Cape Breton Development Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al., 2008 NSCA 11

• Judge: MacDonald, C.J.N.S.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 28, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 11;(2008), 262 N.S.R.(2d) 112 (CA)

Cape Breton Dev. Corp. v. WCAT (2008), 262 N.S.R.(2d) 112 (CA);

    839 A.P.R. 112

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. FE.008

Cape Breton Development Corporation (employer) (appellant) v. The Nova Scotia Workers' Compensation Appeals Tribunal, The Workers' Compensation Board of Nova Scotia and Janice O'Neill, survivor of Gerard O'Neill (deceased worker) (respondents)

(CA 289398; 2008 NSCA 11)

Indexed As: Cape Breton Development Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S.

February 4, 2008.

Summary:

The Workers' Compensation Appeals Tribunal awarded the wife of a deceased employee lump sum death benefits and a monthly survivor's pension, including a significant retroactive component. The employer applied for leave to appeal the decision and sought a stay of execution pending a decision on that application.

The Nova Scotia Court of Appeal, per MacDonald, C.J.N.S., dismissed the application.

Practice - Topic 8881

Appeals - Leave to appeal - Stay of proceedings pending - An employee injured his back in 1975 - He became an alcoholic who subsequently had to have a liver transplant, which was a significant contributor to his death in 2004 - The Workers' Compensation Appeals Tribunal awarded the employee's wife lump sum death benefits and a monthly survivor's pension, including a significant retroactive component - The Tribunal held that the work injury contributed to the alcoholism which in turn contributed to his death - The employer applied for leave to appeal, primarily on grounds related to issues of causation and remoteness - The employer applied to stay execution pending a decision on the leave application - The employer submitted that it would be unable to recover the significant lump sum required to be paid ($80,000) to the wife if it were successful on appeal - The Nova Scotia Court of Appeal, per MacDonald, C.J.N.S., declined to grant a stay - Although the employer raised an arguable issue supporting the granting of leave to appeal, it failed to establish irreparable harm if the stay were not granted - In the context of workers' compensation claims involving the Cape Breton Development Corporation, the Corporation's risk of losing its money did not constitute irreparable harm - Further, there were no exceptional circumstances warranting a stay.

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 9].

MacPhail et al. v. Desrosiers et al. (1998), 165 N.S.R.(2d) 32; 495 A.P.R. 32 (C.A.), refd to. [para. 10].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 12].

Pearce v. Nova Scotia (Workers' Compensation Board), [1996] N.S.J. No. 433, refd to. [para. 13].

Geldart v. Workers' Compensation Board (N.S.) (1996), 155 N.S.R.(2d) 51; 457 A.P.R. 51 (C.A.), refd to. [para. 15].

Brett et al. v. Amica Mature Lifestyles Inc. (2004), 226 N.S.R.(2d) 188; 714 A.P.R. 188 (C.A.), refd to. [para. 15].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 67; 692 A.P.R. 67 (C.A.), refd to. [para. 16].

Salama Enterprises (1988) Inc. v. Grewal (1992), 12 B.C.A.C. 112; 23 W.A.C. 112 (C.A.), refd to. [para. 16].

Workers' Compensation Board (N.S.) v. Workers' Compensation Appeals Tribunal (N.S.) and Johnstone (1999), 181 N.S.R.(2d) 247; 560 A.P.R. 247; 1999 NSCA 164, refd to. [para. 17].

B.M.G. v. Nova Scotia (Attorney General) (2007), 254 N.S.R.(2d) 254; 810 A.P.R. 254 (C.A.), refd to. [para. 18].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 21].

Cape Breton Development Corp. v. Morrison Estate et al. (2003), 218 N.S.R.(2d) 53; 687 A.P.R. 53; 2003 NSCA 103, refd to. [para. 22].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 24].

Counsel:

Nancy F. Barteaux, for the appellant;

Louanne Labelle and Alexander MacIntosh, for the respondent, WCAT;

Paula Arab and Madeleine Hearns, for the respondent, WCB;

Kenny LeBlanc, for the respondent, Janice O'Neill.

This application was heard on January 28, 2008, at Halifax, N.S., in Chambers, before MacDonald, C.J.N.S., of the Nova Scotia Court of Appeal, who delivered the following judgment on February 4, 2008.