CANADA PROVINCE OF NOVA SCOTIA S.H.No.77388 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: The Arbitration Act, R.S.N.S.1989 Ch.19; BETWEEN: WILLIAM MOSHER, BRYSON WILSON, TERRY BOURGEOIS AND COLIN A. LYE; members of the City Firefighters Benevolent and Protective Association Local 268, International Union of Firefighters; and CITY OF HALIFAX and CITY FIREFIGHTERS BENEVOLENT AND PROTECTIVE ASSOCIATION, LOCAL 268 INTERNATIONAL UNION OF FIREFIGHTERS RESPONDENTS HEARD BEFORE: The Honourable Mr Justice Walter R.E.Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: May 23rd and 24th 1991 COUNSEL: Ms Mary O. Hebb, counsel for the applicants Ms Kimberley Turner, counsel for the union Gerald Goneau, Esq., counsel for the City of Halifax DECISION OF THE COURT DISCUSSIONS AND DECISION RE COSTS: 1991 S.H.No.77388 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: The Arbitration Act, R.S.N.S. 1989 Ch 19; BETWEEN: WILLIAM MOSHER, BRYSON WILSON, TERRY BOURGEOIS and COLIN A. LYE; members of the City Firefighters Benevolent and Protective Association Local 268, International Union of Firefighters; and CITY OF HALIFAX; and CITY FIREFIGHTERS BENEVOLENT AND PROTECTIVE ASSOCIATION, LOCAL 268 INTERNATIONAL UNION OF FIREFIGHTERS RESPONDENTS GOODFELLOW, J. (Orally) would like to thank counsel for their assistance in this matter and bear with me as work my way through my notes. This is the matter of William Mosher, Bryson Wilson, Terry Bourgeois and Colin A. Lye and the City of Halifax and also the City Firefighters Benevolent and Protective Association, Local 268 International Union of Firefighters. The applicants filed an application May 6th 1991 by Originating Notice (Application Inter Partes) seeking an order setting aside an arbitration award made by S. Bruce Outhouse, Q.C., which award is dated April 4th 1991 and was completed May 3rd 1991. Hearings in the arbitration matter were held in Halifax, November 27th 1990; January 18th 1991 and February 1st 1991. The grievance arose and was brought forward through arbitration pursuant to collective agreement between the parties dated September 29th 1988. The union alleges that the employer violated Article 23.01 of the collective agreement by the manner in which the employer conducted promotional routine for the position of lieutenants in the Halifax fire department for 1989. It appears that the Halifax fire department does not conduct job competitions for individual vacancies in the ranks of lieutenant and captain, but rather holds promotional routines, so‑called, with respect to these positions, every two years. Promotional routines have been based, at least since 1975, exclusively on written tests under the 1989 lieutenants' promotional routine, which was also provided for with an oral interview. Deputy Chief Bernard George Elliott was cross examined on his affidavit of the 9th of May 1991. He acknowledged in 1989 promotional routine that 60% of the mark was based on the oral interview. Deputy Chief Bernard George Elliott was member of the promotional routine board for lieutenants in 1989. Now the application for review is still outstanding and will be heard, and what is before me is an application for stay. The application for stay was originally phrased under Civil ProcedureRule 62 and issued preliminary ruling indicating that only dealt with matters before the appeal court and not this court. Jurisdiction however, clearly lies in this court under the JudicatureAct of ... Statutes 1989, Chapter 240, Section 41 which states: Rules of law 41 In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (e) no proceeding at any time pending in the Court shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such proceeding might have been obtained prior to the first day of October, 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto provided always that nothing in this Act contained shall disable the Court from directing stay of proceedings in any proceeding pending before the Court if it or he thinks fit, and any person, whether party or not to any such proceeding who could have been entitled, prior to the first day of October, 1884, to apply to the Court to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, contrary to which all or any part of the proceedings have been taken, may apply to the Court thereof by motion in summary way for stay of proceedings in such proceeding either generally, or so far as is necessary for the purposes of justice and the Court shall thereupon make such order as shall be just; So there is no question that the court has jurisdiction. have read all the affidavits and material provided and am going to review through my notes, the evidence, primarily that of the cross examination. On first blush, the affidavit of Bernard Elliott the Assistant Fire Chief for the City of Halifax Fire Department, and of Paul Hopkins Captain in the Halifax Fire Department, indicate substantial number of the members of the Fire Department were immediately affected by the arbiter's ruling. For example, in paragraph 7(a) of his affidavit, Bernard Elliott referred to the 1989 lieutenant's promotional routine and that the same process was used for the 1989 captain's promotional routine. The latter has been grieved by the union, however, the only matter before the court is the arbitrator's award which dealt solely with the 1989 lieutenant's promotional routine. In paragraph 7(b) of his affidavit, he recites that the employers sought to use the demoted lieutenants in an acting capacity until new routine is to be devised. He went on to express that the employer had serious reservations about using inexperienced acting lieutenants. It is clear that since Bernard Elliott swore his affidavit, that notice went out effective May 10th 1991 structuring the use of the demoted lieutenants as acting lieutenants. One of the demoted lieutenants has elected to return to the rank of fire fighter and continue as such. However, the other seven have the opportunity and are acting from time to time as acting lieutenants. The concern with respect to using inexperienced personnel has at least dissipated if not entirely disappeared, at least in the short run. In paragraph (c) of his affidavit, Bernard Elliott referred to telephone conference with the union President David Boulton, indicating that the union President expressed the view that up to fifty fire fighters would be moved within the platoons. Bernard Elliott concedes that this is based upon the ripple effect which would include similar finding if such turns out to be the case in the grievance with respect to the 1989 captain's promotional routine, the 1991 lieutenant's promotional routine, and the 1991 captain's promotional routine. He concedes the number that is immediately adversely affected is much smaller and will be primarily the seven who are demoted who are now from time to time acting lieutenants, and some ripple effect, but of very limited nature in the short run. The movement that might have been brought about if those who were demoted could not act as acting lieutenants, and were required to return to the platoons in which they were, prior to being promoted, has not materialized and is not likely to materialize in any real measure until after this matter has been heard. It is anticipated that the present directions with respect to the utilization of the demoted lieutenants in their present positions will be adhered to, at least in the short run. Those who have been demoted do suffer the loss of uniform rank and some loss of pay. The difference between fire fighter's pay and lieutenant's pay is somewhere in the range of $2,500.00 per annum and the month and half before the matter will be heard, or perhaps longer if it has to go to September, the loss in their gross basis is somewhere in the range of $260.00 month and that will be offset by whatever the individual receives for the periods of time that he acts as lieutenant. One difference is they will not receive lieutenant's pay on regular basis, as acting lieutenant's pay is paid in November of each year and then further payment in January for the preceeding December to complete the payment, for all those who have held acting rank during the previous calendar year. In real terms, it is not significant loss but it is one that obviously each of the members and their families will feel, and the loss of promotion does have pride factor effect on the morale of the individuals and on their families. Captain Paul Hopkins was cross examined on his affidavit sworn 8th May 1981. In paragraph two of his affidavit he refers to being informed by the President of Local 268, David Boulton, that the union and management are of the view that if the decision in the Outhouse Arbitration is implemented (that decision dealing only with 1989 lieutenant's promotional routine) that all fire fighters from the 1989 captain's routine and the 1991 lieutenant's and captain's routines will be demoted or lose their eligibility to be promoted. Further in paragraph three, he says, this procedure will affect 32 fire fighters and others, giving total of about 50 fire fighters. Captain Hopkins confirms he had two conferences with the union President, one at the World Trade and Convention Centre and one at the Police Association Club, both were prior to the 3rd of May, that is, prior to the award clarification where it is clearly acknowledged that the Outhouse Arbitration dealt solely and exclusively with the 1989 lieutenant's promotional routine and there are separate grievances outstanding for the 1989 captain's promotional routine and the 1991 lieutenant's promotional routine. Captain Hopkins under cross examination concedes that the global demotions that may well have been anticipated have not yet materialized and that the numbers we are dealing with on an immediate basis are the eight demoted lieutenants. He does indicate that there will be some vacation periods that are altered and some vacation concerns flowing immediately from the Outhouse Arbitration Award. Captain Hopkins admits on cross examination that there are number of matters and affidavits, such as the contents of paragraph 11 dealing with the collective agreement, that are outside the present arbitration award that is under appeal. heard the evidence also of the applicant, Mr Bourgeois, he is an acting lieutenant at the present time in the training division, he was promoted the 3rd or 4th of June 1989 and in cross examination he agrees that before the first day of the hearing he saw the grievance itself, exhibit #2, and it was never stated to him that he would not get promoted and he was under the impression he would not likely come off the list. He acknowledges that he received the letter prior to the grievance from the union solicitor and that he was on notice his promotion could be set aside, and he did not see any requirement of any further clarification. He engaged Elwin MacNeil and had him contact the arbitrator. want to refer to the correspondence between counsel for Bourgeois and the arbitrator. Mr Bourgeois and Mr Mosher, if remember correctly. The letter from Mr MacNeil, MacNeil Associates, December 4th 1990 to Mr Outhouse confirms his engagement on behalf of Bill Mosher and Terry Bourgeois and he outlines series of questions with respect to the grievance that had already got underway. The response from Mr Outhouse, the arbitrator, is dated December the 6th, it was dictated December the 5th and it refers in paragraph five, in response ... (5) The question which have to determine, as you are well aware from your experience in these matters, is whether the promotional routine was conducted in manner which violates the collective agreement and, if it was, what consequence or remedy flows from that. As stated in the preceding paragraph, don't believe that the fundamental issue raised by the grievance has changed in any way since it was first lodged with the Employer and there have been no amendments of which am aware. That paragraph incorporates and makes reference to paragraph four of the letter to the counsel for Messrs. Mosher and Bourgeois and reads as follows: (4) don't believe your clients' understanding that only the suitability aspect of the testing procedure was being challenged by the grievance is correct. am enclosing for your information copy of the grievance form and, as you can see, personal suitability is but one of the several issues raised thereby. Moreover, as far as I'm aware, the enclosed grievance is the original and hasn't been amended. In essence, in summary of cross examination, Mr Bourgeois admitted that he had copy of the grievance, that he received the letter from the solicitor ... and I'll refer to that ... letter dated November 22nd 1990 and I'll read the second and third paragraph on the first page and the receipt of this letter is acknowledged by Mr Bourgeois. The Union is alleging that the carrying out of the promotional routine in 1989 was contrary to the provisions of the collective agreement. If the Union is successful in this matter, it could result in the rankings of the promotional routine being changed, and could result in the rescinding of any appointments pursuant to that list. Individuals who have been appointed to the position of Lieutenant since the list could therefore lose their positions. The next paragraph went on to recite the date, time and place and an indication that you're entitled to be present at the hearing and if desired, to be represented by counsel of your own choosing, at your own expense. In addition, as indicated, he hired Mr MacNeil and Mr MacNeil received the advice very clearly that it was far more involved than the suitability aspect and he knew of his opportunity to participate in the hearing. Now, with respect to his position, he is in the training division and there is not whole lot of difference between his position at the present time than what it was prior to the arbitrator's award. Mr William Mosher was cross examined, he also was promoted on the 1989 routine list, believe he came first and was promoted June 28th 1989. He has been in an acting capacity since the implementation of the arbitration award and he is now the administrative assistant, which is new position, administrative assistant to the Chief, it's non‑union position, temporary. The estimate would be somewhere in the range of six months to year. He was asked when he was first aware of the grievance and he said it was several months after the routine, but well prior to the arbitration. He received the letter the date of the hearing and he retained Mr MacNeil along with Mr Bourgeois. He in fact attended the hearing and was given full opportunity to participate and indeed, the arbitrator made the offer to commence the proceedings afresh and repeat everything that had transpired the day before. His main objection is, and his view is that the arbitrator awarded more than what was asked for, but in many respects his dispute is against the union. Bryson Wilson was also cross examined, he was promoted September the 7th 1990 from the 1989 list. He was aware that grievance had been filed, although he's never seen copy of it, of the grievance itself, which think is exhibit #2. He was fourth on the list of 1989. He acknowledges receipt of the letter which quoted in dealing with one of the applicants, and no need to quote it again, from Ms Kimberley Turner, he acknowledges receiving that prior to the arbitration hearing. He did not attend the arbitration hearing and he made the assumption that he would rely upon the city, but chose not to make any contact with the city. He admitted in cross examination, he knew that he could quite possibly 'lose my job.' With respect to paragraph nine of his affidavit, which reads: THAT was senior driver with the Platoon and to roll back my promotion to the previous status quo will mean am transferred back to Platoon from Platoon and that another driver will have to be bumped back, losing both status and salary, to make room for me. He acknowledges that has not yet happened and he assumed, when he swore the affidavit that that would take effect, and he referred to the domino effect. He agrees that paragraph eleven is not quite accurate and he has no assurances with respect to continuing in the acting rank. The last witness cross examined was Colin Lye, think he was fifth in the competition, was promoted November 1st 1990 and he was in fact promoted after he knew the grievance was in effect, and he says: believe have seen copy of the grievance but can't remember when. He acknowledges he received the notice, the letter from Kimberley Turner, prior to the grievance and it was correct that his promotion could be set aside. In paragraph seven of his affidavit he acknowledged receipt of that letter, his evidence is that it was day or two days before the hearing, but in any event he did receive it and he knew his promotion could be set aside. With respect to the conflict of interest allegation that is advanced, this witness indicated and confirmed to the court that the grievance was launched before either of the gentlemen were elected to their present position on the executive. The final witness that was cross examined was David Boulton, the President of the Union, cross examined on his affidavit sworn the 9th of May 1991. He referred, and was cross examined with respect to the union minutes of October the 23rd 1990 and he gave his explanation as to the inaccuracy of those minutes, but obviously those minutes would have some impact on anyone reading them, as to what was the position of the union, but point out that they were October 23rd 1990. He was cross examined particularly in paragraphs nineteen and thirty‑seven and did not find any inconsistency between those paragraphs. He was asked what the union's position is with respect to the holding of new lieutenant's routines, particularly if this matter cannot be reviewed until September, and he was asked specifically would he grieve it, and he indicated he had not thought of it yet. When pressed, he gave his own personal opinion that he had put it on hold and that if the city pursues and forces the routine and promotions before the matter is reviewed, that you could end up with bigger mess. With respect to the City of Halifax, all have is the representations ... the affidavit and representations of Mr Goneau. Now with respect to the application itself for stay, the law has been, in my view, set out very clearly in very recent decision of Mr Justice Hallett in Kendall W. Purdy and Fulton Insurance Agencies Limited, and at pages 11 and 12 Mr Justice Hallett set out the appeal court of this Province's view on the tests to be applied in an application for stay, and am bound to follow it. Mr Justice Hallett had this to say at page 11 of the unreported decision. review of the case indicates there is trend towards applying what is, in effect, the American Cyanide case for an interlocutory injunction considering applications for stays of execution pending appeal. In my opinion it is proper test as it puts fairly heavy burden on the appellant which is warranted on stay application considering the nature of the remedy, which prevents litigant from realizing the fruits of his litigation pending the hearing of the appeal. In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either; 1. Satisfy the court on each of the following: that there is an arguable issue raised on the appeal; that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to or cannot be compensated for by damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages, but also whether if the successful party at the trial is executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect; that the appellant will suffer greater harm if the stay is not granted and the respondent would suffer if the stay is granted, so‑called balance of convenience. And he added: Or, failing to meet the primary test, satisfy the court there are exceptional circumstances that would make it fit and just that the stay be granted in the case. have reviewed all the documents and the evidence and am satisfied that the Purdy case, which would point out to counsel was stay of execution ... I'm sorry, stay with respect to summary judgment granted in Chambers, and that stay by Mr Justice Hallett was limited until that matter itself, that is, the interlocutory matter in Chambers, reached the appeal court, and the appeal court understand has now dealt with the issue; they have confirmed the summary judgment at which time Mr Purdy made further application for stay because there are still matters outstanding on his claim and on the counter‑claim, and believe the decision is that of Mr Justice Chipman who declined granting the stay. So the decision of Mr Justice Hallett, which is Chambers decision by him, if remember correctly, has in essence then been reviewed, although do not recall too much specific reference to it in the decision of Mr Justice Chipman, but there is decision down. Again, it is also unreported, it is three or four week's old. Now, on the first question of the arguable issue, Miss Hebb makes some very forceful arguments. There is no specific requirement of specific timeframe for notice and notice was given, notice was acknowledged. One member did get the notice the day of or the day after, have forgotten for the moment, and that is in my view, the closest you come to an arguable issue. Seems to me however that the purpose of notice is to give people an opportunity to participate and the opportunity to participate was provided to all four of the applicants here; the opportunity for the matter to start over again and while there is nothing specific in the correspondence from Mr MacNeil, for example, have little doubt that had. they wanted an adjournment of any kind that that could have been granted, because the spirit of the arbitrator was clearly one to provide them with the opportunity to exercise their rights which derive from receiving notice. With respect to irreparable harm, have already referred to the loss that would be suffered. It seems to me that as difficult as it is for these individuals who have done nothing wrong, that it is not in the category of irreparable harm, and so I then turn to the balance of convenience. My first indication when read the file before hearing counsel, or the cross examination, was that it affected such variety of people, substantial number of people within the department ... have forgotten specifically, think it was around 260 is the total complement of the fire department ... but in any event whatever number, had visions of having an immediate impact on fifty or more, there was fairly high percentage and that was of great concern to me. There is no doubt that it does not require much speculation on anyone's part to see that if the award is upheld and other awards are comparable, that that is the kind of problems that the department is facing, but those questions are beyond me, must deal only with the application before me and it is dealing with the 1989 lieutenants' one, and there are so many factors that have been addressed, the assistant Chief indicated ... think his evidence was to the effect at least, he did not anticipate any change in the direction of using them as acting lieutenants, and it seems to me that the opinion of the President of the Union, Mr Boulton, was imminent good common sense. The union as at the moment remains silent, he gave no undertaking because matters of that nature have to be dealt with by the union, it is collective decision and not personal decision of the President, but would certainly make good sense not to proceed with the routine until this matter in fact has been addressed. But in any event there is real catch twenty‑two situation involved, no matter what you do, people are going to be adversely affected. In my view, the balance of convenience weighs against the applicants. Then you come to the exceptional circumstances that would make it fit and just that a stay be granted in the case and I am unable to find exceptional circumstances of the nature that were found by Mr Justice Hallett. The end result therefore, is the decision of the court that the application must be dismissed. With respect to the hearing of this matter by way of review, undertook to counsel to speak to the Chief Justice. spoke to the Chief Justice. The case that she has personally on the 4th and 6th of June is still on the docket. am in the process of canvassing the judges to see if there is anyone available, but the docket is pretty heavy and personally leave for Sydney on the 3rd of June with our circuits it is pretty heavy right now, so cannot guarantee you. suggest to counsel they keep it open until Monday or Tuesday and although will be away, will have my secretary contact counsel and advise and will do so as soon as possible. am aware that Mr Boulton has his plans but if we get into balance of convenience that is price of being President of the Union. If no judge or courtroom or court facility is available on the 3rd and 4th of June, the Chief Justice has indicated make some effort to see if we can come up with an earlier date. would recommend that you exchange what dates are available to all of you over the next two and half months, you probably should put reserve on the September date in any event, and now am left with the matter of costs. My practice normally is to address costs rather than require counsel to go through any further exercise. will hear both of you with respect to the matter of costs and then will give ... ask one of you to communicate to the city to see what their view is. My present thinking with respect to the city would be that they should get, neither get or be responsible for any costs, but do not want to do anything in the absence of people, although Mr Goneau could have sent somebody here. What are your thoughts on costs Miss Kimberley Turner ...? MISS TURNER: Thank you My Lord. It's the union's position that the costs should go with this matter, alternatively it could go in the fall, the main application, but our preference at this point would be that it goes with this particular application which believe we set out in our written submissions. THE COURT: What are your disbursements? MISS TURNER: Our disbursements My Lord? THE COURT: Yes, how much are your disbursements? MISS TURNER: I'm afraid don't know My Lord, I'm sorry. THE COURT: Are they substantial? MISS TURNER: For this particular matter, probably not substantial. THE COURT: Miss Hebb, on the matter of costs? MISS HEBB: My Lord, the applicants would like to say that, and the submission of costs, that they brought the application in good faith believing that there were number of people affected and that without having any control over what the city might or might not do, and no assurances, and that ... in that instance, that costs be ... that no costs be awarded. If costs are to be awarded then we ask that perhaps they be costs in the cause. THE COURT: All right. The difficulty with costs in the cause, and it is something which am not in favour of, is that in the event Miss Hebb, if were simply to say costs in the cause, it would mean that if you were successful in the review you would get costs of today's hearing where you were unsuccessful, and it has always struck me when was in the trenches, that that does not wash with clients, it is not fair, so my practice is to set costs. It is Chambers matter but this is our third attendance here. Seems to me you take your chances when you go to court, seems to me that had the union been unsuccessful, quite legitimately your clients would look for costs. Party and Party costs are rather insignificant when there is no specific amount involved and am not going to get into the tariff, am treating it solely as Chambers matter and will award costs of $750.00. Anything further to be addressed counsel? COUNSEL TO THE COURT: No My Lord. THE COURT: That is subject to what representation Mr Goneau has with respect to the city's position, which have already indicated what it should be. Thank you counsel.
The applicants sought a stay of proceedings pending review of an arbitration award. The union had alleged the employer violated the collective agreement by the way positions for the rank of lieutenant were filled in the fire department two years prior. As a result of the arbitration award, several lieutenants were demoted to the rank of firefighter. Denying the stay, that (1) there was no arguable issue to be tried on appeal; (2) there was no evidence the applicants would suffer irreparable harm if the stay were not granted; (3) the balance of convenience weighed against the applicants; and (4) there were no exceptional circumstances.