Halifax Developments Ltd. v. Sutton, (1995) 142 N.S.R.(2d) 264 (CA)

• Judge: Clarke, C.J.N.S., Freeman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 25, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 142 N.S.R.(2d) 264 (CA)

Halifax Dev. Ltd. v. Sutton (1995), 142 N.S.R.(2d) 264 (CA);

  407 A.P.R. 264

MLB headnote and full text

Halifax Developments Limited (appellant) v. Phyllis Della Sutton (respondent)

(C.A. No. 114281)

Indexed As: Halifax Developments Ltd. v. Sutton

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Freeman and Flinn, JJ.A.

June 13, 1995.

Summary:

As part of a corporate restructuring of Halifax Developments Ltd., Sutton's em­ployment was terminated after 21 years of service. She complained under the Labour Standards Code. The Labour Standards Tribunal ruled that Sutton's position had not been eliminated and therefore she had been discharged rather than laid off and was thus entitled to be reinstated under s. 71(1) of the Code. Halifax Developments Ltd. appealed.

The Nova Scotia Court of Appeal allowed the appeal and remitted the matter to the Tribunal for reconsideration in accordance with the principles set out by the court.

Master and Servant - Topic 8344

Employment and labour standards - Juris­diction of tribunal - Judicial review - The Labour Standards Code, s. 20(2), provided that a tribunal's decision respecting an employer's actions was final and conclu­sive and not open to review except on a question of law or jurisdiction - The Nova Scotia Court of Appeal stated that "the determination of what constitutes a lay-off or discharge involves interpretation of the Labour Standards Code and jurisprudence and is a question of law to which the standard of correctness applies. Whether a particular set of circumstances is a lay-off or discharge is a question of fact within the core jurisdiction of the tribunal. The standard of review of factual findings by the tribunal involves a high degree of deference and tribunal decisions on issues of fact will be interfered with only when they are unreasonable" - See paragraph 12.

Master and Servant - Topic 8404

Employment and labour standards - Lay­off or dismissal - Notice - The Nova Scotia Court of Appeal discussed the reinstatement and notice provisions in ss. 71 and 72 of the Labour Standards Code - See paragraphs 24 to 30.

Master and Servant - Topic 8408

Employment and labour standards - Lay­-off or dismissal - Grounds - As part of a corporate restructuring of Halifax Devel­opments Ltd., Sutton's employment was terminated after 21 years of service - The Labour Standards Tribunal ruled that Sut­ton's position had not been eliminated and therefore she had been discharged (Code, s. 2(c)), rather than laid off (Code, s. 2(i)), and was thus entitled to be reinstated (Code, s. 71(1)) - The Tribunal declined to apply the reasoning in Flieger v. New Brunswick (S.C.C.) and concluded that for purposes of s. 2(i) a position was not eliminated if the work was being done by others - The Nova Scotia Court of Appeal held that the Tribunal erred in not inter­preting s. 2(i) in accordance with Flieger and referred the matter to the Tribunal for reconsideration.

Master and Servant - Topic 8461

Employment and labour standards - Lay­off or dismissal - Reinstatement - General - [See Master and Servant - Topic 8404 ].

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 20 to 23.

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. 11].

Murphy v. Halifax (City) (1995), 139 N.S.R.(2d) 204; 397 A.P.R. 204 (C.A.), refd to. [para. 11].

Ben's Ltd. v. Decker (1995), 142 N.S.R.(2d) 371; 407 A.P.R. 371 (C.A.), refd to. [para. 11].

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. 15].

Yarmouth (Town) v. Manser et al. (1977), 18 N.S.R.(2d) 353; 20 A.P.R. 353 (C.A.), refd to. [para. 19].

Porter v. C-I-L Inc. (1980), 42 N.S.R.(2d) 624; 77 A.P.R. 624 (C.A.), refd to. [para. 19].

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271, refd to. [para. 24].

Statutes Noticed:

Labour Standards Code, R.S.N.S. 1989, c. 246, sect. 2(c) [para. 9]; sect. 2(i) [para. 10]; sect. 20(2) [para. 11]; sect. 71(1) [para. 24]; sect. 72(3) [para. 26].

Counsel:

Karin McCaskill, for the appellant;

Peter McLellan, Q.C., for the respondent.

This appeal was heard on May 25, 1995, before Clarke, C.J.N.S., Freeman and Flinn, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was delivered by Freeman, J.A., on June 13, 1995.