Nova Scotia Union of Public and Private Employees, Local 13 v Halifax Regional Municipality

IN THE MATTER OF The Trade Union Act, RSNS 1989, c. 475 as amended

and

IN THE MATTER OF An Arbitration

BETWEEN

The Nova Scotia Union of Public and Private Employees, Local 13

“The Union” or “NSUPE”

– and –

Halifax Regional Municipality

“The Employer” or “HRM”

Re:

Grievances of Ashley Staples concerning Competitions for

Compliance Officer I and II Positions

Arbitrator:

Counsel:

Bruce P. Archibald, Q.C.

Nancy Elliott, for the Union

Justin M. Luddington, for the Employer

Appearances:

Witnesses:

Jennifer Webb, Labours Relations Specialist, for the Employer

Joe Kaiser, Local 13 President, and Ashley Staples, Grievor,

called by the Union

Steve Berkman, Supervisor, Parking Administration, and

Tanya Phillips, Programme Manager – By-Law Services,

called by the Employer

Place of Hearing:

Chocolate Lake Best Western Hotel, Halifax Regional Municipality,

Nova Scotia

Date of Hearing:

Date of Award:

January 19, 20 and 21, and February 9, 2022

April 22, 2022

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AWARD

A.

Introduction

1.

This arbitration involves a dispute over the Employer’s failure to “screen-in” the Grievor,

Ashley Staples, as a candidate in relation to three postings for positions in the Nova Scotia

Public and Private Employer’s Union, Local 13, bargaining unit with the Halifax Regional

Municipality (the Employer’s) general administrative system. The positions in question are those

of by-law enforcement officers of which there are now two sorts: Compliance Officer I (“COI”)

and Compliance Officer II (“COII”). The former position (COI) deals primarily, though not

exclusively, with the issuance of parking tickets, while the COII position is responsible for the

enforcement of a wider and more complex set of municipal by-laws. The Union submitted two

grievances which involve three positions, one COI position and two COII positions. This is

because an initial COII Grievance (#13-01-2021) was amended on January 22, 2021 to cover the

Grievor’s unsuccessful applications on a posting for a COI position with a closing date of

December 13, 2020 and the original COII position with an eventual closing date of November

20, 2020. Subsequently, on November 30, 2021, the Union submitted a Grievance (#13-02-2021)

which dealt with a position posted for another COII position about a year later, which posting

closed on October 17, 2021. Since all three competitions involved the Employer’s mangers’

“screening-out” the Grievor on the grounds that she did not have the “minimum qualifications or

equivalencies” for either the COI or the COII positions, the parties agreed that all three matters

should be dealt with at the hearings held in Halifax, Nova Scotia, on January 19, 20 and 21 and

February 9, 2022.

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2.

The parties conducted this proceeding in a very professional and collaborative fashion,

while in no way sacrificing their stern and forceful arguments for their respective clients. Notice

was properly given to incumbents in the positions which flowed from the postings being

challenged by the Union on the Greivor’s behalf: none of the incumbents chose to participate,

and the hearing thus proceeded without them. The parties collaborated on the production of a

helpful joint book of documentary evidence relevant to the issues. The parties agreed at the

outset that the use of information about controversial candidates would be anonymized by me,

were I to mention them in this award, to respect their privacy and avoid embarrassment. The

parties agreed that I was properly clothed with jurisdiction to hear and adjudicate upon the

matters in issue. And finally, the Union agreed that it bore the burden of proof to prove its case

on a balance of probabilities.

3.

This award will proceed by my setting out the relevant facts in relation to the three

disputed categories of substantive issues which separate the parties as set out in each of the

Grievances and which can be summarized as: (1) Did the Employer breach the Collective

Agreement the parties (signed on June 18, 2018 and formally running from November 1, 2017 to

October 31, 2021) by establishing qualifications and equivalencies for the COI and COII

positions which were “unfair and unreasonable”?; (2) Did the Employer breach the Collective

Agreement by being unfair and unreasonable in applying the qualifications and equivalencies to

the Grievor in any of the three postings which she grieved?; and (3) What are the remedial

implications were I to find that the Employer has breached the Collective Agreement in any of

these ways? Each of these questions was approached in a nuanced fashion for each disputed

position in the arguments of counsel for the parties, which I will summarize after laying out the

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relevant provisions of the Collective Agreement and the central background facts, about which

there is little disagreement. The parties simply differ on how to characterize the commonly

agreed upon facts for purposes of legal argument. I will conclude the award with my analysis of

how to characterize and deal with the facts, and why I have concluded that the Employer erred

unreasonably and unfairly in evaluating the Grievor’s qualifications and equivalencies in relation

to the first of the COII applications, and what the remedial implications are in the light of this

breach of the Collective Agreement.

B.

Relevant Collective Agreement Provisions and the Background Facts

4.

Critical to the parties’ arguments and the resolution of this dispute is Article 2 –

Recognition found near the outset of the Collective Agreement, in particular paragraph 2.01 of

that article which seems to have survived unscathed by amendment from the parties as the

Collective Agreement has evolved over the years. That paragraph reads:

ARTICLE 2 – RECOGNITION

2.01

RECOGNITION OF EMPLOYER

(a) The Union recognizes that the Employer retains all rights not specifically

taken away by this agreement.

[1.07(a)]

collective agreement and shall be exercised in a manner consistent with

the provisions of this collective agreement.

[1.07(b)]

(c) The functions of the Employer within the scope of this collective

agreement shall be exercised in a fair and reasonable manner.

[1.07(c)]

(d) The Employer shall not discipline or dismiss an employee except for just

cause.

[1.07(d)]

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It will be seen immediately that sub-paragraph 2.01(c) is critical to the Union’s claim that

hiring people and putting them in posted jobs is a “function of the Employer within the

scope of this agreement” and that in the Grievor’s situation this function was not

“…exercised in a fair and reasonable manner.”

5.

The other critical Collective Agreement provisions relevant to this arbitration are found

in “Article 6 – Postings & Job Appointments.” This would not be a surprise, but it is interesting

that subparagraphs 6.01, 6.02 and 6.03 are particularly detailed, and one might say enlightened,

provisions dealing with the subject by comparison to many other collective agreements in the

world of labour relations. These paragraphs read as follows:

ARTICLE 6 – POSTINGS & JOB APPOINTMENTS

6.01

JOB POSTINGS

(a) Prior to posting a job, the Employer will determine what qualifications are

needed for the job, whether combination(s) of education and experience

will be considered to meet the minimum requirements, how it will assess

merit, and the minimum levels needed in the assessment of merit. If the

assessment of merit is to include tests, applicants will be informed in

advance of the nature of the tests and the weighting given to such tests.

[New 2005]

(b) When the Employer is filling a vacancy where the Employer creates a new

bargaining unit position the Employer shall, within twenty (20) working

days, notify the Union in writing and post notice of the positions

throughout the bargaining unit for a period of twelve (12) consecutive

days. Vacancies shall be posted on E-mail and/or successor technology or

methodology.

[5.03(a)(i), 5.09, am. 2011]

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(c) The notice and posting referred to in Article 6.01(b) shall contain the

following information; closing date, nature of the position, required

qualifications as established by the Employer, required knowledge and

experience, education and skills, hours of work, hourly rate of pay,

confirmation that it is a Union position and present work location. Work

location can be changed according to operational requirements.

[5.04]

(d) Notwithstanding Article 6.01(b), positions being temporarily filled,

whether they are permanent positions or temporary positions, and which

are anticipated to be of less than eighteen (18) months duration may be

filled through the circulation of an expression of interest by the Employer.

An expression of interest shall contain the same information and be

circulated in the same way as a posting but shall be of seven (7)

consecutive calendar days duration.

[5.03(a)(ii)]

(e) The Employer may advertise a vacancy externally at the same time as the

vacancy is posted within the bargaining unit. However, the Employer will

give full consideration and preference to bargaining unit members and will

only consider applications from outside the bargaining unit after it has

been determined that no bargaining unit member is the successful

applicant.

[New 2005]

Applicants who wish to make application for a posted position shall ensure that

the application is delivered to the Human Resources business unit, or someone

designated by that office, prior to the closing of the posting.

[5.03(b)]

6.02

APPOINTMENT

(a) Appointments to bargaining unit positions will be based on qualifications

and merit. “Qualifications” means the education, training, skills,

experience, knowledge and competencies or combination thereof required

for the position. An applicant must meet the minimum required

qualifications in order to be assessed for merit. “Merit” may be assessed

through interviews, testing and references or a combination thereof.

[5.01(a), am. 2005, am. 2011]

(b) Where two or more applicants with the highest scores above the minimum

score are determined to be relatively equal in merit and qualifications

(within five per cent (5%) of each other), the applicant with the greatest

length of bargaining unit seniority will be appointed to the job.

[5.01(b), am. 2005]

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(c) Appointments from within NSUPE Local 13 shall be made within four (4)

weeks after the closing date for applications as long as there are qualified

applicants.

[5.02, am. 2018]

(d) If a position becomes vacant less than one hundred and twenty (120)

calendar days after it is initially posted, the Employer may rely on the

prior posting to fill the vacancy.

[New 2005, am. 2008, am. 2018]

6.03

REASONS AND REVIEW

The Employer shall, upon request and in a timely manner, give each

unsuccessful applicant for a position the reasons why the employee was

unsuccessful and shall advise what that person might do to improve the

employee’s opportunity to obtain the position in the future. The reasons will

include the areas in which the candidate scored higher or lower relative to the

other areas.

[5.08, am. 2005, am. 2008]

These provisions constitute both key general background and specific wording directly

applicable to the circumstances of this case, and thus warrant careful scrutiny.

6.

The enforcement of city by-laws has, of course, been a matter of concern for Halifax

Regional Municipality and its predecessor municipalities for a long period of time. For a

considerable period, the Employer had contracted out parking by-law enforcement, but of course

there are many other by-laws that need to be respected. The post-amalgamation HRM had in

2013 created a job description for a position simply entitled “Compliance Officer” for which

there were apparently some 13 or so positions or incumbents, none of whom were “meter maids”

or the male equivalent. The 2013 job description put in evidence under the heading

“Qualifications” listed the following: (i) Education: undergraduate degree in business

administration, social sciences or related field; or diploma from an accredited law enforcement or

similar program; and (ii) Experience: three years’ experience working in an enforcement or

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regulatory environment; (iii) a minimum of two years’ experience in customer service, and (iv) a

minimum of one year experience with database software. However, in 2017 or thereabouts, the

Employer decided to end the contracting out arrangement for parking enforcement and bring the

enforcement functions totally “in house” with all by-law enforcement to be in the hands of HRM

employees. Building in some measure on its previous “Compliance Officer” position description,

the Employer created two different positions, Compliance Officer I (COI) and Compliance

Officer II (COII), which are the focus of this dispute.

7.

The Grievor, as mentioned above, applied for a COI position posted as being open in the

fall of 2020, with a closing date of December 13, 2020. The posting 4787BR for that competition

is found attached to this award as Appendix A. The “Duties and Responsibilities” seem oriented

primarily to parking enforcement, but the preceding introductory paragraphs make clear that

incumbents in the position enforce the parking meter and analogous by-laws, certain Motor

Vehicle Act offences committed in HRM, the taxis and limousines by-law, by-laws on street

problems involving ice, littering and grass cutting, as well as rules on garbage collection. The

posting also makes clear that enforcement may relate to offences on public or private property,

and that, to enhance his or her authority, the COI is required to be sworn-in as a Special

Constable under the Police Act of the Province of Nova Scotia. The understanding of these duties

and responsibilities is important in the assessment of the disputes between the parties as to the

“fairness and reasonableness” of the qualifications for the job and in knowing how the latter

were applied in relation to the Grievor’s application. Thus, an equally important focus for

analysis in this regard are the provisions in the posting under the heading “QUALIFICATIONS:

Education and Experience” on page 2 of the document. The required qualifications are listed

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under five bullet points: (i) High School Diploma or GED and a Diploma from a law

enforcement program; (ii) Minimum one year experience working in an enforcement role; (iii)

Minimum two years’ experience in customer service; (iv) Minimum of one year experience with

database software; and (v) “An equivalent combination of education and experience may also be

considered” (emphasis added). As to the Grievor’s application, the parties are in agreement that

the Grievor had a high school diploma or GED, had the requisite experience in customer service,

and had the requisite experience with database software.

8.

However, there is a dispute over whether the Grievor has an “equivalent combination of

education and experience” in relation to the matters of “a diploma from a law enforcement

program” and “one year of experience in a law enforcement role.” It is to be noted that in an

earlier draft of the COI job description, approved by the Employer in the autumn of 2017, the

educational experience requirement from the old “compliance officer” of “an undergraduate

degree in business administration, social sciences or related field” had been stroked out, but that

the alternative adopted for the actual 2020 posting “Grade 12 and a Diploma from an accredited

law enforcement or similar program” (emphasis added) stayed the same until June 6, 2018 when

the phrase “or similar program” was deleted from the final COI job description, as seen above

and found at Appendix A. Thus, the requirement of a diploma from an “accredited law

enforcement program” was emphasized in the ultimate position posting, but still subject to the

broad equivalency notion found in the fifth bullet point as described in italics above. As will be

seen below, the Grievor asserts that her certificate or diploma from a recognized program for

training as a “para-legal” is the equivalent of a diploma from an accredited “law enforcement

program.”

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9.

There is also a dispute over whether the requirement that a COI must have “one year of

experience working in an enforcement role” is a fair and reasonable requirement, and/or whether

the Grievor has met that requirement directly or indirectly as a matter of “equivalency.” Once

again there is an evolutionary history here in the job description. The autumn 2017 job

description/posting for a COI position for which the Grievor had applied and did not succeed in,

spoke of the need for one year of experience in “an enforcement or regulatory environment”

rather than the narrower requirement for “1 year in an enforcement role.” This narrowing of the

focus for relevant experience relates to a disputed claim by the Grievor and Union that the

former has experience with the enforcement of rules under the Residential Tenancies Act and

before the Residential Tenancies Board, among other areas, which ought properly to be seen as a

“regulatory environment” and should legitimately and reasonably be characterized as an

“enforcement role.” This, of course, is not the language found in the COI position in the fall of

2020 for which the Grievor applied.

10.

The job descriptions and/or postings for the two COII positions for which the Grievor

applied have gone through a parallel evolution to the COI position in the period from November

3, 2017 to the present. The Grievor’s evidence was that she had applied for COI and COII

positions on several occasions since 2017 and had been rejected. However, as a result of formal

responses to requests to the Employer under Collective Agreement Article 6.03, as to why she

had been rejected previously, the Grievor re-tooled her documentation for such applications and

made the two COII applications at issue here: one for a competition which closed on October 11,

2020 and another which closed on November 30, 2021. The job postings for each of these are

attached as Appendices to this Award because there were certain changes made from one

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competition to the next, particularly concerning qualifications. The COII posting for competition

4535BR which closed October 11, 2020, is found as Appendix B, even though it closed prior in

time to the COI competition discussed above and found in Appendix A. The second COII

posting, which closed just over a year later than the first COII posting, is found as Appendix C. It

closed on October 17, 2021. This is the posting which was grieved by the Union on November

30, 2021 and which by agreement of the parties was, at the last minute, rolled into the hearing on

the original two matters (COI and COII) scheduled and heard in this matter in January 2022.

11.

The list of HRM by-laws to be enforced by the COII in each case has 14 items. There is

some overlap with the list to be enforced by COI’s, in that Motor Vehicle Act, Taxis and

Limousines and Solid Waste Collection (Garbage) are to be found on both COI and COII job

postings. However, the Parking Enforcement By-Law which is first on the list for COI’s, is

absent from the postings for the COII’s. Moreover, the bulk of the list for COII’s, which includes

by-laws on such topics as Vending, Temporary Signs, HRM Charter Part XV, Derelict

Buildings, Noise, Pesticides, Land Use, Animals, Nuisance and Sidewalk Cafes, is absent from

the COI description. Thus, the COII position involves more varied and complex work. This is

also reflected in the COII entry under “Duties and Responsibilities” to the effect that the

incumbent does “Reports, Correspondence, Appeals and Legal Matters,” and “Presents oral and

written reports to Appeals Standing Committee of Council.” This degree of sophistication in the

job no doubt explains why the “Planning and Development” section in Appendix B of the

Collective Agreement dealing with “Classification and Pay Levels” shows the COII position at

salary Level 8, as opposed to the COI which is at salary Level 7. However, the dispute between

the parties over the Grievor’s situation in relation to her COII applications, like that for the COI

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application, lies only in the matter of Qualifications, their equivalencies and the Employer’s

evaluation of the Grievor’s documentation in these regards.

12.

The “Education and Experience” required under the heading “Qualifications” in the first

COII job posting for the autumn of 2020, not unlike the older Compliance Officer position of

old, speaks first of an “Undergraduate degree in business administration, social sciences or a

related field.” This educational requirement is coupled with a requirement for “Three (3) years’

experience working in an enforcement or regulatory environment,” which also mirrors the

requirement for the old Compliance Officer position from 2013. There is no controversy over the

other two experience requirements, which are “two (2) years’ experience in customer service”

and “one (1) year experience with database software.” The lack of controversy related to the

common understanding of the parties that the Grievor easily met these requirements. However,

there was controversy over the notion of equivalencies. The original posting for the first COII

position was intended to close on August 4, 2020, but was re-posted because of a paucity of

candidates, to close on October 11, 2020 (the one for which the Grievor applied). In both cases,

the postings, after speaking of the educational and experiential qualifications just mentioned,

stated: “An equivalent combination of education and experience may also be considered.” It is to

be noted that the old 2013 Compliance Officer position requirements did not speak of

“equivalencies.” This may be because the drafters of the old description were not aware of the

evolving arbitral jurisprudence which held that a rigid and inflexible application of requirements,

with no acknowledgement of the possibility of evaluating candidates for equivalencies, could be

overturned as unreasonable. Clearly, the HRM drafters of the subsequent COII job description

and posting documents were alert to the significance of equivalencies and wanted to ensure that

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both evaluators and candidates were aware of this dimension to the process by 2017. But there

was no explicit definition of what “equivalencies” might be in the COII context, leaving the

matter seemingly open to the discretion of the Employer’s evaluator/screeners and to the

imaginations of the potential candidates. However, it is important to note that the Union

President, Joe Kaiser, wrote an email re “Asley Staples – Compliance Officer II Position” to the

Employer’s relevant Labour Relations Specialist, Ms. Jennifer Webb, on November 30, 2020 in

which he stated: “I have been asked by Ashley Staples to look into obtaining reasons why she

was screened out of a recent job application for Compliance Officer II within Planning and

Development. Thanks.” Ms. Webb’s reply set out the requirements in the job position with an

asterisk beside the equivalencies sentence. The footnote to the asterisk read: “A diploma from a

law enforcement program and five years of enforcement experience would be considered

equivalent.” As will be seen below, this was news to the Grievor.

13.

At this point, it is necessary to examine the Qualifications provisions on education and

experience from the 2021 COII posting to which the Grievor responded a year later, in time for

its deadline of October 17. These provisions, found in Appendix C, demonstrate an evolution in

the Employer’s thinking in the matter of qualifications over the intervening period. As to

education, the posting states that candidates require an “Undergraduate degree in public

administration, criminology or political science or a Postsecondary education in a related field

such as Law and Justice studies may also be considered.” This arguably ups the ante to a

considerable degree in terms of the specific areas the Employer is seeking by contrast to the

previous requirements “business administration, social science, or related field.” As to

experience, the 2021 posting for COII requires candidates to have “Three (3) years’ experience

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working in enforcement of municipal and/or provincial by-laws or regulations.” Moreover, there

is also an expression of greater focus in the “customer service” requirement by comparison to the

old COII standard. The 2021 requirement is “a minimum three (3) years’ experience (not just

two) delivering face-to-face customer service that involves de-escalation of customer

complaints” (emphasis added). This too is a more onerous requirement than was previously the

case. The database software requirement of one (1) year of experience remains the same.

However, the equivalency requirements also remain the same, if in relation to stiffer

requirements. It still said: “An equivalent combination of education and experience may also be

considered,” and no reference is made to the example of “A diploma from a law enforcement

program and five years enforcement experience” referred to by Ms. Webb in her letter to Mr.

Kaiser, supra. Ms. Tanya Phillips, the Employer’s Program Manager for By-Law Standards,

made no bones about the fact that these changes to the qualifications to be required for the COII

were the result of at least two management experiences with running COII job posting

competitions: firstly, the Employer found that the old requirements were so “broad and

imprecise” that it was found that many candidates were being “screened-in,” for testing and/or

interviews on the merits, who were clearly not people with the qualifications best suited for the

position; secondly, the Employer, in accordance with Article 6.03 of the Collective Agreement,

had been providing feedback to unsuccessful candidates on why they failed to qualify and how

they could improve (including such advice to the Grievor), and the Employer had thus been able

to focus on its need for greater precision in articulating its application for and interpretations of

the requisite job qualifications.

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14.

The Grievor testified about her understanding of the job qualification requirements and as

to her education and experience in relation to them. She also spoke about the feedback she had

received following various unsuccessful applications in the past. There was also relevant

documentation in the agreed Joint Exhibit Book prepared by the parties for the hearing. I shall

try to summarize this evidence as briefly as possible. I shall in addition attempt to integrate the

evidence from the Employer witnesses, where relevant—that is the evidence from Ms. Phillips

mentioned above, and from Mr. Steve Berkman, the current Employer’s Supervisor of Parking

Administration, and former Supervisor of Parking Enforcement, who was very much involved in

the COI competition challenged in the initial Grievance.

15.

The Grievor, Ashley Staples, commenced her employment with the Halifax Regional

Municipality in 2017 at the Employer’s “Customer Contact Centre” answering the “311”

customer call-in line. As such, she asserts she learned a great deal about the city’s overall

operations since her job “involved dispatching service requests for action from customers,” that

is the citizens, residents or taxpayers of the municipality, to virtually every HRM “business unit”

or administrative division. She also stated that she had to respond to initial inquiries about the

interpretation and application of many, if not most, of the municipal by-laws mentioned in the

COI and COII job postings. She also would “liaise” with the 911 emergency dispatch line and

with members of the Halifax regional police and fire services on a regular basis. At the time of

the hearing in January 2022, the Grievor’s “home position” was still at the “311 Call Centre” at

Level 5 of the pay scale under the Collective Agreement. However, since July 2021 she has been

working in a temporary position as a “Contract Administrator” in the procurement division of the

HRM Finance Business Unit. She will be there until December 2022 receiving remuneration at

15

the Level 7 pay scale. In this role, the Grievor is involved in overseeing the execution of

contracts for goods, services and construction for major procurement contracts. She is thus

involved in administering the tendering process in accordance with HRM’s Procurement Policy,

assessing risks and making decisions “with minimal supervision.” She says she must be

“…mindful to uphold public trust through transparency, openness and fairness.” Meanwhile, the

Grievor is also a Vice-President of NSUPE Local 13 and works after hours with a housing rental

agency owned by her mother—about which more below.

16.

At this point it will be helpful to summarize the evidence from the Grievor concerning

the controversial matters of the education and experience qualifications and equivalencies, and

how she went about presenting these to the Employer in the COI and two COII competitions at

issue here. However, to do this it is necessary to describe the evidence related to a complaint by

the Grievor concerning her having been screened-out of a COI competition held in the winter

and early spring of 2018. The Grievor, on April 25, 2018, apparently wrote what the Union

described as a “letter of complaint” to the Employer, perhaps after having received an

explanation as to why she was screened out as per Article 6.03 of the Collective Agreement. The

Union on May 3, 2018 entered a Grievance concerning this competition on behalf of the Grievor

and another unsuccessful candidate. The accompanying Step 1 letter from counsel for the Union

asked twelve pointed questions about the COI competition which had in fact been posted first in

December and then again in March after it appeared that HRM had not been able initially to

attract sufficient successful candidates. Counsel for the Union received a Reply at Step 1 from

Ms. Lori Scolaro, then Supervisor, Field Operations, Licence Standards.” The formal Step 1

response from Ms. Scolaro read as follows:

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Answers to questions from the attached Step 1 letter:

1. The education and skill requirements for the Compliance Officer I position

came from a review of the Compliance Officer II requirements and the

creation of a lesser standard, as it is more of an entry-level position.

Management was familiar with the training offered from the Diploma in law

enforcement, and wanted the incumbents to have one year of applicable

working experience.

2. The qualifications were changed from the initial posting to the second posting

because of the questions received from Ms. Staples. Management reviewed

Ms. Staple’s questions and determined that the words ‘similar’ and

‘regulatory’ were too broad in scope in this instance. ‘Regulatory’ was meant

to be interpreted as an enforcement action, such as ticketing or issuance of

written orders, not administration. The business unit modified the

qualifications without reference to ‘similar program’ or ‘regulatory

environment’ and added the ‘equivalent combination of education and

experience’, which was erroneously omitted from the first posting, but a factor

in the screening of all applicants in both competitions.

3. Answered in question 2.

4. The second posting was changed to ‘enforcement role’, demonstrating the

operational need for an individual who had experience doing this type of

work. The business unit was seeking demonstrated enforcement experience

where information had been gathered based on rules, regulations., bylaws etc.,

a determination was made if a breach had occurred and what action should be

taken (i.e. whether to lay charges or issue tickets). The term ‘regulatory

environment’ is so broad that it could encompass any type of work without

including a decision-making component as a part of the job.

5. The equivalence for education and experience were the same for each posting.

The second posting had clearer language and did not materially change the

qualifications required to screen into the competition.

6. a) The degrees in Sociology, Psychology or Criminology are social sciences

that deal with human behaviours. The Compliance Officer is dealing with a

multitude of difficult situations and challenging individuals. The social

science degree better prepares them to handle these situations. The two years

of experience was to be a lesser standard than what was required for the CO II

position, which requires three years.

b) The determination that other degrees would not suffice was made to keep the

educational requirements in alignment with the CO II position for succession

planning and because the social sciences provide direct training for this type of work.

c) The six years of enforcement experience aligned with the four years necessary to

obtain the degree and the two years of working experience required under the

combination of education and experience stream.

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7. All Compliance Officer I’s have the diploma in law enforcement or the

equivalencies determined by HRM.

8. The information requested is not a fair determination of the grievor’s rights

under the Collective Agreement and therefore not relevant.

9. External applicants were reviewed in the first posting, but only after the

review of internal candidates had been exhausted.

10. For the second competition, no external applicants were reviewed prior to all

internal candidates being reviewed and exhausted.

11. External applicants for the first posting were considered for the second

posting without having to reapply, but only after the internal applicants for the

second posting had been reviewed and exhausted.

12. There have been no changes to the qualifications for the Compliance Officer

II position since November 3, 2017.

Not all of these answers are fully comprehensible without the exact language of the questions to

which the answers were responding. However, for brevity these questions have been omitted.

Nonetheless, this omission is not problematic since the purpose of the inclusion of the answers is

to demonstrate that the Employer, in 2018, was tightening up its analysis of the interpretation

and application of its COI qualifications, in part in response to the Grievor’s complaints. The

grievance referred to in this correspondence, of course, is not before me in this proceeding. But

the information in the foregoing correspondence is important context for the Grievor’s claim in

the current proceeding that as a result of this explanation from the Employer for her lack of

success in 2018, the Grievor beefed up her curriculum vitae and explanatory letters for the three

competitions here in issue, with a view to demonstrating to the Employer that the latter should

assess her qualifications in a different light than on previous occasions.

17.

It is with the foregoing in mind, that the following summary on the Grievor’s evidence as

to her qualifications is presented. The Grievor, in applying for the COI position closing

18

December 13, 2020, still had in mind Ms. Scolaro’s discussion of the Employer’s view of

“equivalencies” which was not spelled out in the posting, but was “defined” in paragraphs 5 and

6 of her Step 1 responses to the Union’s twelve questions. The Grievor understood that the

educational equivalencies, in the absence of a diploma from an accredited law enforcement

program, would be a social science degree in sociology, psychology or criminology, as

disciplines which “deal with human behaviours.” The Grievor had a two-pronged approach to

her educational background in relation to the Employer’s “requirement” and “equivalencies.” As

to the “accredited law enforcement program,” the Grievor suggested, both in her written

application, and re-iterated in her testimony, that here 2007–2008 diploma or certificate from the

Maritime Business College in “Office Administration/Paralegal Studies” was an accredited law

enforcement program in so far as it dealt not only with law office administration, but also with

many substantive areas of law, including the Criminal Code, the Motor Vehicle Act, and HRM

by-laws. By contrast to this assertion of her possession of a direct law enforcement program

requirement, the Grievor also asserted in the alternative that she had a “social science

equivalency.” In 2017, the Grievor graduated with first-class honours with a Bachelor of Science

in “Applied Human Nutrition and Dietetics,” from Mount St. Vincent University. The Grievor’s

view was that this degree included courses in social sciences such as psychology, business

administration, organizational structure and law, presumably on the “Applied Human Nutrition”

side of the academic ledger, while courses like biochemistry, organic chemistry metabolism and

medical nutrition therapy would fall under the rubric of “Dietetics.” At any rate, the burden of

the Grievor’s testimony, rooted in the documentation she provided in her applications that her

educational background included either a “law enforcement certificate” or a “social science

equivalent” and that as such she was educationally well-suited for the role of COI, doing largely

19

parking by-law enforcement.

18.

As to the work experience requirement for the COI posting, candidates were required to

have “a minimum of one (1) year of experience working in an enforcement role.” The Grievor

had a “bi-n-ocular” approach to this requirement. Firstly, the Grievor argued that she had thirteen

years of experience with the family business, B & G Properties Limited, managing rental

properties, which involved enforcing the Residential Tenancies Act and its Regulations. This

work included: investigating breaches of the terms of leases, issuing inspection notices,

preparing and presenting documentation for hearings of the Residential Tenancies Board, serving

eviction notices, dealing with forfeiture of damage deposits, and dealing with police authorities

when tenants refused to leave or were involved in such illegal activities as grow-ops or drug

dealing on the rental premises. This, said the Grievor, was law enforcement entirely analogous to

the issuance of parking tickets and going to court to have them enforced if there was a failure to

pay. In the alternative, the Grievor suggested that this residential-tenancies enforcement work

was experience in a “regulatory environment” which was the kind of experience previously

accepted as fulfilling the experience requirement for the COI job, and should properly be

regarded as an equivalency, if it was not a direct form of law enforcement through the Summary

Offences Act as with parking by-law offences. The Grievor saw parking tickets as the equivalent

to subpoenas to appear before the Residential Tenancies Board, which she had often sought,

obtained and served.

20

19.

There was, of course, no dispute between the parties over the fact that her HRM call

service work gave the Grievor the required customer service experience, and also the requisite

experience with database software. The upshot from the Grievor’s perspective was that the COI

was a perfect fit with her qualifications and experience. Moreover, the Grievor was taken

through the details of the applications from nine candidates for the COI position who were

screened-in, when she was not, and she observed with some justification that her qualifications

and experience were often equal or superior to those candidates. In cross-examination, the

Grievor was asked whether, after consultation with Employer representatives as to why she had

not been screened-in on previous competitions for COI, she had made efforts to take law

enforcement courses or improve her formal qualifications, and her reply was interesting. The

Grievor asserted that she felt she was well qualified, and that she had simply refined her resumé

and cover letter so as to ensure that her application demonstrated how and why she was a

qualified candidate. Taking further courses was, in the Grievor’s view, unnecessary. The Grievor

admitted in cross-examination, of course, that she was not sworn-in as a special constable, nor

was she a peace officer, as were some screened-in applicants.

20.

Mr. Berkman testified that, in his previous role as Supervisor of Parking Enforcement for

HRM, he had posted the COI competition documentation for the posting applied to by the

Grievor in the fall of 2020. He said that he had done preparation on the questions for testing of

screened-in applicants, and then screened the resumés of applicants which were sent to him by

staff in the Human Relations group (“H.R.”) which had initially received the applications. Mr.

Berkman estimated there might have been between 150 and 200 applications for the single

position. The people at H.R. do a cursory examination of the applications and provide some

21

“suggestions of what to look for,” but the main screening was done by Mr. Berkman. He said

that, in accordance with the Collective Agreement, internal candidates would be reviewed first.

Each file would be checked to see if they were responsive to the criteria in the posting and

obvious “no” cases would be eliminated. Mr. Berkman said he then did a detailed examination of

the files to determine who should be “screened-in” or “screened-out.” Those screened-in would

be invited by H.R. to do a written test, and those “screened-out” would be informed of this fact

by H.R. Those who passed the written test would then be given a personal interview. If there was

no successful internal applicant resulting from the foregoing process, the approach would be

replicated for external candidates. Mr. Berkman said he was looking for someone with

experience in “field enforcement,” and that former police officers, correctional officers, or

security guards usually met this profile. Hence his focus on a diploma from an “accredited law

enforcement program” where training would involve students going through “scenarios” on such

topics as drafting tickets, arresting people, dealing with “de-escalation” of irate people, doing

investigations, and the like. In addition to this, of course, Mr. Berkman said that a year’s

experience (that is one year) in an actual enforcement role, doing these tasks “for real” was very

important. However, he did recognize, much as did Ms. Scolaro in 2018 and Ms. Webb in 2020,

that there could be equivalencies for these educational and experiential requirements: (a) a

degree in social sciences (that is, psychology, criminology, or sociology) with two (2) years in a

“direct enforcement role”; or (b) Six (6) years in a direct enforcement role (that is, “issuing

tickets or laying charges”).

21.

Mr. Berkman testified that he saw Ms. Staples’ application in the initial internal

screening process—she had been cursorily screened-in by H.R. and he then went through the

22

detailed screening process on her file. Mr. Berkman said he easily concluded the Grievor had the

customer service and database software requirements. However, his conclusion was that the

Grievor’s paralegal course was about law office administration and was not training in law

enforcement. However, he admitted that he did consider paralegal training in tandem with the

social science courses in her BSc from Mount St. Vincent University were an academic

“educational equivalency” (the Employer ultimately argued that Mr. Berkman was wrong in this

judgment). However, Mr. Berkman screened the Griever out because, even with the social

science educational equivalency, she did not have the requisite two (2) years of experience in a

“direct enforcement role.” He stated that while the Grievor’s resumé had “enforcement

language” in it, the references were essentially to her role in the residential tenancies field and

not in criminal law enforcement or quasi-criminal by-law enforcement. Mr. Berkman saw the

Grievor’s residential tenancies work as private rights enforcement via an administrative tribunal,

and not the exercise of public authority in a quasi-criminal enforcement role. Mr. Berkman then,

in direct examination, went through the nine or so files of candidates who were screened-in, with

the purpose of demonstrating why their files met the posting’s criteria while the Grievor’s did

not. His conclusion was that experience in direct enforcement was the factor which was

determinative for borderline cases, and that the other files were from candidates with peace

officer or special constable status with law enforcement experience, thus putting them above the

Grievor in terms of screening qualifications.

22.

Mr. Berkman was given the task of responding to the COI competition Grievance at Step

1 under the Collective Agreement. On January 13, 2021, Mr. Berkman wrote to counsel for the

Union, Ms. Elliott, in the following terms:

23

I am writing in response to the Step 1 grievance submitted on January 6, 2021. I

have reviewed the submission at Step 1 of the grievance process and respectfully

disagree with the Union’s position that there has been a violation of the Collective

Agreement.

It is the Employer’s position the established qualifications as listed in the job

posting for the Compliance Officer I position are fair and represent the education

and experience required for the position. In a review of the information provided

in the grievor’s application and resume, the education requirement has not been

met, although Ms. Staples paralegal diploma would be considered as related

education when determining an equivalency. However, the work experience on

the resume does not meet the requirement for enforcement experience. To be

considered for the position applicants must have experience in enforcing a piece

of legislation, and direct authority to impose a penalty under that legislation such

as issuing tickets or laying charges. As the grievor’s application does not outline

the minimum qualifications required for the position, their application was

screened out.

For the above reasons, this grievance is respectfully denied at Step 1.

Counsel for the Union pursued some of these issues in her cross-examination of Mr. Berkman.

23.

In cross-examination, Mr. Berkman acknowledged that if a citizen contested a parking

ticket, then the matter would go to court where a judge would adjudicate the matter. In other

words, “direct enforcement” by a COI could be challenged in a manner similar to that whereby a

subpoena to appear before the Residential Tenancies Board could be issued to those contesting

an eviction notice or a failure to refund a damage deposit, etc. Also in cross-examination, Mr.

Berkman agreed that he had o formal training in the conduct of job posting competitions and that

he relied on advice from H.R. Perhaps most importantly, Mr. Berkman, in going through the

comparator files of those candidates who were successfully screened-in, had to admit that he was

often unsure of whether the candidates in question came from reputable law enforcement training

institutions, and just what the length of the courses might be—2 weeks versus 2 years? It was

clear that in this regard, Mr. Berkman was relying on actual law enforcement experience of the

24

“officer on the street” type to compensate for potential educational inadequacies. However, in

cross-examination, Mr. Berkman insisted that, on the educational requirement, he had given the

Grievor the benefit of the doubt concerning equivalencies (despite the misgivings of his H.R.

colleagues), and that he had screened-out the Grievor on the basis that her regulatory experiences

with residential tenancies were not direct enforcement in a public enforcement role (such as even

a security guard with special constable status giving out parking tickets at a shopping centre

would have) and that enforcement of private rights of residential landlords was not the same as

direct experience in public law enforcement.

24.

The evidence in relation to the two COII applications largely came from Ms. Phillips,

who was mentioned above. This is because the COI compliance officers who do parking and

related by-law enforcement are in HRM’s Department of Transportation and Public Works

(T.P.W.), while the COII’s who do more varied, and arguably more complex, by-law

enforcement work are in the Department of Planning and Development. Ms. Phillips is in the

latter department while Mr. Berkman is in the former. However, Ms. Phillips, who joined HRM

in 1997, and in 2009 took up her present position as Program Manager of By-Law Standards, has

a more global view of by-law enforcement issues. Ms. Phillips directed the process in 2017

whereby the old generic Compliance Officer position was bifurcated into the COI and COII

positions, as the result of terminating the contracting out of parking enforcement. Ms. Phillips’

testimony was that when the two positions were created, they were understood to be within the

scope of the NSUPE clerical or “inside worker” bargaining unit, even though their positions

would often have them working “outside.” She stated that the COI position was meant to be an

entry level position in the by-law enforcement area, and that the COII position had more

25

sophisticated duties requiring greater education and experience. Ms. Phillips stated that when

they initially looked at the bifurcation option, the HRM managers used their professional

contacts with other municipalities to look at different approaches and found position descriptions

and competition postings from other cities, like Barrie, Ontario, and Fredericton, New

Brunswick, to be particularly apposite. These were put in evidence. Ms. Phillips was involved in

drafting the documentation for both HRM positions, COI and COII in 2017 and with the

“tweaking” of the job requirements and posting documents for 2018 and thereafter. Ms. Phillips

reinforced Mr. Berkman’s testimony that both positions were focused on direct enforcement

“outdoors” or “in the field,” and not merely doing regulatory policy work or administering others

from “an office.” Ms. Phillips remarked that the people in H.R. and the operational managers on

competition evaluation committees were disappointed with the original 2017 qualifications

requirements and attendant job description which were netting applicants who were office

workers without direct enforcement experience, and that this improved with the June 2018

changes to the COI job specifications which attracted more “law enforcement” candidates. Ms.

Phillips said that in all of this, management was learning from experience in setting and applying

qualifications as they went through the process of conducting successive competitions.

25.

The process of refinement to the COI qualifications described above, of course, was

followed in parallel by the tightening up of the COII qualifications in 2021 as compared to the

COII qualifications originally drafted in 2018. In other words, qualifications for the COII

position for which the Grievor had applied in 2020 (Appendix B) were not the same as those for

which she applied in 2021 (Appendix C). Before getting into he details of the Grievor’s

applications for these two positions and their evaluation by the Employer, some general

26

observations are in order. Firstly, the Grievor’s approach to these COII competitions was

identical to her approach to the COI competitions: she used essentially the same supporting

documents; that is, her resumé was identical (career objective, highlights of qualifications, skills

and training, employment profile, volunteer profile and educational profile) with the exception of

the addition of her temporary contract administrator position to her employment profile for the

2021 COII position, and she simply provided a differing cover letter for each of the three

applications. Ms. Phillips did the file review for each of the COII applications, as Mr. Berkman

had done for the COI position, with essentially the same steps in the process. In going through

the evidence for the COII applications, I shall try to present the views of the Grievor/Union and

those of Ms. Phillips in relation to the individual qualifications, related first to the 2020 COII

application and then for the same category of qualification in the 2021 COII application, in order

to show how each party assesses the changes in the qualifications and their operation as between

the two competitions.

26.

The Grievor’s cover letters provide a description of aspects of her work experience and

educational attainments in a discursive style with little explicit analytic demonstration of how

this information matches with the specific job requirements. However, the Grievor in her cover

letter does refer the reviewers to her resumé which lays out information in blocks which can be

more easily related to the job posting categories of qualifications/requirements. In her testimony,

the Grievor relied on much of the information she advanced in relation to the COII application at

least in relation to the first application. As to the educational requirements for the earlier COII

version, the posting spoke of “undergraduate in business administration, social sciences or a

related field.” On this score the only documentary information from the Grievor was that

27

described above as social science courses taken as part of her course of studies for her BSc in

“Applied Human Nutrition and Dietetics.” In her cover letter for the first COII application, the

Grievor stated: “My studies heavily centred around psychology, Medical Nutrition Therapy,

client centred care as well as the regulatory aspects of the Agri-Food sector such as the Food and

Drug Act and Regulations. This education provided me the skills to effectively deal with

stressful situations with tact and diplomacy.” By October of 2021, however, the formal

educational requirement in the second COII posting was for: “Undergraduate degree in public

administration, criminology or political science or a Postsecondary education in a related field

such as Law and Justice studies may also be considered.” This requirement moves the job

posting further from the equivalencies which might be inferred from the BSc degree in the COII

requirements from 2020. The Grievor made no claim to equivalencies with public administration,

criminology or political science, and her “Office Administration and Paralegal Studies” year-

long course is as close as she got to “a postsecondary education in law and justice studies.” Ms.

Phillips’ testimony referred the Employer’s view that a BSc in “Dietetics” is not an arts degree

and, a fortiori, was not a social science degree, and therefore not meeting the requirement on the

original COII application. Moreover, neither the social science course in the BSc nor the Office

Administration and Paralegal course could be the equivalent of a “law enforcement program” in

Ms. Phillips’ view. As to an evaluation of the educational requirements and equivalencies for the

2021 COII application, Ms. Phillips deferred to the written responses found in the Joint Exhibit

Book, where Ms. Paula Lacrouts, an H.R. Generalist at HRM, who responded to the Grievor’s

enquiries in October and November 2021 about why she had once again not been screened-in for

the new COII position, by simply laying out the new educational requirements and asserting that

the Grievor had not met them.

28

27.

As to a comparison of the 2020 COII and 2021 COII work experience requirements, there

is a significant difference in the two postings as they relate to the Grievor’s work experience.

The 2020 COII speaks rather generally of “3 years working in an ‘enforcement or regulatory

environment.’” As in the COI discussion above, the Grievor once again speaks of her work in

“enforcing” the Residential Tenancies Act as 10 years working in a “regulatory environment.” As

I state below in my Analysis and Conclusions, this is a plausible claim, and one acknowledged

by Ms. Phillips in cross-examination. However, for the 2021 COII competition the requirement

is “Three years’ experience working in enforcement of municipal and/or provincial by-laws or

regulations,” to which the Grievor had no real reply other than to enquire why the requirements

had changed, and to re-assert her private residential tenancies as an “equivalent” where the latter

seems further and further from the core of what the Employer was seeking.

28.

The final difference of significance between the 2020 COII requirements and the 2021

requirements relates to “customer service.” General customer service of a minimum of two (2)

years was the threshold for 2020 COII posting, not unlike the COI posting. In relation to such a

requirement, no one doubted that the Grievor’s “311 Call Centre” experience fit the bill.

However, for the 2021 COII posting, the requirement had become: “Minimum two (2) years

face-to-face customer service that involves de-escalation of customer complaints” (emphasis

added). The Grievor was forced to admit that her “311 Call Centre” work was “on the phone”

and not “face to face”; however, she did assert she had to “de-escalate” irate customers, and then

switched gears slightly, by slipping into her residential tenancies work as involving face-to-face

confrontations with irate tenants. This, of course, would take her into the realm of asserting an

equivalency in this context. Ms. Phillips was firm in her opposition to this notion, and asserted

29

that the employer was looking for experience with “face-to-face” customer service in the sense

of “direct enforcement” of by-laws, but did reluctantly admit that the Grievor may have engaged

in such interactions in her residential tenancies work.

29.

One of the underlying differences between the Grievor/Union assessment of the overall

situation in relation to all of the three positions for which the Grievor was not screened-in relates

to the notion of equivalencies. Sometimes the postings or advise given to unsuccessful

candidates would mention explicit equivalencies for one requirement or another, while at other

times the posting would simply say “An equivalent combination of education and experience

may also be considered.” The Union and its members, aided by Article 6.03 of the Collective

Agreement, have sought and are seeking to have the Employer through its managers, make

explicit statements or policy choices about equivalencies to structure or even confine its

discretion in the exercise of management rights. On the other hand, Ms. Phillips was direct in her

assertions that in most contexts the Employer need not articulate specific “equivalency criteria,”

so as to leave discretionary authority with the operational managers reviewing the candidate

applications in any individual competition to evaluate equivalencies in the unique circumstances

in each case.

C.

The Arguments of the Parties

30.

Since the Union accepts that it bears the burden of proof in this case, its arguments will

be presented first. This will be followed by a statement of the Employer’s arguments and an

outline of the Union’s rebuttal submissions.

30

(1)

The Union Arguments in Chief

31.

The Union submits that there are three key issues to be addressed as rooted in the facts,

the Collective Agreement and the arbitral jurisprudence. First, there is the matter of the

appropriate standards for an arbitrator to apply in these circumstances—that is, when reviewing

and assessing the Employer’s actions in dealing with the interpretation and application of the

relevant Collective Agreement provisions governing job competitions. The second issue is

whether the qualifications which the Employer established for the Compliance Officer I and

Compliance Officer II in the relevant instances here at issue were “fair and reasonable.” The

final set of issues is whether the Employer’s approach to assessing the Grievor’s qualifications

for the COI and COII competitions at issue was “fair and reasonable.” In addition, of course,

there is also the question of what remedial actions should be ordered were I to find in the

Union’s favour in relation to some or all of the Union’s arguments in this case.

(a)

The Standard of Arbitral Review

32.

The Union, wishing to counter the Employer’s opening submissions on the standard of

arbitral review, argues that the standard required under this Collective Agreement is not one of

“reasonableness simpliciter” with a heavy dose of arbitral deference to the exercise of

management rights. The Union asserts that in the case of an arbitrator reviewing the Employer’s

exercise of its functions and management rights in assessing job qualifications under Article 2.01

of the Collective Agreement, an arbitrator must be assured of the “correctness” of the

Employer’s actions and not just its “reasonableness.” In making this assertion, the Union relies in

part on a discussion of this issue in Donald J.M. Brown, David M. Beatty and Adam J. Beatty,

31

Canadian Labour Arbitration, 5^thEdition, § 6.18, Westlaw Canada (Thomson Reuters),

looseleaf, where the learned authors contrast the traditional standard of arbitral review in job

posting cases from Reynolds Aluminum Co. Canada Ltd. (1974), 5 L.A.C. (2d) 251 (Schiff) with

that of the Ontario Divisional Court in Great Atlantic and Pacific Co. of Canada Ltd. (1976), 11

L.A.C. (2d) 291 (Brandt) quashed by Ontario Div. Ct., 76 C.L.L.C. § 14, 056, leave to appeal to

C.A. refused 13 L.A.C. (2d) 211n:

In applying a standard of reasonableness, arbitrators have generally perceived

their review to comprise two parts. Initially, the arbitrator must make some

determination as to the requirements of the job and, against those requirements,

assess the reasonableness of the standards or criteria utilized by the employer in

making its judgment as to the relative abilities of the competing applicants.

Having made that determination, the arbitrator must then assess the manner in

which the employer applied those standards to each of the applicants.

In the earlier awards, on each aspect of the employer’s decision, the nature and

scope of the arbitrator’s review was generally thought to be the same. Thus, with

respect to the specific qualifications that an employer may require for a particular

job, arbitrators were generally (and still are) agreed that:

In the ordinary exercise of management functions employers may

determine in the first instance what specific qualifications are

necessary for a particular job and what relative weight should be given

to each of the chosen qualifications. After the employer has made the

determination, arbitrators should honour the managerial decisions

except in one or both of two circumstances: First, the employer in bad

faith manipulated the purported job qualifications in order to subvert

the just claims of employees for job advancement under the terms of

the collective agreement.

…

Secondly, whether or not the employer had acted in good faith, the chosen

qualifications bear no reasonable relation to the work to be done.

Similarly, with respect to the application of whatever standards could reasonably

be expected of the competing applicants, arbitrators traditionally rejected the

notion that the arbitral function is in the nature of an appeal or fresh determination

on the merits. Rather, they usually deferred to management’s application of the

relevant criteria for a particular job where it was established they had applied

those standards fairly, honestly and without malice or ill will toward any of the

candidates.

32

However, following a decision of the Ontario Divisional Court, some arbitrators

began to question this approach. In their view, this limited standard of review

should not prevail, on the second component of the employer’s decision, if the

parties have not, either in the seniority provisions or in the management’s rights

clause of the agreement, specifically provided that the determination of an

employee’s abilities or qualifications is to be based on “the opinion or judgment”

of the employer. Although in many agreements such a phrase is included to

preserve management’s discretion, in agreements where it is not, these arbitrators

insisted that the scope of arbitral review with respect to the employer’s

application of the relevant standards against which an employee’s ability is

measured ought to be more exacting. Their rule, which has not been embraced by

all arbitrators, is that an arbitrator may fully review an employer’s decision on its

merits to determine whether, on its own standards and procedures, the employer

made the correct decision as to the ability and qualifications of the competing

applicants. [emphasis added]

The Ontario Divisional Court’s reasoning was simple and straightforward:

The board as a creature of the collective agreement must then see to it that

the provisions of the collective agreement have been complied with; its role

cannot be more or less than this. The honesty and lack of malafides in

making the decision are factors to be taken into account. So, too, is the

question of whether or not the employer has acted unreasonably. Indeed, in

determining the “reasonableness” of the employer’s decision, the board

may go a long way to determine the issue submitted to it. However, once

the collective agreement makes provisions as to the method of selection of

employees for promotions, then the board must see to it that those

provisions have been complied with and in so doing, it cannot restrict itself

to determining whether the employer acted honestly and reasonably. If the

board is not to make such a decision, then the parties in the collective

agreement should ensure that management’s right in this regard is

unfettered.

The Union pointed to a number of Nova Scotia decisions which discuss the above controversy

and related matters, including some which involve NSUPE Local 13 and HRM and the

Collective Agreement provision at issue here: Article 6.01(c).

33.

As to “related matters,” the Union began by citing the decision of Arbitrator Milton

Veniot in Halifax (Regional Municipality) v. NSUPE Local 2 [in fact 13], 171 L.A.C. (4^th) 257

where the Arbitrator interpreted Article 2.01(c) of the Collective Agreement between the parties

33

(same wording as today) in a purposive and expansive manner such that “functions of the

Employer” to be exercised fairly and reasonable included unilateral exercises of retained

management rights—in that case promulgating a privacy policy. The Union, of course, asserts,

with some confidence and not challenged by the Employer in the instant case, that this must

include setting qualifications for position postings and their application in individual cases.

While this Veniot case was successfully overturned on judicial review, the Union’s unchallenged

assertion was that Arbitrator Veniot’s interpretation of Article 2.01 was endorsed—see HRM. v.

NSUPE, Local 13, 2009 NSSC 283 (per R.W. Wright, J.) para. 58. To the same effect see:

NSUPE, Local 13 v. HRM re Clarke, unreported, September 3, 2019 per Augustus Richardson,

Arbitrator concerning the need for the Employer to conduct disciplinary investigations in a “fair

and reasonable manner.”

34.

The crux of the Union’s approach to the Employer’s obligation to exercise its functions

under Article 2.01(c) in a fair and reasonable manner is centred upon a slightly different passage

of the Brown and Beatty excerpt from Topic 6:3100 which dealt with skill and ability clause

interpretation cited by Arbitrator William H. Kydd in HRM v. NSUPE, Local 13, re L. Bugbee,

unreported, August 9, 2017, at p. 23. That passage read, in part, as follows:

From the earliest awards it has been said that the primary function of an

arbitrator’s review is to ensure that:

…the judgment of the company must be honest and unbiased, and not

actuated by any malice or ill will directed at that particular employee, and

second, the managerial decision must be reasonable, one which a

reasonable employer could have reached in light of the facts available. The

underlying purpose of this interpretation is to prevent the arbitration board

taking over the function of management, a position which it is said they

are manifestly incapable of filling.

In most cases, arbitrators have not restricted their inquiries to analysis of the bona

34

fides of the employer’s motives. In addition, as the extract confirms, arbitrators

have always examined the merits of such decisions at the time they were made

against a standard of reasonableness. As summarized by one arbitrator, an

employer’s decision will be tested for its honesty, completeness and its

correctness under a test of reason. For others, a test of reasonableness centres on

an assessment of whether management has deviated from the path of rationality or

relevancy. Another formulation asks whether the decision was based on evidence

that is so minimal that no employer acting reasonably, could have arrived at that

decision.

But the Union emphasized one sentence in this excerpt—the one which reads:

“As summarized by one arbitrator, an employer’s decision will be tested for its

honesty, completeness and its correctness under a test of reason.” [emphasis

added]

The arbitrator in question was in fact, Stan Schiff, the respected author of the Reynolds

Aluminum case cited in the earlier Brown and Beatty excerpt, supra. I gather that this passage is,

however, the source of the Union’s claim that the “fair and reasonable” test from Article 2.01(c)

has become a standard of “correctness.” Not surprisingly, the Employer points to the last

sentence of the quoted passage: “Another formulation asks whether the decision was based on

evidence that was so minimal that no employer acting reasonable, could have arrived at that

decision.” Not surprisingly, as I will point out in my Analysis and Conclusions, my position lies

in the middle ground between “correctness” and “reasonableness simpliciter.” Perhaps more

importantly, the Kydd decision relied on by the Union involved a job posting fact situation where

the Arbitrator found that both procedurally and substantively the Employer had failed to

“reasonably” evaluate equivalencies—an important parallel to this case. On that ground, the case

bears careful scrutiny as “persuasive authority.” The Union’s incontrovertible conclusion, was

that in all the facts and circumstances it must prove, and can prove, on a balance of probabilities

that the employer failed to act “fairly and reasonably” under Article 2.01(c) in both the setting

35

and the applying the qualifications in relation to the compliance officer postings for which the

Grievor was not screened-in.

(b)

Were the Qualifications for COI and COII Fair and Reasonable?

35.

The Union commenced its argument with observations on the general principles found in

the arbitral jurisprudence dealing with the nature of qualification requirements relating to job

postings. Arbitrator Gus Richardson nicely lays out the broad approach to these problems, as

adopted by most arbitrators, in his decision in CUPE Local 108 v. Halifax Regional Municipality

re Bundy, (2011), 212 L.A.C. (4^th) 1; 2011 CarswellNS 719 where he states:

67

An employer is entitled to establish the qualifications it believes necessary

to perform the job in question, so long as those qualifications are et in good faith

and bear a reasonable relationship to the work entailed: see, for e.g., Parkwood

Hospital v. London & District Service Workers’ Union, Local 220, [1992]

O.L.A.A. No. 914 (Ont. Arb.) (Rose) at para. 25; Delta School District No. 37 v.

C.U.P.E. Local 1091 (1994), 46 L.A.C. (4th) 216 (B.C. Arb.) (Laing) at p. 229.

68

The employer is not obligated to accept or continue old qualification

standards, and is entitled to set new, and higher, qualifications: Tribune (The) v.

C.W.A., Local 226 (Holm Grievance) [1989] B.C.C.A.A.A. No. 588 (B.C. Arb.)

(Chertkow) at para. 51. However, where the qualifications bear no reasonable

relationship to the requirements of the position they may be disregarded by an

arbitrator who is called upon to assess the employer’s decision in a posting

grievance: Delta School District No. 37 v. C.U.PE., Local 1091 (1994), 46 L.A.C.

(4th) 216 (B.C. Arb.) (Laing) at p. 229; C.U.P.E., Local 2330 v. Glen Haven

Manor Corp. (2006), 146 L.A.C. (4th) 415 (N.S. Arb.) (North) at p. 443.

Moreover, if the employee does have the required qualification it does not matter

than [sic] he or she obtained those qualifications or experience before they began

to work for the employer: Palmer & Palmer, Collective Agreement Arbitration in

Canada at para. 12.80.

69

An applicant for a position is obligated to present all of the information he

or she believes relevant to their application. The employer is not obligated to root

around in its personnel files to determine whether the applicant has additional

related experience or qualifications that might be relevant to the employee’s

application: University College of Cape Breton v. C.U.P.E., Local 3131 (Gray

Grievance) [2000] N.S.L.A.A. No. 3 (N.S. Arb.) (Veniot) at para. 177; Tribune

36

(The) v. C.W.A., Local 225 (Holm Grievance) [1989] B.C.C.A.A.A. No. 588

(B.C. Arb.) (Chertkow) at para. 17.

70

By the same token, however, an employer is obligated to employ the same

evaluation process to all applicants in a fair and equal manner: see, for e.g.,

Oshawa Transit Commission v. CAW-Canada, Local 222 (2002), 110 L.A.C.

(4th) 345 (Ont. Arb.) (Brown). Similarly, if applicants are under the collective

agreement to be measured by the threshold test the employer cannot rely upon the

result that was obtained when a selection committee mistakenly applies a “best

qualified” test instead: see, for e.g., Cumberland District School Board and

CUPE, Local 1523 (1986) 1 CLAS 54 (Outhouse) at para. 14.

71

Finally, in grievances involving “threshold” or “minimum qualification”

postings the onus is on the grievor to establish that he or she met that threshold.

Once that threshold is met, the onus shifts to the employer to justify its choice:

Mitchnick and Etherington, Labour Arbitration in Canada (Toronto, 2006) at p.

328.

The Union particularly points to paragraphs 67 and 68 which it asserts create a principle that

“there must be a reasonable relationship between the qualifications and the work entailed,”

although there may be a tension between the “positive” manner in which the proposition is

articulated in paragraph 67 as opposed to the “negative” formulation in paragraph 68. Note as

well that the case on its facts involved a “threshold” or “minimum qualifications” or “sufficient

ability” provision in the relevant collective agreement, as opposed to a “relative ability” clause,

while Article 6.01 and 6.02 in the NSUPE/HRM Collective Agreement provides for a hybrid

article of greater sophistication and complexity.

36.

The Union next cites the decision of Arbitrator Heather Laing in Delta School District

No. 37 v. CUPE, Local 1091 (1994), 46 L.A.C. (4^th) 215 (B.C.), a job posting grievance, where,

by odd coincidence, the relevant paragraphs from the Union perspective are also numbered 67

and 68. These read:

37

67

The standard, or minimum qualifications as they are sometimes called,

must be reasonable in the sense that they must bear a reasonable relationship to

the basic requirements of the particular job. An employer cannot artificially puff

up the minimum qualification of the job to the extent that employees who, by any

objective standard, have the knowledge, ability and skills to perform the job,

given the trial period agreed to by the parties, are either discouraged from

applying in the first instance or, even if they apply, are told they do not meet the

qualifications and consequently are “not capable”.

68

While the employer may legitimately and properly establish minimum

qualifications to avoid having to train persons who are not capable of doing the

job, it may not disenfranchise employees by stretching the requirements

unreasonably or raising the standard floor to a degree that is no longer in

reasonable relationship to the job.

In that case, Arbitrator Laing found there were “inflated” qualifications leading to a flawed

posting process, so she ordered the employer to re-draft the qualifications and re-run the job

competition. The Union in the instant case, initially seeks a declaration that the qualifications for

the “COI” and “COII” are unreasonable, see below, and desires a remedy tailored to Ms. Staples’

circumstances.

37.

Finally, the Union advanced the decision of Arbitrator John Kinzie in Fortis BC Energy

Inc. v. CUPE, Local 373 re Campbell (B.C.), 2021 CarswellBC 1792 as being relevant to

questions related to the adequacy of position descriptions and the matter of “equivalent

qualifications.” The case involved a re-organization of the employer’s “Damage Claims”

department and a new position called the “Operations System Damage Representative” or

“OSDR.” The Union points in particular to paragraphs 79 and 80 of the Kinzie award as

providing a helpful conceptual approach:

79

Much of the Union’s case on the vagueness of the education requirement

for this position is based on Ms. Peden’s description of what she wanted. In my

view, that focus is misplaced. Instead, I am of the view that the focus should be

on the duties and responsibilities of the OSDR position to discover the nature of

38

the legal knowledge and understanding which the performance of those duties and

responsibilities required. This interpretive exercise requires an objective analysis

of the job and not an assessment of someone’s subjective assessment of its

requirements. The test is whether the education qualification is “reasonably

related” to the duties and responsibilities of the job.

80

I agree that at first blush an education “in a legal field” is an ambiguous

phrase that gives rise to a bona fide doubt as to the type and scope of legal

education the Employer wanted. However, in my view, when that phrase is

considered in the context of the duties and responsibilities of the OSDR position,

it becomes a lot clearer as to what the Employer intended, or put another way,

how that phrase should be interpreted. An OSDR incumbent is expected to pursue

damage claims against persons who cause damage to the Employer’s property.

That pursuit will include the potential for negotiating a settlement of the claim in

discussions with the damager or his lawyer and, if that does not occur, the

potential for having to pursue the claim before the Civil Resolution Tribunal. An

OSDR incumbent does not have to be a member of the B.C. Law Society to

perform those duties. But, she will still have to have an understanding of the legal

ramifications of settlement discussions with the other party or his lawyer and of

the various legal processes for pursuing claims for damages under the Civil

Resolution Tribunal Act. Thus, in my view, a post-secondary education that

provided an individual with a general understanding of the concepts of negligence

and litigation processes as well as more particular instruction on the conduct of

proceedings before courts or tribunals should give her the legal knowledge and

understanding to undertake the duties and responsibilities of the OSDR position.

These passages are useful in trying to make broadly described qualifications workable in the

context of job duties. Presentation of Arbitrator Kinzie’s observations on equivalencies will be

deferred to the discussion of the application of such criteria to the Grievor’s circumstances,

below at para. 43.

38.

The Union asserts that the upshot of the foregoing jurisprudence is that job qualifications

germane to a particular position should be reasonably clear and unambiguous. In other words,

descriptions of qualifications in a job posting should be ones which attract a consistent

interpretation for both managers reviewing the applications and employees who wish to put

together an application. At the very least, qualifications should not be interpreted differently by

39

different managers.

39.

The Union also, quite prudently, observes that the foregoing general arbitral principles

must have application within the specific provisions of the Collective Agreement which govern

the process of job competitions, which in this case are those of “Article 6 – Postings and Job

Appointments” set out above in para. 5. The Union notes that Article 6.01(c) sets out in

considerable detail the need for explicit job qualifications, possible combinations of education

and experience for “minimum requirements,” processes for assessing the merits, and notice as to

the nature of “tests” and their weighting. Article 6.01(e) states that, while postings may be

advertised internally and externally at the same time, bargaining unit members must be

considered first, and externals only after it is clear there is no successful internal applicant.

Article 6.03, of course, entitles unsuccessful applicants to detailed reasons for their failure with a

view to improving their performance in the future, which, in the Union’s view, can only be

rationally premised on clarity in the qualifications to which applicants must measure up. Finally,

the Union argues that Article 6.04, which establishes a trial period during which employer and

employee can assess their “fitness” for the position (with a right/obligation to return to their

previous position if “unfit”) all depends upon clarity of the qualifications or criteria for making

such judgments. The Union then proceeds to an assessment of the adequacy of the COI and COII

qualifications (as set out in the Factual background, supra) in the light of the principles from the

arbitral jurisprudence and the needs of Article 6 of the Collective Agreement.

40

The Union submits that the Employer’s qualifications for the three postings here grieved,

40.

the one COI position and the two COII positions, are not fair or reasonable on two broad

grounds: (i) the Union asserts these qualifications were not clear and unambiguous, as

demonstrated by the Union’s belief that there was unfair and unequal consideration of applicants

to the detriment of the Grievor; and (ii) the manner in which the qualifications are stated can lead

to the exclusion of applicants from the process who are clearly able to do the work of either

Compliance Officer position, viz. the Grievor. The Union started its submissions on this point by

looking at the COI posting in Appendix A and then moved to the two COII positions found in

Appendices B and C, respectively.

41.

On the Compliance Officer I posting, the Union says that the meaning of a “law

enforcement program” is far too vague. Does it mean a year, or can it be a day? Is it to be in

person or can it be done online? Is it to be oriented to peace officers, correctional officers or

paralegals? In accordance with the Kinzie analysis in Fortis BC, supra, the Union says we know

it is about enforcing parking and a certain few other HRM by-laws… The Union asserts that Mr.

Berkman’s desire for, and belief that, such law enforcement programs have “scenario-based

training” is nowhere found in the qualifications. Similarly, the Union argues that a “one year

enforcement role” is vague and unclear—and that Mr. Berkman’s descriptor “in the field” does

not provide much greater certainty. The Union argues that Mr. Berkman’s acknowledgement in

re-examination that a “weekend course in law enforcement” might have allowed him to “tick the

box” for the Grievor and “screen her in” seems odd, when compared to his blanket refusal to

accept ten years of residential tenancies enforcement… Similarly, the notion that a candidate’s

status as a special constable might allow for “ticking the experience box,” strikes the Union as

41

inadequate, since it could be done where a candidate had no actual experience, which should be

the criteria for “experience” as opposed to “education” or status. Moreover, the Union argues

that the equivalencies set by the Employer (a degree in Social Sciences [ie, psychology,

criminology, sociology] plus 2 years in an enforcement role) are appropriately open-ended,

especially if the COI position is seen as an entry level position with anticipated process to the

COII role as a career option; however, the Union is concerned that the “social science”

designation has been restrictively, narrowly and inappropriately interpreted in ways which are

inconsistent with positive career path approach within the bargaining unit as encouraged by the

internal/external applicant distinction in the Collective Agreement. Thus, the Union’s conclusion

is that the COI qualifications descriptor s are imprecise and lack clarity. They don’t fairly or

reasonably perform the function of allowing managers to make consistent promotional or hiring

decisions, and they inhibit the ability of bargaining unit members to properly take advantage of

their rights under Article 6 of the Collective Agreement.

42.

As to the question of whether the qualifications for the Compliance Officer II

competitions are/were fair and reasonable, the Union began with the suggestion that the changes

made in the COII qualifications from the first (2020) competition to the second (2021)

competition are evidence that the former qualifications were inadequate. The Union took issue

with Ms. Phillips’ characterization of the older version as being too “broad,” such that were not

getting the people they wanted, as insufficient. The Union’s view is that broad qualifications for

the COII position, with its variety of by-laws to be enforced, is a good thing, but that this breadth

should be described with more precision. The Union approved of the old concept of “social

science or related field,” but seems to think that more examples would have been helpful. The

42

Union suggested that the removal of “business administration” in the new 2021 COII version

makes no sense, but the addition of “public administration” probably does. “Political Science”

strikes the Union as far too imprecise a discipline to be helpful in choosing candidates for by-law

enforcement, and that the apparent narrowing of equivalencies to a Postsecondary education in a

related field such as “Law and Justice Studies” is simultaneously too narrowing and too

imprecise. The Union agrees that, with the exception of the educational qualifications, the new

2021 qualifications on customer service and experience are much clearer. But believes that the

elimination of previous educational programs which were previously acceptable “makes no

sense” and cannot be defended. The bottom line for the Union is that both iterations of the COII

qualifications were not fair or reasonable when considered on the context of the job

requirements, insofar as they both lack clarity and unnecessarily can exclude candidates such as

the Grievor, depending on how they are applied. That, of course, is the next subject of the

Union’s argument.

(c)

Was the Employer’s Assessment of the Grievor against the Qualifications Fair and

Reasonable?

43.

The Union says the Grievor met the qualifications, that is for education, experience,

customer service and data software expertise, for all three of the Compliance Officer positions—

COI and COII (x2). In the alternative, the Union argues that the Grievor has equivalent education

and experience which should allow her to be deemed to meet the qualifications. On this latter

score, as mentioned above, the Union says that the remarks and equivalencies by Arbitrator

Kinzie in Forti BC, supra, at para. 104 are apposite:

43

104

Once an employer has established education and/or work experience

qualifications that are reasonably related to the performance of a job, an applicant

for that job who does not have one or either of the formal qualifications being

sought by the employer may still claim that she has equivalent qualifications that

would enable her to perform that job. With respect to education qualifications, see

Sunbeam Home (1983), 13 L.A.C. (3d) 183 (Rayner) where the majority of the

board expressed the view that:

“These authorities support a conclusion that a board of arbitration may

examine equivalency in terms of formal educational requirements. This

conclusion is also supported by common sense. Formal requirements

relate to the job. To conclude that a person who lacks the precise stated

qualifications, when that person can clearly establish true equivalent

qualifications would not only turn a blind eye to the realities of the

situation but would also defeat legitimate expectations of employees

without advancing any legitimate interest of the employer.

However, in determining equivalency the board should proceed with

caution and act only on clear evidence. This is especially true when the

formal qualifications required not only reasonably relate to the job but also

are conceded to be appropriate to the job, have been considered by a third

party (in this case the Ministry of Community and Social Services) and are

established in relation to a job of heavy responsibility.

The board concludes that it can determine equivalency subject to the

foregoing caveat.”

Moreover, Arbitrator Kinzie cites with approval the following passage from Arbitrator Burkett in

Toronto Public Library (1989), 5 L.A.C. (4th) 192 (at para. 200) on the topic of equivalent

qualifications in job posting cases:

“We start by addressing the distinction that the union seeks to make as between

the setting of qualifications and the application of these qualifications in any

given job posting; a distinction that the employer asserts cannot be made. This is

the fundamental contractual issue between the parties. If the employer is correct

the concept of equivalent qualification has no place under this collective

agreement. Equivalent qualifications are those that although not stipulated have

equal significance or value in relation to the job at issue. The object of any job

posting (whether or not under a competition clause) is to identify the applicants

who have the ‘ability’ or are qualified to perform the job that has been posted.

Accepting that the employer (unless the collective agreement provides otherwise)

has the right to establish relevant qualifications it would a strange result indeed,

given the overriding purpose of any job posting procedure, if an individual who

44

possesses equivalent qualifications is nevertheless declared unqualified. It is for

this reason that we hold to the view that in the absence of express language

rendering the stated qualifications as absolutes, with no room for consideration of

whether an applicant possesses equivalent qualifications, we ought not to infer

that the parties would have intended such a result.…”

Clearly the Union’s interest in advancing these passages for application by analogy to Ms.

Staples’ situation is essentially to highlight the role and importance of the notion of

equivalencies. However, as to the basics, it is evident that the Employer here in its job postings

accepts the equivalencies principle—the only issue is how to evaluate them in the circumstances

of the Grievor. Similarly, see section §6.25 of Brown, Beatty & Beatty at footnotes 4 and 5 or the

observations of Arbitrator Milton Veniot in CAW Canada, Locals 4600 and 4603 v. Cape Breton

District Health Authority No. 8 (2003), 125 L.A.C. (4^th); 2003 CarswellNS 594.

44.

The Union argued that the Grievor was clear and cogent in her testimony when speaking

to her qualifications, both on education and experience. Moreover, the Grievor’s cover letters

and resumés were far more detailed than many of the comparator files put in evidence for

successful, or at least screened-in, applicants. The Union asserts that the Employer seemed to

give the benefit of the doubt in relation to such candidates, particularly external ones, while the

Grievor’s qualifications or equivalencies were discounted or downgraded. Moreover, the Union

says, with considerable credibility, that the Grievor was diligent and responsive in her use of her

Article 6.03 requests for information on how she could improve her current applications based

on previous experiences, after not being screened in for compliance officer competitions.

45.

Regarding the specifics of the COI application, the Union argues that the Grievor’s

paralegal training was a year-long course focused on law, and not merely about office

45

administration. This, in fact, was initially accepted by Mr. Berkman, and the Union asserts that

the Employer is being unfair and unreasonable in its actions at the hearing to resile from this

early acceptance of what the Union says was the right approach. Moreover, the Union says that

in using the explicitly articulated “equivalency” in education as recognized by the phrase, “a

degree in Social Sciences,” the BSc in Human Nutrition and Dietetics had sufficient social

science content, particularly in tandem with her paralegal training, to constitute a valid

equivalent to an “accredited law enforcement program.” The Grievor has far more than a simple,

hard science-based “dietetics degree” to use the words of Ms. Phillips. On the controverted

matter of the Grievor’s work experience, the Union argued that the Grievor’s ten years of

experience in residential tenancy enforcement was the “equivalent in spades” of the skills

required in the parking and related COI context. The Union stressed the Grievor’s ability to

interpret and apply legislation and regulations, investigate facts surrounding breaches of the

rules, making decisions on compliance actions, finding and preserving evidence, serving

subpoenas (like appearance notices or tickets) to secure people’s attendance at adjudicative

haring, attending in court or at the Residential Tenancies Board to give testimony, engaging in

conflict resolution and de-escalation techniques with aggressive individuals, and deploying her

considerable communications skills. The Union characterizes Mr. Berkman’s understanding of

parking enforcement, as “direct enforcement through the issuance of tickets for payment” as the

exercise of public authority, in contrast to civil enforcement of private rights before the

Residential Tenancies Board, as being a misunderstanding of the essential similarities of the

processes. From the Union’s perspective both sets of processes involve similar skills of setting in

motion enforcement actions which may end up before a judge or adjudicator as the ultimate

arbiter in event of a contested enforcement action.

46

In relation to the COII posting of October 2020 for which the Grievor was not screened-

46.

in, the Employer stated that it makes “all the same submissions as for the COI posting.” As to the

specifics, the Union argued that the Grievor met the educational requirement because her BSc in

Human Nutrition and Dietetics constitutes an undergraduate degree in “social science or a related

field.” As to experience, the Union asserts that the Grievor’s work for B&G Properties in

enforcing the provisions of the Residential Tenancies Act and Regulations for 10 years

constitutes either direct experience in an enforcement environment or in a regulatory

environment or both. As to the 2021 COII posting for which the Grievor was not screened-in, the

Union acknowledges that the Employer had changed the qualification requirements, but that

nonetheless the Grievor meets these requirements on the basis of equivalencies. The Union

suggested that the Grievor had an educational equivalent to the new public admin, criminology,

political science or a related field like Law and Justice studies by virtue of her paralegal course

along with her BSc in Human Nutrition and Dietetics. As to experience in enforcement of

municipal and/or provincial by-laws or regulations, the Union says the Grievor’s Residential

Tenancies enforcement work fulfills the latter—“provincial laws or regulations.” As to the two

years of face-to-face customer service involving de-escalation of customer complaints, the Union

asserted that her Residential Tenancies work and subsequent contract administration in HRM

Finance would qualify for this. Of course, there is no dispute between the parties as to the

Grievor’s having database software experience.

47.

In conclusion, the Union asserts that it has met its burden to prove its case on a balance of

probabilities in relation to (1) its position that the qualifications for all three positions are in

breach of the Collective Agreement Article 2.01(c) because they are neither fair nor reasonable;

47

and (2) that the Grievor was not properly evaluated since she met the minimum application

qualifications, and should have been screened-in, tested, interviewed and awarded the positions.

The Union asserted that, insofar as remedial measures are concerned, the Grievor: (1) should be

appointed to the COI position as of the date of its commencement and retroactively compensated

for her losses; (2) similarly, the Grievor should be appointed to the 2021 COII position as of its

commencement and compensated accordingly. As to the 2020 COII position, the Union had

agreed not to seek a retroactive remedy, but says that the Grievor is qualified for the 2020

position and should be appointed to that position as of its commencement. As to the general lack

of fairness and reasonableness of the position requirements, the Union simply seeks a declaration

to that effect.

(2)

The Employer’s Arguments

48.

The Employer in its argument addressed four issues: (a) the standard of arbitral review;

(b) the question of whether the Union has proved that the qualifications “in the abstract” are

unreasonable; (c) whether there was a reviewable error made by the Employer in its assessment

of the Grievor’s three applications; and (d) what might be the remedial implications if I were to

find for the Union in any of these matters. I shall attempt to summarize each of these issues

briefly.

(a)

The Standard of Arbitral Review

49.

The Employer accepts that it must exercise its management rights fairly and, in these

particular circumstances, pursuant to Article 2.01(c) of the Collective Agreement as understood

48

in the light of the arbitral jurisprudence. In terms of the latter, the Employer put emphasis on a

passage from General Dynamics of Canada and Independent Union of Defence Contractors (Re

– Debbie Lynch) (2006), 150 L.A.C. (4^th) 41 (Brown) cited by Arbitrator William Kydd in Nova

Scotia Public Service Commission and NSGEU re G. Kennedy, unreported, March 14, 2011

which addressed the standard of review in job posting cases. That passage reads as follows:

The most fundamental principle to emerge from the cases reviewed is that an

employer has the right to establish and alter job qualifications, unless precluded

from doing so by its collective agreement, so long as it does not act arbitrarily,

unreasonably or in bad faith. An arbitrator’s role is to decide whether a

qualification is arbitrary, unreasonable or motivated by bad faith, not whether it is

correct. These propositions are so well-established that there is no need to say the

authority in support of them. There is no suggestion of arbitrariness or bad faith in

the case at hand. A qualification is reasonable if it is reasonably related to job

performance. As noted by Arbitrator Dissanayake in Schreiber Township and

Canadian Union of Public Employees, [2003] O.L.A.A. No. 674], an arbitrator

ought not intervene unless the qualification falls “completely outside the zone of

reasonableness” (paragraph 23). The obvious rationale for this stance of arbitral

deference is that managers are much better suited to fashioning appropriate

qualifications than are arbitrators.

I conclude the APICS certifications specified on the job posting is reasonably

related to the work performed by planner buyers. Some of the subject matter

covered by the certification exam focused directly on the tasks they perform.

Much of the rest relates directly to the responsibility of other employees with

whom the planner buyer regularly interacts and whose needs he or she must

understand in order to perform the job well.

In coming to this conclusion, I have not overlooked the testimony of union

witnesses that certification is not necessary to do the job. This opinion does not

bear directly on the legal issue I must decide. The question for me to determine is

not whether it is possible to do the work without certification, but whether

certification is reasonably related to the job. In my view the testimony of these

witnesses failed to show there is no such relationship. Most of them implicitly

acknowledged a reasonable relationship between the CPIM courses and their job,

when they conceded the courses were of some assistance to them. One would

expect the same to be true of the additional studies required for certification.

[Emphasis added]

49

From this, the Employer drew the conclusion that considerable deference is owed by arbitrators

to employers when assessing the reasonableness of job competitions. “Arbitral jurisprudence

says the benefit of the doubt goes to the employer” said counsel for the Employer, and he

suggested that arbitral review in these cases should be limited to preventing “gross unfairness.”

The Employer argued that the question is not whether you can do the job without the

qualifications, but rather whether the qualifications are reasonably related to the job. The

Employer’s view was that job competitions inevitably involve judgment calls where reasonable

people may disagree, and that the Employer must be given considerable deference or leeway in

this regard.

50.

In applying these proposed general principles, as to how Article 2.01(c)’s “fair and

reasonable” standard for the exercise of management rights is to be interpreted, the Employer

argued that the context of the wording of sub-paragraphs of Collective Agreement Article 6 on

Postings and Appointments is important. The Employer notes that Article 6.01 states that “…the

Employer will determine what qualifications are needed for the job (emphasis added), whether

combinations of education and experience will be considered to meet the minimum

requirements, how it will assess merit, and the minimum levels needed in the assessment of

merit. The Employer also pointed to Article 6.01(e) which states in part: “…the Employer will

give full consideration and preference to bargaining unit members and will only consider

applications from outside the bargaining unit after it has been determined that o bargaining unit

member is the successful applicant”—which the Employer argues reinforces the notion that the

Employer’s decisions are determinative and warrant deference in this regard. In like manner, the

Employer argues that the wording of Article 6.03, where the Employer shall give unsuccessful

50

applicants the reasons why the applicant was unsuccessful is premised on the notion that the

Employer’s conclusions are determinative, and the main issue for those “reasons and review” are

to help the employee going forward rather than encouraging applicants to challenge previous

decisions. The Employer noted that the Union President, Mr. Kaiser, in his testimony agreed that

the Union had no role in setting job qualifications or applying them in individual cases, and that

there were few previous grievances on this topic.

51.

The Employer concludes on this point that the standard of arbitral review in these

qualifications and postings cases is to ask whether a reasonable person could conclude that there

is a reasonable relationship between the qualification and the job. The Employer characterizes

the Union’s view as asking whether a reasonable person could conclude that capable people

might be excluded from getting the position by the operation of the test: the Employer says this

approach is wrong. The Employer says the threshold of arbitral review is set by the arbitrator

asking whether there is a reasonable relationship between the setting of a particular qualification

and the nature of the job—period.

(b)

Were the Qualifications Reasonable?

52.

The Employer, not surprisingly, asserts that the answer to the above question is a

resounding “Yes.” The Employer rejects the Union’s views that the educational and the

experience qualifications were vague—the Employer says clever counter-factuals do not

constitute demonstration of vagueness. The Employer says that the Employer knew what it was

seeking in setting these qualifications, particularly when, as per FortisBC, supra, when the

qualifications are understood in relation to the requirements of the job. The Employer argues that

51

when it stated it was looking for a diploma in law enforcement and/or experience in an

enforcement role it knew what it was doing. These requirements are linked to the job duties

which involve an “in the street,” or in a “boots on the ground,” job. The Employer asserts it was

looking for experience in policing, corrections, security guard employment or acting as a bailiff,

because by-law enforcement involves analogous duties. This is different from experience in an

office or in an administrative role. In the broad context of the role of Compliance Officer I or

Compliance Officer II, says the Employer, no one was misled about the education and

experience sought by the Employer. As, says the Employer, these qualifications were fair and

reasonable. The Employer says these qualification requirements, both for education and

experience, were reasonably related to the positions, and thus their creation was a “fair and

reasonable” exercise of a management function under Article 2.01(c). The Employer asserts that

the Union has not demonstrated the contrary on a balance of probabilities.

(c)

Assessment of the Grievor’s Qualifications

53.

The Employer asserted, and did not contest the fact, that “the Grievor felt she could do

the job,” but that “this is not the question.” “The question” was whether the Grievor, at the time

of her applications had the qualifications or their equivalencies. In the Employer’s view, the core

of the disputes for each of the three positions (the one COI and two COII’s) was related to (i) the

status of her paralegal diploma and the law enforcement diploma or educational requirement; (ii)

the Residential Tenancies work in relation to the requirement for experience in an enforcement

or regulatory environment; and (iii) the BSc in Human Nutrition and Dietetics as a social science

degree or law enforcement equivalent. The Employer’s managers felt that these “qualifications”

from the Grievor did not meet the requirements—judgments which, the Employer was at pains to

52

point out, were in no way characterized by any bad faith. The Employer asserted that these were

fair and reasonable conclusions by its managers, and they did not fall within the realm of

“decisions which no reasonable person could have arrived at.”

54.

On the paralegal diploma, the Employer argued that it taught law which was relevant to

some aspects of the Compliance Officer jobs, but that it was about training people to work in an

office environment and was not the practical, scenario-based law enforcement style of program

which readied people to do “law enforcement out in the world.” A paralegal diploma, claims the

Employer, is not “similar” to a law enforcement diploma, and as such the Employer’s

conclusions that the Grievor did not meet the educational qualification was fair and reasonable.

55.

As to the BSc in Human Nutrition and Dietetics, the Employer says does not count as a

“social science” undergraduate arts degree. The Employer asserted that in many “hard” science

degrees, students may do electives in social science courses, but that such inclusions do not turn

a BSc into a social science degree. Once again, the Employer argues that the question is not

whether the Grievor, with her science degree, could do the job, but rather whether the Employer

was reasonable in establishing and using a social science degree, or a social science equivalency,

as a reasonable qualification for sorting out, or excluding, candidates in the context of a COI or

COII. The Employer then argues it was entirely proper to exclude someone like the Grievor who

had a science degree, but not a social science degree. The Employer says this was a fair and

reasonable conclusion, and that any other conclusion would undermine a rational and reasonable

system for judging candidates fairly through the use of qualifications deemed appropriately

related to the job duties.

53

56.

On the issue of whether enforcing a landlord’s private rights under the Residential

Tenancies Act is the same as having experience in the enforcement of the public interest in by-

law enforcement, the Employer is adamant that these are different categories of enforcement

activity. The Employer recognized that there are potentially portable skills between the two roles

on certain dimensions, but that these are individual instances which do not allow for an overall

equating of Residential Tenancies Act enforcement and by-law enforcement because between

these activities there are “differences in kind and not merely degree.” The Employer urges me to

conclude that Residential Tenancies Act enforcement is not an enforcement role relevant to the

kind of law enforcement or regulatory role which the Employer was targeting in creating the COI

and COII experience requirements. The Employer says that its decisions in relation to the

Grievor in this regard were fair and reasonable, and involved no breach of Articles 2 or 6 of the

Collective Agreement. The Grievances should thus, in the Employer’s view, be dismissed.

(d)

Remedial Issues related to the Foregoing Substantive Issues

57.

The Employer argues in the alternative that all of the above substantive issues involve

decisions about whether the Grievor met threshold criteria for being screened-in to the

competitions for the three roles. The Employer therefore argues that in each case there was no

assessment of the Grievor as to her relative abilities in relation to other candidates on whether

she could successfully do the jobs in question. Thus, the Employer says that were I to find that

the reviewers were unfair or unreasonable in failing to “screen-in” the Grievor, the appropriate

remedy would be to deem her to be screened-in, and allow the Employer to review her

candidacies through testing and/or interviewing the Grievor in relation to the “merits” of her

abilities on the assumption she has met the minimum threshold screening requirements only. The

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Employer says it would not be appropriate for me to order that the Grievor be appointed to one

of the sought-after positions—rather simply to declare that she is deemed to be screen-in and

entitled to proceed through the subsequent processes associated with the competition in question.

Were this to occur and were the Grievor to be successful, there could be complex questions

about calculating lost payments, benefits, etc., and the Employer urges that I should reserve

jurisdiction on such matters were the Grievances to succeed in whole or in part.

(3)

The Union’s Rebuttal Argument

58.

On the standard of arbitral review, the Union says that the Employer’s arguments are

rooted in an older and outmoded notion of reasonableness and deference to management

decisions. The Union once again reinforced its position that arbitral review can properly be

conducted on a standard of “honesty, completeness and correctness,” and that while neither

dishonesty or bad faith on the part of management is being alleged, the Union says the

Employer’s approaches to these competitions are incomplete and incorrect, and thus unfair and

unreasonable. The Union says the Grievor’s one-year paralegal course and her 4-year Human

Nutrition and Dietetics courses with their mandatory (not elective) social science components are

direct equivalents to the law enforcement or social science educational equivalency

requirements, as opposed to law enforcement diplomas of unknown course length and

questionable rigour, which were often accepted by other screened-in candidates. The Union

asserts that vagaries in the qualifications accepted by other screened-in candidates demonstrated

the unfairness and unreasonableness of the requirements. Thus, the attendant unfair and

unreasonable application of such wanting criteria to the Grievor’s case show that she was

personally treated in an unfair and unreasonable fashion. As to the absence of other grievances in

55

the past on these issues, the Union asserts that this is not evidence of the acceptability of the

Employer’s approaches, but rather can be attributed to varying circumstances and the possible

absence of “good cases” for the Union to advance. The Union concluded by arguing that were I

to find in its favour in whole or in part, I should retain jurisdiction to deal with potential remedial

complexities which might elude the parties’ abilities to resolve amicably.

D.

Analysis and Conclusions

59.

This series of analyses and the conclusions following therefrom will be organized in

accordance with the order of the issues as presented by the parties: (a) What is the appropriate

standard for arbitral review of management actions under the Collective Agreement, and in

particular job posting and competition provisions? (b) Were the qualifications set by the

Employer for the grieved COI and COII competitions fair and reasonable? (c) Were the actions

of the Employer’s managers fair and reasonable in their assessments of the Grievor’s

applications for the COI and COII positions? And (d) What are the remedial consequences, if

any, in relation to the answers to the foregoing questions? I shall attempt to answer these

questions as briefly as possible.

(a)

The Standard of Review

60.

The Union essentially argues that the standard of review is “correctness” while the

Employer essentially argues that it is “deference,” while both are essentially engaged in

interpreting Article 2.01(c) of the Collective Agreement: “The functions of the Employer within

the scope of this collective agreement shall be exercised in a fair and reasonable manner.” With

all due respect to the Union’s position, the predominant view in the arbitral jurisprudence is that

56

in exercising its functions in job posting situations the Employer must be “reasonable,” and a

failure so to do can be the basis for arbitral intervention and correction. This means an arbitrator

must ask him or herself “What would a reasonable manager operating under the applicable

collective agreement do in the circumstances which were known to, or should have been known

by, that manager?” This is not a standard which requires perfection or omniscience and

recognizes that reasonable managers may differ in their approaches to particular tasks or make

mistakes. Nor is it a standard which posits some abstract notion of “correctness” which can be

subjectively divined by the arbitrator. This reasonableness test necessarily involves a

considerable degree of deference by arbitrators to the conduct of the Employer’s activities by its

managers; however, that deference is limited by what a reasonable manager, reasonably well

informed in the circumstances would rightly do. Arbitrators are not managers and cannot

intervene as if they are by simply asserting their own preferences. In this case, of course, the

parties in collective bargaining have accepted the “reasonableness standard” in Article 2.01(c),

and given it something of a gloss by calling it a “fair and reasonable” standard. My Oxford

Dictionary of English (2nd ed.), 2003, O.U.P. Oxford, takes an initial stab at defining “fair” as

“treating people equally without favoritism or discrimination,” which it then follows up with a

second definition of “fair” as “just or appropriate in the circumstances.” As such, the use of the

word fair may add little to the “reasonableness” standard, which one might have thought would

encompass an absence of discrimination and being appropriate and just in the relevant

circumstances, as simply part of assessing “reasonableness.” The bottom line for me is that

neither a simple standard of “correctness” nor an exaggerated sense of “deference” comports

with the standard of exercising management functions “fairly and reasonably” in accordance

with Article 20.1(c) and the arbitral jurisprudence on arbitral review of management action in the

57

conduct of job postings and appointments. The foregoing observations, of course, must be

operationalized in this case in the context of Article 6.01(a) of the Collective Agreement which

explicitly states that “…the Employer will determine what qualifications are needed for the

job…etc,” as stated above, and properly emphasized by the Employer in argument and accepted

by the Union through the testimony from its President.

(b)

Were the COI and COII Qualifications Fair and Reasonable?

61.

I have no hesitation in coming to the conclusion that the Employer’s efforts in setting the

qualifications for the COI position and the two COII positions were “fair and reasonable” on an

objective standard. In accordance with the views of Arbitrator Kinzie, supra, I find that there is a

rational and reasonable relationship between the qualifications and the job duties in each case,

even if I might personally have “tweaked” them in different ways than the Employer ended up

doing. As to the contested COI qualifications the educational qualification of a “high school

diploma or GED” and a “diploma from an accredited law enforcement program,” and the

experience qualification of 1 year in an enforcement role” are fair and reasonable qualifications

to require of candidates to be considered for a parking by-law enforcement role which all agree is

the primary focus of the COI position. Of course, this is in the context of a posting which, in

accordance with the arbitral jurisprudence, explicitly states that “an equivalent combination of

education and experience may also be considered.” Moreover, in this case the Employer had

stipulated under the rubric of “Equivalencies,” “Degree in Social Sciences (ie, psychology,

criminology, sociology) plus 2 years in an enforcement role OR 6 years in a direct enforcement

role ie, issuing tickets or laying charges.” By establishing such qualifications and equivalencies

the Employer was clearly exercising its management functions under Article 6.01(a) of the

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Collective Agreement, and in my assessment doing so in a “fair and reasonable manner”

pursuant to Article 2.01(c) of the Collective Agreement.

62.

Now, what of the contested COII qualifications in relation to the 2020 and 2021

postings? Let us remember that the COII position is about enforcement of a wide range of

municipal by-laws involving complex regulatory areas, and various reporting functions of a

potentially sensitive administrative or even political character. For the 2020 posting, the

educational qualifications were stated as an “undergraduate [university] degree in business

administration, social sciences or related field,” which, of course, is quite broad, but identifies

people who have demonstrated intelligence and ability at a relatively high level, who can

respond to a range of analytically sophisticated and practiced tasks, both on their feet and on

paper, as it were. This is naturally related to the job duties. This is surely a fair and reasonable

exercise of the Employer’s functions in the job posting and appointment process under Article

6.01(a). The experience qualification in the 2020 competition was “3 years’ experience working

in an enforcement or regulatory environment.” Given the broad range of by-laws to be enforced

by the COIII and its extensive administrative and reporting functions, this too is surely a fair and

reasonable approach to setting qualifications under Article 6.01(a). Like the COI posting, the

2020 COII posting specified that “an equivalent combination and experience may also be

considered,” though the evidence demonstrates that the Employer was thinking of an

equivalency constituted by “a diploma in a law enforcement program and five years enforcement

experience.” This latter, rather stiff equivalency provision, would appear consistent with the

Employer’s initial conception of the COI as an entry position from which a very experienced

incumbent with no university education could use as a stepping-stone to the higher level COII

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job. This is surely rational and reasonable, particularly from the Union perspective when it had

negotiated a preference for internal candidates in job competitions under Article 6.01(e) of the

Collective Agreement. I can only conclude that the 2020 COII qualifications were a fair and

reasonable exercise of management functions under Articles 2.01(c) and 6.01 of the Collective

Agreement.

63.

What of the revised qualifications set by the Employer for the COII position in January or

thereabouts of 2021? The Employer took a slightly different tack when redrafting the

qualifications, which Ms. Phillips attributed in part to her experience, and that of other managers,

in conducting job posting competitions under the 2020 version. The educational qualification is

still an undergraduate university degree, with the subjects mentioned being in public [not

business] administration, criminology or political science [the latter being particular social

sciences]. However, the educational qualification now also articulates a particular equivalency:

“a Post-secondary education in a related field such as Law and Justice studies may also be

considered.” The job experience qualification now states: “Three (3) years working in the

enforcement of municipal and/or provincial by-laws or regulation”—this is a little awkwardly

expressed, since municipalities have by-laws and provincial legislation may authorize

regulations to be made thereunder, rather than by-laws which are normally made by

municipalities, and private society or corporations. At any rate both the educational and job

experience in the 2021 COII job posting are more precise than their 2020 predecessor, and they

are still very much rationally and reasonably related to the job duties of the position in Arbitrator

Kinzie’s sense. Nonetheless, there is still, and quite rightly so, a final rider under the heading of

Qualifications in the 2021 COII posting (see Appendix C) which provides that: “An equivalent

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combination of education and experience may also be considered.” Finally, as mentioned above,

the customer service experience qualification now speaks of a “Minimum of three (3) years

delivering face-to-face [not telephone] customer service that involves de-escalation of customer

complaints.” Despite the Union’s arguments to the contrary, I find that all of these revised, and

mostly more precise, qualifications to be fair and reasonable in the exercise of the Employer’s

functions under Article 6.01 and with the proper ambit of the fair and reasonable exercise of

management rights under Article 2.01(c). I say this even though I might quibble over some of the

details were I a manager setting the qualifications—but, I am not and there is no basis here, in

my view, for arbitral intervention.

(c)

Application of the Relevant Qualifications to the Grievor’s Applications

64.

As to the COI job competition, I think it was entirely proper for Mr. Berkman to have

deemed the Grievor’s paralegal training in tandem with the social science aspects of her Human

Nutrition and Dietetics BSC to be the equivalent of an accredited law enforcement program. In

fact, it seems to me to be a reasonable conclusion to be drawn that the Grievor is educationally

over-qualified for the role. However, I also conclude that it was both fair and reasonable to be

seeking someone who had a year’s experience in an enforcement role which was analogous to

that of the “cop-on-the-beat” or doing “on the street” law enforcement. While there were some

obvious minor deficiencies in some of the qualifications of comparator candidates, there were

none which were not covered in some way by the notion of “equivalency.” The Grievor’s role in

enforcement of residential tenancies, while no doubt relevant and potentially helpful, was not

what the Employer, through Mr. Berkman, was legitimately looking for. The Employer’s

approach in this regard was consistently “fair” in the sense of being non-discriminatory in its

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application of the notion of direct, “on the street” enforcement. I also conclude it was reasonable

to exclude internal candidates or external ones who did not have a year of such experience. Thus,

I conclude that the Employer, in its decision not to screen-in the Grievor in a manner consistent

with both Article 2.01(c) and Article 6.01(a) of the Collective Agreement, was acting fairly and

reasonably. This aspect of the Union’s Grievance on behalf of the Grievor must be dismissed.

65.

On the other hand, I have come to the conclusion that the Employer’s failure to screen-in

the Grievor for the 2020 COII was not a fair and reasonable exercise of the Employer’s functions

under Article 6.01 as bound by the principle which the parties articulated in Article 2.01(c) of the

Collective Agreement. The formal educational requirement was “an undergraduate degree in

business administration, social sciences or related field.” While it is clear that the Grievor’s

education did not fall literally within that description, I find it equally clear that she did have “an

equivalent combination of education and experience” which the Employer’s reviewers did not

consider. The Grievor’s Human Nutrition and Dietetics degree, while not a social science degree

per se, did have courses which she took in “Business Administration, Organizational Structure

and Law” as well as psychology, research methods and Food and Drug Administration.

Moreover, the Grievor has a Paralegal Studies Diploma which is not restricted to law office

administration, but included the study of various areas of private and public law, including

Canadian Criminal Code (important for quasi-criminal enforcement procedures) as well as the

Motor Vehicles Act and HRM by-laws. I find it manifestly obvious that a careful reading of the

Grievor’s qualifications by the Employer’s Reviewers would have revealed that the Grievor had

the educational equivalent of an “undergraduate degree in business administration, social

sciences or a related field.” As to the experience qualification, the requirement is not simply 3

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years’ experience in an enforcement environment, but also the alternative recognition that 3

years’ experience in a regulatory environment met the threshold. Of course, it is the

uncontradicted evidence of the Grievor that she had 10 years of experience in the enforcement of

the Residential Tenancies Act, including drawing up subpoenas, eviction notices, and documents

for the Residential Tenancies Board and actually appearing before the board to present cases.

This is regulatory experience par excellence. The Grievor clearly merits the job experience

requirement with no need to appeal to the notion of equivalencies. Moreover, given the broad

range of HRM by-laws enforced within the ambit of the COII position, one would have thought

that the Grievor’s long experience in the field of enforcing residential tenancies, along with her

broad educational background, would have made the Grievor an obvious “shoe-in” or at least a

“screen-in.” Of course, all acknowledge that the Grievor had the consumer service and database

software experience. The failure of the Employer to screen in the Grievor for the 2020 COII

position was thus neither fair nor reasonable and therefore constitutes a breach of the Collective

Agreement Article 2.01(c) in the exercise of the Employer’s management functions under Article

6 of the Collective Agreement. The remedial aspects of this finding will be examined below.

However, it is important to complete the exercise in relation to the Employer’s assessment of the

Grievor’s qualifications in the 2021 COII competition.

66.

The 2021 COII competition has more exacting qualifications which are more difficult for

the Grievor to demonstrate. She does not have any training in “public administration” nor in

political science or criminology. While she has some postsecondary education as such it is not in

law and justice studies, and the paralegal course is only one year in duration, and not three or

more like an undergraduate degree. She might be said to have more than three years working in

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the enforcement of residential tenancies regulations, this is not the enforcement of provincial

regulations writ large. The Grievor’s 311 call centre work was acknowledged not to be “face-to-

face” customer service, and there is no clarity in her evidence as to the degree to which her

residential tenancies work involved “de-escalation” of customer complaints. I conclude that,

unlike the 2020 COII situation, the Union has not proved on a balance of probabilities that the

Employer, in failing to screen her in for the 2021 COII position, has acted in an unfair or

unreasonable fashion and in contravention of the Collective Agreement in the exercise of its

management rights. On this ground, the Grievance insofar as it alleges a breach of the Collective

Agreement for the 2021 COII competition must be dismissed.

(d)

The Remedial Response to the Employer’s Breach on the 2020 COII Competition

67.

The Union stipulated that insofar as the breach of the Collective Agreement on the 2020

COII competition is concerned it is not seeking retroactive compensation. The parties have in

essence agreed that the remedy which I should order is that the Grievor was entitled to be

screened-in for the 2020 COII competition, and I so declare and so order. The Grievor is thus

entitled to do the written test, and if she is successful on that, to have a subsequent interview in

accordance with the standard procedure in the competition. The Grievor’s testimony revealed her

to be an intelligent, articulate, sophisticated and rather forceful person. It would surprise me were

she not successful on the merits, but that is not my decision to make—the Collective Agreement

in Article 6 demonstrates this is a management function. However, at the request of the parties, I

shall retain jurisdiction in relation to the implementation of this award, including, but not limited

64

to, the timing of its implementation, whether it is done in a “fair and reasonable” fashion etc. I so

order.

Dated at Herman’s Island, Municipality of the District of Lunenburg,

this 22^ndday of April 2022.

Bruce P. Archibald, Q.C.

Arbitrator

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APPENDIX A

4787BR

Compliance Officer I

Job Posting

Halifax Regional Municipality is inviting applications for the permanent, full-time position of

Compliance Officer I in the Parking Services section of TPW. This is a bargaining unit

position. In the event that there are no qualified NSUPE candidates, applications from candidates

in one of our Employment Equity Groups: African Nova Scotians, racially visible persons,

women in non-traditional positions, persons with disabilities, Aboriginal persons, and persons of

the LGBTQ+ community will be preferred. HRM encourages applicants to self-identify.

As a member of the Parking Services Team, reporting to the Supervisor, Parking Enforcement,

the Compliance Office I (COI) is primarily responsible for enforcing Municipal Legislation

related to parking enforcement and front line compliance in a range of legislation including but

not limited to:

 Parking Meter By-law

 Motor Vehicle Act

 Taxis and Limousines By-law

 Streets By-law Part 1, Section 5 Icicles, Part 2, Section 10 Littering, Section 11

Maintenance of Grass

 Solid Waste Collection and Disposal By-law Part 14

In delivering the service, the COI is responsible for regulatory work in ensuring compliance with

parking regulations. The role of parking enforcement is to support the Traffic Authority and

Police Services in delivery of the parking enforcement program for public safety and traffic flow

requirements.

The COI also responds to by-law complaints on both HRM right-of-way and private property.

The objective is to gain compliance through education, enforcement notifications and if required

court proceedings. The COI works closely with other regulatory staff and agencies to ensure

compliance. The COI is sworn as a Special Constable under the Police Act.

DUTIES AND RESPONSIBILITIES

 Educates and provides information to the public regarding municipal legislation.

 Interprets and enforces legislation.

 Issues parking tickets, arranges for towing/seizure of vehicles.

 Monitors assigned areas of specific concern regarding parking complaints and advise of

any potential parking or public safety concerns to the appropriate departments.

 Attends night court when subpoenaed.

66

 Conducts investigations regarding alleged by-law violations.

 Documents appropriate case file information while conducting investigations.

 Ensures public compliance with municipal by-laws through negotiation, education,

issuance of tickets, laying of charges and preparing and serving Orders.

 Conduct inspections on taxis, limousines and vending vehicles.

 Issues “Orders” or “Notices” as required by HRM By-laws.

 Lays charges before the courts (long form information) or issuance of Summary Offence

Tickets (SOT) to individuals who violated legislations.

 Compiles evidence for the appointed Administrator and/or Municipal Solicitor.

 Represents HRM as a witness in prosecution proceedings.

 Liaises with HRM Legal, other business units and individuals related to the enforcement

of municipal by-laws.

 Serves summonses and legal documents.

 Tracks and saves digital photo evidence through established process.

 Use of handheld parking ticket equipment, two way radios and cell phones.

 Daily use of a computer to input inspection data, communicate with other staff and

external clients, develop correspondence, reports, and Orders.

QUALIFICATIONS

Education & Experience:

 High School Diploma