Ben's Ltd. v. Decker et al., (1995) 142 N.S.R.(2d) 371 (CA)

• Judge: Hallett, Hart and Freeman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 09, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 142 N.S.R.(2d) 371 (CA)

Ben's Ltd. v. Decker (1995), 142 N.S.R.(2d) 371 (CA);

  407 A.P.R. 371

MLB headnote and full text

Ben's Limited (appellant) v. Ron Decker, A. Ross Mitchell, Director of Labour Standards for the Province of Nova Scotia, and Stephen K. Mont, Ann Hebb and Henry Martell in their capacity as Chairman and Members respectively of the Labour Standards Tribunal (Nova Scotia) and Labour Tribunal (Nova Scotia) (respondents)

(C.A. No. 112076)

Indexed As: Ben's Ltd. v. Decker et al.

Nova Scotia Court of Appeal

Hallett, Hart and Freeman, JJ.A.

June 5, 1995.

Summary:

An employee was terminated as the result of a reorganization by the employer. The employee claimed that he was dismissed without just cause contrary to s. 71 of the Labour Standards Code. The Labour Stand­ards Tribunal held that the employer failed to comply with the provisions of the Code and ordered that the employee be reinstated. The employer appealed.

The Nova Scotia Court of Appeal allowed the appeal and remitted the matter to the Tribunal.

Master and Servant - Topic 8344

Employment and labour standards - Juris­diction and powers of director, tribunal or officers - Judicial review - Sections 20(1) and 20(2) of the Labour Standards Code stated that the decision of the Labour Standards Tribunal was final unless it erred on a question of law or jurisdiction - The Nova Scotia Court of Appeal stated that "[t]he tribunal cannot incorrectly interpret the law when applying the law to a fact situation it has under consideration or incorrectly interpret the Code and have its decisions survive judicial review on appeal to this court." - See paragraphs 19 to 23.

Master and Servant - Topic 8408

Employment and labour standards - Lay­off or dismissal - Grounds - The employer terminated the employee as part of a reorganization of the company claim­ing that his position had been eliminated - The Labour Standards Tribunal, in rein­stating the employee, held that the employer was not entitled to terminate the employee as his position was not elimi­nated - The Nova Scotia Court of Appeal held that the Tribunal erred - The court stated that the "elimination of a position" was the same as "discontinuance of a function" as determined in Flieger v. New Brunswick (S.C.C.) - The court held that the employee's position was eliminated when his work was divided among other staff - See paragraphs 24 to 31.

Master and Servant - Topic 8410

Employment and labour standards - Lay­off or dismissal - Due diligence of employer - The employer terminated the employee as part of a reorganization of the company claiming that his position had been eliminated - The Labour Standards Tribunal stated that although some reor­ganization was necessary so the company would stay viable, the employer "did not exercise due diligence to either foresee or avoid [the employee's] termination" - The Nova Scotia Court of Appeal held that the Tribunal was required to determine whether the employer had exercised due diligence to foresee and avoid the "cause" of the discharge or lay-off - See para­graphs 32 to 37.

Words and Phrases

Elimination of a position - The Nova Scotia Court of Appeal considered the meaning of the phrase "elimination of a position" in s. 2(i) of the Labour Standards Code, R.S.N.S. 1989, c. 246 - See para­graphs 24 to 31.

Cases Noticed:

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385, refd to. [para. 22].

Flieger v. New Brunswick, [1993] 2 S.C.R. 651; 155 N.R. 1; 138 N.B.R.(2d) 161; 354 A.P.R. 161; 48 C.C.E.L. 1, appld. [para. 25].

Yarmouth (Town) v. Manser et al. (1977), 18 N.S.R.(2d) 353; 20 A.P.R. 353 (C.A.), refd to. [para. 25].

Porter v. C-I-L Inc. (1980), 42 N.S.R.(2d) 624; 77 A.P.R. 624 (C.A.), refd to. [para. 25].

Mudarth v. Canada (Minister of Public Works), [1989] 3 F.C. 371; 22 F.T.R. 312 (T.D.), refd to. [para. 27].

Statutes Noticed:

Civil Service Act, S.N.B. 1984, c. C-5.1, sect. 26(1) [para. 26].

Labour Standards Code, R.S.N.S. 1989, c. 246, sect. 2(c) [para. 11]; sect. 2(i) [para. 12]; sect. 20(1), sect. 20(2) [para. 19]; sect. 71 [para. 1]; sect. 71(1), sect. 72(3)(d) [para. 10].

Labour Standards Code, An Act to amend, S.N.S. 1991, c. 14, generally [para. 13].

Trade Union Act, R.S.N.S. 1989, c. 475, sect. 19(1) [para. 22].

Counsel:

Karin A. McCaskill, for the appellant;

John H. Graham, for the respondents.

This appeal was heard on May 9, 1995, by Hallett, Hart and Freeman, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was delivered by Hallett, J.A., on June 5, 1995.