Flieger v. New Brunswick, (1993) 138 N.B.R.(2d) 161 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 30, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 138 N.B.R.(2d) 161 (SCC);48 CCEL 1;[1993] 2 SCR 651;1993 CanLII 104 (SCC);[1993] SCJ No 76 (QL);104 DLR (4th) 292;[1993] CarswellNB 137;155 NR 1;354 APR 161;138 NBR (2d) 161

Flieger v. N.B. (1993), 138 N.B.R.(2d) 161 (SCC);

    138 R.N.-B.(2e) 161; 354 A.P.R. 161

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Gary Flieger and Terry McNutt (appellants) v. The Province of New Bruns­wick (respondent)

(No. 22875)

Indexed As: Flieger v. New Brunswick

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci, JJ.

June 30, 1993.

Summary:

Two highway patrol officers sued the Province of New Brunswick for wrongful dismissal because they were not given rea­sonable notice of the termination of their employment. The officers' employment was terminated when the Province disbanded the force and contracted the work to the R.C.M.P. The Province submitted that under s. 26(1) of the Civil Service Act and s. 9(1)(b) of the Regulations, only 30 days' notice was required because the officers' function was discontinued.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 117 N.B.R.(2d) 239; 295 A.P.R. 239, dismissed the action. The officers appealed.

The New Brunswick Court of Appeal, in a decision reported at 125 N.B.R.(2d) 228; 316 A.P.R. 228, Hoyt, J.A., dissenting, dismissed the appeal. The officers appealed.

The Supreme Court of Canada, L'Heu­reux-Dubé, J., dissenting, dismissed the appeal.

Labour Law - Topic 9158.3

Public service labour relations - Discipline and dismissal of civil servants - Dismissal - Cause for - Lack of work or discontinu­ance of a function - Two highway patrol officers had their employment terminated when the Province disbanded the force and con­tracted out the policing functions to the R.C.M.P. - The officers sued for damages on the ground of wrongful dismissal be­cause they were given insufficient notice of termination - The Province submitted that under the Civil Service Act and the Regulations, only 30 days' notice was required when a function was discontinued - The Province claimed that the transfer of the policing function to the R.C.M.P. constituted a discontinuance of the officers' function - The Supreme Court of Canada dismissed the offi­cers' claim - See para­graphs 13 to 37.

Labour Law - Topic 9163

Public service labour relations - Discipline and dismissal of civil servants - Notice of dismissal - Reasonable notice - What constitutes - Two members of the New Brunswick Highway Patrol were dismissed when the force's duties were contracted out to the R.C.M.P. - The officers received full pay for the 15 months fol­lowing notice and were given alter­native employ­ment as corrections officers - The officers sub­mitted that they were entitled to rea­sonable notice and sued for damages - The of­ficers claimed that the 30 days' notice provision contained in Regulation 84-229 did not necessarily establish in every case the maximum period of notice - The Supreme Court of Canada held that Regu­lation 84-229 was determinative of the matter and that the officers were entitled to only 30 days' notice - See para­graphs 38 and 45.

Words and Phrases

Discontinuance of a function - The Supreme Court of Canada considered the meaning of the phrase "discontinuance of a function" as employed in s. 26(1) of the Civil Service Act, S.N.B. 1984, c. C-5.1 - See para­graphs 13 to 37 and 60 to 74.

Words and Phrases

Function - The Supreme Court of Canada considered the meaning of the phrase "discontinuance of a function" as employed in s. 26(1) of the Civil Service Act, S.N.B. 1984, c. C-5.1 - See para­graphs 13 to 37 and 60 to 74.

Cases Noticed:

Canada (Attorney General) v. Public Ser­vice Alliance of Canada, [1991] 1 F.C. 428; 124 N.R. 379 (F.C.A.), affd. [1993] 1 S.C.R. 941; 150 N.R. 161, dist. [para. 5].

Gonthier et al. v. Canada et al. (1986), 77 N.R. 386 (F.C.A.), consd. [para. 16].

Mudarth v. Canada (Minister of Public Works), [1989] 3 F.C. 371; 22 F.T.R. 312 (T.D.), affd. 113 N.R. 159 (F.C.A.), consd. [para. 17].

Gallagher et al. v. New Brunswick (Board of Management) et al. (1990), 105 N.B.R.(2d) 181; 264 A.P.R. 181 (Q.B.), consd. [para. 69].

Statutes Noticed:

Board of Management General Regulation - see Civil Service Act Regulations (N.B.).

Civil Service Act, S.N.B. 1984, c. C-5.1, sect. 20, sect. 26(1), sect. 26(2), sect. 26(3), sect. 26(4) [para. 10].

Civil Service Act Regulations (N.B.), Reg. 84-229, sect. 9(1), sect. 9(1)(a), sect. 9(1)(b) [para. 11].

Employment Standards Act, S.N.B. 1982, c. E-7.2, sect. 30(1) [para. 80].

Human Rights Act, R.S.N.B. 1973, c. H-11, generally [para. 54].

Labour Code, R.S.C. 1985, c. L-2, sect. 242(3.1) [para. 13].

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 29(1) [para. 13].

Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, sect. 6(2), sect. 63(2), sect. 63(2)(a), sect. 63(2)(b) [para. 12].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1990) [para. 23].

Christie, Innis, Employment Law in Canada (2nd Ed. 1993), pp. 661 to 662 [para. 53].

Concise Oxford Dictionary (8th Ed. 1990)­ [para. 25].

Dukelow, Daphne A., and Betsy Nuse, Dictionary of Canadian Law (1991) [para. 24].

Random House Dictionary of the English Language (2nd Ed. 1987) [para. 26].

Sweet & Maxwell, Encyclopedia of Em­ployment Law (1992), vol. 1, pp. 1616 1624 [para. 52].

Counsel:

J. Gordon Petrie, Q.C., and Thomas Christie, for the appellants;

Richard C. Speight, for the respondent.

Solicitors of Record:

Petrie, Richmond, Goss, Fredericton, New Brunswick, for the appellants;

The Office of the Attorney General, Fred­ericton, New Brunswick, for the respon­dent.

This appeal was heard on April 26, 1993, by Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iaco­bucci, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on June 30, 1993, and the following opinions were filed:

Cory, J. (Lamer, C.J.C., La Forest, So­pinka, McLachlin and Iacobucci, JJ., concurring) - see paragraphs 1 to 46;

L'Heureux-Dubé, J., dissenting - see paragraphs 47 to 87.