In most cases, legal disputes are resolved when the parties involved reach a mutual settlement instead of going to trial. This is usually the preferable conflict resolution scenario, because it allows each party to control the outcome, and it is often more cost-effective than going to trial. Obtaining a settlement requires strategic thinking, accurate and timely legal advice, and solid advocacy designed to support the parties involved in making informed decisions.
Unfortunately, not all legal disputes can be settled. In some cases, the parties require a judge or arbitrator to solve their dispute. We are proud of the success our firm has enjoyed in the courtroom. Here are just a few of the cases in which we have been involved.
Labour & Employment
Is the termination of long-term benefits when disabled workers reach age 65 contrary to s. 15(1) of the Charter of Rights and Freedoms?
An injured worker was receiving long-term disability benefits under the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13. Under section 38.2(5) of the Act, benefits end at age 65. After turning 65, the injured worker’s benefits were terminated, and he appealed. The WHSCC Appeals Tribunal denied his appeal and he appealed to the New Brunswick Court of Appeal. Both in front of the Appeals Tribunal and the Court of Appeal, the injured worker argued that termination of benefits at age 65 constitutes discrimination on the basis of age under section 15(1) of the Charter of Rights and Freedoms. The Court of Appeal applied the test set out by the Supreme Court of Canada in Law v. Canada, 2002 SCC 84, and found that section 38.2(5) of the Act does not offend section 15 of the Charter. The Court found that it was realistic to presume that a worker would retire at some age, and that age 65 was selected based on recognized retirement patterns and not stereotypical attitudes.
What is the test for determining when “new evidence” is submitted to the WHSCC that would allow it to reconsider a previous decision?
An injured worker’s claim for compensation had been allowed by the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission (WHSCC). Later, the injured worker had his benefits discontinued after a medical opinion had been obtained by the WHSCC throwing doubt on whether the he had been injured in the first place. The WHSCC did not claw back the worker’s previous benefits, but stopped his benefits from that point forward. The injured worker appealed, and the case ended up in front of the Court of Appeal. We argued that the decision to terminate his benefits was made as part of the WHSCC’s obligation to monitor the status of injured workers. However, the Court of Appeal found that the WHSCC had effectively used the new medical opinion to reconsider the original decision to allow the worker’s claim, but that the medical opinion did not constitute “new evidence” within the meaning of section 22 of the Workplace Health, Safety and Compensation Commission Act, S.N.B. 1994, W-14. The Court set out a test for what constituted “new evidence” in the case of conflicting doctors or expert opinion. A new scientific opinion can only be used to reverse a previous decision where it is based on more recent scientific research and information. If the opinion is merely contradicting the previous opinion relied on to make the first decision, then it is not “new evidence”.
The Hampton case is cited in a number of national employment law texts and academic papers, and is the only New Brunswick case referenced by the Manitoba Law Reform Commission in its 2001 report titled “Good Faith and the Individual Contract of Employment.”
The Morrow decision has had a very significant impact on employee and employer wrongful dismissal strategies in New Brunswick, and it is a decision which has been cited in legal education courses in various Canadian provinces.
The Nickson case is significant in that it is one of few court decisions in which both the just cause and failure to mitigate defences were applied. The trial judgment was upheld by the Court of Appeal.
The Cudmore case illuminated the human rights issues which relate to the education of disabled children in New Brunswick. A very similar case, which was heard in British Columbia at the same time this dispute was considered in New Brunswick, led to a favourable conclusion for the Complainant. That British Columbia case now forms the basis for the New Brunswick Human Rights Commission’s guideline regarding the accommodation of disabled students in the province’s schools.
The significance of the Tim Hortons case lies in its illustration of how the anti-union animus concept is applied, and how employers must make decisions based on considerations which do not relate to unionization concerns.
Ms. Danaher was a 59 year old employee who worked as a restaurant supervisor. She had been employed as a waitress and then as the restaurant supervisor for a total of 13 ½ years. The owner of the restaurant entered into negotiations to sell the restaurant, and without consulting Ms. Danaher, the employer transferred her employment to the new owner. The new owner of the restaurant reduced Ms. Danaher’s working hours and reduced her pay. After six months, Ms. Danaher was dismissed by the new owner and only paid severance of $920.00.
Ms. Danaher sued and the employer was ordered to pay twelve months salary in lieu of notice plus an additional four months because of bad faith conduct. The Court held that the employer’s failure to advise the employee of the arrangement for transfer of the restaurant business constituted an act of bad faith. The Court also found that the new employer acted in bad faith when it offered Ms. Danaher her job in exchange for the discontinuance of her lawsuit. Of particular note is the Court’s finding that an employer has an obligation to act in good faith throughout the employment relationship with an employee.
Does the two year limitation period for motor vehicle accidents apply to an action against a car repair shop and parts manufacturer where an accident occurs from a failed car part?
The case arose when the ball-joint on the Plaintiff’s van broke, causing her van to come to a sudden stop. The Plaintiff suffered injuries as a result of the van’s sudden stop. The Plaintiff had not filed a claim until more than three years after the accident. The action was based on contract negligence and on the provisions of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C–18.1 and the Sale of Goods Act, R.S.N.B. 1973, c. S-1. Star-Key and Carquest brought a summary judgment motion on the basis that the action was statute-barred because of the two year limitation period that applies to actions “for damages arising out of the operation, care, or control of a motor vehicle”. They relied on a decision of the Court of Appeal called Dupuis v. Moncton (City), 2005 NBCA 47 that seemed to support their position that the limitation period had expired. The Court of Queen’s Bench agreed with Star-Key and Carquest and dismissed the action. We brought an appeal of that decision to the New Brunswick Court of Appeal, which reversed the lower court’s decision. The Court of Appeal held that, where the “essence of [the] action is a dispute over an alleged breach of a motor vehicle repair contract”, it will be allowed. However, the Court would not have allowed it had it been a case primarily dealing with a motor vehicle accident that was contrived as a contract or defective products case.
This case offers insight into the importance of procedural fairness in administrative law, and illuminates the complications which can arise if board members do not recognize the possible apprehension of bias which might flow from their relationship (even if minor) to a party engaged in the dispute.
The significance of this case has been that South House continues to grace RNS, the Town of Rothesay and all of New Brunswick as a great example of Gothic Revival architecture.