IN THE MATTER OF A FIRST COLLECTIVE AGREEMENT ARBITRATION  
PURSUANT TO SECTION 92.4 OF THE LABOUR RELATIONS CODE,  
R.S.A. 2000, c. L-1, as amended  
BETWEEN:  
HEALTH SCIENCES ASSOCIATION OF ALBERTA  
The “Union” or “HSAA”  
AND  
SIKSIKA HEALTH SERVICES  
The “Employer” or “SHS”  
INTEREST ARBITRATION AWARD  
Panel:  
Mark L. Asbell, Q.C., Trina Avey (Nominee  
for the Union), Deb Milimaka Miles  
(Nominee for the Employer)  
Appearing for the Union:  
Appearing for the Employer:  
Trisha Thibodeau (Counsel), Gail Olstad,  
(Labour Relations Officer), John Nystrom,  
Cam Doore, Mozac Samson  
John Batzel (Counsel), Vicki Yellow Old  
Woman, (CFO and COO), Tom Littlechild,  
(Director)  
Location of Hearing:  
Hearing Dates:  
By Virtual Platform  
December 24, 2021, January 3-5, 2022.  
Written submissions  
January 21, January 28, February 4,  
February 15, February 22, 2022  
Panel Discussions:  
Award Date  
February 15, March 2, April 18, April 29,  
May 1, May 3, 2022  
May 4, 2022  
1
AWARD INDEX  
I
Introduction  
Para 1  
Para 2  
Para 6  
Para 11  
II  
The Parties  
III  
IV  
Labour Relations Board’s Findings of Bad Faith Bargaining  
A Difficult and Protracted Start to the Collective Bargaining  
Relationship  
V
Enhanced Mediation Process  
Para 45  
Para 57  
VI  
VII  
Events After Enhanced Mediation  
The Arbitration Process  
Para 61  
VIII Employer’s Evidence  
Para 63  
IX  
X
Comparators and Evidence of the Union  
Overview of the Positions of the Parties  
General Interest Arbitration Principles  
Para 78  
Para 87  
XI  
XII  
Para 96  
Level of Deference Owed to Enhanced Mediator  
Para 101  
Para 119  
Para 128  
Para 129  
Para 132  
Para 140  
Para 147  
Para 154  
Para 158  
Para 162  
Para 169  
Para 175  
Para 203  
Para 211  
XIII Items Remaining in Dispute  
XIV Analysis  
A
B
C
D
E
F
G
H
I
Changes by Consent  
Article 4.05 Recognition  
Article 12 Hours of Work  
Article 12.06(b) Schedule Posting and Schedule Changes  
Article 12.06(c) Schedule Posting and Schedule Changes  
Article 21.08(a)(i) Bereavement Leave  
Article 25.10 Discipline and Dismissal  
Article 25.07  
Financial Provisions: Salary Appendix, Retroactivity  
(1) Pandemic No Excuse to Breach Legal Responsibilities  
(2) Determination of the Compensation Matters in Dispute in the  
Salary Appendix  
2
(3) Retroactivity  
Para 228  
Para 238  
J
Article 28 and Letter of Understanding #3: Recognition of Prior  
Experience  
K
Letter of Understanding #5: Flexible Spending Account  
Para 252  
Para 261  
Para 265  
XV  
Summary and Conclusion  
XVI Addendum  
I.  
INTRODUCTION  
[1]  
This is a first collective agreement dispute between Siksika Health Services  
(SHS or the Employer) and Health Sciences Association of Alberta (HSAA or the  
Union). By Order dated August 5, 2021 (the Referral to First Contract Arbitration  
Decision),1 the Labour Relations Board appointed myself together with nominees from  
each party (Trina Avey, nominee for the Union, and Deb Milimaka-Miles, nominee for  
the Employer) to determine the first collective agreement for the parties. This Award  
resolves all items remaining in dispute and establishes the first Collective Agreement for  
the parties.  
II.  
THE PARTIES  
[2]  
The Employer is a not-for-profit organization created by the Siksika Nation. As  
part of its mandate, it operates an emergency medical service (Siksika Emergency  
Medical Service or SEMS) which began in 1999 when SHS took over the Blackfoot  
Ambulance Service. SHS operates with a Board of Directors, a Chief Executive Officer  
and a Fire Marshall. SHS provides services to Siksika Nation members on and off  
reserve as well as providing services as-needed to non-Siksika Nation members  
travelling through Siksika Nation lands or as directed by Alberta Health Services (AHS).  
[3]  
The Siksika Emergency Medical Services operates out of the fire hall and SHS  
allocates part of its budget for building rent and maintenance as well as ambulance  
maintenance and replacement. SHS operates two frontline ambulances at the  
advanced life support level and has two backup ambulances.  
[4]  
Siksika Nation has a total population of approximately 9000 members. Siksika  
Nation is part of the Blackfoot Confederacy which also consists of the Piikani and  
Kainaiwa First Nations of southern Alberta and the Blackfeet in the State of Montana.  
Siksika Nation has no tax base and does not financially subsidize SHS.  
1 HSAA v SiksikaHealth Services and Certain Employees of SiksikaHealth Services, 2021 CanLII 69979  
3
[5]  
HSAA is a trade union representing over 27,000 paramedical technical,  
professional and general support employees in the public and private health-care  
sectors of Alberta. HSAA represents ambulance workers (also known as Paramedical  
Technical workers) in at least eight bargaining units in the province, which comprises  
the majority of these employees.  
III.  
LABOUR RELATIONS BOARD’S FINDINGS OF BAD FAITH BARGAINING  
[6]  
As compared to other labour relations disagreements, this is a long-outstanding  
dispute between the parties in reaching a first collective agreement. First starting with  
the Union’s application to the Alberta Labour Relations Board in December 2016 to  
become the bargaining agent for "all ambulance attendants" of SHS, the Employer  
began a constitutional challenge to the authority of the Labour Relations Board to certify  
HSAA as a bargaining agent on First Nationsterritory. This constitutional challenge  
took SHS through multiple applications and court hearings before the Labour Relations  
Board, the Court of Queen’s Bench of Alberta, the Alberta Court of Appeal, and finally to  
the Supreme Court of Canada which refused SHS’s final appeal application in June  
2020.  
[7]  
But even after the Supreme Court of Canada dismissed the Employer’s  
constitutional challenge, and as found by the Labour Relations Board in its August 5,  
2021, Referral to First Contract Arbitration Decision, the Employer refused to engage in  
good faith bargaining with the Union, instead using conduct aimed at frustrating the  
bargaining process with the apparent intent of encouraging efforts by employees to  
revoke HSAA’s certification. The Labour Relations Board found the Employer did not  
engage in good faith bargaining. It did not meet with the Union to bargain and did not  
provide any proposals to the Union to consider. In so doing, the Employer adopted an  
extreme bargaining positionand engaged in a deliberate effort at union avoidance.  
After reviewing the Union’s efforts to engage the Employer in bargaining, the Mediator’s  
inability to even get a proposal from the Employer to put forward to the Union, and the  
Employer’s obvious efforts to avoid collective bargaining, the Labour Relations Board  
concludes in its Referral to First Contract Arbitration Decision:  
[126] The Board is convinced on the evidence that the failure of SHS to  
dedicate the time, resources and energy necessary and commensurate  
with its statutory obligation to bargain and participate in the Division 14.1  
process was a choice of priorities. This choice is evident from SHS’s  
failure to do nearly anything in furtherance of bargaining from June 2020  
to the end of the mediation process, beyond providing “general  
comments” on a single day of bargaining. SHS chose not to begin  
preparations for bargaining. It chose not to prepare to do so even after it  
had consented to the mediation process. It continued to choose not to  
direct any urgent time or resources into the process, despite being in the  
4
middle of a legal process ordered by the Board. It did so despite the  
Mediator’s specific directions as to the timelines for that process, which  
were issued after, and with proper consideration of, SHS’s arguments  
that further delay was warranted due to COVID. The Board and the  
Mediator heard SHS’s requests for essentially blanket permission to do  
nothing in this process due to COVID several times, and those requests  
were routinely not accepted. The urgency with which the Board and the  
Mediator were treating the obligation to engage in the bargaining process  
cannot possibly have been lost on SHS. This was a long-delayed first  
contract situation, not analogous to other negotiations during COVID in  
more mature bargaining relationships. SHS had legal obligations under  
Division 14.1 of the Code, and these were still not treated as a priority  
which demanded SHS’s attention. There is no question on the evidence  
that SHS had the capability of doing far more.  
[127] While not necessary for its decision to direct arbitration, the Board  
would be further prepared to infer this failure to direct time, energy and  
resources towards the bargaining process was a deliberate effort by SHS  
to undermine the bargaining relationship. The evidence is clear that SHS  
avoided any engagement with HSAA, even when stays were not in place.  
It avoided providing HSAA with information about the bargaining unit –  
information at the very core of a union’s ability to represent the  
bargaining unit even after the Court of Appeal’s limited stay made clear  
that while HSAA might be precluded from bargaining it otherwise had full  
representational rights for the bargaining unit. The evidence is clear that  
failure had a negative impact on HSAA’s communications and  
relationship with the members of the bargaining unit. And when all  
challenges to the certification were at an end, SHS still provided no  
response to HSAA’s communications concerning bargaining – not even  
making a request to forestall bargaining until HSAA had sought the  
Board’s assistance. SHS’s entire course of action must be viewed in the  
context of anticipating imminent revocation applications: the fact a  
revocation application had been made was referenced in SHS’s very first  
response to the first contract assistance request in August of 2020. There  
was hardly any doubt another revocation application would be  
forthcoming when the first was ruled untimely.  
[128] … Put simply, reaching the end of Enhanced Mediation without  
providing any bargaining proposal whatsoever is an extreme bargaining  
position. Reaching the end of Enhanced Mediation having only  
participated in that process to the extent revealed in the facts above  
constitutes a failure to negotiate with the union. For the reasons outlined  
above, the Board is not satisfied that COVID forced SHS into this  
5
situation and that it is blameless as relates to these factors. The evidence  
shows SHS chose not to apply the time or resources necessary to  
engage more than minimally in the Division 14.1 process. Its lack of  
action has completely frustrated that process. Further, while not  
necessary for the Board’s decision, we find it did so in a deliberate effort  
at union avoidance.  
[8]  
The Board found all of these factors supported the referral to arbitration and the  
appointment of this Arbitration Board.  
[9] Unfortunately, the Employer’s refusal to engage in collective bargaining and  
adoption of its extreme bargaining position resulted in absolutely no terms of  
employment being discussed at the bargaining table, let alone being agreed to. During  
the course of this arbitration, SHS agreed with a number of the articles recommended  
2
by the Mediator in the Enhanced Mediator’s Report and the parties have mutually  
agreed to other changes which jointly make sense to change. As a consequence, there  
are relatively few actual determinations that need to be made by this Arbitration Board  
with the biggest issues relating, not too surprisingly, to monetary and jurisdiction  
concerns.  
[10] Given the difficult and protracted history between the Employer and Union and  
the significant length of time in finally getting to a first collective agreement, the  
Arbitration Board believes that setting out this history in more detail will put its decision  
surrounding the terms of the first collective agreement which follow in better context.  
IV.  
A DIFFICULT AND PROTRACTED START TO THE  
COLLECTIVE BARGAINING RELATIONSHIP  
[11] The parties spent a considerable amount of time on this history in the Agreed  
Statement of Facts presented to the Arbitration Board. It is hoped that, while lengthy,  
setting out this background in detail will explain the delay for those both within the  
bargaining unit as well as those within the organizations of SHS and HSAA who must  
now attempt to find a way to work together towards success.  
[12] The following information was provided to the Arbitration Board by the parties in  
an Agreed Statement of Facts and has been supplemented by background provided by  
the Mediator in her Enhanced Mediator’s Report as well as decisions from the Labour  
Relations Board.  
[13] On December 2, 2016, HSAA applied to the Labour Relations Board to be  
certified as the bargaining agent for "all ambulance attendants" of SHS.  
2 Enhanced Mediator’s Report by Mediator Deborah Howes, February 2, 2021  
6
[14] On December 19, 2016, the Labour Relations Board directed a vote of the  
proposed bargaining unit to be conducted on December 22, 2016. That same day, the  
then Chief of Siksika Emergency Medical Services circulated a memo (the Memo) to  
"Siksika EMS employees”. In response to the Memo, HSAA filed an unfair labour  
practice complaint on December 20, 2016.  
[15] The vote was conducted December 22, 2016 and the ballots were sealed  
pending the resolution of objections by SHS, including SHS’s challenge to the Labour  
Relations Board's jurisdiction.  
[16] On June 2, 2017 the Labour Relations Board dismissed SHS's jurisdictional  
challenge.3 The vote was counted June 13, 2017, resulting in majority support for  
certification and a Certification Order was issued the same day. Immediately following  
the Certification Order, HSAA withdrew its unfair labour practice complaint.  
[17] HSAA served a notice to bargain on SHS on June 19, 2017.  
[18] On July 4, 2017, HSAA wrote to SHS requesting membership information and  
disclosure to enable HSAA to prepare its bargaining proposals.  
[19] On July 5, 2017, SHS applied to the Court of Queen's Bench for judicial review of  
the Labour Relations Board’s certification and jurisdiction decision.  
[20] On July 18, 2017, HSAA wrote to SHS asking to schedule a teleconference to  
discuss bargaining preparations. HSAA followed up on its July 18, 2017  
correspondence to SHS on July 24, 2017, and again on August 8 and 15, 2017, seeking  
disclosure from SHS as well as dates for bargaining. In its letter of August 15, 2017,  
HSAA specifically referenced the delay in bargaining and asked for a reply from SHS.  
[21] Hearing no response from SHS, HSAA filed another unfair labour practice  
complaint against SHS before the Labour Relations Board alleging a failure to bargain  
in good faith on August 23, 2017.  
[22] In the interim, and after receiving the Labour Relations Board’s decision granting  
HSAA’s certification, SHS applied to the Labour Relations Board for a stay of the  
certification decision pending SHS’s judicial review application. The Labour Relations  
Board denied the Employer’s stay application on September 18, 2017.4  
3 Health Sciences Associationof Alberta v. SiksikaHealth Services, [2017] Alta. LRBR 35, 2017 CanLII  
72953 (AB LRB) certificationapplicationgranted dated June 2, 2017.  
4 SiksikaHealth Services v Health Sciences Associationof Alberta, [2017] Alta. LRBR LD-080, 2017  
CanLII 61259 (AB LRB) stay application denied dated September 18, 2017.  
7
[23] Following receipt of the Labour Relations Board’s September 18, 2017 decision,  
SHS applied to the Court of Queen's Bench for a stay of the certification order of the  
Labour Relations Board. In an interim ruling dated October 26, 2017, confirmed in  
writing November 20, 2017, the Court of Queen’s Bench granted the stay pending the  
judicial review hearing.5  
[24] Justice R.E. Nation of the Court of Queen’s Bench heard the Employer’s judicial  
review application and, in a decision issued August 9, 2018 (the Judicial Review  
Decision), 6 held the Labour Relations Board came to the correct conclusion in finding  
that the presumption of provincial regulation of labour relations was not rebutted in this  
case. As a consequence, the Court upheld the Labour Relations Board’s original  
decision granting HSAA’s certification application.  
[25] After receipt of the Judicial Review Decision, HSAA again attempted to set up  
bargaining dates with SHS, updated its bargaining committee, and sought disclosure  
from SHS. SHS did not respond to any of these letters.  
[26] On September 10, 2018, SHS filed a Notice of Appeal to the Alberta Court of  
Appeal of the Judicial Review Decision.  
[27] On October 30, 2018, HSAA made its first application for assistance from the  
Labour Relations Board for the settlement of a first collective agreement. At a  
Resolution Conference mandated by the Labour Relations Board on December 10,  
2018, the parties agreed to conduct a "Meet and Greet" in furtherance of collective  
bargaining in January or February 2019. HSAA’s application for settlement of a first  
collective agreement was adjourned sine die.  
[28] Meanwhile, SHS continued its constitutional challenge before the courts to the  
authority of the Labour Relations Board to certify HSAA as a bargaining agent on First  
Nations territory. SHS sought a stay of the Judicial Review Decision before the Court of  
Queen’s Bench pending its appeal to the Court of Appeal. The stay was denied by the  
Judicial Review Decision judge on December 19, 2018.  
[29] SHS and HSAA met February 22, 2019 but no bargaining occurred. The parties  
communicated throughout January through June 2019 but had no further meetings in  
that time frame.  
[30] Having been denied a stay by the Court of Queen’s Bench, SHS brought an  
application before the Court of Appeal seeking a stay from that court until the Court of  
5 SiksikaHealth Services v Health Sciences Associationof Alberta, 2017 ABQB 683 stay application  
granted on interim basis October 26, 2017, confirmed by decision dated November 20, 2017;  
6 SiksikaHealth Services v Health Sciences Associationof Alberta, 2018 ABQB 591 judicial review  
denied August 9, 2018.  
8
Appeal heard and decided on the appeal from the Judicial Review Decision. On May 6,  
2019, Justice J. Strekaf of the Court Appeal, sitting alone, granted SHS’s application for  
a stay to the extent that neither party was required to proceed with any steps towards  
negotiating a collective agreement pending disposition of the appeal before the Court of  
Appeal (para 20).7 In granting this stay, the Court of Appeal specifically noted the  
threshold for establishing an arguable issue is low and that the Union and SEMS  
workers have suffered irreparable harm as a result of the stay that has been in place  
and would continue to be in place if the appeal was ultimately dismissed.  
[31] In argument before us, SHS points specifically to both the Court of Queen’s  
Bench and Alberta Court of Appeal decisions granting its stay applications and the  
Courtsdeterminations that there was an arguable case to be tried. SHS suggests this  
shows its legal argument had merit and was not merely a delay tactic as insinuated by  
HSAA. However, while granting SHS’s stay application, the Court of Appeal was very  
aware that HSAA and the employees had already suffered irreparable harm and would  
continue to face harm if the stay being granted. The Court recognized that the Union’s  
majority support would weaken and could result in the loss of representational rights:  
[16] The Union submits, and I accept, that the Union and the SHS  
ambulance workers have suffered irreparable harm as a result of the stay  
that has been in place and that this harm will continue if a stay is granted  
pending the appeal, and the appeal is ultimately dismissed. The nature of  
that harm was described by the Board when it refused the initial request  
for a stay (Siksika Heath Services v Health Sciences Association of  
Alberta, 2017 CanLII 61259 (ABLRB) at para 30):  
In relation to the harm likely to be suffered by the Union, the maxim  
“labour relations delayed is labour relations denied” accurately  
describes the effect of staying a certification order. During the  
period of the stay, which can be in effect for a considerable period  
of time, the Union is prevented from representing employees in the  
bargaining unit with respect to their employment issues and lacks  
the ability to require the Employer to engage in collective  
bargaining. Having garnered majority support among the  
employees in the bargaining unit, the Union’s ineffectiveness as  
bargaining agent will more than likely result in a withering away of  
its support. In addition, the workplace does not remain static –  
employees come and go; the Employer continues to have access to  
the employees; there are no legal impediments preventing the  
Employer from changing the terms or conditions of employment;  
and, the employees remain unrepresented in their dealings with the  
7 SiksikaHealth Services v Health Sciences Associationof Alberta, 2019 ABCA 169 stay application  
granted dated May 6, 2019  
9
Employer. Given the length of time it normally takes to conclude a  
judicial review application, a stay of the Decision and order would  
most likely result in a loss of the Union’s representational rights.  
[32] Notwithstanding the irreparable harm which has befallen the Union and  
ambulance workers, the Court of Appeal, following the test set out in RJR-MacDonald v  
Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, determined the  
balance of convenience weighed in favour of Siksika Nation and SHS in relation to its  
constitutionally protected right to self-government and its treaty rights under the  
Constitution Act, 1982, as well as its potential of non-recoverable costs.  
[33] In light of the Court of Appeal's stay of proceedings, HSAA withdrew its  
application before the Labour Relations Board alleging SHS was engaging in bad faith  
bargaining.  
[34] The Court of Appeal heard the appeal of the Judicial Review Decision in  
November 2019. In a decision issued December 17, 2019, the Court of Appeal denied  
SHS’s appeal.8  
[35] On January 16, 2020, HSAA wrote to SHS proposing new bargaining dates.  
HSAA followed up on February 5, 2020 and February 25, 2020. SHS did not respond to  
HSAA.  
[36] On February 14, 2020, SHS applied for leave to appeal to the Supreme Court of  
Canada.  
[37] On March 3, 2020, HSAA made another application to the Labour Relations  
Board seeking assistance in settling the terms of the first collective agreement. Again, in  
light of SHS’s application for leave to appeal to the Supreme Court of Canada, HSAA  
withdrew this second application for assistance from the Labour Relations Board on  
March 4, 2020.  
[38] On June 11, 2020, the Supreme Court of Canada denied SHS’s application for  
leave to appeal.9 In so doing, the Supreme Court of Canada effectively upheld the  
original certification application made by HSAA on December 2, 2016 and granted by  
the Labour Relations Board on June 13, 2017.  
[39] On June 18, 2020 HSAA wrote to SHS asking for SHS's proposed bargaining  
dates and committee. SHS did not respond. HSAA wrote to SHS again on June 26,  
8 SiksikaHealth Services v Health Sciences Associationof Alberta, 2019 ABCA 494 appeal dismissed  
dated December 17, 2019.  
9 SiksikaHealth Services v. Health Sciences Associationof Alberta, et al., 2020 CanLII 39202 (SCC) –  
application for leave to appeal denied dated June 11, 2020  
10  
2020 advising that, if SHS did not respond by July 9, 2020, HSAA would, once again,  
seek assistance from the Labour Relations Board for the settlement of a first collective  
agreement.  
[40] Before HSAA followed through with another application to the Labour Relations  
Board, as anticipated by the Union and confirmed by Labour Relations Board in its  
denial of the Employer’s original stay application in 2017, and as acknowledged by the  
Court of Appeal as a likelihood when granting the last stay application, the expected  
revocation application was filed. Almost immediately after the Supreme Court of Canada  
dismissed the Employer’s leave to appeal, a group of employees within HSAA’s  
bargaining unit applied for revocation of HSAA’s bargaining certificate. On August 7,  
2020, the Labour Relations Board dismissed the July 3, 2020 revocation application as  
untimely given that the minimum period of 10 months required pursuant to the Labour  
Relations Code (section 52(3)(b)) had not passed since the date of the conclusion or  
final disposition of the judicial review proceedings.10 Thus the revocation application  
could not comply with the time requirements set out in section 52(3)(b) of the Code.  
[41] On July 10, 2020, HSAA made its third application to the Labour Relations Board  
for assistance in resolving the terms of the first collective agreement. The Labour  
Relations Board directed SHS to reply to HSAA's application by July 31, 2020.  
[42] On July 27, 2020, SHS wrote to the Labour Relations Board requesting an  
extension. SHS's deadline was extended to August 7, 2020.  
[43] SHS filed a reply August 7, 2020, again requesting that the hearing of the matter  
be stayed due to the COVID-19 pandemic.  
[44] The Labour Relations Board denied SHS’s adjournment application, instead  
directing the parties to attend before it for a resolution conference. The parties met with  
a Vice-Chair of the Labour Relations Board on September 14, 2020, and, with the  
consent of the parties, the Labour Relations Board issued an Enhanced Mediation  
Directive under section 92.2 of the Code appointing the Mediator.  
V.  
ENHANCED MEDIATION PROCESS  
[45] Under the terms of the Enhanced Mediation Directive, the Labour Relations  
Board appointed Mediator Howes to assist the parties in attempting to reach their first  
collective agreement. The Directive stipulated that the Mediator conduct up to 5 days of  
informal mediation and that the mediation could be changed to enhanced mediation by  
10 Certain Employees of SiksikaHealth Services v SiksikaHealth Services, [2020] Alta LRBR LD-061,  
2020 CanLII 54565 (AB LRB)  
11  
request from the Mediator or on application of one of the parties. Mediation was to  
commence in November 2020 and be completed by December 31, 2020.  
[46] On September 21, 2020, the Mediator learned the parties had not exchanged  
any proposals or held any bargaining discussions. Upon contacting the Employer, the  
Mediator was referred by the Employer to its legal counsel. After multiple emails and  
phone messages, the Mediator was finally able to connect with the Employer’s legal  
counsel who advised her the Employer had not yet established a bargaining committee  
or prepared any proposals. Legal counsel committed to respond by the end of October.  
[47] The Employer failed to respond to the Mediator so the Mediator set dates for  
mediation based on the dates the parties identified in September.11 The Mediator met  
with the Union on December 4 and 8, 2020 to obtain their proposals and rationale. The  
Mediator was next to meet with the Employer on December 17 and 18, 2020 as per the  
Mediator’s schedule. Instead, on December 14, 2020, the Employer advised the  
Mediator it was seeking an adjournment of the mediation until late January because of  
the COVID situation on the Siksika Nation.  
[48] On December 16, 2020 the Mediator set up a tentative schedule for the  
mediation for January and confirmed the time limits would be extended if the parties  
committed to the dates and process in the tentative schedule. Both parties confirmed  
their availability, and the Mediator extended the time limits to February 2, 2021.  
[49] In conjunction with this extension, the Mediator applied to the Labour Relations  
Board requesting that informal mediation be changed to Enhanced Mediation. The  
Employer objected to the application. Notwithstanding the Employer’s objection, the  
Labour Relations Board issued a Varied Enhanced Mediation Directive dated December  
21, 2020.12  
[50] The Mediator set up a schedule of meetings with the parties. The Employer’s full  
bargaining committee never did meet with the Mediator; rather, at the first meeting  
scheduled by the Mediator with SHS on January 18, 2021, only the Employer’s legal  
counsel was in attendance. Notwithstanding this, the Mediator discussed HSAA’s  
proposals and rationale and requested information from SHS. At the second scheduled  
meeting with SHS on January 22, 2021, three of the five members of the Employer’s  
bargaining committee attended. The Employer’s representatives confirmed the  
Employer’s bargaining committee consisted of five individuals and provided the  
Mediator with general comments, concerns, and questions. SHS provided no formal  
proposals for the Mediator to take to the Union.  
11 Enhanced Mediator’s Report Explanations for Recommendations document by Mediator Deborah  
Howes, February 2, 2021, page 5.  
12 Health Sciences Associationof Alberta v SiksikaHealth Services, [2020] Alta. LRBR BD-018, 2020  
CanLII 102346 (AB LRB)  
12  
[51] On January 27, 2021, the Mediator then met jointly with both the Union and SHS.  
At that meeting the Employer requested a further extension of the mediation until March  
31, 2021 for the same reasons as expressed in December 2020. The Employer was  
not prepared to provide a tentative schedule of meetings for its committee or the  
mediation to accommodate a March 31 deadline. At best SHS told the Mediator and  
Union that its committee may be able to meet close to the end of March. The Union did  
not agree with the adjournment request.  
[52] On January 28, 2021, the Mediator advised the parties she would not agree to  
extend the time limits and would be issuing her Enhanced Mediator’s recommendations  
instead.  
[53] The Mediator provided her Enhanced Mediator’s Report on February 2, 2021.  
[54] In providing recommendations for a full collective agreement for the parties, the  
Mediator acknowledged she only had limited input and general comments from SHS  
during the process and never received an official position from SHS because the  
Employer’s bargaining committee never met to review the Union’s full proposals. The  
Mediator indicated she nonetheless attempted to capture the Employer’s general  
comments in her Report. She also confirmed she reviewed all the documents provided  
to her by the Employer and Union.  
[55] The Mediator noted that the Union fully engaged in the mediation and enhanced  
mediation.  
[56] Throughout this process, the parties did not meet together to engage in  
bargaining. As a consequence, the parties did not resolve any items between them in  
bargaining, mediation, or enhanced mediation. Not only were no items resolved in  
bargaining, the Employer never provided a bargaining proposal to HSAA to consider.  
VI.  
EVENTS AFTER ENHANCED MEDIATION  
[57] Upon the issuance of the Enhanced Mediator’s Report, the Union put it before its  
membership for a ratification vote on February 5, 2021. The Union’s membership voted  
against ratifying the agreement. The Employer also refused to accept the  
recommendations of the Mediator.  
[58] With the rejection of the recommendations set out in the Enhanced Mediator’s  
Report by both the Employer and employees, HSAA made application to the Labour  
Relations Board on February 23, 2021 for the matter to proceed to first contract  
arbitration. SHS filed a reply on March 10, 2021, seeking adjournment of HSAA’s  
application pending stabilization of the COVID-19 pandemic. The Employer also  
13  
disputed the Labour Relations Board’s jurisdiction under section 92 of the Code. In a  
decision issued April 23, 2021, the Labour Relations Board dismissed the Employer’s  
adjournment application and determined that this is a first contract arbitration request  
governed by section 92.3 as it existed prior to legislative changes to the Labour  
Relations Board’s first contract arbitration power.13  
[59] In the intervening period between the date of its application for first contract  
arbitration and the Labour Relations Board’s April 23rd Decision, HSAA filed both  
another unfair labour practice complaint against SHS, as well as another complaint  
when the Employer failed to post the notice of that complaint in the workplace as  
required by the Code and ordered by the Labour Relations Board.  
[60] Tensions were obviously running high in the workplace at this time because on  
April 16, 2021, the Board received a second application for revocation. The Labour  
Relations Board dismissed this second attempt at revocation in its August 5, 2021,  
Referral to First Contract Arbitration Decision. In dismissing the employees’ revocation  
application, the Labour Relations Board again references the conduct of SHS  
throughout the process and notes that the Employer’s conduct may well have unduly  
and inappropriately impacted the impressions of employees. It notes the legislation is  
designed to provide the parties with a period of peace in which all parties can develop a  
greater familiarity with each other and the proper processes of a certified bargaining  
relationship:  
[133] As explained in paragraphs 16 - 28 above, as the Board has  
declared this dispute shall be resolved by arbitration, the revocation  
application cannot proceed, and it is dismissed.  
[134] The Board stresses that this is not a reflection on any actions of the  
Revocation Applicants, and the Board anticipates their frustration. The  
evidence reveals there is a portion of the bargaining unit deeply opposed  
to the certification and eager to pursue revocation, just as there is a  
portion of the bargaining unit deeply supportive of HSAA. The Board  
would simply reiterate its comments above, that the first contract sections  
of the Code are intended to protect the new bargaining relationship as a  
whole, and particularly the impressions of the “persuadable middle”  
about that bargaining relationship, from being unduly and inappropriately  
impacted by the actions of the employer. That is what the Board has  
found here. This is not a “technicality”. The actions of SHS have resulted  
in it being necessary to ensure a collective agreement be reached via  
arbitration, with a resulting period of peace in which all parties can  
develop a greater familiarity with the proper processes of a certified  
13 HSAA v SiksikaHealth Services, [2021] Alta LRBR 78  
14  
bargaining relationship. In the end, this may not change any minds  
among the Revocation Applicants. However, it is entirely necessary to  
protect the bargaining relationship as a whole as a result of the actions of  
SHS.  
[135] The Board has not answered many of the legal questions posed  
about the revocation application, and as a result of the dismissal on the  
above grounds, it will not do so. The Board would, however, observe in  
obiter that an employer keeping a known organizer of a revocation  
campaign in a position to unilaterally determine the scheduling of casual  
employees without direction or oversight from management could  
certainly be seen as inappropriate employer support for the revocation  
application, and may raise fundamental concerns about the revocation  
application.  
VII. THE ARBITRATION PROCESS  
[61] This Arbitration Board was officially appointed by the Labour Relations Board on  
August 5, 2021. The arbitration was originally scheduled to proceed November 8-10,  
2021. Through no fault of anyone, these dates were adjourned on November 5, 2021  
when counsel for SHS could not proceed with the arbitration. New counsel from the  
same law firm took over the conduct of the file and new dates were set for the  
arbitration.  
[62] The Arbitration Board met with counsel for the parties in a case management  
meeting on December 24, 2021, and then heard viva voce evidence from four witnesses  
January 3 through 5, 2022. As part of the hearing process, the parties submitted an  
Agreed Statement of Facts with 32 attachments together with 20 exhibits including an  
economic analysis of SHS and comparator collective agreements. At the conclusion of  
evidence, the parties submitted written submissions on January 21, January 28,  
February 4, February 17, and February 22, 2022.  
VIII. EMPLOYER’S EVIDENCE  
[63] The Employer called two witnesses: Tom Littlechild, the Director of Siksika  
Emergency Medical Services for SHS, and Vicki Yellow Old Woman, the Chief Financial  
Officer and Chief Operating Officer for SHS. Before hearing from Ms. Yellow Old  
Woman, SHS sought an adjournment of the arbitration hearing because of an outbreak  
of Covid-19 on the First Nation arguing that the levels of Covid had moved the First  
Nation into Code Red. SHS argued that Ms. Yellow Old Woman was urgently needed  
and required. While the Arbitration Board was sympathetic of the amount of time Ms.  
Yellow Old Woman was having to spend dealing with the pandemic over and above her  
other responsibilities, the Arbitration Board denied the request, ruling she was not  
15  
providing front-line care. Further, and as we were proceeding virtually, if she was  
urgently needed to make a decision within her role, we could have a brief adjournment  
to allow her to participate in meetings before reattending to provide evidence virtually.  
[64] Mr. Littlechild confirmed his group, the Siksika Emergency Medical Services, is  
one of several services overseen by SHS. SHS offers health services at the clinic on the  
Siksika Nation where there are doctors, nurses, dentistry, and mental health services.  
The SEMS operates out of the Fire Station which Mr. Littlechild is also responsible for.  
SHS offers various other programs including Elders Services, Clinical Service,  
Community Health, Home Care, Elders Lodge, Community Wellness, Disabilities,  
Recreation, and Cultural Support Services.  
[65] SHS gets its funding for SEMS from four sources. The largest portion of its  
funding comes from Alberta Health Services (AHS) about $88,000 per month. Health  
Canada, a federal entity, covers non-insured coverage which is a fee-for-service. When  
crews go out to service a call, SEMS is paid a fixed amount per kilometer and service  
provided. This amount varies month to month and year to year as it depends on the  
number of calls received. In a typical year, SEMS invoices Health Canada between  
$600,000-$800,000. The third funding source is insurance payable as a result of motor  
vehicle accidents. Again, this is another fee-for-service for which SHS receives between  
$15,000-$20,000 annually. The last funding source is Alberta Blue Cross which pays for  
elder transport in a fixed amount. This accounts for between $15,000-$18,000 in  
revenue annually. The ambulance service has no other source of funding and,  
according to both Mr. Littlechild and Ms. Yellow Old Woman, receives no funding from  
the Siksika Nation. Both Mr. Littlechild and Ms. Yellow Old Woman agreed the contract  
with AHS is negotiable and SHS is paid the amount agreed upon with AHS. Neither  
witness had knowledge of entities who were unionized with contracts with AHS so  
neither could speak to how, or how much, AHS contracts with these other ambulance  
providers.  
[66] SHS employs 16 full-time paramedics consisting of 8 Advanced Care  
Paramedics (ACPs) and 8 Primary Care Paramedics (PCPs) as well as a pool of  
approximately 50 casual paramedics who are called on from time-to-time as needed.  
Pursuant to the contract with AHS, SHS must provide two Advanced Life Support  
vehicles 90% of the time to Siksika Nation and the buffer zone around the Nation.  
SEMS has two front line trucks and two mechanical back-ups. The back-ups are older.  
The front-line vehicles are relatively new having become operational in March or April  
2021. One of the older vehicles is quite old while the other is one of the former front-line  
ambulances. Another new truck is on order which will technically be a back-up.  
[67] According to Mr. Littlechild, the Employer’s desired and needed schedule –  
should include two ACPs and two PCPs on shift at any time; one ACP and one PCP per  
vehicle. If they do not have an ACP in an ambulance, it does not qualify as an  
16  
Advanced Life Support ambulance and cannot handle some calls. Currently, and after  
canvassing the paramedics, paramedics work a 48-hour shift with 6 days off. This is  
known as a “2 on, 6 off” shift. Mr. Littlechild agreed in his evidence that not only is this  
shift desirable for employees, it works well for SEMS as well. Mr. Littlechild confirmed  
that this schedule was posted and voted upon before implementing and the result was  
pretty well unanimous: working a 48-hour shift with 6 days off was much more attractive  
to work within the emergency medical service. This is because travel to and from work  
is an issue for the majority of SHS employees. While four of the full-time paramedics are  
Siksika Nation members, the other 12 live elsewhere including Calgary and Strathmore.  
[68] Mr. Littlechild said that if this Arbitration Board awarded employees more monies  
than that which SHS could afford, SHS would have to consider altering the 2 on, 6 off  
shift-schedule to something more affordable. However, in making this statement, he did  
not offer rationale or evidence as to how much it would save SHS. He also agreed in  
cross-examination that because of Siksika Nation’s geographic location, a change in the  
shift schedule with less pay could cause difficulty in recruiting and filling positions.  
[69] The schedule is set as far in the future as possible, usually two months in  
advance. It has been problematic to maintain the posted schedule because of Covid  
and employees being asked not to come in if they feel sick or display any symptoms. If  
the schedulers cannot fill in the gaps either with full-time or casuals, they seek  
permission from Mr. Littlechild to offer overtime. Mr. Littlechild indicates he approves  
payment of overtime if it is on short-term notice. However, if its 10 or 14 days out, he  
prefers to fill positions off the casual list.  
[70] Mr. Littlechild confirmed the casual pool fluctuates and he uses casuals to backfill  
gaps in the schedule because of illness, leaves or vacation.  
[71] With respect to wages for full-time employees, Mr. Littlechild said wages are  
based on fit and skill-set. He acknowledged on cross-examination that some shorter-  
term PCPs were paid more than at least one longer-term PCP although all were a good  
fit and had the same skill-sets and should be paid the same wage. He suggested that  
the one longer-term PCP may have been paid less because he was a Siksika Nation  
member and thus did not have to pay personal income tax and perhaps this was taken  
into account in assigning his wage level. However, Ms. Yellow Old Woman confirmed in  
subsequent evidence that Mr. Littlechild was incorrect; Siksika Nation does not have a  
policy to pay its’ employees who are Siksika Nation members less because first nations’  
individuals are not required to pay federal income tax.  
[72] With respect to wages for casual employees, Mr. Littlechild confirmed they  
receive less than full-time employees and also do not receive benefits.  
17  
[73] Ms. Yellow Old Woman oversees all finances for SHS. She reviewed the  
finances of SHS generally, and the SEMS group in particular. She identified that most of  
the funding for SHS comes with very focused funding criteria, payable for a very specific  
service by a very specific funding source. The funds cannot be used elsewhere to offset  
loses or deficits from other programs. Examples include mental wellness dollars as well  
as capital building funds received for the Elders Lodge or funding for specific programs  
such as the Jordan’s Principle. The latter, for example, involved sizeable dedicated  
funding from a government program for funding for children on the reserve who are  
mentally or physically challenged. These are restricted and dedicated funding programs  
and destinations which cannot be utilized for any other purpose.  
[74] While some years may show as a small surplus in the year-end financial  
statements, it depends on when the money is received from its providers and when it is  
paid. For the 2019 fiscal year, for instance, the audited statements showed a surplus,  
but of that, $700,000 was funding received for the Jordan’s Principle which was carried  
over into the next year as was another $400,000 received to address the Opioid crisis  
within Siksika Nation. Ms. Yellow Old Woman said SHS was actually in a deficit  
position, not a surplus as it looked like on paper. Similar analysis was done for 2020  
with much of the revenue tied directly to an increase in the Jordan’s Principle funding.  
[75] As for funding specifically for the Siksika Emergency Medical Service, Ms. Yellow  
Old Woman reviewed the schedules for the Financial Statements for the year ending  
March 31, 2021 and noted total revenues for SEMS have decreased primarily because  
Health Canada funding went down the last couple of year. She noted this is a straight  
cost recovery program and the decrease is due to a decrease in the number of calls  
being down. The Financial Statements disclose that while accounting is behind in  
sending out its accounts, even with this added revenue, the SEMS is running a net  
deficit and has been in a deficit position year over year. She also confirmed that while it  
appears there was a surplus overall in this past fiscal year, again, as with the above, the  
surplus was because of the late arrival of dedicated funding which can only be allocated  
to the specified purpose.  
[76] In response to a question on cross-examination as to how the shortfall is made  
up given the year-over-year deficit situation, Ms. Yellow Old Woman indicated it is never  
really made up. It remains on their books year to year. To this point, SEMS has not had  
to claw-back on its services to service the debt. At some point in time SHS will ask the  
Nation to forgive the debt.  
[77] Ms. Yellow Old Woman did not know if the audits and financial statements were  
provided to the Mediator or not for the purposes of her Enhanced Mediator’s Report.  
18  
IX.  
COMPARATORS AND EVIDENCE OF THE UNION  
[78] The Union called Ryan Mior, employed as a researcher and policy analyst by  
HSAA, as well as Mozac Samson, an Advanced Care Paramedic within the bargaining  
unit.  
[79] Mr. Mior has a Master’s Degree with a focus on research. He is responsible for  
doing comparative analysis for collective bargaining for HSAA. As part of his research  
for this collective agreement he analyzed key terms and conditions of employment, total  
compensations for ACPs and PCPs, SHS’s revenue and expenses, contract language  
comparisons, the Enhanced Mediator’s Report, and lastly, HSAA’s own research.  
[80] For comparators, Mr. Mior used the data he received about current income for  
SHS employees as well as the Enhanced Mediator’s Report which he noted covered 76  
SEMS employees. He also looked at several collective agreements including the  
collective agreement between AHS and HSAA covering 3,379 emergency medical  
service (EMS) employees, as well as several similarly sized bargaining units including  
Wheatland EMS covering 54 EMS employees, Bonnyville Regional Fire covering 46  
EMS employees, and Cold Lake Ambulance covering 44 EMS employees. Mr. Mior also  
looked at wage comparisons from some expired collective agreements with similar  
sized employee groups including Wademsa, East Central Ambulance Association, and  
the Blood First Nation. In cross-examination, Mr. Mior acknowledged he could have  
chosen many other agreements HSAA has negotiated across Alberta, but these  
agreements would not have been true comparators as their compensation was a lot  
higher by comparison to both the current SHS structure as well as that recommended  
within the Enhanced Mediator’s Report. He used the numbers he obtained through web  
research as well as through disclosure requests for calculating the current SHS wage  
structure. As SHS did not disclose the full information sought by HSAA, he was unable  
to be definitive in some areas. As such, he used a range based on the information  
which was provided.  
[81] Mr. Mior observed that while the Mediator recommended a sizable increase in  
compensation for PCPs and ACPs employed with SHS, these recommendations were  
still significantly lower than any of the contracts he compared. In his analysis, Mr. Mior  
reviewed the total annual and hourly compensation for both the PCPs and ACPs using  
information based on 2019 valuations. In arriving at his numbers, he included salary,  
benefits, professional registration fees, flexible spending accounts, CPP and EI  
contributions, as well as RRSP or LAPP contributions to come up with a total annual  
compensation. This amount was then divided by the total number of hours worked per  
year (2190) to come up with a total hourly compensation comparator. He agreed in  
cross-examination the amounts recommended by the Mediator would be higher going  
forward as his calculations did not include recommended increases. However, that  
same principle and result applies to all the comparators used as they likewise  
19  
negotiated increases going forward. Using the highest salary range for each, his  
research disclosed the following:  
Comparator  
Total Hourly  
Total Hourly  
Percentage of  
Compensation Compensation Benefit Cost to Total  
for PCP  
$33.48  
for ACP  
$39.39  
$45.82  
Comp for ACP  
13.2%  
Current SHS  
Enhanced Mediator’s $36.05  
12.1%  
Report  
AHS-HSAA  
Wheatland  
Bonnyville  
Cold Lake  
$42.80  
$45.11  
$38.38  
$40.84  
$54.83  
$57.22  
$50.64  
$52.68  
18.4%  
20.0%  
19.3%  
16.9%  
[82] Mr. Mior noted the total compensation per hour is made up of both the  
employees regular wages plus their per hour benefit cost their employer pays on their  
behalf. Looking specifically at the Advanced Care Paramedic’s, the highest  
compensated comparable per hour is the Wheatland EMS ($57.22/hr) group followed by  
AHS EMS ($54.83/hr). The current Siksika EMS total compensation is well below all  
other EMS providers in this analysis at $39.39 per hour. The proposed Siksika EMS  
contract would elevate the total compensation per hour of employees to $45.82, a  
16.3% increase. Mr. Mior’s research also looked at the employer’s portion of the cost of  
benefits. He found that Wheatlands benefit cost to total compensation is 20.0% for  
ACP’s, compared to SHS’s current benefit cost of 13.2% and the Mediator’s  
recommendation of 12.1%.  
[83] With respect to the rate of inflation for the period covered by the Collective  
Agreement he noted that the CPI increases were: 2018-2.4%; 2019-1.8 %; 2020-  
projected 1.1%; and 2021-projected 1.4% but the actuals as of the date of the hearing  
was 3.4%. Any wage increase that does not at least match the CPI rate of inflation is  
essentially a wage cut.  
[84] Mozac Samson also testified on behalf of HSAA and his fellow SEMS employees  
and provided an overview of work as an ACP with SHS. He is also employed as a  
casual employee working for AHS in Calgary and the rural region around Calgary so  
could provide some comparisons between the two. In this regard, he noted that while  
the calls he responds to in both Siksika Nation and Calgary are similar in health  
concerns and issues, they are not the same.  
20  
[85] First, distance is a big factor as lengthy travel time requires a great deal more  
intervention and interaction with the patient when working for SHS. Secondly, for calls  
on reserve, the paramedics take a much more wholistic approach taking account of  
what supports the patient has and who the patient is taking care of in return. Within  
Calgary, for instance, if a patient is in need of medical care, they transport them to  
hospital. On Siksika Nation, the paramedics must be aware of whether the patient has a  
ride back from the hospital or whether they have anyone to look after their children. As a  
consequence, and rather than simply taking the patient to directly to hospital, the  
paramedics have to problem solve to address each patient’s needs in addition to their  
health issues. Medical transport and family or friends of the patient calls may have to be  
engaged.  
[86] Another consequence of being at a distance from the nearest hospital is the  
increased responsibility of care. Suturing is not an option for paramedics within Calgary.  
Knowledge and protocols of suturing are a must for an ACP within SHS. Similarly, drug  
administration, both in the types of drugs and the amounts administered, is different  
between the two. Distance also means that the ambulance crews cannot expect back-  
up. This applies to both medical back-up and police intervention if necessary. In Calgary  
if a paramedic calls for immediate assistance, police converge on the location within  
minutes with lights and sirens. The latter usually has the effect of de-escalating a  
situation. This simply does not happen within Siksika Nation because of the size of the  
geographic area and the limited resources. As a result, paramedics within SEMS must  
often use their “soft-skills” to not only “read” a situation, but react to it and sometimes  
de-escalate. Ambulance crews are far away from any help so they must rely on critical  
analysis and skills. In this regard, the paramedics who are Siksika Nation members are  
highly valued by the community and sometimes Mr. Samson, as a member of Siksika  
Nation, is able to step in to diffuse situations which sometimes arise between patients  
and his non-Siksika Nation partner.  
X.  
OVERVIEW OF THE POSITIONS OF THE PARTIES  
[87] Both parties agree that the Arbitration Board should show a high level of  
deference to the Mediator’s recommendations. The parties disagree on how much  
deference should be given. There are currently two different approaches in Alberta  
under Division 14.1 of the Code to this level of deference. These approaches come from  
two different cases decided at roughly the same time so neither decision refers to the  
other. As a consequence, this is the first decision where an analysis of the two  
approaches will occur to provide some guidance for others and set the approach for  
analysis within this decision. With this in mind, the Arbitration Board must consider  
UFCW Local 401 v Elbow Grease Management Ltd. (Unreported November 30, 2020)  
(Arbitrator Norrie), (referred to as Elbow Grease) and AUPE v Signature Living (Rocky  
Ridge) Management Ltd, 2021 CanLII 7104 (Arbitrator Casey) issued February 2, 2021  
(referred to as Rocky Ridge).  
21  
[88] SHS submits the reasoning in Rocky Ridge is compelling, and that the correct  
standard of review in this case is that the recommendations by Mediator should be  
considered “persuasive” by this Arbitration Board. To put this another way, SHS submits,  
there should be a presumption that the recommendations by the Mediator are the  
correct outcome and should be followed by this Arbitration Board, but that the  
presumption is a rebuttable one. SHS acknowledges it has the onus of rebutting the  
presumption at arbitration since it has not accepted all of the Mediator’s  
recommendations. The Employer submits that while it did not engage in mediation in a  
fulsome manner, it made significant efforts to narrow the collective bargaining issues in  
dispute after this was sent to arbitration and during the arbitration itself. The Employer  
continued to narrow the issues even at the conclusion of evidence and in argument by  
withdrawing its objections to a number of other provisions that were identified as  
matters for consideration by the Arbitration Board in its opening submissions. As such, it  
says, this is not a case where it seeks to “cherry pick” certain provisions. Rather, argues  
the Employer, it is a situation where SHS has made genuine efforts to narrow the issues  
in dispute at the enhanced mediation and afterwards, notwithstanding its concerns.  
[89] Similarly, SHS contends, this is not a case where SHS seeks “another kick at the  
can” at arbitration. Rather, it is a situation where SHS has longstanding and strongly  
held concerns about a relatively small number of issues that remain in dispute arising  
from its non-profit status and limited funding, and the fact that it serves a First Nations  
community.  
[90] The Union argues the approach adopted by SHS throughout has been one of  
delay, delay, delay”, with the intent, as found by the Labour Relations Board at para  
128 of the August 5, 2021, Referral to First Contract Arbitration Decision, to frustrate  
the process”. The Union alleges the Employer’s failure to bargain is intended to create  
conflict and crisis with respect to the Union’s ability to represent their membership and  
implement a first agreement.  
[91] HSAA contends it is seeking a collective agreement that reflects the current  
market and is in line with industry standards. The agreement proposed includes  
standard contract language, and a modest increase to wages, and other benefits. The  
proposed agreement, while still below the salaries and benefits offered elsewhere, gets  
the SEMS closer to direct comparators in the province. This is appropriately reflected in  
the Enhanced Mediator’s Report.  
[92] HSAA argues that there is no reason not to follow the recommendations  
contained within the Enhanced Mediation Report. The Employer’s contention that it  
should be considered independently of other market comparators does not meet the  
onus in refuting the recommendations.  
22  
[93] While SHS submits they are not attempting to “cherry pick” certain provisions  
recommended via enhanced mediation, and they have attempted to narrow the issues  
in dispute, HSAA argues that by not engaging in the normal course of bargaining in any  
meaningful way until Interest Arbitration, SHS created a number of issues in dispute  
which could have been narrowed well before Arbitration. In HSAA’s opinion, the  
Employer is attempting to have yet again, “another kick at the can” at arbitration.  
[94] Pointing again to the significant delays created by the Employer, HSAA argues  
that unionized employees have been without improvements and increases that they  
would likely have enjoyed, but for the bad faith bargaining of the Employer. The  
Employer’s actions and continued refusal to bargain in good faith has further  
undermined the bargaining relationship between the parties, as well as the Union and  
the employees. These employees have also lost ground as comparator groups across  
the province received increases during the over three years that the Union has been  
working to achieve a first agreement for the employees at SEMS.  
[95] Finally, HSAA submits that SHS has not met the high bar required to show that  
the enhanced mediation recommendations are out of line with what would be expected  
had the Employer engaged in the normal course of bargaining.  
XI.  
GENERAL INTEREST ARBITRATION PRINCIPLES  
[96] Many of the principles followed by arbitrators in interest arbitration proceedings  
were enunciated and summarized in a 1993 policy decision emanating from the British  
Columbia Labour Relations Board (BCLRB) referred to as Yarrow Lodge ([1993]  
BCLRBD No. 463). In Yarrow Lodge, the BCLRB found the collective agreement should  
put both parties in the same position they would have been in when bargaining broke  
down, not at the time of arbitration. Put another way, the collective agreement imposed  
by the arbitration board should replicate the collective agreement the parties could have  
achieved through timely and fair conventional collective bargaining.  
41. Replication “is to replicate or construct a collective agreement that  
reflects as nearly as possible the agreement that conventional bargaining  
between the parties would have produced had they themselves, been  
successful in concluding a collective agreement. This approach seeks to  
put both parties in the same position they would have been had there  
been no breakdown in negotiations.” Therefore, it is relevant to consider  
the time that collective bargaining broke down, not at the time of the  
arbitration, unless there has been a material change in circumstances  
since the conclusion of Enhanced Mediation.  
[97] Arbitrator Sims enumerated the same policy considerations for interest arbitration  
boards in Alberta. In Newport Harbour Care Centre Partnership and AUPE Local 048  
23  
Chapter 014, [2012] AGAA No 65 at page 3-4, Arbitrator Sims similarly notes that  
interest arbitration in this province customarily seeks to replicate the settlement the  
parties would have achieved:  
There are no statutory criteria for this type of voluntary interest  
arbitration. However, the accepted principles upon which interest  
arbitration customarily proceeds are not dissimilar to those used for  
Compulsory Arbitration Boards under s. 101 of the Labour Relations Act,  
which I have considered in deciding this matter. Interest arbitration  
customarily seeks to replicate the settlement the parties would have  
achieved, had they been able to do so, through free collective  
bargaining. An often cited and concise summary of the replication  
principle provides:  
... the task of an interest arbitrator is to simulate or attempt to  
replicate what might have been agreed to by the parties in a free  
collective bargaining environment where there may be the threat and  
the resort to a work stoppage in an effort to obtain demands ... and  
arbitrator’s notions of social justice or fairness are not to be  
substituted for market and economic realities.  
Re Board of School Trustees, School District 1 (Fernie) and Fernie  
District Teachers’ Association (1982), 8 L.A.C. (3d) 157 (Dorsey) at  
page 159  
Interest arbitration is not a scientific process. There is no magic formula.  
A party advancing a particular position carries the onus of presenting  
cogent evidence to support that position. This does not equate to an  
issue by issue approach where benefits are awarded because they seem  
individually attractive and well supported. Collective bargaining involves  
choices between desirable benefits, and agreements are settled on a  
package basis. As Ontario Chief Justice Winkler has noted:  
... we should have regard to the total compensation package rather  
than viewing each of its elements in isolation. We also accept that in  
collective bargaining it is legitimate for parties to make choices as to  
how total compensation is to be allocated in terms of salary, benefits  
and other forms of compensatory remuneration.  
University of Toronto and University of Toronto Faculty Assn. (2006)  
L.A.C. (4th) 193 (Winkler)  
24  
A very important guide in replicating the results of free collective  
bargaining comes from the settlements negotiated by similarly placed  
parties for a similar timeframe and in a similar industry. Comparability  
and replication are related but distinct processes. As this Chair has said:  
... interest arbitrators should apply the replication principle, using  
agreements entered into by others as a key indicator of what these  
parties might have ultimately accepted in a free collective bargaining  
situation. While replication is not the same as comparability, the latter  
is the best guide available in assessing the former. Arbitrator Picher  
summarized the comparability approach as follows:  
... the exercise becomes primarily comparative. It is reasonable  
to assume that the parties would have made a collective  
agreement generally comparable to others in the same industry  
and geographic area. A first point of reference, therefore, is the  
collective agreement which have been freely negotiated  
between similarly situated Union and employers within the  
same industry and within the same or similar locations.  
Crane Canada Inc. and Teamsters Local Union 419, unreported  
decision, September 9, 1988 (Michel Picher) at p. 9  
What is fair and reasonable overall is itself a function of the economic  
and social climate as much as it is a weighing, in isolation, of the merits  
of individual proposals.  
Northern Alberta Institute of Technology v. Alberta Union of Provincial  
Employees [2009] C.L.B. 1756  
[98] Arbitrator Smith in Carewest v AUPE, 2013 CanLII 66967, similarly followed  
Justice Winkler’s commentary in University of Toronto which Arbitrator Sims referred to  
above. In applying the replication principle, not only must “breakthrough” provisions be  
considered with care as these are usually achieved only through years of bargaining,  
arbitrators must look at the totality of the proposals presented. At page 3, Arbitrator  
Smith states:  
In applying the replication principle, based as it is upon a consideration of  
what the parties would have negotiated in a free collective bargaining  
process, arbitrators consider with care those provisions proposed by one  
or the other of the parties which might be described as “breakthrough”  
provisions.  
25  
Additionally, arbitrators have cautioned that it is necessary to examine  
the effect and implications of the totality of the proposals presented.  
Viewing each element in isolation without a consideration of the whole of  
the proposal fails to recognize the collective bargaining involves a series  
of compromises and trade-offs to achieve an overall settlement that both  
parties can accept. No party to such a process does or can expect to  
achieve all of which is sought.  
[99] While agreeing that “breakthrough” provisions should be considered with care,  
Arbitrator Casey in Rocky Ridge noted that the object for first agreement arbitrators is to  
fashion a collective agreement, the terms of which will foster a relationship of enhanced  
trust between the parties. While arbitrators should be cautious of giving “breakthrough”  
provisions, the agreements crafted should also be sufficiently generous to cause  
employers to realize its in their best interests to negotiate a fair deal directly with the  
union:  
[46] First contract arbitrators have recognized their role as facilitating the  
policy objective of a workable first collective agreement without  
undermining the process of collective bargaining. The object is to fashion  
a collective agreement whose terms will as much as possible foster a  
relationship of enhanced trust between the employer and union while  
giving the union an opportunity to demonstrate to the employees and to  
management the viability of collective bargaining as the basis for positive  
employment relationships in the future. First collective agreement  
arbitrators are cautioned against making overly generous awards rich in  
“breakthrough” provisions usually achieved only through years of  
bargaining since this would encourage resort to first agreement  
arbitration as opposed to settling disputes through mediation. On the  
other hand, first agreements should be seen as sufficiently generous to  
cause employers to realize that it may be in their interests to negotiate a  
deal directly with the union: Teamsters Local Union 419 and Crane  
Canada Inc. (1988) CLLC 16, 017 (Abella) as quoted in Yarrow Lodge  
Ltd (1993) 94 CLLC para 16, 047 (Lanyon) at p. 25 of 32.  
[100]  
Based on a review of the principles set out in the above jurisprudence, we  
summarize the guiding principles as follows:  
1. Interest Arbitration should attempt to replicate the agreement that could have  
been in place at the point in time when, but for the break-down in collective  
bargaining, conventional bargaining would have produced a new collective  
agreement.  
26  
2. Interest Arbitration should apply objective criteria, such as the comparable terms  
and conditions paid to similar employees performing similar work.  
3. First agreement contracts should not create windfalls for either party. Arbitrators  
should be cautious of giving “breakthrough” provisions. As found in Yarrow  
Lodge, new or innovative clauses ought to be left to subsequent collective  
agreements when they can be bargained by the parties themselves. Similarly,  
first collective agreements should neither be status quo or industry standard  
agreements except in rare circumstances.  
4. Conversely, just because it is a first agreement contract, bargaining does not  
justify proposals for less than what exists in a spectrum or range of terms and  
conditions that similarly placed unions and employers would negotiate in similar  
locations and industries. Rather, the arbitrator will recognize and build on any  
comparators already identified by the parties as being relevant and appropriate.  
5. While arbitrators should be cautious of giving “breakthrough” provisions, the  
agreements crafted should also be sufficiently generous to cause employers to  
realize its in their best interests to negotiate a fair deal directly with the union  
6. Arbitrators should be equally concerned with what is “fair and reasonable in the  
circumstances”. This requires the Arbitrator to objectively assess what should be  
appropriately included in a first contract. It must be in line with the economic  
realities of the employer, as presented by the parties, and sufficiently in line with  
what would be reasonably attractive to employees in order to foster the process  
of collective bargaining.14 Thus, the financial state of the employer is very  
important to any imposed settlement. However, it is clear that no judgment  
concerning the financial viability of the employer can be made or considered  
unless such evidence is placed before the arbitrator. As held in Yarrow Lodge at  
para 171:  
no imposed first agreement should in any way place an employer  
in jeopardy of its business surviving. That, as a matter of public  
policy, is incorporated within first contract arbitration; it is also a  
matter of common sense to every employee, union and employer. An  
employer who relies on this criteria, and can demonstrate to an  
arbitrator’s satisfaction, that the position it is taking in bargaining is  
consistent with its available financial resources, is entitled to have its  
position given significant weight. Conversely, an employer who  
attempts to rely on this factor, but refuses to reveal evidence that  
would support its position, or gives insufficient evidence or perhaps  
14 Yarrow Lodge at para 149 citing Teamsters Union Local 419 v. Crane Canada Inc., (1988) CLLC ¶  
16,017  
27  
misrepresents its position, will have little or no weight assigned to this  
factor or its position.  
7. There must be internal consistency and equity amongst employees.  
8. There should be “significant deference due to the enhanced mediator” and  
recommendations as per the enhanced mediation process. And, that the  
effectiveness of mediation would be fundamentally frustrated if recommendations  
were simply seen as an interim step on the way to arbitration.  
9. Arbitration should not be a forum to take another “kick at the can” and try to  
renegotiate any recommendations set out in mediation or via the enhanced  
mediation process. It should reinforce the mediators’ recommendations and while  
not required to simply confirm a mediator’s recommendations, careful attention  
and due consideration must be used when choosing not to give deference to the  
mediators’ recommendations.  
10.If there is new and relevant information that one party asserts may be used to  
alter the recommendations provided by the mediator, there is an onus on that  
party to disclose their full position, including relevant and detailed information  
supporting the change. As per Silver City Galvanizing and Christian Labour  
Association of Canada, Local No. 68, at para 23 as referred to in Elbow Grease  
paras 52 and 53, “there is a very high onus on a party that wishes to overturn a  
mediator’s recommendations…”  
XII.  
LEVEL OF DEFERENCE OWED TO ENHANCED MEDIATOR  
[101] As identified above, there are two first contract arbitration decisions in Alberta  
under Division 14.1 of the Code that we are aware of which have considered the issue  
of deference owed by a first contract arbitration panel to the recommendations of an  
enhanced mediator: Elbow Grease and Rocky Ridge. The two decisions reached  
somewhat different conclusions with respect to deference. Because of the difference in  
approaches, we examine both cases in some detail. While not necessarily a significant  
difference in approach, we adopt, with some amendments, the level of deference found  
by the panel in the Rocky Ridge decision.  
[102] Both first contract arbitration decisions first quote from the Alberta Labour  
Relations Board decision in AUPE v. CBI Health (AB) Limited Partnership, 2018 CANLII  
9001 (“CBI v. AUPE”) regarding the Labour Relations Board’s review of the enhanced  
mediator’s powers under section 92.2 of the Code:  
[37] The path outlined above is not simply a “re-do” of mediation that is  
available under section 65 of the Code. The mediator is provided with  
enhanced powers to recommend contract terms which may or may not  
28  
be accepted by the Board or an arbitrator. It can be expected, however,  
that arbitrators and the Board will benefit from the mediator's familiarity  
with the dispute and his or her expert advice with respect to identifying  
fair and equitable contract provisions to resolve the first contract dispute.  
[103] The arbitration panel in Elbow Grease begins its review of the deference to be  
given the enhanced mediator by noting the significance the BCLRB in Yarrow Lodge  
placed on mediation in concluding a first agreement. As with CBI Health noted above,  
the panel begins this analysis also starting at para 37:  
[37] Yarrow Lodge further addresses the importance of mediation in the  
process for concluding a first agreement. Where a mediator provides  
recommended terms of settlement, these are to have a significant  
statutory role. The recommendations are not to be seen as simply a "floor  
or ceiling for negotiating up or down", and there should not be "great  
discrepancies" between the recommended terms and what takes place at  
arbitration. The policy purpose of this is to ensure the parties have taken  
reasonable and realistic positions at mediation in the effort to conclude  
an agreement without the necessity of resorting to arbitration, and is  
consistent with the "principle that collective bargaining itself ought to be  
the vehicle for settlement of first contract disputes."  
[38] Further, the mediator's recommendations should be based upon the  
same principles or factors for consideration that will be employed by  
arbitrators, and where one party accepts the recommendations, this  
moves the bargaining close to replicating what would have been the  
settlement of issues, had the parties concluded the agreement  
themselves. The mediator is seen to be in the best position to assist the  
parties and understand the issues due to the nature of their discussions  
during the mediation process. Further, they are in the best position to  
appreciate the compromise involved in the full package of exchanges  
necessary to achieve a collective agreement.  
[104] After setting out the Yarrow Lodge factors, both Elbow Grease and Rocky Ridge  
review the BCLRB decision in Hudson’s Bay Company, [1995] BCLRBD No. 296  
(“Hudson’s Bay”), which is noted as refining the Yarrow Lodge factors. Starting at  
paragraph 46, Arbitrator Norrie in Elbow Grease notes that Hudson’s Bay stands for the  
proposition that the mediator’s recommendations should receive a very high level of  
deference as the mediator’s recommendations encompass an entire package including  
compromises and trade-offs. Failing to give a high level of deference would  
fundamentally frustrate the effectiveness of mediation:  
[46] The Hudson’s Bay decision refined the Yarrow Lodge policy and  
explained the relationship between the recommendations of the mediator  
appointed under the first contract provisions and first contract arbitration.  
The case stood for the premise that the effectiveness of mediation would  
29  
be "fundamentally frustrated" if recommendations were simply seen as  
an interim step on the way to arbitration.  
[47] Hudson’s Bay at paragraph 20 emphasizes that the deference due to  
the mediator's recommendations is critical in that to do otherwise would  
undermine the process by ensuring that parties would not typically put  
their best position forward confident that they had another "kick at the  
can" at arbitration. This means that arbitrators must seriously consider  
the impact if they were to routinely change the substantive  
recommendations made by mediators.  
[50] Hudson’s Bay decision made it clear that the mediator's  
recommendations represent an entire package and encompass  
compromises, trade-offs and exchanges that have been made  
throughout the bargaining and mediation process. This balance would be  
upended if one party was allowed to "cherry pick" certain parts that it  
objects to or accepts.  
[51] Further, when one party has accepted the recommendations, then  
they would be effectively penalized if the other side were allowed to  
relitigate specific terms to their benefit. This would also frustrate the  
process as neither side would agree to the recommendations due to the  
risk of "losing ground" on what was already a compromise from their  
ingoing proposals.  
[105] At paragraph 48, the arbitration panel in Elbow Grease also cited with approval  
Arbitrator Hall’s decision of Northland Ice Gel Inc. v. Industrial Wood and Allied Workers  
of Canada, Local 2171, [2000] BCCAAA No. 99 (Hall) (“Northland Ice Gel’) which  
applied Hudson’s Bay and noted the following key factors to consider when determining  
whether to alter or amend the recommended terms:  
21. An interest arbitrator is not required to 'rubber stamp' a mediator's  
recommendations; however, they must be given careful consideration and  
interference will only be justified where:  
1. the decision is inconsistent with the principles expressed or  
implied in the Code and in particular the policy established in Yarrow  
Lodge;  
2. there is a clear error or mistake of fact in the recommendation; and  
3. new circumstances have arisen since the issuance of the  
mediator's recommendations, and they have had a material impact  
on one of the parties.  
30  
22. The result of the (Hudson’s Bay) decision is that Section 55  
arbitrators must give ‘considerable deference’ to a mediator’s  
recommendations.  
[106] Based on the review of these B.C. decisions, the arbitration panel in Elbow  
Grease drew the following key conclusions regarding the deference owed by first  
contract arbitration panels to the recommendations of a mediator:  
[55] In the event that it is clear that information was presented to the  
mediator, that it was clearly understood, that there was no mistake or  
misapprehension, and there were no material changes in circumstances,  
then regardless of whether one would have made a different decision  
there are no grounds for interference. This ensures that the arbitrator is  
not merely “rubber stamping” the recommendations by assuming the  
mediator got it right and yet ensuring that the deference due to the  
mediator is respected.  
[56] While neither party provided case law to argue the appropriate  
standard of review on first contract arbitration as being equivalent to the  
reconsideration of Labour Board decisions, the review of arbitration  
decisions or judicial review, there was disagreement amongst the Panel  
as to the standard to be applied. The majority was of the view that the  
threshold for reconsideration of a Board decision, the review of an  
arbitration decision, or judicial review, is a higher standard than  
contemplated by first contract arbitration. As has been noted in this  
decision this may be a first case for Alberta; however, we have relied  
heavily on the jurisprudence, which clearly lays out the deference to be  
applied to a mediator’s recommendations in first contract arbitration. Of  
particular note Northland Gel, supra, clearly states that there is no  
requirement to "rubber stamp" the recommendations, and further one of  
the key principles for interference in a mediator's recommendations is  
that they are inconsistent with the expressed or implied principles in the  
Code and in particular the policy established in Yarrow Lodge. This  
establishes for the majority that there is a broader opportunity to review  
the rationale and circumstances behind a mediator's recommendations  
than the more limited grounds provided for in reconsideration and judicial  
review decisions.  
[62] Arbitration should not be used to take a second or third “kick at the  
can” just because a party does not like the decision of an informed and  
balanced mediator, or in this case two informed and balanced mediators.  
[63] This is why the onus is on the party seeking to alter or vary the  
terms of the recommendations to establish the criteria as laid out above.  
31  
It is not sufficient to simply assert that they did not like the  
recommendations and want to relitigate them.  
[65] The Employer on the other hand is seeking to have us reconsider  
the Enhanced Mediator’s Recommendations. As identified, there is  
deference owed to the recommendations and the party seeking to  
overturn them has a high onus to justify the interference on one of the  
three grounds set out earlier. The Enhanced Mediator used the  
appropriate legal principles in his determination and therefore the  
Employer will need to establish that there was an error in fact or  
application of the principles or a material change to circumstances in  
order for us to consider altering the recommendations.  
[107] Elbow Grease thus adopted a very deferential approach to the weight given an  
enhanced mediator’s report based on its review of the Yarrow Lodge and Hudson’s Bay  
decisions emanating out of the province of British Columbia.  
[108] Rocky Ridge comes to a different conclusion with the level of deference owed an  
enhanced mediator.  
[109] The beginning of the difference in the analysis starts with a review of the  
employer’s argument before the panel in Rocky Ridge. Specifically, the employer’s  
arguments highlight the difference between the B.C. and Alberta legislation and the  
impact that has on when, and in what circumstances, a mediator chooses to issue  
recommendations for a first collective agreement. Arbitrator Casey writes:  
[61] The Employer argues that the British Columbia jurisprudence is  
based on a very different legislative structure, and as a result should not  
be followed in Alberta. The Employer notes that in British Columbia  
mediators are statutorily required to recommend the method by which a  
first contract dispute is resolved. A mediator in BC may recommend  
terms of settlement or may choose not to. Terms of settlement are issued  
only where the nature of the dispute warrants it and the parties have  
made sufficient disclosure to permit recommendations that have a  
reasonable likelihood of acceptance. The Employer asserts that as a  
result mediators rarely recommend terms of settlement in British  
Columbia. In cases where a mediator chooses to recommend terms for a  
first collective agreement, those recommendations will capture where a  
reasonable settlement lies.  
[62] By contrast, in the current case the Employer notes that the  
Mediator was directed by the Labour Relations Board to write a report  
with recommendations. As a result, the Employer argues, unlike in British  
Columbia this Arbitration Board has no basis to assume that the  
32  
Mediator's recommended terms of settlement capture where a  
reasonable settlement may lie between the parties.  
[63] The Employer also notes that the Alberta Labour Relations Board  
has established a two-step process under Division 14.1. It would be  
redundant if the use of enhanced mediation would in substance  
transform the Arbitration Board into a type of review panel.  
[110] The panel’s analysis in Rocky Ridge as to what deference to give the enhanced  
mediator’s report starts at paragraph 65. First, the Rocky Ridge panel notes it does not  
agree with the employer before it that the BCLRB’s decisions in Yarrow Lodge and  
Hudson’s Bay should be given little weight. Rather, the panel in Rocky Ridge agreed  
with the conclusions in these decisions that both the mediator and arbitration boards  
should have a similar focus: recommending, and then ordering “the terms that might  
lead to a settlement are those that are fair and reasonable to both parties taking into  
account all the circumstances”. (Para 66). Given an enhanced mediator and arbitration  
board are starting with the same focus as per the legislation this means parties do  
not come into the arbitration process with a clean slate:  
[66] The Employer describes the responsibilities of our Arbitration  
Board as resolving “the outstanding terms after a consideration of what is  
fair and reasonable in light of the parties’ respective proposals, the  
agreements of similarly situated parties, and the prevailing economic and  
labour market data available at the time of bargaining.” This was also the  
focus of the responsibility of the Mediator in our case. …  
[67] We would not expect that the intent of the legislative scheme is to  
have the Arbitration Board simply replicate in a slightly more formal  
manner the same process used in enhanced mediation without paying  
regard to the results of the enhanced mediation process.  
[68] In considering the relationship between the recommendations in  
enhanced mediation and in first collective agreement arbitration, we do  
not consider that it is appropriate to give no weight to the Mediator's  
Recommendation and start with a completely clean slate. As noted by  
the Alberta Labour Relations Board, it can be expected "... that  
arbitrators and the Board will benefit from the mediator's familiarity with  
the dispute and his or her expert advice with respect to identifying fair  
and equitable contract provisions to resolve the first contract dispute":  
AUPE v. CBI (supra).at para. 37. …  
[111] However, in recognizing arbitration does not provide a clean slate for the parties  
to argue over the terms and conditions of the collective agreement, the arbitration panel  
in Rocky Ridge also disagrees with the “extremely deferential approach” given by the  
BCLRB to mediator’s recommendations in British Columbia. The Alberta legislative  
33  
scheme requires that a first contract arbitration panel independently assess what it  
considers fair and reasonable to both parties:  
[69] On the other hand, I view our role as interest arbitrators to be  
much more robust than the extremely deferential approach urged on us  
by the Union. The Union argues that the Mediator's recommendations  
are imbued with an almost "irrefragable presumption of correctness", and  
the Arbitration Board can only change the recommendations in rare and  
extreme cases. We can't fulfill our statutory duties to settle the  
outstanding terms and conditions on a basis we consider fair and  
reasonable to both parties if we treat the Mediator's recommendations as  
essentially a straightiacket. In BC the circumstances in which an interest  
arbitration board can depart from the recommendations of a mediator are  
extremely limited, as follows:  
1. the decision is inconsistent with the principles expressed or  
implied in the Code; and in particular the policy established in Yarrow  
Lodge;  
2. there is clear error or mistake of fact in the recommendations; and  
3. new circumstances have arisen since the issuance of the  
mediator’s recommendations, and they have had a material impact  
on one of the parties.  
Hudson’s Bay (supra) at para 16  
[70] Certainly we would consider the establishment of one or more of  
these three criteria to provide justification for an interest arbitration board  
to deviate from the recommendations of the mediator. However, we do  
not consider that the legislative scheme places restrictions on us to only  
deviate from the recommendations in those circumstances. As noted by  
the Employer, under the process in Division 14.1 the hearing before the  
Arbitration Board is not an appeal or a review of the Mediator's  
recommendation. It is a stand-alone process albeit a process that needs  
to take into account the processes that went before it.  
[71] But neither do we adopt the position of the Employer that the  
Arbitration Board should make its own assessment uninfluenced by the  
Mediator's recommendations. We do not consider that interest  
arbitration, following enhanced mediation, is intended to provide the  
parties with a second "kick at the can" without any consideration of the  
outcome of the enhanced mediation process. Treating the Mediator’s  
recommendation as significantly persuasive will increase the leverage of  
the mediation process forcing the parties to compromise and conclude  
their own collective agreements. If parties know that the Mediator’s  
recommendations will be treated as significantly influential the parties will  
be forced to move to more reasonable and realistic positions in an  
attempt to persuade the mediator of the reasonableness of their  
34  
positions. (See the analysis of the BC Labour Relations Board at para 35  
in Hudson Bay as quoted in the BC Supreme Court decision at para. 16).  
[112] Based on the conclusions in Rocky Ridge, Arbitrator Casey summarized the  
relationship between the mediators’ recommendations in the enhanced mediation  
process, and the first contract arbitration process, as follows at para 72:  
1. First collective agreement interest arbitration following enhanced  
mediation is not intended to provide the parties with a second "kick at the  
can” without any consideration of the outcome of the enhanced mediation  
process.  
2. While the role of the Arbitration Board is not to simply act as a "rubber  
stamp" of the Mediator's recommendation, the parties can expect that  
recommendations by the Mediator will be persuasive to the Arbitration  
Board. As a result, the parties should put their best case forward during  
enhanced mediation to either achieve a resolution or attempt to convince  
the mediator that their proposals are fair and reasonable to both parties  
and should be adopted by the mediator.  
3. A party attempting to convince an Arbitration Board not to adopt  
recommendations by the Mediator is expected to present compelling  
reasons to depart from the recommendations.  
4. Ultimately the Arbitration Board retains the responsibility to settle the  
outstanding items on a basis it considers fair and reasonable to both  
parties.  
5. The approach to considering the Mediator's recommendations as  
persuasive is premised on the assumption that the Arbitration Board  
considers the enhanced mediation process to have been careful,  
comprehensive, and fair with a report from the Mediator which on an  
overall basis is balanced and well-reasoned. (Emphasis added).  
[113] As with the arbitration panel in Rocky Ridge we are of the opinion that while an  
enhanced mediator’s recommendations must receive deference, we are likewise of the  
opinion that we are able to deviate from the recommendations of the mediator for  
reasons other than the establishment of one or more of the three criteria set out by the  
BCLRB in Hudson’s Bay. Our legislation is different than that relied on by the BCLRB in  
both Yarrow Lodge and Hudson’s Bay. We agree with Arbitrator Casey that while  
viewing the recommendations of the enhanced mediator as persuasive, our legislation  
requires us to exercise our discretion and examine and determine what is fair and  
reasonable in the circumstances to both parties. We believe this is more of a balancing  
act than that set out by the arbitration panel in the Elbow Grease decision.  
35  
[114] SHS submits that while we should consider the recommendations of the mediator  
as persuasive, and while there should be a presumption that the recommendations by  
the Enhanced Mediator are the correct outcome and should be followed by this  
arbitration panel, the presumption is a rebuttable one. Thus, argues SHS, the approach  
to considering the Mediator's recommendations as “persuasive” means that the  
recommendations are in the same category as a “rebuttable presumption” in law.  
[115] In our opinion, the balancing act in the level of deference provided to an  
enhanced mediator’s recommendations leans more heavily in favour of the enhanced  
mediator than that actually employed by SHS in its submissions. In its written  
submissions, after making its submissions to follow Rocky Ridge, SHS then applies its  
“rebuttable presumption” test to the issues in dispute, arguing that in each and every  
situation, the Enhanced Mediator’s recommendation is rebuttable and, therefore, should  
be amended or deleted as the case may be. However, in arguing a “rebuttable  
presumption” exists, all SHS does is take a piece of evidence which it says speaks  
against the Mediator’s Recommendation and says this proves a rebuttable presumption  
exists and the Enhanced Mediator’s Recommendation cannot stand.  
[116] We disagree that the test set out in Rocky Ridge is one where the mediator’s  
recommendations can be set aside merely because they are arguable or that a  
“rebuttable presumption” exists, as used by SHS. Merely arguing a contrary position or  
pointing out evidence that may suggest a different outcome does not overcome the  
deference to be given the enhanced mediator’s recommendations. To overcome the  
deference given an enhanced mediator, first, the position must be supported by  
evidence and second, the evidence must be more than arguable; it must have  
substance behind it making it significantly persuasive. The argument and evidence in  
support of a change from the recommendation must be more persuasive than the  
enhanced mediator’s recommendation. This requires a higher level of deference than  
merely that the evidence against the enhanced mediator’s recommendation is arguable.  
[117] We are also of the opinion an enhanced mediator’s recommendations can, like  
virtually everything in the labour relations world, be amended or altered by consent.  
While this may fit into the “more persuasive” category noted above, where the parties  
identify errors, typos, or agree as between themselves that a change in  
recommendations is appropriate, it only makes labour relations sense to allow for that  
change without analysis of the strengths or weaknesses of the arguments. Thus, like  
here, where the parties did not engage in good faith bargaining and the Enhanced  
Mediator was, in essence, left on her own without the full assistance and support of both  
of the parties, where the parties can now agree with changes to the recommendations  
after mediation has ended, a first agreement arbitration board should not interfere with  
these newly agreed upon items.  
36  
[118] We now turn our attention to applying these above principles to the actual issues  
in dispute.  
XIII. ITEMS REMAINING IN DISPUTE  
[119] Prior to the start of the arbitration hearing, the Employer re-examined its position  
and accepted several of the Mediator’s recommendations. It also agreed with several  
other recommendations both immediately at the start of the arbitration hearing as well  
as in its final written argument. The parties also both jointly agreed to some others and  
debated the wording of others during the course of the arbitration.  
[120] The list of agreed upon items includes:  
Article 11 - Probation Period  
Article 13 - Overtime  
Article 15 - Weekend Premium or Night Shift Premium  
Article 17 - Layoff and Recall  
Article 19 - Named Holidays  
Article 20 - Annual Vacations  
Article 22 - Job Classifications  
Article 25 - Discipline and Dismissal  
Article 26 - Resignation/Termination  
Article 29 - Uniform and Clothing Issue  
Article 30 - Duty-Incurred Expenses  
Article 31 - Temporary Assignments and Responsibility Pay  
Article 35 - Over/Under Payments  
Article 36 - Contracting Out  
Article 38 - Court Appearance  
Article 40 - Evaluation and Personnel Files  
Article 41 - Workplace, Health, Safety and Wellness  
Article 42 - Protective Clothing  
Article 44 - Critical Incident Stress Management  
Letter of Understanding (“LOU") #4 - Alternative Dispute Resolution  
Process  
[121] While consenting to Article 25 prior to the start of the arbitration, upon the start of  
the actual arbitration itself, the Employer sought to re-argue the inclusion of Article  
25.10 arguing that disciplinary matters should remain on an employee’s personnel file  
and not be expunged after two years.  
[122] As part of the Employer’s closing submissions (including its Reply of February  
4, 2020), and after both making submissions and hearing the arguments of HSAA, SHS  
37  
continued to narrow the issues in dispute by agreeing with the following provisions  
recommended by the Mediator or with the submissions of HSAA:  
Article 2.15 Definition of Temporary Employee. The parties agreed that a  
temporary employee is one who is hired on a temporary basis for full-time hours  
for a maximum of 12 months.  
Article 8 Grievance Procedure (regarding time lines)  
Article 9 Arbitration (also regarding time lines)  
Article 16 Seniority (regarding clarity over the employer’s ability to hire  
outside the bargaining unit)  
Article 18 Promotions, Vacancies and Transfers (regarding clarity over  
the employer’s ability to hire outside the bargaining unit, and clarity over  
pay raises on transfer under Article 18.08)  
Article 20.07(b) Education Leave  
Article 27 Salaries (all of SHS’s concerns with respect to salary  
increases relate to the Salary Appendix and not Article 27 regarding  
Salaries)  
Article 33 Benefits (regarding the introduction of a new flexible spending  
Account the amount of the flexible spending account under LOU #5 remains an  
issue in dispute)  
[123] While the now agreed upon list is fairly extensive, and the Arbitration Board  
acknowledges and is grateful for the Employer’s concessions, they came very late in the  
day. Most of these now agreed upon Articles are, based on our industry knowledge and  
experience, in fact, standard and non-contentious and appear in multiple collective  
agreements, both with HSAA as well as other employers and unions. In the opinion of  
the majority of this Arbitration Board, these provisions could have, and should have, at  
the very least, been discussed at the bargaining table. They should have been agreed  
to long before arbitration.  
[124] We are left with the impression that the only reason the Employer is now  
agreeing to them is the knowledge that, because of their standard nature, this  
Arbitration Board would likely have imposed them in any event. It appears that the  
Employer only consented to the inclusion of these multiple provisions so late in the  
process so as to appear reasonable and, thereby, attempt to bolster their other  
arguments: it is a calculated strategy. Indeed, as part of its arguments before this  
Arbitration Board, the Employer argues their agreement to include these provisions  
proves they are not engaging in “cherry picking” or seeking “another kick at the can”  
which are considerations enhanced arbitration boards should consider in its  
deliberations. We address this more fulsomely below.  
[125] The collective bargaining issues remaining in dispute are:  
38  
Article 4.05 Recognition (HSAA representatives on Siksika Nation lands);  
Articles 12.01(a) and 12.06(b) Hours of Work (schedule and shift change  
notice);  
Article 21.08(a) Bereavement Leave;  
Article 25.10 Discipline Letters;  
Salary Appendix including increments and retroactivity;  
Article 28 Recognition of Previous Experience;  
LOU #3 Recognition of Previous Experience for Current Employees (regarding  
salary amounts, retroactivity and recognition of current employee experience with  
prior employers other than SHS, but not the recommendation of a pay grid  
structure or recognition of current employee service with SHS, which are agreed  
to by SHS); and  
LOU #5 Flexible Spending Account.  
[126] Some errors in drafting were also identified, as well as the incorrect reference to  
some sub-paragraphs. The drafting errors identified include:  
Article 12.06(c) (“fourteen (7)’’);  
Article 17.01(a)(ii) (reference to “twenty-eight (28) calendar days” should be  
“fourteen (14) calendar days”);  
Article 25.07 incorrectly references other sub-paragraphs within Article 25. The  
parties agree that Article 25.04, 25.05, and 25.06 describe procedures and  
should be substituted in place of 25.02 and 25.03. The Employer disagrees that  
Article 25.10 should be removed from the list included in Article 25.07;  
Article 27.05 – in the Mediator’s Recommendations it states that payroll schedule  
is on a bi-monthly basis for all employees. This should read “Payroll schedule is  
on a bi-weekly basis for all employees”.  
[127] The parties agreed that a couple of these Articles (Articles 17.01 and 27.05)  
could be changed by consent. While both acknowledged and agreed the other noted  
Articles contained errors, the parties could not agree on how to deal with them. We  
address all below.  
XIV. ANALYSIS  
[128] We review the remaining items in dispute in turn by reviewing the  
recommendation of the Mediator15 together with her rationale16 for making the  
recommendation (when appropriate), followed by the positions of the parties in the  
arbitration before applying the principles above in arriving at our decision on each.  
15 From the Enhanced Mediator’s Report by Mediator Deborah Howes, February 2, 2021  
16 From the Enhanced Mediator’s Report Explanations for Recommendations document by Mediator  
Deborah Howes, February 2, 2021  
39  
A.  
CHANGES BY CONSENT  
[129] We first deal with the matters both parties acknowledge are drafting errors in the  
Enhanced Mediator’s Report which can be changed by consent.  
[130] With the consent of the parties noted, we hereby find and order the changes to  
the following Articles without further comment:  
Article 17.01(a)(ii) is hereby amended as follows: Reference to “twenty-eight (28)  
calendar days” is deleted and “fourteen (14) calendar days” is substituted.  
Article 27.05 – in the Mediator’s Recommendations it states that payroll schedule  
is on a bi-monthly basis for all employees. This is hereby amended to read  
“Payroll schedule is on a bi-weekly basis for all employees”.  
[131] The parties also indicated the payroll schedule is referred to elsewhere in the  
recommendations (specifically Article 17) but our review could not find another  
reference. However, for certainty, if it is mentioned elsewhere in the recommendations  
that employees are paid on a bi-monthly basis, we find this to be in error and the  
reference should be corrected. Rather, as per SHS’s standard practice, all employees  
are paid on a bi-weekly basis and this should be reflected in the Collective Agreement.  
B.  
ARTICLE 4.05 RECOGNITION  
[132] Summary of dispute: The first item we address is wording enabling a Union  
representative to come onto Siksika Nation’s lands.  
Mediator’s Recommendation:  
4.05 Any duly accredited Officer employed by the Union may be permitted on the  
Employers premises for the purpose of transacting Union business provided prior  
permission to do so is granted by the Employer.  
Mediator’s Rationale:  
The Employer’s concern here was about a Union representative visiting  
the site. During the pandemic, such visits are discouraged, and most  
meetings are conducted virtually. In addition, the Employer wants to  
ensure visits by non-employee Union representatives comply with any  
requirements of Siksika Nation. The Employer agreed to investigate the  
specific protocols and procedures and get back to me but, similar to  
other information requests, later said it was unable to because of its  
focus on combatting the pandemic.  
40  
The BTDHI UNA Agreement (Blood Tribe Department of Health Inc and  
United Nurses of Alberta) and the BTDHI Teamsters Agreement (Blood  
Tribe Department of Health Inc. and Teamsters, Local Union 987) both  
contain a provision permitting the union business agents to access the  
worksite with reasonable notice if the business agent has obtained a  
permit from the Blood Tribe to conduct business on its lands.  
In response, the Union wants to ensure it can access the worksite if  
required in a safe and culturally respectful way. It relies on the  
Employer to communicate with Siksika Nation to identify and facilitate  
access to Siksika Nation so the parties can administer the agreement.  
I am satisfied the parties can work out the specific protocols to access  
the worksite if required and the language proposed by the Union is  
sufficiently broad to incorporate virtual and in person meetings at the  
work site.  
I recommend the language in the Union’s proposal. 17  
Positions of the Parties  
[133] As indicated in the Mediator’s Rationale, the Employer’s concern relates to its  
lack of authority to allow non-employee representatives of HSAA to attend the worksite  
on Siksika Nations territory. The Employer indicated it is not within its authority to grant  
permission for HSAA representatives who are not employees of the bargaining unit, to  
be present on Siksika Nation territory. Only the Chief and Counsel of Siksika Nation  
have the power to do that. Based on the foregoing, SHS submits that Article 4.05 of the  
Collective Agreement does not reflect the reality of this situation and, for that reason, is  
rebuttable and not persuasive or, with due respect to the Mediator, reasonable in the  
circumstances.  
[134] The Employer recommends changing the Article to require that the Employer  
make reasonable effortsto obtain permits allowing Union representatives to come on  
the Employer’s premises in order to conduct union business.  
[135] HSAA submits that the onus to allow a representative from the Union on Siksika  
Nation lands should rest with both the Employer and the Union. Therefore, HSAA is  
willing to provide advance notice of the requirement to attend to meetings on Employer  
premises. However, HSAA submits, that in order to conduct business and ensure that  
the Employer is in compliance with the collective agreement provisions with respect to  
investigations or discipline, as well as to ensure overall positive relationships with  
17 Names of parties to CollectiveAgreements added for context. Abbreviations of names defined earlier  
(page 9) in Enhanced Mediators Recommendations Explanations  
41  
between the parties, the Employer should be expected to commit to ensuring a permit to  
conduct business is secured between the parties, as needed.  
Panel’s Decision on Article 4.05  
[136] This Article is where the parties, both at arbitration and in their submissions, truly  
tried to narrow the disagreement between them. Given their back-and-forth, we are  
prepared to consider the provision in light of these discussions and without looking at  
the deference to be given the Mediator’s recommendations.  
[137] The approaches of both the Employer and the Union recognize that a Union  
representative has the right to access the Employer’s premises for the purpose of  
transacting Union business. The Employer suggests this can be done on reasonable  
notice from the Union and that the Employer will make reasonable efforts to obtain a  
permit to that effect.  
[138] While we accept the Employer’s position that it does not have the authority to  
issue the permit on its own as that is solely within the bailiwick of Chief and Council of  
Siksika Nation, we are concerned with its suggestion to incorporate “reasonableness”  
into this Article in relation to the Union’s ability to access their premises. As the findings  
of the Labour Relations Board indicate, to date during bargaining, SHS has failed to act  
reasonably and has engaged in bad faith bargaining and has adopted extreme  
bargaining positions. The conduct engaged by SHS in this relationship has not been  
reasonable.  
[139] Notwithstanding the findings of the Labour Relations Board and the majority of  
this panel’s concerns in relation to the Employer’s conduct and the likelihood of it  
modifying its behaviour to act reasonably, the incorporation of “reasonableness” has  
legal meaning and consequences if a party fails to make reasonable efforts. While  
incorporating this concept into the Article may invite further litigation, it may also provide  
an avenue for the parties to begin, at the very least, learning to work together in a  
reasonable manner. For this reason, we are prepared to find in favour of the alternative  
put forth by SHS. Therefore, we order that Article 4.05 shall read:  
4.05 Any duly accredited Officer employed by the Union may be  
permitted on the Employer’s premises for the purpose of  
transacting Union business with reasonable notice to the  
Employer, and the Employer will make all reasonable efforts to  
obtain and provide a permit to the Union to do so, on a yearly  
or case-by-case basis. Where the permit is provided annually, the  
Employer will be solely responsible for making all reasonable  
efforts to ensure that the permit is renewed and provided to the  
Union no later than January 15 of each year.  
42  
C.  
ARTICLE 12 HOURS OF WORK  
[140] Summary of dispute: While both parties agree the current shift schedule is  
desirable and works well, the Employer seeks other options from a cost perspective.  
Mediator’s Recommendation:  
Hours of work shall consist of:  
12.01 Regular Shift  
(a) Operate under a four (4) platoon system on the basis of two (2) twenty-four  
(24) hour shifts on duty, followed by six (6) days off (tour of duty).  
(b) A shift shall consist of forty-eight (48) hours per shift.  
Mediator’s Rationale:  
The Union proposed a schedule and hours of work that currently exists.  
The proposal captured the ability of employees to exchange shifts as it  
currently exists. The language in the Union’s proposal is similar to that in  
the Cold Lake Agreement. The Union did not propose to change the  
schedule or hours of work.  
The Employer told me that many years ago it had a different work  
schedule, but the schedule contributed to its difficulty in hiring and  
retaining employees. At some point the Employer consulted its  
employees about the hours of work and with agreement of the  
employees at that time, changed the schedule and hours of work to a two  
on and six off schedule (2 on and 6 off) with an employee working two  
24-hour periods. This schedule has been a contributing factor to  
recruiting and retaining employees.  
The Employer said it preferred to maintain the current schedule and  
hours of work, although one area for it to potentially save costs in light of  
the Union’s proposals for night and weekend premiums was to alter the  
schedule or hours of work.  
I recommend the Union’s proposal in 12.01 … about the current shift  
schedule and hours of work and the employees’ ability to exchange shifts  
because it mirrors the current practices.  
43  
Positions of the Parties  
[141] SHS has two concerns regarding hours of work. In Article 12.01(a), SHS seeks  
flexibility with respect to the current “2 on 6 off” shift schedule if required for financial  
reasons. In Article 12.06(b), SHS’s concern relates to the minimum amount of notice of  
a shift change required before employees receive 24 hours’ overtime pay. The  
Mediator’s Explanation (at pages 15 and 16) indicates these issues were raised by SHS  
at enhanced mediation.  
[142] Both the Employer and Union agreed that attractive scheduling is one of the  
reasons the Employer has been able to attract qualified employees, especially  
employees living over an hour away in Calgary. But, the Employer argues, it needs  
flexibility to change this Schedule in the face of cost increases resulting from the  
recommended wage increases made by the Mediator.  
[143] The Employer says the Mediator’s Report indicates that SHS raised this concern  
at the enhanced mediation, but does not include any discussion as to why the Mediator  
chose not to provide SHS with the discretion it was seeking to change the shift  
schedule, where required for financial reasons. Based on the foregoing, SHS submits  
that it is rebuttable and unpersuasive for Article 12.01(a) not to include some discretion  
for SHS to amend the current 2 on 6 offshift schedule where SHS determines this is  
necessary for financial reasons, after providing reasonable notice to HSAA. According  
to the Employer, “flexibility would potentially be helpful”.  
[144] The Union pointed out that SHS presented no evidence which substantiated how  
a possible change to the shift structure would reduce costs. The Employer neglected to  
quantify what shift structure might be contemplated to reduce costs and what the  
potential savings might be. The Union reiterated that both the Union and the Employer  
during mediation and again at Arbitration found that the shift schedule is highly  
desirable. It is one of the main reasons many employees choose to remain employed  
with SHS. Additionally, the Arbitration Board heard that the Employer settled on this  
particular schedule with these issues in mind, given the Employer found it difficult to  
attract employees when operating under a less attractive shift schedule. The 48-hour  
schedule is very attractive to employees who do not live on Siksika Nation. Therefore,  
HSAA submits, the current shift schedule must be maintained until at least the next  
round of bargaining as the parties will have an opportunity, at that time, to revisit the  
shift schedule and discuss any concrete changes and associated options for scheduling  
that may be in the best interest of the parties.  
Panel’s Decision on Article 12.01(a) and (b) – Hours of Work  
[145] As our outline of the law above indicates, the Mediator’s recommendations  
should be given deference unless the party objecting presents evidence which is more  
persuasive than that of the Mediator’s recommendation. Simply suggesting, without  
44  
evidence in support, that the Mediator’s recommendations are rebuttable and in error  
because she failed to consider each and every position advanced by a party and that  
flexibility is desirable, does not meet the test. We find no error in the Mediator’s  
recommendations nor do we find the Employer’s submissions to be persuasive. It  
presented no evidence whatsoever in support of its arguments.  
[146] We find in favour of maintaining the Mediator’s recommendations in relation to  
Article 12.01(a) and (b).  
D.  
ARTICLE 12.06(b) SCHEDULE POSTING AND SCHEDULE CHANGES  
[147] Summary of dispute: The Employer seeks to shorten the notice period to be  
provided employees in the event of a shift change as it worries this will be a cost-item.  
Mediator’s Recommendation:  
12.06  
Schedule Posting and Schedule Changes  
(b) If the Employer changes a shift schedule after the schedule was posted, the  
affected employees shall be provided with seven (7) days’ notice of the new  
Schedule. In the event that an employee's schedule is changed in the new  
shift schedule and he is not provided with seven (7) calendar days’ notice,  
he shall be entitled to overtime for hours worked in the first 24-hour period.  
Mediator’s Rationale:  
In 12.06 the Union proposed a minimum of seven days’ notice of  
changes to the shift schedule …  
In 12.06(b) the Union sought overtime at 1.5X for short change notice  
affecting days off. …  
The Employer disputed the double overtime rate; it currently pays 1.5X  
for overtime (see: individual contracts of employment). It also raised a  
concern about the four (4) week posting requirement for the schedule  
and the seven (7) day posting requirements for changes to the schedule.  
The Employer’s current practice is to post the schedule up to two months  
in advance. However, changes to the schedule can occur with minimal  
notice because of attempting to accommodate employee leave or  
vacation requests or sick leave notifications. The Policy Manual requires  
employees to give at least four hours notice of an absence so the work  
can be covered. The Employer did not raise concerns about the general  
language in the Union’s proposal.  
45  
In 12.06(a) the Union’s proposal for posting the shift schedule is less  
than the Employer’s current practice so I recommend the 4 weeks  
proposed by the Union. In 12.06(a) I deleted the reference to a premium  
that does not exist and modified the clause to provide overtime payment  
for the first 24 hour shift only. I separated the initial posting of the  
schedule from the provisions for posting changes to the schedule to  
make the provisions clearer. I retained 12.06(b) dealing with changes  
affecting days off and will recommend deleting the contradictory provision  
in Article 13.02.  
Positions of the Parties  
[148] SHS argues, in view of its non-profit status and limited funding, it has serious  
concerns regarding the financial implications of this provision. While the Mediator’s  
Report indicates that SHS raised its concerns about the 7-day notice requirement for a  
shift change at enhanced mediation, SHS notes that the Mediator provides no reason or  
rationale as to she did not make the change advocated for in mediation.  
[149] The Employer argues that at the arbitration hearing, Tom Littlechild gave  
evidence that SHS recognizes last-minute shift changes can be a significant  
inconvenience for employees, especially those commuting from Calgary, and that it  
does everything it can to avoid these last-minute changes. However, he also gave  
evidence that sometimes, due to circumstances beyond SHS’s control, including  
employee absences for illness (including COVID or exposure to COVID) and other  
reasons, it has no choice but to make a last-minute shift change. Based on the  
foregoing, SHS submits that the reasonable resolution to this issue involves reducing  
the minimum amount of notice of a shift change required before employees receive 24  
hours’ overtime pay, from 7 days to 3 days. SHS further submits that this compromise is  
more persuasive than the recommendation by the Mediator in Article 12.06(b), which  
made no change to the 7-day notice requirement.  
[150] HSAA submits the Employer provided its rationale to the Mediator during  
enhanced mediation regarding the required notice to change shifts but the Mediator  
declined to acquiesce to the Employer’s request.  
[151] HSAA notes that a 14-day notice period was originally submitted as part of the  
Union’s ingoing proposals as well as to its submissions to the Mediator. During the  
discussions with the Mediator, the Union agreed to decrease the length of notice to  
seven days. It is a deviation and less than standard wording from the language in the  
comparator contracts. When combined with the ability to call in casuals, offer overtime  
or additional shifts, as well as shift trades, the language leaves the Employer in a  
46  
position to manage its business. If the Employer has a last-minute emergent situation  
that will not allow them to provide the affected employee the required 7-days notice, the  
Employer is still able to ensure that they operate at full staffing, and employees are  
entitled to appropriate compensation for the inconvenience.  
Panel’s Decision on Article 12.06(b) Schedule Posting and Schedule  
Changes  
[152] From a deference perspective, and while we accept the Enhanced Mediator did  
not explain her rationale for the recommendation for Article 12.06(b) in a fulsome  
manner focusing, instead, on other issues in the Article as a whole, SHS presented  
insufficient evidence before us to overcome the position recommended by the  
Enhanced Mediator. Other than submitting it needed a shorter period to deal with  
employee absences for illness or leaves and the like, and that this shorter period of  
three days is “more persuasive than the recommendation by the Mediator”, we received  
only limited evidence at best to overcome the deference owed to the Enhanced  
Mediator. The Mediator’s recommendation was already a compromise and change, and  
a rather significant one at that from the standard language of comparable collective  
agreements. The Union had already moved from14 days to seven days to  
accommodate the Employer’s wishes and the Enhanced Mediator accepted this  
compromise instead of the additional ask from the Employer.  
[153] We find no reason to overturn the Enhanced Mediator’s recommendation with  
respect to the Employer’s obligation surrounding the seven-day notice of schedule  
changes as recommended by the Mediator in Article 12.06(b).  
E.  
ARTICLE 12.06(c) SCHEDULE POSTING AND SCHEDULE CHANGES  
[154] Summary of dispute: This Article involves a drafting error. The parties disagree  
on which version is correct.  
Mediator’s Recommendation  
12.06(c) Unless otherwise agreed between the Employee and the Employer, unless an  
employee is given at least fourteen (7) calendar days' notice of a change of scheduled  
days off, he shall be paid at one and one half times (1.5X) his basic rate of pay for all  
hours worked on such day(s) unless such change is at the employee's request.  
(Emphasis added)  
47  
Positions of the Parties  
[155] The parties agree that Article 12.06(c) contains a drafting error as the written  
number of calendar days is different than the numerical days in parenthesis following  
the written number. SHS believes the number in parenthesis is correct as it reflects the  
number of days recommended by the Enhanced Mediator in 12.06(b). HSAA argues the  
written number is correct and the number in parenthesis is incorrect.  
Panel’s Decision on Article 12.06(c) Schedule Posting and Schedule  
Changes  
[156] First, as indicated above, when we can identify and clarify apparent drafting  
errors, we believe it is appropriate to clarify and change these errors without regard to  
deference.  
[157] With respect to which position to adopt, we are satisfied the correct number  
should be the same as that provided for in Article 12.06(b) as it involves the number of  
calendar days’ notice of a change of scheduled days off. Thus, and as we have found  
that Article 12.06(b) requires that the Employer must provide the affected employees  
with seven (7) days’ notice of the new Schedule, Article 12.06(c) must require the same  
notice, failing which the Employer is obligated to pay overtime as set out. The Article  
shall be amended to read:  
12.06(c) Unless otherwise agreed between the Employee and the Employer,  
unless an employee is given at least seven (7) calendar days' notice of a change  
of scheduled days off, he shall be paid at one and one-half times (1.5X) his basic  
rate of pay for all hours worked on such day(s) unless such change is at the  
employee's request.  
F.  
ARTICLE 21.08(a)(i) BEREAVEMENT LEAVE  
[158] Summary of dispute: The parties do not agree on how bereavement leave is paid  
under the current 2 on, 6 off shift schedule.  
Mediator’s Recommendation:  
21.08  
Bereavement Leave  
(a) Bereavement leave with pay