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SCC again gives nod to arbitrator in vacation ruling

|Written By Heather Gardiner

In another case involving a dispute over employees’ vacation entitlement, the Supreme Court of Canada has once again ruled in favour of the arbitrator.

In Newfoundland and Labrador Nurses’ Union v. R., the Supreme Court dismissed the union’s appeal of an arbitrator’s decision not to include the time served as a casual employee when calculating vacation benefits. The arbitrator concluded that according to their collective agreement, the nurses could not count their time as casual employees in determining vacation time once they became permanent employees.

Upon judicial review, the arbitrator’s reasons were deemed insufficient and therefore unreasonable, and so the decision was set aside. The Court of Appeal overturned that decision, stating that the arbitrator had met the test of reasonableness. It was then taken to the Supreme Court to determine the reasonableness of the arbitrator’s decision.

In the Dec. 15 decision, Justice Rosalie Abella referenced the SCC’s 2008 ruling in Dunsmuir v. New Brunswick, which stated that in order to determine the reasonableness of a decision, the judicial review needs to assess “justification, transparency and intelligibility.”

Abella agreed with the arbitrator’s interpretation of the nurses’ collective agreement. “The arbitrator in this case was called upon to engage in a simple interpretive exercise: Were casual employees entitled, under the collective agreement, to accumulate time towards vacation entitlements?” Abella wrote. “This is classic fare for labour arbitrators. They are not writing for the courts, they are writing for the parties who have to live together for the duration of the agreement. Though not always easily realizable, the goal is to be as expeditious as possible.”

She added that it would be detrimental for arbitrators to address every argument. “Arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review, but of negotiating a new collective agreement with different terms at the end of two or three years,” she wrote. “This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis.”

“In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes,” Abella concluded.

On Dec. 2, the Supreme Court also supported the arbitrator’s decision in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, which also involved a dispute over vacation time for casual employees.





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