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 Unionor NSUPE”  
and –  
Halifax Regional Municipality  
The Employeror 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  
1
AWARD  
A.  
Introduction  
1.  
This arbitration involves a dispute over the Employers failure to screen-inthe Grievor,  
Ashley Staples, as a candidate in relation to three postings for positions in the Nova Scotia  
Public and Private Employers Union, Local 13, bargaining unit with the Halifax Regional  
Municipality (the Employers) 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  
Grievors 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 Employers mangers’  
screening-outthe Grievor on the grounds that she did not have the minimum qualifications or  
equivalenciesfor 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.  
2
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 Greivors 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  
3
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 Grievors 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 partiesarguments 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)]  
(b) All rights reserved to the Employer are subject to the provisions of this  
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)]  
4
It will be seen immediately that sub-paragraph 2.01(c) is critical to the Unions claim that  
hiring people and putting them in posted jobs is a function of the Employer within the  
scope of this agreementand that in the Grievors 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]  
5
(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. Qualificationsmeans 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. Meritmay 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]  
6
(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  
employees 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 Officerfor 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  
Qualificationslisted 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 yearsexperience working in an enforcement or  
7
regulatory environment; (iii) a minimum of two yearsexperience 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 housewith all by-law enforcement to be in the hands of HRM  
employees. Building in some measure on its previous Compliance Officerposition 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 Responsibilitiesseem 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 reasonablenessof the qualifications for the job and in knowing how the latter  
were applied in relation to the Grievors application. Thus, an equally important focus for  
analysis in this regard are the provisions in the posting under the heading QUALIFICATIONS:  
Education and Experienceon page 2 of the document. The required qualifications are listed  
8
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 yearsexperience 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 Grievors 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 experiencein relation to the matters of a diploma from a law enforcement  
programand 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 officerof an undergraduate  
degree in business administration, social sciences or related fieldhad 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 programwas 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 programwas 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-legalis the equivalent of a diploma from an accredited law enforcement  
program.”  
9
9.  
There is also a dispute over whether the requirement that a COI must have one year of  
experience working in an enforcement roleis 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 environmentand 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 Grievors 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  
10  
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 COIs, 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 COIs, is  
absent from the postings for the COIIs. Moreover, the bulk of the list for COIIs, 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 Responsibilitiesto 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 Developmentsection in Appendix B of the  
Collective Agreement dealing with Classification and Pay Levelsshows 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 Grievors situation in relation to her COII applications, like that for the COI  
11  
application, lies only in the matter of Qualifications, their equivalencies and the Employers  
evaluation of the Grievors documentation in these regards.  
12.  
The Education and Experiencerequired under the heading Qualificationsin 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) yearsexperience 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  
12  
both evaluators and candidates were aware of this dimension to the process by 2017. But there  
was no explicit definition of what equivalenciesmight be in the COII context, leaving the  
matter seemingly open to the discretion of the Employers 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 Positionto the  
Employers 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. Webbs 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 Employers 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) yearsexperience  
13  
working in enforcement of municipal and/or provincial by-laws or regulations.Moreover, there  
is also an expression of greater focus in the customer servicerequirement by comparison to the  
old COII standard. The 2021 requirement is a minimum three (3) yearsexperience (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 experiencereferred to by Ms. Webb in her letter to Mr.  
Kaiser, supra. Ms. Tanya Phillips, the Employers 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  
imprecisethat 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.  
14  
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 relevantthat is the evidence from Ms. Phillips  
mentioned above, and from Mr. Steve Berkman, the current Employers 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 Employers Customer Contact Centreanswering the 311”  
customer call-in line. As such, she asserts she learned a great deal about the citys 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 liaisewith 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 Grievors home positionwas still at the 311 Call Centreat  
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 Administratorin 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 HRMs 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 motherabout 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 complaintto 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:  
16  
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. Staples questions and determined that the words similarand  
regulatorywere too broad in scope in this instance. Regulatorywas 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 programor regulatory  
environmentand 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  
environmentis 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.  
17  
7. All Compliance Officer Is have the diploma in law enforcement or the  
equivalencies determined by HRM.  
8. The information requested is not a fair determination of the grievors 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 Grievors 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 Grievors 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 Grievors 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. Scolaros discussion of the Employers view of  
equivalencieswhich was not spelled out in the posting, but was definedin paragraphs 5 and  
6 of her Step 1 responses to the Unions 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 Employers requirementand equivalencies.As  
to the accredited law enforcement program,the Grievor suggested, both in her written  
application, and re-iterated in her testimony, that here 20072008 diploma or certificate from the  
Maritime Business College in Office Administration/Paralegal Studieswas 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 Grievors  
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 Grievors testimony, rooted in the documentation she provided in her applications that her  
educational background included either a law enforcement certificateor a social science  
equivalentand 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-ocularapproach 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 environmentwhich 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 Grievors 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 Grievors 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 nocases would be eliminated. Mr. Berkman said he then did a detailed examination of  
the files to determine who should be screened-inor screened-out.Those screened-in would  
be invited by H.R. to do a written test, and those screened-outwould 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 programwhere training would involve students going through scenarioson such  
topics as drafting tickets, arresting people, dealing with de-escalationof irate people, doing  
investigations, and the like. In addition to this, of course, Mr. Berkman said that a years  
experience (that is one year) in an actual enforcement role, doing these tasks for realwas 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. Staplesapplication in the initial internal  
screening processshe 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  
Grievors 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 Grievors resumé had enforcement  
languagein 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  
Grievors 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 postings criteria while the Grievors 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 Unions position that there has been a violation of the Collective  
Agreement.  
It is the Employers 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 grievors 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 grievors 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 enforcementby 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 be2 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 streettype 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 HRMs Department of Transportation and Public Works  
(T.P.W.), while the COIIs 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 workerbargaining 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  
tweakingof the job requirements and posting documents for 2018 and thereafter. Ms. Phillips  
reinforced Mr. Berkmans testimony that both positions were focused on direct enforcement  
outdoorsor 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 enforcementcandidates. 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 Grievors  
applications for these two positions and their evaluation by the Employer, some general  
26  
observations are in order. Firstly, the Grievors 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 Grievors 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 Studiesyear-  
long course is as close as she got to a postsecondary education in law and justice studies.Ms.  
Phillipstestimony referred the Employers view that a BSc in Dieteticsis 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 programin  
Ms. Phillipsview. 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 Grievors  
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 Grievors 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  
enforcingthe 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 yearsexperience 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 equivalentwhere 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 Grievors 311 Call Centreexperience 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 Centrework was on the phone”  
and not face to face; however, she did assert she had to de-escalateirate 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-facecustomer service in the sense  
of direct enforcementof 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 Employers arguments and an  
outline of the Unions 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 circumstancesthat is, when reviewing  
and assessing the Employers 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 Employers approach to assessing the Grievors 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  
Unions favour in relation to some or all of the Unions arguments in this case.  
(a)  
The Standard of Arbitral Review  
32.  
The Union, wishing to counter the Employers opening submissions on the standard of  
arbitral review, argues that the standard required under this Collective Agreement is not one of  
reasonableness simpliciterwith a heavy dose of arbitral deference to the exercise of  
management rights. The Union asserts that in the case of an arbitrator reviewing the Employers  
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 correctnessof the  
Employers 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, 5th Edition, § 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 employers decision, the nature and  
scope of the arbitrators 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 managements 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 employers decision, if the  
parties have not, either in the seniority provisions or in the managements rights  
clause of the agreement, specifically provided that the determination of an  
employees 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 managements discretion, in agreements where it is not, these arbitrators  
insisted that the scope of arbitral review with respect to the employers  
application of the relevant standards against which an employees 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 employers 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 Courts 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 reasonablenessof the employers 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 managements 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. (4th) 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  
Employerto be exercised fairly and reasonable included unilateral exercises of retained  
management rightsin 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 Unions unchallenged  
assertion was that Arbitrator Veniots interpretation of Article 2.01 was endorsedsee 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 Unions approach to the Employers 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  
arbitrators 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 employers 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  
employers 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 excerptthe one which reads:  
As summarized by one arbitrator, an employers 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 Unions claim that the fair and reasonabletest 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 correctnessand 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  
reasonablyevaluate equivalenciesan important parallel to this case. On that ground, the case  
bears careful scrutiny as persuasive authority.The Unions 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 reasonablyunder 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. (4th) 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 WorkersUnion, 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 employers 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 employees  
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  
qualifiedtest 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 thresholdor 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 positivemanner in which the proposition is  
articulated in paragraph 67 as opposed to the negativeformulation in paragraph 68. Note as  
well that the case on its facts involved a thresholdor minimum qualificationsor sufficient  
abilityprovision in the relevant collective agreement, as opposed to a relative abilityclause,  
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. (4th) 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 inflatedqualifications 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 COIand COIIare 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 employers Damage Claims”  
department and a new position called the Operations System Damage Representativeor  
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 Unions case on the vagueness of the education requirement  
for this position is based on Ms. Pedens 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 someones subjective assessment of its  
requirements. The test is whether the education qualification is reasonably  
relatedto the duties and responsibilities of the job.  
80  
I agree that at first blush an education in a legal fieldis 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 Employers 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 Kinzies observations on equivalencies will be  
deferred to the discussion of the application of such criteria to the Grievors 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  
Appointmentsset 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 testsand 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 Unions 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 fitnessfor 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 Employers 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 Unions 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 programis 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.  
Berkmans desire for, and belief that, such law enforcement programs have scenario-based  
trainingis nowhere found in the qualifications. Similarly, the Union argues that a one year  
enforcement roleis vague and unclearand that Mr. Berkmans descriptor in the fielddoes  
not provide much greater certainty. The Union argues that Mr. Berkmans acknowledgement in  
re-examination that a weekend course in law enforcementmight have allowed him to tick the  
boxfor the Grievor and screen her inseems odd, when compared to his blanket refusal to  
accept ten years of residential tenancies enforcement… Similarly, the notion that a candidates  
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 experienceas opposed to educationor 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 Unions conclusion  
is that the COI qualifications descriptor s are imprecise and lack clarity. They dont 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. Phillipscharacterization of the older version as being too broad,such that were not  
getting the people they wanted, as insufficient. The Unions 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 administrationin the new 2021 COII version  
makes no sense, but the addition of public administrationprobably 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 Studiesis 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  
senseand 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  
Unions argument.  
(c)  
Was the Employers 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 abilityor 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 Unions interest in advancing these passages for application by analogy to Ms.  
Staplessituation 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 principlethe 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. (4th); 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 Grievors 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  
Grievors 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 Grievors  
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 equivalencyin 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 degreeto use the words of Ms. Phillips. On the controverted  
matter of the Grievors work experience, the Union argued that the Grievors ten years of  
experience in residential tenancy enforcement was the equivalent in spadesof the skills  
required in the parking and related COI context. The Union stressed the Grievors 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 peoples 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. Berkmans understanding of  
parking enforcement, as direct enforcement through the issuance of tickets for paymentas 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 Unions 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 Grievors 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 Grievors 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  
Grievors 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 Employers 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 abstractare  
unreasonable; (c) whether there was a reviewable error made by the Employer in its assessment  
of the Grievors 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. (4th) 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 arbitrators 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 employersaid 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  
Employers 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  
reasonablestandard 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  
Employers 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  
Employers conclusions are determinative, and the main issue for those reasons and revieware  
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 Unions 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 jobperiod.  
(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 Unions views that the educational and the  
experience qualifications were vaguethe 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  
reasonableexercise 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 Grievors 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 questionwas whether the Grievor, at the time  
of her applications had the qualifications or their equivalencies. In the Employers view, the core  
of the disputes for each of the three positions (the one COI and two COIIs) 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 Employers managers felt that these qualifications”  
from the Grievor did not meet the requirementsjudgments 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 similarto a law enforcement diploma, and as such the Employers  
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 scienceundergraduate arts degree. The Employer asserted that in many hardscience  
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 landlords 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 Employers 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-inthe 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 meritsof her  
abilities on the assumption she has met the minimum threshold screening requirements only. The  
54  
Employer says it would not be appropriate for me to order that the Grievor be appointed to one  
of the sought-after positionsrather 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 Unions Rebuttal Argument  
58.  
On the standard of arbitral review, the Union says that the Employers 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  
Employers approaches to these competitions are incomplete and incorrect, and thus unfair and  
unreasonable. The Union says the Grievors 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 Grievors 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  
Employers approaches, but rather can be attributed to varying circumstances and the possible  
absence of good casesfor 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 partiesabilities 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 Employers managers fair and reasonable in their assessments of the Grievors  
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 correctnesswhile 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 Unions 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 correctnesswhich can be  
subjectively divined by the arbitrator. This reasonableness test necessarily involves a  
considerable degree of deference by arbitrators to the conduct of the Employers 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 standardin Article 2.01(c),  
and given it something of a gloss by calling it a fair and reasonablestandard. My Oxford  
Dictionary of English (2nd ed.), 2003, O.U.P. Oxford, takes an initial stab at defining fairas  
treating people equally without favoritism or discrimination,which it then follows up with a  
second definition of fairas just or appropriate in the circumstances.As such, the use of the  
word fair may add little to the reasonablenessstandard, 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 correctnessnor an exaggerated sense of deferencecomports  
with the standard of exercising management functions fairly and reasonablyin 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  
jobetc,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 Employers efforts in setting the  
qualifications for the COI position and the two COII positions were fair and reasonableon 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 tweakedthem in different ways than the Employer ended up  
doing. As to the contested COI qualifications the educational qualification of a high school  
diploma or GEDand a diploma from an accredited law enforcement program,and the  
experience qualification of 1 year in an enforcement roleare 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  
58  
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 Employers functions in the job posting and appointment process under Article  
6.01(a). The experience qualification in the 2020 competition was 3 yearsexperience 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  
Employers 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  
59  
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  
Kinzies 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  
60  
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 Unions 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 Employers  
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 qualificationsbut, I am not and there is no basis here, in  
my view, for arbitral intervention.  
(c)  
Application of the Relevant Qualifications to the Grievors Applications  
64.  
As to the COI job competition, I think it was entirely proper for Mr. Berkman to have  
deemed the Grievors 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 years experience in an enforcement role which was analogous to  
that of the cop-on-the-beator doing on the streetlaw 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 Grievors 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 Employers  
approach in this regard was consistently fairin the sense of being non-discriminatory in its  
61  
application of the notion of direct, on the streetenforcement. 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 Unions Grievance on behalf of the Grievor must be dismissed.  
65.  
On the other hand, I have come to the conclusion that the Employers failure to screen-in  
the Grievor for the 2020 COII was not a fair and reasonable exercise of the Employers 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 Grievors  
education did not fall literally within that description, I find it equally clear that she did have an  
equivalent combination of education and experiencewhich the Employers reviewers did not  
consider. The Grievors 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 Lawas 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  
Grievors qualifications by the Employers 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  
62  
yearsexperience in an enforcement environment, but also the alternative recognition that 3  
yearsexperience 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 Grievors long experience in the field of enforcing residential tenancies, along with her  
broad educational background, would have made the Grievor an obvious shoe-inor 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 Employers 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 Employers assessment of the  
Grievors 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 administrationnor 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  
63  
the enforcement of residential tenancies regulations, this is not the enforcement of provincial  
regulations writ large. The Grievors 311 call centre work was acknowledged not to be face-to-  
facecustomer service, and there is no clarity in her evidence as to the degree to which her  
residential tenancies work involved de-escalationof 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 Employers 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 Grievors 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 makethe 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 reasonablefashion etc. I so  
order.  
Dated at Hermans Island, Municipality of the District of Lunenburg,  
this 22nd day of April 2022.  
Bruce P. Archibald, Q.C.  
Arbitrator  
65  
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 Ordersor Noticesas 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 or GED and a Diploma from a law enforcement program.  
Minimum one (1) year experience working in an enforcement role.  
Minimum two (2) yearsexperience in customer service.  
Minimum of one (1) year experience with database software.  
An equivalent combination of education and experience may also be considered.  
Technical/Job Specific Knowledge and Abilities:  
Ability to effectively deal promptly with conflict and stressful situations with tact and  
diplomacy using good judgment.  
Above average abilities in communications (both orally and written) and interpersonal  
skills.  
Ability to make decisions relative to urgency, importance and public scrutiny.  
Ability to prioritize and coordinate a multitude of tasks and responsibilities.  
Good observation, problem solving and decision making skills.  
Ability to maintain confidentiality.  
Knowledge of standard office software and technology including Microsoft Office Suite,  
and Hansen or similar systems.  
Ability to work independently with minimal supervision.  
Knowledge of municipal by-laws, Motor Vehicle Act and Halifax Regional Charter  
considered an asset.  
Must possess a valid Nova Scotia Class 5 Drivers License.  
67  
Physical Demands:  
Be able to walk bet