Desjardins, Re, (1977) 19 N.B.R.(2d) 663 (CA)

JudgeHughes, C.J.N.B., Bugold and Ryan, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateNovember 04, 1977
JurisdictionNew Brunswick
Citations(1977), 19 N.B.R.(2d) 663 (CA)

Desjardins, Re (1977), 19 N.B.R.(2d) 663 (CA);

    19 R.N.-B.(2e) 663; 30 A.P.R. 663

MLB headnote and full text

Sommaire et texte intégral

Re Desjardins

Indexed As: Desjardins, Re

Répertorié: Desjardins, Re

New Brunswick Court of Appeal

Hughes, C.J.N.B., Bugold and Ryan, JJ.A.

November 4, 1977.

Summary:

Résumé:

This case arose out of the grievance by a laid-off teacher that the employer failed to give her notice of available positions contrary to the collective agreement. The employer failed to give the teacher notice, because it did not intend to hire her in any event. The adjudicator of the teacher's grievance (in a decision reported at paragraphs 21 to 59 below) ruled that the employer breached the collective agreement in failing to give notice, but refused to order that the positions be reopened to give the teacher an opportunity to apply. The teacher applied for an order of mandamus to compel the adjudicator to give her an effective remedy for the employer's breach by reopening the position.

The New Brunswick Court of Appeal dismissed the application. The Court of Appeal held that mandamus did not apply to compel the adjudicator to reconsider his decision and give an effective remedy for the grievance. See paragraphs 1 to 19.

Labour Law - Topic 9358

Public service labour relations - Judicial review - Decisions of an adjudicator - Mandamus - When available - An adjudicator ruled that the employer failed to give a laid-off teacher notice of available positions contrary to the collective agreement - The adjudicator refused to order that the positions be reopened to give the teacher an opportunity to apply for them - The New Brunswick Court of Appeal refused to allow the teacher's application for an order of mandamus to compel the adjudicator to reopen the positions - The Court of Appeal held that mandamus did not lie to compel the adjudicator to reconsider his decision and give an effective remedy for the grievance - See paragraphs 1 to 19.

Cases Noticed:

Bradley et al. v. Ottawa Professional Fire Fighters Association et al. (1967), 63 D.L.R.(2d) 376 (O.C.A.), refd to. [para. 17].

Hoogendoorn v. Greening Metal Products and Screening Equipment Co. et al., [1968] S.C.R. 30, refd to. [para. 17].

Re Ault (1956), 24 C.R. 260, appld. [para. 19].

Re Gross (1930), 53 C.C.C. 384, appld. [para. 19].

Re Polymer Corporation and Oil, Chemical and Atomic Workers International Union, Local 16-14 (1961), 26 D.L.R.(2d) 609, affd. 28 D.L.R.(2d) 81 (O.C.A.); 33 D.L.R.(2d) 124 (S.C.C.), consd. [para. 48].

Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1976), 57 D.L.R.(3d) 199, refd to. [para. 51].

Association of Radio and Television Employees of Canada (C.U.P.E. - C.L.C.) v. Canadian Broadcasting Corporation (1974), 40 D.L.R.(3d) 1, refd to. [para. 51].

Re Zolondek (1976), 15 N.B.R.(2d) 665; 18 A.P.R. 665, refd to. [para. 55].

Statutes Noticed:

Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, sect. 92 [para. 55]; sect. 96(2) [para. 54]; sect. 97(3) [para. 19]; sect. 101 [para. 13].

Counsel:

Brian R. Warnock, for the applicant, grievor;

Richard C. Speight and David M. Norman, Q.C., for the Province of New Brunswick and the Board of School Trustees for District No. 1.

This case was heard on September 13, 1977, at Fredericton, N.B., before HUGHES, C.J.N.B., BUGOLD and RYAN, JJ.A., of the New Brunswick Supreme Court, Appeal Division.

On November 4, 1977, HUGHES, C.J.N.B. delivered the following judgment for the Appeal Division:

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