I. 1.2 Procedural Ruling Cape Breton Regional Municipality
L.R.B. NO. 4268
(PROCEDURAL RULING II)
the Trade Union Act of Nova Scotia, and
a judicial review of LRB No. 4268, Interim Order II, heard before Justice MacAdam, whereby, in a decision, S.H. No. 121864, dated April 9, 1996, quashed Interim Order II, including the part of the Order dealing with "Term" Employees (aka "post May 5, 1994 employees")
Cape Breton Regional Municipality
77 Kings Road
Sydney, Nova Scotia
Canadian Union of Public Employees
500 George Place
500 George Street
Sydney, Nova Scotia
Police Association of Nova Scotia
22-1000 Windmill Road
Dartmouth, Nova Scotia
International Association of Fire Fighters
P.O. Box 621
Sydney, Nova Scotia
Mark Bettens, Hank Lamond, Wayne Pitcher, Francis Reid, Keith Wilcox, Jody Wrathall
This is a procedural ruling on a non-suit motion in this successorship application which has already been the subject of four interim orders from this Board: Order I (LRB 4268 - July 17, 1995); Interim II (LRB 4268 - August 18, 1995); Interim Order III (LRB 4268 - October 16, 1995) and Interim IV (LRB 4268 - December 22, 1995). The effect of these orders has been to sort out the lion's share of the complex successorship issues arising from the amalgamation by statute of eight municipalities and some of their sub-organizations to form the Cape Breton Regional Municipality. This particular phase of the continuing successorship proceeding arises from the fact that the Canadian Union of Public Employees, one of the original Respondents (which represented employees of predecessor municipal units in a number of different locals referred to in the original style of cause of LRB 4268) successfully brought an application for judicial review of some aspects of Interim Orders I and II. By order dated March 17, 1997, with reasons issued previously on August 8, 1996, MacAdam, J. quashed certain parts of each order and remitted to a newly constituted panel of the Board the matters dealt with in portions of Interim Order II. Prior to the resumption of the proceedings before this newly constituted panel, the parties hereto were able to settle many of the outstanding issues which had separated them and which had been dealt with in the impugned order. Thus, as the amended style of cause now indicates, the only matter which remains unresolved among the parties to the successorship is the status of the so-called "post May 5, 1994 employees" or "term employees".
Simply put, the issue arises from the fact that the successor employer claims that the groups of disputed employees hired by the predecessor municipal units after May 4, 1994 were all hired on "term" contracts which came to an end on or before July 31, 1995, which was the day the predecessor municipal units went out of legal existence by virtue of the Cape Breton Regional Municipality Act. That Act, as the previous Orders of this Board indicate, created the Cape Breton Regional Municipality as successor to the predecessor municipal units, and the new municipality came into formal legal being on August 1, 1995. The successor unions, CUPE, IAFF and PANS as now referred to in the amended style of cause, claim that the "post May 5, 1994 employees" are not term employees at all, but rather are regular employees covered by collective agreements in the normal course who were and are entitled to continuing employment with CBRM by virtue of the successorship. CBRM asserts that the 60 - odd employees, which it refers to as "term employees", have no employment status with it as the successor municipal unit because these employees were all hired by the predecessor municipal units on the explicit understanding that they would have no right to continuing employment with the new municipality. The Unions counter that these purported individual term contracts were legally invalid, inconsistent with the governing collective agreements, and cannot constitute a basis for denying the employees in dispute their rightful employment status with the new municipality under the ensuing of the Trade Union Act and the C.B.R.M. Act.
Such is the general background to this new phase of the successorship proceeding before the newly constituted panel of the Board. The new panel convened on October 29, 1997, and made certain preliminary decisions of a procedural nature. It was determined, although the Order of MacAdam, J. quashed the portion of Interim Order II "...only with respect to PANS and CUPE..." on grounds of procedural fairness "...and not with respect to any other party to the proceeding before the Board", that IAFF be given status as a party to the proceedings before the new Panel. This, essentially, was on the grounds that the Interim Order partially quashed was subject to review by the Board in any event, and that in the circumstances, there were certain IAFF members who were alleged to have the same status as "post May 5, 1994 " members as those in CUPE and PANS. Fairness dictated giving the IAFF members the opportunity to make claims analogous to the PANS and CUPE members in the newly resumed proceedings. The other procedural decision made on October 29, 1997 was to grant the status of Intervenors to any employees whose status might be adversely affected by a decision to give the "post - May 5, 1994" employees permanent status (ie. Employees who might be "bumped" out of positions by such a decision).
Disputes as to the procedural aspects of the newly constituted Panel's hearings were not, however, at an end on the resumption in January of 1998. There was immediately a disagreement between the parties as to who had the burden of proof. CBRM argued that the successorship had been established, that all other issues were resolved, and that the new hearings had been constituted at the behest of CUPE by virtue of its successful judicial review. CBRM therefore asserted that the Unions were the proponents of a change in the status quo with respect to the successorship, and that they bore the burden of proof and the formal obligation to present their evidence first. The Unions argued that CBRM was the original applicant in the successorship, and that as such it bore the burden of proof with respect to any and all remaining issues, just as it bore the burden of proof at the outset of the proceedings back in 1995. The Board made no ruling on this matter since the parties agreed upon a mode of proceeding, subject to further argument on the issue. The agreement was that CBRM would call certain witnesses to give evidence of an "overview" nature, and that the Unions would follow with evidence concerning the particular circumstances of the "post May 5 employees" whose interests they were representing at the hearing.
Evidence was heard at hearings in Halifax on January 26 and 28 and February 6, 1998 and in Sydney in May 4, 5, 6, 7 and 8 and August 13, 1998. On the latter date after the completion of the evidence from the Unions, counsel for CBRM gave notice that it might possibly make a motion for a non-suit on the following day. On Friday August 14, 1998 CBRM did in fact make its motion for a non-suit, and the Unions responded on Tuesday August 18, 1998. (Monday August 17, 1998 having been taken up with an unrelated procedural matter which was the subject of a separate written ruling). The non-suit argument concluded with rebuttal from CBRM on August 19, 1998, and the Board adjourned the hearing at the time in order to consider the evidence and argument in order to reach a conclusion on the issue.
There are three main steps in the Board's determination of this non-suit issue. First, there is a dispute to be resolved about the viability of a non-suit motion at all in circumstances where it is made by the formal "Applicant" rather than a "Respondent" in the proceeding. Secondly, if as a matter of procedure the non-suit motion is receivable, what are its merits. Thirdly, if there is merit to any aspects of the non-suit motion, what are the procedural consequences for this newly constituted panel's hearing. Each of these steps will be described below, and the Board's conclusions will be rendered in the light of the Board's summary of the main positions of the parties and the evidence relied upon to support them.
With respect to the viability of a non-suit motion made by the "Applicant" to these proceedings, it is important to put the issue in the context of this Board's statutory authority. Section 16(9) of the Trade Union Act states:
"The Board shall determine its own procedure, but shall ... in every case give an opportunity to all interested parties to present evidence and make representation."This broad discretion in procedural matters must, of course, be exercised in accordance with the dictates of natural justice as understood by the courts, in order to ensure fairness to all parties and public confidence in the Board's proceedings. The Board's proceedings are not always or entirely adversarial in nature, in the sense that the statute and regulations enable it to undertake investigative procedures and assist the parties to achieve mediated settlement of disputes which might otherwise come before it for hearing.
Once in hearings, however, the Board tends to follow fairly standard patterns of adversarial dispute resolution procedures, with modifications which may be required from time to time in order to fit the expectations of parties to labour relations disputes. In this context the Board is willing to accept that on occasion it may be appropriate for it to receive and act upon non-suit motions in order to bring to an early close proceedings where the party advancing the proceedings has not presented the factual and legal basis for a decision in that party's favour. In such circumstances, it seems helpful for the Board to proceed in accordance with the Nova Scotia Civil Procedure Rules. While not formally binding upon this Board, these rules can sometimes form a useful supplement to the Board's statutory authority, regulations and practices, since they are well known to labour relations bar which normally represents clients before this Board. (This is not to say the Board would follow the Civil Procedure Rules for the province where they are not well suited to the Board and the kinds of adjudicative problems with which it must deal). Suffice it to say at this point, that for the purposes of this case at least, the Board is willing to adopt the substance of Nova Scotia Civil Procedural Rule 30.08, which reads:
"At the close of the plaintiff's case, the defendant may, without being called upon to elect whether he will called evidence, move for dismissal of the proceeding on the ground that upon the facts and the law, no case has been made out".This rule, of course, differs from that in some other provinces where before making the non-suit motion, the mover may be called upon to elect whether he or she will call evidence or be content to have the matter decided by the non-suit motion. In other words, movers of non-suit motions in Nova Scotia are not placed in a "stick or twist" situation, and in a certain way can "have their cake and eat it too".
At this point, the Board must decide the question, which it avoided at the outset of the proceeding, with respect to which party or parties here has or have the burden of proof. In this regard, the order of presentation of evidence is not determinative, since before this Board, as (in other labour relations settings), the order of presentation of evidence is, in appropriate circumstances, established in accordance with principles of convenience rather than as a result of who bears the burden of proof. For example, in unfair labour practice allegations or successorship situations where the union is bringing the claim and must ultimately prove its case on a balance of probabilities, the employer may present evidence first by agreement or by order of the Board, because of its access to or control over evidence, without shifting the burden of proof in the case to the employer. However, with a non-suit motion in civil procedure, as rule 30.08 indicates, it is the "defendant" who brings the motion for dismissal of the proceedings on the theory that the "plaintiff" has the burden to prove his or her case. The question for the Board in this proceeding is whether the original Applicant in the proceeding, CBRM, is to be treated as the "plaintiff" or "defendant", to use the analogy to the civil procedure rules, for the purposes of the non-suit motion. Or conversely, whether the Unions, the original Respondents to the proceeding, are to be treated as "plaintiffs" or "defendants"for these purposes.
There is little doubt that in normal circumstances this Board, upon being faced with a motion for dismissal or motion for a non-suit, would as a matter of course treat the Applicant as the "plaintiff" for the purpose of applying by analogy Civil Procedure Rule 30.08, and would treat the Respondent as the "defendant". However, the circumstances at this stage of these continuing proceedings are far from normal. This is not a regular successorship application under the Trade Union Act, but rather one resulting from the CBRM Act where the fact of the successorship is a foregone conclusion, and the Board's role is to sort out the aftermath. There have been four Interim Orders setting many of the basic issues in this successorship, and many other issues have been settled by agreement of the parties. While CBRM is formally designated as the Applicant in these proceedings, the formal Respondents, the Unions, are clearly the proponents for change in the only issue before this newly constituted panel. We are here at the behest of the "Respondents" who clearly have an important outstanding issue which they want resolved. Moreover, they are entitled to have it resolved because they successfully had the Board's previous disposition of the matter overturned on procedural grounds.
It is interesting to note that the non-suit arguments of both sets of parties to this phase of the proceeding have demonstrate some measure of internal contradiction. CBRM, on the one hand, argues that it should not be treated as the "Applicant" for this phase of the proceeding, but on the other hand has firmly advanced the view that this new panel's proceedings are a "seamless web", linked to and a part of the previous proceedings leading to the prior orders, such that the evidence in the prior hearings is properly before this panel. Similarly, the Unions' positions seem internally contradictory in as far as they wish to see CBRM continuously cast in the role of Applicant, as in previous stages of the proceeding, while claiming that the proceedings are a sufficiently fresh start that the new panel ought to confine itself to the evidence heard before it and make no reference to evidence placed before the original panel. These difficulties and contradictions result from some measure from the Board's decision, pursuant to sections 16(9), 31 and 32 of the Trade Union Act, to retain jurisdiction after the initial order herein and to proceed by way of interim orders, so as to assist the parties to the successorship on an ongoing basis. As such proceedings go on, different parties might be expected to advance different claims in different procedural contexts. The procedural context for this phase, of course, is not merely a continuation of the Board's supervision of the successorship, but that of a phase initiated by the "Respondent" unions through the judicial review and its consequences.
The upshot of the Board's consideration of "step one" in this motion for a non-suit is that the Board is convinced that the most fair and equitable exercise of its procedural discretion is to treat the Unions as "proponents" of the issue before the Board at this phase of the continuing successorship proceeding. As the proponent of the main issue before the Board at this time, that is, the status of the "post May 5, 1994 employees", the Unions should be treated as "plaintiffs" for the application by analogy of Rule 30.08 of the Nova Scotia Civil Procedure Rules. As such, CBRM is the "defendant" in these circumstances, and is entitled to bring a motion for a non-suit, or in the language of Rule 30.08 a "motion for dismissal of the proceeding on the ground that upon the facts and the law no case had been made out."
Having concluded that the motion for a non-suit is procedurally viable in the circumstances, a corollary to step one is to set out the test to be met in order for a motion for a non-suit to succeed. The parties, though in disagreement as to whether a motion for a non-suit was proper, were in agreement as to the test if it were to go ahead. The Board, too, is willing to endorse the following passage with respect to this matter, which was accepted by the parties:
"If such a motion is launched, it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, MAY be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability OUGHT to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfied a reasonable man. HE MUST CONCLUDE WHETHER A REASONABLE JURY COULD FIND IN THE PLAINTIFF'S FAVOUR IF IT BELIEVED THE EVIDENCE GIVEN UP TO THAT POINT. The judge does not decide whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not ruling upon the weight or the believability of the evidence which is a question of fact. Because it is a question of law, the judge's assessment of the probative sufficiency of the plaintiff's evidence, or the defendant's evidence on a counterclaim for that matter, is subject to review by the Court of Appeal. (emphasis added)."This test is from the text entitled EVIDENCE IN CIVIL CASES by John Sopinka and Sidney N. Lederman. But it has been adopted by our Court of Appeal: see WENTZELL v. SPIDLE (1987) 81 N.S.R. (2d) 200 (per Clarke, JA, CJNS). Of course, the test as set out is applicable on its face to judges sitting in jury trials. Adapting the test to the non-suit before this Board, one of the key passages would read:
"This panel must conclude whether a reasonable labour relations board could find in the proponent's favour if it believed the evidence given in the hearing up to that point. The panel does not decide whether it will accept the evidence, but whether the inference that the proponent seeks in his favour could be drawn from the evidence adduced, if the panel chose to accept it. This decision of the panel on the sufficiency of the evidence is question of law; the panel is not ruling upon the weight or believability of the evidence which is a question of fact."It is in the light of this test so expressed that we turn to step two, that is, a consideration of the merits of the motion for a non-suit.
Step two, dealing with the merits of the non-suit motion, can be broken down into two sub-issues, one which emphasizes the law and the other where the emphasis is on the facts. The first is the question of whether there is evidence of a ministerial order or statutory authority which would preclude the Unions' claims that the employees in dispute are permanent employees rather than term employees. The second sub-issue is, assuming there is no ministerial order or statutory authority precluding the Union's claim as a matter of law, what evidence is there with respect to the Unions' claims that these are permanent employees under their respective collective agreements with status which would protect their employment under the successorship, rather than term employees whose jobs came to an end on or before July 31, 1995. Each of these sub-issues will be dealt with in turn in relation to the test for a motion for dismissal on non-suit as described above.
It is clear that one purpose of the CBRM Act as intended by the legislature was to "freeze" aggregate levels of employment and individual employment too (subject to what is said below) as of May 4, 1994 which was the date when the Minister of Municipal Affairs, at the time, Ms. Sandra Jolly, announced the intended creation of the Cape Breton Regional Municipality. This is not unlike income tax legislation, where new taxation measures are announced in a budget speech and then legislation and regulations are drafted with retroactive effect to the date of the speech by the Minister of Finance. That way people don't get unfair advantage over others by changing their tax status before the effective date to take advantage of the new budgetary provisions. Section 248 of the CBRM Act indicates that section 4, 5 and 6 of the legislation "have effect on and after May 5, 1994". Section 5 of the CBRM Act states:
"5. The Minister may, by order, provide for anything necessary or incidental to the incorporation and effective government of the Regional Municipality, and may include any orders, directions and conditions that are necessary or desirable in connection therewith."Moreover, section 6(8) of the Act states:
"6. (8) A municipal unit, or an authority, board, commission, corporation or other entity thereof, shall not, without the consent of the Minister, replace an employee who retires, resigns, is laid off or is dismissed."In addition, s. 6(11) of the CBRM Act gives this Board powers in substitution for those of the then "Public Sector Compensation Board", to change the terms of collective agreements in the effecting the successorship so long as "... the total effect of any changes to collective agreements shall not increase the total cost of all compensation in respect of all employees to whom the changed collective agreement apply..." Thus, one can infer that a significant purpose of the CBRM Act was to establish a successorship which would not impose additional burdens on tax payers.
CBRM argued that the evidence demonstrates that section 5 and section 6(8) of the CBRM Act are operative to over-ride the terms of collective agreements between the unions and the predecessor municipalities, such that much of the evidence adduced by the Unions about the nature and terms of those collective agreements is irrelevant. In particular, CBRM points to a letter dated July 4, 1994 and signed by the Minister of Municipal Affairs, which was sent to the mayors (or warden as the case may be) of the predecessor municipalities. The text of the letter reads as follows:
"The Cape Breton Regional Municipality Act provides in Section 6(8) that no municipal unit, including boards, agencies and commissions, shall replace any employees without the consent of the Minister. This position will be operative effective May 5, 1994 the date I announced the creation of the Cape Breton Regional Municipality.CBRM asserts that this letter is a "directive" pursuant to section 5 of the Act which precludes employment of post May 5, 1994 employees beyond July 31, 1995. Moreover, CBRM argues that section 6(8) of the Act applies to many of the disputed employees who should be viewed as "replacements" who hired without ministerial consent. Indeed, there is no evidence of "ministerial consent" under section 6(8) in relation to the disputed employees. In effect, CBRM says the ministerial letter and section 6(8) together are sufficient authority to over-ride the collective agreements which might otherwise govern in the circumstances.
You can understand that a provision such as this is necessary to accommodate the downsizing of staff that will be necessitated by the creation of the new unit. Anything else would be unfair to new employees, and likely raise the costs of the regional municipality.
I understand that some councils have made or are considering making part- time employees full-time and also considering promotions. Actions such as these are not in the best interests of the region or of the employees affected. When employees from the present municipalities are hired by the new regional municipality, the May 5, 1994, date will be used to determine an employee's full or part-time status and their job classification, i.e. constable, sergeant, labourer, clerk, foreman, secretary, etc.
It is my intention in drawing these matters to your attention to help you avoid creating problems for your employees. We all realize that the uncertainties arising out of forthcoming changes in their job frameworks are stressful enough. None of us wish to create further difficulties for them."
The Unions argue that the Minister's letter of July 4, 1994 is not an "order" pursuant to section 5 of the CBRM Act, and that the "post May 5, 1994 employees" are not "replacement" employees covered by section 6(8) of the Act. In particular, the Unions point out that there is no reference to section 5 in the Minister's letter, which appears on its face to be a blanket policy statement concerning a refusal to grant consent under Section 6(8). It has no application, say the Unions to "new hires" who are not "replacements". Such employees, say the Unions, are governed by the provisions of their respective collective agreements.
The Board is of the view that the Minister's letter of July 4, 1994 does not, on its face, constitute an "order" for the purposes of section 5 of the CBRM Act. The standard form of orders is to recite geographical jurisdictional details (ie. "Canada, Province of Nova Scotia"), to make formal reference to the legislation under which the order is being issued (ie. "In the Matter of the Cape Breton Regional Municipality Act"), to refer to the statute section under which the ministerial authority is being exercised (ie. "pursuant to section 5 of the CBRM Act"), and to state the nature of the order (ie "I hereby order that so and so is directed to do such and such"). This is not just a matter of technicalities. The rule of law surely requires that ministerial authority to make pronouncements which have the force of law, capable for example of over-riding collective agreements, be expressed in terms which differentiate them from mere policy statements or ministerial opinions. Any other approach could be open to unintended or even intentional abuse, and could put the potential putative subjects of ministerial action in considerable risk of legal jeopardy. Furthermore, the letter of July 4, 1994, even if it were considered to be an order, deals with the situation of "replacement" employees under Section 6(8) not with those hired in circumstances other than to "replace an employee who retires, resigns, is laid off or dismissed". The Board therefore concludes that on the facts and the law, there is at this point in the proceeding an insufficient basis to conclude that ministerial orders or statutory authority exist which would over-ride the collective agreements which would otherwise apply to the disputed "post-May 5, 1994 employees." Having thus concluded that the non-suit motion fails in respect of sub-issue one, the Board now turns to sub-issue two.
Sub-issue two on the merits of the non-suit motion relates to the factual basis for the hiring of the "post May 5, 1994 employees" and the applicability of the collective agreements in these factual circumstances. There is no real factual dispute as to the intentions of the predecessor municipal units with respect to the hiring of these designated employees. Virtually all of the evidence, with some nuances in relation to some employees, indicates that the employees in question at the time of being hired received verbal or written warning that their employment was to be for a specific term (usually ending July 31, 1995 if not before) and that they would not be guaranteed work with the new Cape Breton Regional Municipality. However, virtually all of the evidence adduced thus far indicates that the disputed employees were doing regular bargaining unit work which would normally bring them under the relevant Collective Agreements, and that they had worked through their normal periods of probation under the relevant collective agreements so as to attain "permanent" status under normal circumstances. While CBRM argues that these people were "term" employees whose employment contracts ended prior to the creation of CBRM, CBRM also referred to an arbitration case (though decided in the context of estoppel) which contains useful observations from Arbitrator Bruce Outhouse which are relevant to the situation here. At pp. 94 and 95 of Re MARITIME TELEGRAPH AND TELEPHONE COMPANY LTD. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1030 (1983), 10 L.A.C. (3d) 90 (Nova Scotia) the arbitrator states:
"The principle ...[reference to cases omitted]... is that an employer cannot, as a matter of private contract with its individual employees, effectively deprive them of the rights secured to them under a collective agreement. But for the operation of this principle, so it is reasoned, the integrity of the collective bargaining relationship would be threatened by the enormous potential for abuse on the part of erstwhile employers, particularly at the hiring stage.Under normal circumstances, the "term contracts" which CBRM argues were applicable to the "post-May 5, 1994 employees" would fall afoul of the principle which is so well articulated by Arbitrator Outhouse in the foregoing passage. The question for the Board on this non-suit motion in respect to this sub-issue is whether there is sufficient evidence to indicate that the normal rules apply based on this non-suit test enunciated above. In other words, is there any evidence which, if believed, could lead a reasonable labour relations board to conclude that the disputed employees were covered by their collective agreements rather than being"term employees" whose individual private contracts of employment contracts precluded them from enjoying rights under the successorship. Indeed, Mr. Angus Flemming, called by CBRM, indicated that under normal circumstances, the employees would be covered by collective agreements and were treated for many purposes as if they were. At this point it is necessary to refer to the evidence relating to specific groups of employees in greater detail.
I find myself in agreement with the more modern authorities. Although there is certainly nothing in the evidence before me to suggest that the employer here was motivated otherwise than by a genuine concern for the best interests of its employees as a whole, it would set a dangerous precedent to hold that the employer could, by private arrangement, deprive individual employees of rights guaranteed to them under the collective agreement. To so hold would be to set at naught the exclusive bargaining agency of the union, an agency which in this case has both statutory and contractual recognition."
We turn first to the outside workers who were or are members of CUPE. The Board is satisfied that the evidence is such as to pass the non-suit threshold with respect to the nature of the bargaining unit work done by these employees, and the fact that they had worked longer than the "probationary" periods in the collective agreements. Given the Boards' views as expressed above on the issues of ministerial or statutory authority, the major legal issue in relation to which facts need to be considered on this score is whether there is any evidence of facts which would take the "CUPE post May 5, 1994 employees" outside of the operation of the relevant collective agreements at the time.
Important evidence related to a "Letter of Intent" signed by representatives of CUPE Local 759 and representatives of the City of Sydney. That document reads as follows:
"It is agreed, by both parties, that the City of Sydney will not be held to Article II of the current Collective Agreement, as signed in good faith.Despite the sometimes vague language of this document, the Board concludes that this "Letter of Intent" would be sufficient to modify the obligations of the parties under the relevant Collective agreement so as to allow for the hiring of "term employees" as CBRM describes them. However, there was evidence from Wayne Penny, Joe McIvor, and Tom Robinson, all called by CUPE, that this letter of intent had been "torn up". These witnesses, for the most part, admitted that officials of the City of Sydney continued to act throughout the relevant period as if this letter of intent was still valid. Evidence was not heard from key officials of the City of Sydney, alluded to in cross-examination, which might counter the evidence that the agreement had been "torn up". However, there was testimony from the Union witnesses which, IF BELIEVED, could lead a reasonable labour relations board to conclude that the letter of intent was no longer operative, and that the City of Sydney and CUPE had reverted to a situation where, in the absence of supervening authority under the CBRM Act, hiring of employees would be governed by the relevant collective agreement. We therefore conclude that in relation to the CUPE employees, the non-suit evidential threshold has been met and the non-suit motion must fail.
This is not to exceed a period starting August 1, 1994 until July 31, 1995.
Further to this, the term of these employees is not to surpass a period of 12 weeks. This, in cooperation of both parties, is to alleviate the high unemployment rate that has ravaged the City.
This agreement is within the guidelines of the current legislation, Bill C-63, it also does not sanction a "work pool" in anyway.
This agreement will not become a part of any collective agreement, and will become redundant as of July 31, 1995.
In addition, any of these employees will not become permanent employees of the City of Sydney during this period."
In respect of the "PANS employees" there was relevant evidence from Mr. Flemming, Mr. Halliday and Mr. MacKinnon. In addition to the CBRM Act Section 5 problem, there is a clear indication from CBRM through argument and questions in cross-examination of the two police witnesses, that there may be a section 6(8) problem in relation to at least one of the PANS members. However, given the Board's approach on sub-issue one above, we find that there is some evidence which is believed, could lead a reasonable labour relations Board to conclude that these employees were covered by the terms of their collective agreements and not "term employees" as described by CBRM. The non-suit motion therefore fails in relation to the PANS group.
The situation with respect to the IAFF employees is slightly more complex. There were two post May 5, 1994 employees who had been hired by the Town of Glace Bay Fire Department, one hired by the New Waterford Fire Department and nine hired by the City of Sydney. With respect to them all, we find that the basic evidential threshold for a non-suit has been met on the questions of their having been hired (purportedly on a term basis) for longer than the probationary term under the relevant collective agreements to do what is normal bargaining unit work. With respect to the City of Sydney employees, however, there was an Appendix to the Collective Agreement agreed to by IAFF and the City of Sydney. That agreement reads as follows, in its operative parts:
"WHEREAS, the City of Sydney, through present Provincial Legislation is obligated to REPLACE members who retire etc. with term employees. They shall not be authorized to hire except to replace.While there is potential confusion about the "replacement" issue and whether section 6(8) applies on the facts, the Board is convinced that this agreement operated to allow the City of Sydney to hire the 9 employees on a term basis by removing them from the normal protection of the IAFF Collective Agreement with respect to job security. In formal correspondence to this Board during the course of "pleadings" in relation to the hearings which led to Interim Order II, the then counsel for the IAFF admitted the existence and effect of this agreement between the parties, and there was no mention by any of the witnesses called by the IAFF that the agreement with the City of Sydney had been revoked like that relating to the outside workers with CUPE. As such, the employment of the nine "Sydney" firefighters ceased prior to the creation of CBRM. While they had a promise of "best efforts" from the City of Sydney officials, these employees were clearly not guaranteed employment with CBRM. Therefore, the Board concludes that the motion for a non-suit succeeds with respect to the IAFF members formerly hired by the City of Sydney, but fails with respect to the IAFF members hired by Glace Bay and New Waterford.
These new employees shall be afforded all the benefits that present union employees now enjoy in the Collective Agreement.
The terms shall commence at the time of hiring to 12:01, August 1, 1995.
Furthermore, the new Regional Municipality shall do everything in its power to find suitable employment in its service for these employees.
FURTHERMORE, this agreement shall expire at 12:01 A.M., August 1, 1995, unless it is extended by mutual agreement between the Union and the Municipality, except for the agreement of Municipality to do all in its power to find suitable employment for those term employees. In the event any of these term employees are retained as full time employees their official date of hire shall be listed as the date the term commenced.
The third step with respect to this motion for a non-suit is to determine what effect the above findings will have on the future course of this proceeding before this "new panel". In accordance with the Nova Scotia approach to non-suit motions as accepted by the Board through its adoption here of Civil Procedure Rule 30:08, the new panel will be ready to re-convene hearings to hear further evidence with respect to the PANS, CUPE and IAFF employees (other than the IAFF employees hired by the City of Sydney on a term basis pursuant to the terms of its agreement with the IAFF). By virtue of having designated the Unions as the "proponents" in this phase of the proceeding, CBRM will be required to present its case next, and the Unions will be entitled to present rebuttal evidence thereafter. The Board wishes to emphasize however, that while the evidential basis for determining some factual issues has been settled by this non-suit motion, the broad powers of the Board under section 31(5) of the Trade Union Act and Section 6 of the C.B.R.M. Act to fashion results which can to the extent possible, create equitable solutions for all classes of employees and the employer as well, remains to be exercised.
A word of caution is in order to those interested in these proceedings who may be tempted to read too much into this non-suit proceeding. While the Board has determined that the CBRM motion was successful on the facts in relation only to a small number of firefighters, the Board has not engaged in the process of weighing the credibility of the evidence or in determining its ultimate effect with respect to the "post May 5, 1994 employees" at the end of the hearings. The Board must now proceed with an open mind to hear and consider any further evidence and/or representations from the parties along with that which it has heard already, prior to making any final determinations on the matters at issue in this phase of the proceeding.