency and intelligibility in the decision making process and does not fall within a range of possible acceptable outcomes. [ 6 ] The issue in this appeal relates to Arbitrator Kydd ’ s use of the “ best fit ” test, in arriving at the reclassification. [ 7 ] Arbitrator Kydd is a very experienced and well recognized arbitrator, who often sits in as sole arbitrator, as in the case of the collective agreement procedure, but who has also often chaired classification appeal tribunals pursuant to the Province of Nova Scotia ’ s civil service master agreement

Article 40.02, which indeed uses the same operative language as the IWK collective agreement,

Article 33.02: An employee shall have the right to appeal the classification of the position she occupies in accordance with the following: (

a) If an employee believes that the position she occupies is improperly classified, she shall notify her immediate management supervisor, in writing, of both the fact she believes she is improperly classified and the basis for that belief. (

b) The Employer shall, upon request, provide the employee with a written statement of duties and responsibilities within sixty (60) days of the request. (

c) If there is a dispute between the immediate management supervisor and the employee concerning the classification of the position the employee occupies, or if the employee believes there is a conflict between the classification standards or position description and the statement of duties, the employee may initiate a formal appeal in writing to the Director of Human Resources. The Director of Human Resources or designate shall respond in writing to the employee within sixty (60) days of the receipt of such appeal. (

d) If the foregoing procedure does not lead to a satisfactory resolution, within sixty (60) days of receipt of the reply from the Director of Human Resources or designate, the matter may be may be referred to Arbitration in accordance with

Article 24. (

e) An employee shall have the right of Union representation in respect to any appeal submitted. (

f) The effective date of any resulting upward revision in classification shall be the first day of the bi-weekly period immediately following the date of receipt by the Employer of the employee's written appeal submitted pursuant to 33.02(c). [ 8 ] It is for this reason that the applicants believe Arbitrator Kydd fell into error in determining his mandate to decide the dispute before him. [ 9 ] In the civil service master agreement,

Article 40.03 sets out procedures: 40.03 (

g) The Tribunal shall decide the issue of the proper classification for the position in question based on the existing classification system. . . .

40.03 (

i) The Tribunal shall not: (1) alter any position descriptions and/or classification standards determined by the Employer; (2) entertain an appeal based solely on the grounds of the inadequacy of the pay rates negotiated for the classification assigned to theposition occupied by the appellant employee; (3) entertain an appeal in respect to a position that has been considered by it within the previous twelve (12) months, except where theappellant can demonstrate in writing that there has been a substantial change in the duties, responsibilities or requirements of thatposition. [10] The IWK collective agreement does not contain similar language to 40.03 (

g) or (i). [11] The applicant takes the position that Arbitrator Kydd determined he had to make a choice; that he had a green field before him,could hear all the evidence and ultimately decide on the classification, without regard to which party carried the burden pursuant toArticle 33.02 of the collective agreement. [12] They further submit that he did not have to make a choice of the “best fit” and that indeed

Article 24.06 of the IWK collectiveagreement explicitly prevents the arbitrator from altering, modifying or amending any part of the collective agreement. [13] Therefore they argue that the Arbitrator’s decision that the Medical Lab Tech III classification was the “best fit” for theMedical Lab Tech II appellants and the Medical Lab Tech II classification was the best fit for the Medical Lab Tech I appellants wasunreasonable and should be set aside. [14] In Re: Municipality of Metropolitan Toronto and Canadian Union of Public Employees Local 43, (ON LA),13 L.A.C. (3d) 248, 1984 CLB 8168, the issue involved whether the work done by the grievor fell within that of a heavy constructionequipment operator.

The parties agreed the onus was on the union to demonstrate that the grievance must succeed, however the standardto be applied to this demonstration was in dispute. At p. 258 the following discussion ensued: The employee argues that the standard is the one set out in Brown and Beatty, Canadian Labour Arbitration (1977), para. 5:2430, p.201. That standard is: [p. 258] A grievor must not only establish that his ability and work are beyond his present job description but he must bring himself squarelywithin the description of the classification he seeks both as to ability and responsibility.

The test is in fact quoted from Re U.S.W. , Local 2900 and John Inglis Co. Ltd. (1964), (ON LA), 15 L.A.C. 126(Macdonald) [at p. 127]. The test has been adopted in a number of cases since, including Re City of Kitchener and C.U.P.E., Local 791,October 21, 1982, unreported (Brown). The union argues that this test is outmoded, and puts a grievor to a standard of proof to a tolerance far beyond that to which most job-classification systems are designed. There is some truth to this, and a number of arbitrators have described the appropriate test as one

which requires the grievor to demonstrate that he performs the “central core” of the higher-rated classification.

Indeed, in a review of the jurisprudence relating to this matter, the present chairman, sitting as a sole arbitrator in Re Westinghouse Canada Inc. and U.E.W., Local 549, December 30, 1982, unreported (Swan), reviewed the arbitral authorities and the discussion in Canadian Labour Arbitration, and concluded that the appropriate approach is what the authors of Canadian Labour Arbitration refer to as the “skill and ability” approach: This approach recognizes that, as will be seen from the quotation set out above, job classifications cannot be considered as watertight compartments into which jobs may be fitted.

Rather, the approach recognizes that there will be some overlap from one classification to the next and that it is not sufficient for an employee seeking a higher classification merely to identify aspects of the higher classification which he or she performs; in addition, the employee must demonstrate that the higher classification is the right classification and that the classification assigned is wrong . But that does not require, with respect, a two-stage demonstration, nor would it be possible in most job- classification cases for such a demonstration ever to be made.

Once it is recognized that some duties and functions will overlap from classification to classification, it becomes a matter of demonstrating rightness and wrongness by showing, on the balance of probabilities, which of the two classifications under discussion is the better one for the disputed job.

This may be determined by reference to the “central core” or “distinctive character” of the job, or by reference to which of the two job classifications provides the “character” of the job, or by reference to which of the two job classifications provides the “better fit”; however one describes the process, it may be achieved in only one stage, simply by demonstrating that the job should not have been placed in the classification to which it has been assigned but in the higher classification which is sought.

Particularly in borderline cases, the best that could be expected of any grievor would be to demonstrate that the higher classification is the “better”. It follows from such a demonstration that the lower classification is “wrong”, and it is not necessary for a grievor to prove that negative proposition in any other way except by demonstrating that the higher classification is “right”. It therefore remains to assess just what the grievor has proved in the present case. We accept, as we pointed out earlier, that his position is unique among Local 43 employees now classified as heavy equipment operators.

He operates one piece of equipment which no one else operates, and operates another piece of equipment which is rather rare in the bargaining unit. But uniqueness is not of itself a deciding factor in this case. A review of ex. 14 suggests that members of the classification operate a wide variety of equipment, as does the position description itself.

What the grievor must demonstrate is that the uniqueness of the equipment he operates is also evidence of a difference in kind from the equipment operated by other members of the classification, such that it would be better to classify him in the higher-rated classification of heavy construction equipment operator. . . .

The second argument made by the grievor is that his job duties -- as defined by the equipment he operates -- fit more readily into the heavy construction equipment operator classification, as the duties of that unpopulated classification are performed by the casual operating engineer employees, than into the duties of the heavy equipment operator position.

This “better fit” argument is one in respect of which the onus falls on the union, and we are obliged to say that we do not think that the onus has been discharged in this case. [ 15 ] In Nova Scotia Government Employees Union and Nova Scotia Civil Service Commission , unreported, January 15, 1986, Arbitrator Bruce Outhouse described the duties of the grievor as follows: Before considering the merits of this particular case, it is useful to review the general principles which arbitrators have developed over the years in dealing with classification matters.

In Re Windsor Public Utilities , supra, Arbitrator Adams distilled the following propositions from an extensive review of the relevant authorities:

(1) The purpose of a wage

schedule that sets out different job classifications is to ensure that equal work will attract equal pay and that relevant differences in skill, complexity and difficulty will be reflected in monetary awards.

(2) When an employee is performing a job or set of work duties falling within a classification set out in the collective agreement, the company must pay him that rate of pay provided for in the collective agreement.

(3) To establish whether the employee is performing a job falling within a certain classification, if the collective agreement does not contain descriptions of the jobs within the various classifications, arbitrators look to evidence establishing the work commonly performed by employees working within the classifications.

(4) The grieving employee must prove that the work being performed falls squarely within the higher classification being sought or,at the least, that he is performing job duties which constitute the “central core” of the higher-rated job. In Re Municipality of Metropolitan Toronto, supra, Arbitrator Swan addressed the contradiction inherent in the last of theaforementioned propositions. He concluded that requiring the grievor to bring himself squarely within the description of the higher-ratedclassification was demanding too high of a standard of proof.

In his view, the appropriate standard is one which obliges a grievor todemonstrate that he is performing the “central core” of the higher-rated classification. Quoting from an earlier unreported award in Re Westinghouse Canada Inc. and U.E.W., Local 549, which he authored on December 30th, 1982, Arbitrator Swan indicated his preferencefor the “skill and ability” approach which he described as follows: This approach recognizes that, as will be seen from the quotation set out above, job classifications cannot be considered as watertightcompartments into which jobs may be fitted.

Rather, the approach recognizes that there will be some overlap from one classification tothe next and that it is not sufficient for an employee seeking a higher classification merely to identify aspects of the higher classificationwhich he or she performs; in addition, the employee must demonstrate that the higher classification is the right classification and that thewrong classification assigned is wrong. [16] In Cape Breton (Municipality) and C.U.P.E.

Local 1545, (1995), 37 C.L.A.S. 413, Arbitrator Outhouse again outlined thegeneral principles in paras. 25 - 29: [25] Before considering the merits of this particular case, it is useful to review the general principles which arbitrators have developedover the years in dealing with classification matters. In Re Windsor Public Utilities Commission and International Brotherhood ofElectrical Workers, Local 911

(1974) L.A.C. (2d) 380, arbitrator Adams distilled the following propositions from an extensive review ofthe relevant authorities:

(1) The purpose of a wage

schedule that sets out different job classifications is to ensure that equal work will attract equal pay and thatrelevant differences in skill, complexity and difficulty will be reflected in monetary awards.

(2) When an employee is performing a job or set or work duties falling within a classification set out in the collective agreement, thecompany must pay him that rate of pay provided for in the collective agreement.

(3) To establish whether the employee is performing a job falling within a certain classification, if the collective agreement does notcontain descriptions of the jobs within the various classifications, arbitrators look to evidence establishing the work commonlyperformed by employees working within the classifications.

(4) The grieving employee must prove that the work being performed falls squarely within the higher classification being sought or atleast, that he is performing the job duties which constitute the “central core” of the higher-rated job. [26] In Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43 (1984), (ONLA), 13 L.A.C. (3d) 248, arbitrator Swan addressed the contradiction inherent in the last of the aforementioned propositions.

Heconcluded that requiring the grievor to bring himself squarely within the description of the higher-rated classification was demanding toohigh a standard of proof. In his view, the appropriate standard is one which obliges a grievor to demonstrate that he is performing the“central core” of the higher-rated classification.

Quoting from an earlier unreported award in Re Westinghouse Canada Inc. and U.E.W., Local 549, which he authored on December 30th, 1982, arbitrator Swan indicated his preference for the “skill and ability” approachwhich he described as follows: This approach recognizes that, as will be seen from the quotation set out above, job classifications cannot be considered as watertightcompartments into which jobs may be fitted.

Rather, the approach recognize that there will be some overlap from one classification tothe next and that it is not sufficient for an employee seeking a higher classification merely to identify aspects of the higher classification

which he or she performs; in addition, the employee must demonstrate that the higher classification is the right classification and that the classification assigned is wrong. But that does not require, with respect, a two-stage demonstration, nor would it be possible in most job-classification cases for such a demonstration over (sic) to be made.

Once it is recognized that some duties and functions will overlap from classification to classification, it becomes a matter of demonstrating rightness and wrongness by showing, on the balance of probabilities, which of the two classifications under discussion is the better one for the disputed job.

This may be determined by reference to the “central core” or “distinctive character” of the job, or by reference to which of the two job classifications provides the “better fit”; however one describes the process, it may be achieved in only one stage, simply by demonstrating that the job should not have been placed in the classification to which it had been assigned but in the higher classification which in (sic) sought. Particularly in borderline cases, the best that could be expected of any grievor would be to demonstrate that the higher classification in (sic) the “better”.

It follows from such a demonstration that the lower classification is “wrong”, and it is not necessary for a grievor to prove that negative proposition in any other way except by demonstrating that the higher classification is “right”.0 (p.258) [27] In my opinion, the propositions extracted from Re Windsor Public Utilities, supra, as qualified in Re Municipality of Metropolitan Toronto, supra , are an accurate reflection of current arbitral thinking on classification disputes.

Accordingly, unless my jurisdiction is somehow ousted by clause i of Appendix “B”, I would propose to apply these principles to the case at hand. [28] It is necessary, therefore, to determine whether clause J prevents me from doing so. I am not persuaded that it does. In the first place, clause J simply provides that disputes at the Joint Committee level shall be referred to the Finance Committee for resolution. It does not expressly state that resolutions of the Finance Committee are final and binding, which it probably would have if that was the intention of the parties.

Secondly, it seems unlikely in the extreme that the Union would negotiate a joint job evaluation and reclassification system and then agree to vest unilateral control over that system in management. As already noted, the Union did not expressly agree to do so and, in my view, no such agreement can reasonably be implied. [29] My task, therefore, as I see it, is to determine where the grievor’s position “best fits” within the existing classification structure.

It is not open to me to create a new classification or to alter the rate of pay for an existing classification. . . . [ 17 ] In Canadian Union of Public Employees, Local 408 v. Chinook Health Region (Unit Clerk Grievance) , [1999] A.G.A.A. No. 52 (Smith) also dealt with the issue of where the onus must be with the grievor at paras. 73-74: [73] First, it is clear that the onus lies upon the Union to demonstrate that the nature of his job duties and responsibilities entitles the grievor to the requested reclassification.

That burden was referred to in the Franklin Manufacturing case, supra , quoting Professor Adell in the Dehavilland Aircraft Co. and U.A.W. case as follows: “I accept that the burden is on the grievor in cases of this sort to prove to the civil standard that the grievor is performing the significant job duties of a higher classification a majority of his time, and I also accept that the character of the work actually performed is the essential matter to be evaluated in a grievance of this nature.” (At page 205) [74] Secondly, it is clear that the burden is substantial.

In the Arsenault case supra , Arbitrator Kuttner states at page 360 that: “However the onus on the employee is substantial. It has been said the job classifications are not be (sic) viewed as ‘completely self- enclosed, water tight compartments’ (citation omitted). Nor are “walls” to built (sic) around each classification that cannot be breached (citation omitted). Notwithstanding the division of labour indicative of the modem enterprise, an overlap in functions performed by differently rated employees is inevitable.

Thus there is an onus on an employee seeking higher classification to establish that he was required to work outside his classification and fully within the scope of that higher classification.” [ 18 ] The applicant in this case argues that Arbitrator Kydd did not link the work done in the job with the classification, but merely decided at the end of the day that the applicant employees were better educated and deserved more, focussing in particular on p. 22 of the Arbitrator Kydd ’ s decision:

The comparisons that have been made earlier show that much of the general and genetic work involves highly skilled work requiringsubstantial education, on-the-job training, and specific skills that have been developed through experience in performing specializedtasks. I think however that the cytogenetic and molecular work is less routine, and complex analysis is generally more frequent andmore complicated.

If my analysis was solely restricted to a comparison of the work done it would be difficult to find on that basis alonethat there was a significant difference between the work of the general technologists and the genetic technologists to warrant placing thelatter in a higher classification. However the educational requirements are significantly more onerous for the genetic technologists. ...However this does not automatically mean entitlement to be placed in a higher level classification. The general and genetic labtechnologists engage in a significant variety of different types of work. . . .

This is where the best fit comes in. . . . [19] The applicant also faults Arbitrator Kydd for only reciting tribunal cases, as an indication of his error. [20] The respondent suggests that the applicant is in reality asking this court to apply a correctness standard to Arbitrator Kydd’sapplication and

interpretation of the collective agreement. [21] It is important to understand what issue was before Arbitrator Kydd, what he understood his mandate to be and how heultimately addressed it. [22] The appellant employees had three grievances, as set out in their formal appeal: - since licensing has taken effect in January 2004, clinical genetics technologists working in cytogenetic and molecular diagnosticslaboratories in Nova Scotia are now required to be graduates from a recognized genetics technology program or have a masters (with in-depth knowledge of the field of molecular biology) AND - the genetics technology programs in Canada (Michener and BCIT) are post-diploma/advanced diploma/degree courses which meansthat a diploma or degree is a pre-requisite before entering the program and 4-6 years of education to complete it, as opposed to themedical laboratory technology program which is a diploma program requiring a high school diploma before entering the program and 2years of education to complete it AND - clinical genetics technologists have greater responsibility for analysis and

interpretation than general medical laboratory technologists(as per the CSMLS and AGT competencies), we believe that we are improperly classified; therefore, this letter is to notify you that pursuant to

Article 33.02 of the collectiveagreement between the IWK Health Centre and the NSGEU, we are requesting re-classification. [23] The IWK agreed to the appeal procedure and the arbitrator was tasked with determining the proper classification. [24] The reasonableness of his decision-making process is now a well defined concept. Dunsmuir v.

New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, at para. 47: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [25] The leading Nova Scotia case is Communications, Energy and Paperworkers’ Union, Local 1520 v.

Maritime Paper ProductsLtd., 2009 NSCA 60, where Fichaud, J.A. sets out the task of the reviewing judge, what he actually did in para. 24:

[24] The reviewing judge assessing reasonableness does not plot his own itinerary, but tracks the tribunal’ s reasoning path. . . . [ 26 ] The reviewing judge should not enter into his own analysis. In this case, Fichaud, J.A. finds at para. 33: So the judge interpreted

Article 9C(2)'s "ordinary meaning" himself, and concluded that Mr. Yosef's transfer was not "for management convenience". Then, not being persuaded that his own

interpretation was incorrect, the judge ruled that the arbitrator's different

interpretation was "not defensible on the facts and law", justified or transparent. This is correctness dressed in reasonableness’ clothing. [ 27 ] In his decision Arbitrator Kydd reviewed the relevant provisions of the collective agreement, Articles 33.02.

He then determined that: . . . my jurisdiction is limiting to selecting which existing classification is the proper classification for the appellants’ jobs. [ 28 ] This is the very point of the appeals initiated by the appellant employees on February 28, 2008 and March 18, 2008. [ 29 ] The Arbitrator reviewed the evidence from the 14 days of hearings and his review of dozens of exhibits. The Arbitrator then summarizes the evidence of the parties.

He described in detail the tasks that are performed by the genetic techs are tasked to perform. [ 30 ] The Arbitrator then references authorities cited to him at p. 17 of his decision. At p. 18 of his decision he notes that

Article 33.02 uses the same operative language as what is now

Article 43.02 of the civil service master agreement. At p. 19 he comments: . . . The existence of such an

article in the IWK collective agreement infers that the remedy for appeals initiated under

Article 33.02 is, like those in 43.02, limited to placing appellants in existing classifications. In other words an arbitrator has no power to create a new classification. There have been a number of appeal decisions interpreting the language of 43.02. These awards have confirmed that the language does not permit the Tribunal, or in the present case an arbitrator, to order that the appellant’s job be placed in the new classification. Instead the tribunal’s jurisdiction is limited to examining the existing classifications and selecting the classification that is “the best fit”.

In Linda Peters and Civil Service Commission, supra , Arbitrator Outhouse commented on this at p. 17: Is (sic) indicated in earlier decisions, the role of the Tribunal is to determine, in each individual case, where the position occupied by the appellant employee best fits within the existing classification system. We are not at liberty to create new classifications or modify existing ones.

In determining the best fit, the Tribunal takes into account the relevant position descriptions, classification standards, benchmarks and the actual duties of the appellate employees, as well as other material circumstances. [ 31 ] On p. 22 of his decision Arbitrator Kydd provides his detailed reasoning on why the collective agreement calls for the use of the whole job evaluation approach utilizing core factors and the concept of what is the best fit. [ 32 ] At the bottom of p. 22 of his decision Arbitrator Kydd finds: The consistent core differences between the MLT I and MLT II levels is the amount of experience.

Functions such as acting as a team leader or acting as the reviewer of selections of abnormalities in blood smears are linked to experience. Looking overall at the MLT series of classifications shows that the basic differentiation is to recognize different levels of education, training, experience and expertise. I think that these are the most important core values and that the best classification fit for the MLT jobs should be determined by differentiating the most significant differences in those core values.

I find that the genetics technologist IIs education and training requirements are at a significantly higher level than the general technologist IIs and fit best in the MLT III classification. The genetic technologist Is’ level of education, training and expertise is also significantly different than that of the general Technologist I.

However although the general technologist II has a lower level of initial education, the evidence shows that the general technologists working at the II level are relied upon as leaders and resource persons, and for the level of their expertise, such as acting in the absence of the haematologist to review referred blood smear abnormalities. In the result I think that the appropriate level for the genetic technologist I is somewhere between the general technologist I and the general technologist II.

However the choice has to be made within the existing classifications and using the concept of the “best fit” I think that it is more important to recognize the extra time spent and the difficulty of obtaining the educational requirements to be a genetic technologist and find that it is such a significant difference that it clearly warrants differentiation from the general technologist I.

Therefore I find the best fit for the genetic Is is in the MLT II classification. [ 33 ] In my view the conclusions Arbitrator Kydd reached are within a range of reasonable and defenceable outcomes that draw from his key finding of facts on all the evidence he heard during the 14 days of hearing. [ 34 ] It is impossible to suggest that Arbitrator Kydd lost his bearings and was confused as to the task at hand and felt he was required to make a decision as though sitting as chair of a classification tribunal under the civil service master agreement. This is not a relevant issue and indeed, nor was it raised.

This is not an issue of jurisdiction in this case. [ 35 ] His purpose is well stated at the beginning within the parameters of the collective agreement. In my view he full well understood the onus on the appellant employees. His review of the evidence is detailed in his decision. It need not include all of the evidence heard however. [ 36 ] This court recognizes the experience Arbitrator Kydd has in the

interpretation of collective agreements and his

interpretation of the extrinsic evidence as it relates to that agreement. [ 37 ] To further analyse his process of decision-making, would in my view impose a correctness standard, pretty thinly disguised. [ 38 ] His decision should stand. His decision is reasonable. [ 39 ] With respect to the second issue of the appropriate interest rate adopted by Arbitrator Kydd, that of 5%, I also find this to be reasonable.

It is a rate supported in case law and by the Interests of Judgments Act , R.S.N.S. 1989, c. 233 . [ 40 ] I am also unconcerned with the length of time to obtain the award from Arbitrator Kydd, particularly in light of the fact the hearing took 14 days over a 12 month period. There is no further remedy required or appropriate in the circumstances. Justice M. Heather Robertson