Laronde v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2007 NBCA 10 –

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.

Page v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2006 NBCA 95 –

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”.

This was the first reported New Brunswick case to expressly apply the “Wallace Factor” as a basis for awarding an employee additional compensation in respect of employer “bad faith” conduct. Our client, Mr. Hampton, was laid off after almost a decade of employment with Thirty-Five Charlotte Ltd. He was told that he would be given a letter of reference by the company if he signed a release. When Mr. Hampton sued, the company refused to provide a letter of reference and, in fact, advanced a number of scathing allegations of misconduct against the former employee. The New Brunswick Court of Queen’s Bench awarded Mr. Hampton “Wallace Factor” damages in recognition of the company’s unfairness.

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.”

Similar to the Hampton case, this was also a wrongful dismissal claim in which “Wallace Factor” damages were awarded to our client, Ms. Elliott. The significance of the decision, which has also been referenced in text books and academic articles, lies in the fact that Ms. Elliott was a seasonal employee of the Defendant’s campground operation. In spite of the unusual (and less constant) employment relationship which existed between the parties, the Court found that Ms. Elliott had been subjected to “bad faith” treatment by the employer, which essentially “barred” her from the campground. By restricting her from entry to its campground, the employer negatively affected Ms. Elliott’s reputation.

Another wrongful dismissal case, this decision represents the first time in the history of New Brunswick that an employee was awarded an “advance payment” of damages. Our client, Ms. Morrow, had been employed by Aviva Canada for approximately 20 years when she was laid off due to downsizing. The company provided her with only approximately three months’ notice of her job termination. After suing the employer for wrongful dismissal, Ms. Morrow made a motion to the Court of Queen’s Bench for “summary judgment” and an “advance payment” of compensation that she believed would be owed to her following a trial. Basically, Ms. Morrow asked the Court to immediately award her part of the compensation that she would likely be given at the end of a trial. Although the Court of Queen’s Bench rejected the motion because no such order had ever been given before, the Court of Appeal allowed our appeal and permitted a new application of Rules 22 and 47 of the Rules of Court.

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.

Our client, Tom Zaikos was a sales manager for a federally-regulated radio broadcasting company. He received his earned commission-based income in the form of regular draws which were charged against his earnings. Each year, he took vacations, and was paid by way of continued drawings. While it appeared that he was being provided an annual paid vacation, Zaikos was actually only receiving his commissions without the vacation entitlement stipulated under the Canada Labour Code. When he left his employment, Zaikos made use of an under-utilized provision of the Code to successfully claim many years’ worth of vacation pay – to the tune of approximately $40,000.00.

In this case, our client was the employer, Industrial Security Limited. ISL was sued for wrongful dismissal by a 13-year security officer who had been fired as a result of breaching the company’s safety regulations. Mr. Nickson did not have a perfect performance record even before his dismissal, and he did not apply for many jobs after dismissal. The Court of Queen’s Bench concluded that ISL had dismissed Mr. Nickson for just cause (based on his safety violation as a culminating incident) and, in any event, that Mr. Nickson had failed to properly mitigate (or reduce) his damages. Our client called another employer as a witness, and that person testified that it would have hired Mr. Nickson if he had simply applied for work.

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.

Consuming approximately 30 days, this was the longest-running human rights case ever heard in the Province of New Brunswick. The case involved an allegation of illegal discrimination against the province and one of its School Districts for having failed to accommodate a disabled student. The Board of Inquiry ruled against our client, the New Brunswick Human Rights Commission and the Complainant. The case was resolved before it was heard by the Court of Appeal, however.

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.

In the late 1990s, a number of Tim Hortons servers employed at a Saint John location were fired. They alleged that they were dismissed because they had been secretly attempting to join a union, and their employer found out about their plans. Our client, the employer, had not known about the intention of the workers to join a union and, instead, had fired the individuals for other (definite) reasons. The New Brunswick Labour & Employment Board concluded that the employees had not been dismissed for “anti-union” sentiment, and our client was successful in defeating the claims.

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.

Danaher v. Moon Palace (2000) Ltd., 2002 N.B.Q.B. 86 -

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.

Godin v. Star-Key Enterprises Ltd. and Carquest Canada Ltd., (2006) N.B.R. (2d) 180, 2006 NBCA 91 –

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.

The Rothesay Common marks the very centre of the Town of Rothesay.  The Common is a picture-perfect park that is surrounded by quaint churches, ancient trees and the historic homes of New Brunswick’s business elite.  The geographic area surrounding the Rothesay Common is designated as a heritage area which, in turn, is protected by a municipal by-law. The by-law prevents the construction of structures which would be inconsistent with the architectural styles predominant in the area.  When the construction of a congregate housing project was proposed inside the heritage area, a group of concerned citizens raised sincere concerns about the style, size and overall impact of the planned building.  At a municipal heritage board hearing, two members of a Church that held an interest in the project participated in the decision-making, in spite of our question of bias.  The board approved the proposed project, but the Court of Appeal ruled in favour of our client on the basis that the participation of the two board members gave rise to an apprehension of bias.  The project did not proceed.

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.

South House is the oldest building on the picturesque campus  of Rothesay Netherwood School (RNS) in Rothesay, New Brunswick.  Rothesay, in turn, is an historic and significant town, that has been, and still is, the home of many of New Brunswick’s most prominent families.  In 2006, RNS proposed to demolish South House, in spite of concerted efforts by a number of the school’s alumni to save the building. On the eve of demolition, we advanced a Notice of Motion for an injunction to prevent the destruction of the landmark, and we succeeded.  After the injunction order was issued, the school and the Restoration Committee arrived at a mutually acceptable resolution of 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.