Supreme Court

IN THE SUPREME COURT OF TIIE NORTHWEST TERRITORIES i IN THE MATTER OF TIIE ARBITRATION ORDINANCE, AND IN THE MATTER OF AN ARB]T':ATOR R F O M I R E D PURSUANT TO THE TTj^MS OF THF ' "nHlifST TERRITORIES PUDLIC S E R V K " 0. JANCE

B E T W E E THE NORTHWEST TERRITORIES PUBLIC SERVICE ASSOCIATION AND TIIE PUBLIC ALLIANCE OF CANADA

APPLICANTS and -THE COMMISSIONER OF THE NORTHWEST TERRITORIES AND IHE GOVERNMENT OF THE NORTHWEST TERRITORIES

I RESPONDENTS Applicaiion for an Order appointing an Arbitrator Heard at. Yellov/knife July 14th, 1978 Reasons for Judgment filed: August 8, 1978

Reasons for Judgment by: The Honoui'able Mr. Justice C.F. Talli fauns':'! en the Hearing: » ,"i r. J a inc s \{. 3 c o 1 1 f 0 r t!i e A p p l i •- a n t Mi". A . B r i c P f o r t h e Res!ior,dent

i IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF THE ARB I TRATI ON ORDI NAf! CE ,

AND IN THE MATTER OF AN ARBITRATOR REQUIRED PURSUANT TO THE TERMS OF TIIE NORTHWEST TERRITORIES PUBLIC SERVICE ORDINANCE

B E T W E E N THE NORTHWEST TERRITORIES PUBLIC SERVICE ASSOCIATION AND THE PUBLIC ALLIANCE OF CANADA

APPLICANTS and -THE COMMISSIONER OF THE NORTHWEST TERRITORIES AND THE GOVERNMENT OF THE NORTHWEST TERRITORIES I RESPONDENTS Counsel on the Hearing: Mr. James R. Scott for the Applicants Mr. A. Brien for the Respondents

REASONS FOR JUDGMENT OF THE HONOURABLE This is the continuation of an application by the appl-icants for the appointment of an arbitrator pursuant to the provisions of section 42(3) of the Public Service Ordinance. This matter first came before me in chambers on July 7th, 1978 and at that time the respondents raised a i preliminary objection to the application and submitted that the

- 2 -I same should have been commenced by originating notice rather than by notice of motion. At that tiine learned counsel for the respondents indicated that even if the preliminary objection v/a; overruled, the respondents intended to oppose the appointment of an arbitrator at this time and v;ould be filing material in opposition to the application. I delivered a judgment in writing dated July 12th, 1978 dismissing the preliminary objection of the respondents. On July 12th, 1978 the respondents filed the affidavit of Robin H. Bates in opposition to this application. This affidavit states as follov/s; " I , Robin H. Bates, of the City of Yellov/knife, in the Northv/est Territories, public servant., MAKE OATH

» AND SAY: 1. THAT I am the Director of the Department of Personnel, Government of the Northv/est Territories, and the chief negotiator of the Negotiating leam for the "Government" in the matter of collective barqainina v/ith the Northv/est Territories Public _ _ Service Association (hereinafter called the "Association } and as such, have a personal knov/ledge of the matters herein deposed to except v/herc stated to be upon information and belief;

2, THAT on or about the 18th day of January. A.D. 1978 the Commissioner received a notice in v/riting from the Association to commence collective bargaining pursuant to Article ^2 of the Collective Agreement dated 5 August 1976 betv/een the Association and the Government;

3 THAT on the 25th day o^ January, A.D. 1978, the Commissioner advised th- ;-,sociation in v/rU,ing acknov/ledqing the notice of intention to negooiate a nev/ colled---, rigreement; • ^ 'ir.A'i on or about the 2nd day of February, A.D. •i978, the Association submitted its bargaining -aeniands to the Government;

I 5. T H A T on or about the 28th day of F e b r u a r y , A . D . 1 9 7 8 , the G o v e r n m e n t s u b m i t t e d to the A s s o c i a t i o n its

p r o p o s a l s for a m e n d i n g the C o l l e c t i v e A g r e e m e n t and the ag e n d a for d i s c u s s i o n at the first m e e t i n g b e t v e e n the r e s |j e c t i v e n e g o t i a t i n g t e a m s ;

6. T H A T the n e g o t i a t i n a teams met on the 6th day of March A . D . 1978 and t h e r e a f t e r ' u n t i 1 lOth day of M a r c h , A.D

19 7 8 in the City of Yellov/knife and discu_ssions v/ith_ r e s p e c t to j o i n t c o n s u l t a t i o n items and/_non-mone tary_/ i s s u e s v/ere h e l d ; ~ 7. T H A T on the 13th day of M a r c h , A . D . 1 9 7 8 , the A s s o c i a t i o n v/as a named P l a i n t i f f and the G o v e r n m e n t w a s a named D e f e n d a n t in a S u p r e m e Court of the Northv/est T e r r i t o r i e s action # 4 2 7 3 and on the 15th day of M a r c h , A . D . 1978 the a p p l i c a t i o n for an interim i n j u n c t i o n a g a i n s t the D e f e n d a n t s in the said action was a d j o u r n e d by Mr. Jus t i c e C.F Tallis as set out i his o r d e r dated 15 March 1 9 7 8 ;

8. T H A T the G o v e r n m e n t and the A s s o c i a t i o n r e c o m m e n d e d n e g o t i a t i o n s on April 4, 19 7 8 and met t h e r e a f t e r on I April r> , 7 and 8; 9. T H A T on 8 April 1 9 7 8 , the chief n e g o t i a t o r for the A s s o c i a t i o n , David D u n n , r e q u e s t e d that n e g o t i a t i o n s be a d j o u r n e d until the first v/eek in May due to the fa c t that he v/ould be u n a v a i l a b l e until that d a t e ;

1 0 , TflAT n e g o t i a t i o n s did not r e c o m m e n c e until 9 May 1 S 7 0 and then c o n t i n u e d t h e r e a f t e r until 12 May 1 9 7 8 ;

n T H A T on 18 May 1 9 7 8 , I c o n t a c t e d P e t e r D y c k , P r e s i d e n t of t!"ie A s s o c i a t i o n r e q u e s t i n g that n e g o t i a t i o n s c o n t i n u e as soon as p o s s i b l e and co n f i r m e d the said f' C CJ u iJ S L by t e l e x , a copy of v/hicn is annexed nereto and marl ed "A" to this my a f f i d a v i t ;

12. THAT on 19 May 19 78, I received a telex from the said Peter Dyck advising that the earliest possible date for continuation of negotiations was 29 May 1^78, to which telex I advised and confirmed the date of May 29, 1978;

13. THAT ! I e g 01 i a t i 0 n s c o n t i n u ef dr om 29 May 1 9 7 8 until June 1 197G on w h i c h last date LIK n e g o t i a t i o n team f o r the A s s o c i a t i o n r e q u e s t e d a caucus earl J n the e v e n i n g and subsequ: ntly t h e r e t o the said n e g o t i a t i o n ^ t e a m did not return to c o n t i n u e n e g o t i a t i o n s ;

- 4 -I 14, THAI on June 2, 1978, I contacted the said Peter Dyck to determine the time for that day's nieetina and was advised by him that the chief negotiator for"̂ tf̂ e Association had left Yellowknife on the evening of June 1, 1978 and was not available until June f0, 1978;

15. THAT annexed hereto and marked "B" and "C" to this my affidavit are copies of my telex and letter respectively to the said Peter Dyck confirming our conversation of June 2, 1978 as set out in the preceding paragraph.

16. THAT on June 5, 1978, I contacted by telephone the said David Dunn, chief negotiator, who was in Ottawa and he advised me that the negotiating team of the Association were reluctant to return to negotiations while the court case then scheduled for June 12, 19 78 and involving allegations of contempt against the

Defendants, was pending. I advised him that the Government was desirous of continuing negotiations irrespective of the court case referred to;

I 17. THAT on June 6, 1978, I received a telex from t 11 e Association advising t li a t the Association was prepared to meet on June 17, 1978 and annexed hereto and marked "D" to this my affidavit is a copy thereof.

18. THAT on June 8. 1978, I forwarded a telex to the Association advising that the Government was prepared to meet on June 17, 1978, but would prefer to meet June 19, 1978 for the reasons set out therein, a copy of which telex is annexed hereto and marked "E" to this my affidavit.

19. THAT on June 12, 1978, the court case referred to in naraaraoh 16 of my a/ffidavit, was adjourned until the week of 10 July, 197 8;

20. THAT on June 13, 19 78, I received a telex from the Association advising that the Association saw no furtiier use to continue negotiations and would be moving to arbitration, a copy of which telex is annexed hereto and marked "F" to this my affidavit;

21, THAT on June 13, 1978, I forwarded a cable to the President of the Association in reply requesting the reasons for this change in position and confirming the Government's desire tc continue negotiations at earliest

> pos.sible date, which cable was confirmed by telex, a copy of which telex is annexed hereto and marked "G"

to this my afTidavit;

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- 5 I 22, THAT on June 14, 1978, I received a telex from the said Peter Dyck, a co|iy of which is annexed here to and marked "H" to this my affidavit; 23. THAT on June 14, 1978, I forwarded a telex to the Association indicating the wish of the Government to resume negotiations and confirming that the negotiating team for the Government would meet to resume negotiations on June 19, 1978, a copy of which telex is annexed hereto and marked "I" to this my affidavit;

24. THAT subsequent to the telexes referred to in paragraphs 20, 21, 22 and 23 herein, on June 14, 1978, Mr. E. McRae, Executive Secretary-Treasurer of the Association delivered to me by hand a letter and proposed renewal of sections of two Articles of the Collective Agreement signed by representatives of the Association on June 14, 1978, for signature by a representative of the Government, a copy of which letter and attachments is annexed hereto and marked "J" to this my affidavii;

25, THAT on June 19, 1978, the negotiating team for the Government were present at the time and place I referred to in Exhibit "I ' to this affidavit, and that no one appeared on behalf of the Association and further that I had no reply to my telex Exhibit "I"; 26, THAT annexed h'ereto and marked "K" to this my affidavit is a copy of a letter dated 14 June 1978 received by the Commissioner of the Northwest Territories

27, THAT annexed hereto and mar;;ed "L" to this m affidavit is a copy of a letter dated 20 June 1973 forwarded to the Associatiot! by the said Commissioner;

28. THAT annexed hereto and marked "M" to this my affidavit is a copy of a letter dated 2? June 1978 received by the said Commissioner;

29. THAT annexed hereto and marked "N" to this my affidavit is a copy of a letter dated 23 June 1978 forwarded to the Association by the said Commissioner;

30. THAT annexed hereto and marked "0" to this my affidavit is a copy of a letter dated 26 June 1978 received by the said Commissioner;

31. THAT I have read the affidavit of Ed McRae sworn on the 4th day of July, 197t- and filed in this action

> and in particular paragraph 13 thereof and state that thi persons pro DOsed as arbitrators in the Exhibit "A" to the said affidavi : and in the ai d paragi^aph 13 are not acceptable to the Government;

6 -32, THAT in the event that the Court decides to appoint an arbitrator in this matter, which is opposed, that one > of the following be appointed: 1. Kenneth A . Pugh 10606 - 133 Street, Edmonton, Alberta.

2. Donald A.S. bans kail , Suite 500, 1055 W. Hastings, V a n c o u v e r , B . C .

3. Kris J a n s e n , c/o Great-West Life Assurance Co., Winnipeg, Manitoba. 33. THAT in reply to paragraph 15 of the said affidavit of E. McRae referred to in paragraph 31 herein, the said Collective Agreement dated 5 August 1976 provides in Article -̂12 . 0 2 :

'42.02 Notwithstanding the preceding, the provisions of this Agreement, including the provisions for the adjustments of disputes in Article 37, shall remain in effect d u i" i n g the negotiations for its renewal and until a new

> Agreement becomes effective.'; 34, THAT from the 15 day of March, 1978 until the date of this affidavit, no changes have been implemented or effected by the Government in those items in Article 40.02 of the said Collective Agreement;

35. THAT the Government negotiating team has been prepared, desirous, and actively involved in proceeding with collective barqaininq."

This application was continued before me on the morning of July 14th, 1978. At that time counsel for the respondents advised the court that he had now received instructions to consent to the appointi.'ent of an arbitrator so as to conclude the matters in dispute . quickly as possible. Counsel for the respondents frankly conceded that this position constituted a complete change in \ instructions and this is obvious when one compares that submission with paragraphs 32 and 35 of the sworn affidavit û " Robin il. B.^tes ^ ^

hereinbefore quoted. > It is always unfortunate when the collective bargaining

process breaks down and in this particular case both counsel now feel that as between the parties it cannot continue in realistic terms. During the course of the submissions before me I pointed out to counsel for the applicants and to counsel for the respondents that there appear to be many matters that are unresolved in connection with this dispute. It seems to me that there are a number of matters that could probably be settled by counsel and this would undoubtedly assist the arbitrator in expediting the hearing. Under the circumstances, I reiterate what I said in chambet^s on this application and that is tliat I I make the recommendation that counsel offer their good offices in trying to resolve a number of matters where further discussions between them would undoubtedly be beneficial to all concerned. In exhibit "G" of the affidavit of Robin H. Bates there is an indication that the respondents have further proposals with respect to all the further outstanding items. Even if the collective bargaining teams cannot discuss matters further it would undoubtedly be helpful if these proposals could be crystallized and forwarded to Mr. Scott so that he in turn could obtain instructions and discuss the issues with Mr. Brien. I am sure that an arbitrator would welcome this approach so that the issues can bo narrowed whereve r pos s i ble . Turning now to the appoiiitment of an arbitrator, I would ^ point out that the parties have proposed a number of candidates

for the position but unfortunately no agreement could be reached » between them. Under the circumstances, 1 hereby appoint Josepli

Donald O'Shea, Q.C. of 36 King Street East, Toronto, Ontario, as the arbitrator to deal with this matter. I realize that it is desirable that matters of this kind be resolved as quickly as possible. Under the circumstances I presume that counsel will arrange to get in touch witli Mr. Joseph Donald O'Shea, Q.C. in order to make suitable arrangements for t h e h e a r i n n.

DATED at the City of Yellowknife, in the Northwest Territories, this ^th day of August, A.D. 1978. I

("^ ^ '%2^CCD C.F. TALLIS J.S.C.

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NO. SC ^4 0 7 A.D. I9:̂ <; IN THE SUPREME COURT OF THE NORTHl'/EST TERRITORIES

IN THF MATTER OF THE ARCITRATIO-V ORDINANCE. AND IN TIIE MATTER OF AN ARBITRATOR REQUIRED PURSUANT TO TiiE TERiiS fi;-NORTHWEST TERRITORIES PUBLIC SER"! ORDINANCE B E 1" W [ ' E N : THE NORTHWEST TERRITORIES PUBLIC SERVICE ASSOCIATION ANB THE PUCLiC ALLIANCE 01" CANADA APPLICANTS dlD THE COMMISSIONER OF THE NORTHr'EST TERRITORIES AND THE GOVERNMENT OF NORTHWEST lERRlTORIES RESPONDENTS

REASONS FOR JUDGMENT OF THE HONOUR,' MR. JUSTICE C.F. TALLIS

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