Lethbridge v. Newfoundland (Minister of Health), (1992) 103 Nfld. & P.E.I.R. 13 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 03, 1992
• Jurisdiction: Newfoundland and Labrador
• Citations: (1992), 103 Nfld. & P.E.I.R. 13 (NFTD)

Lethbridge v. Nfld. (1992), 103 Nfld. & P.E.I.R. 13 (NFTD);

    326 A.P.R. 13

MLB headnote and full text

Ivan Lethbridge (plaintiff-respondent) v. Her Majesty the Queen in Right of Newfoundland as represented by the Honourable Minister of Health (defendant-applicant)

(1989 St. J. No. 3383)

Indexed As: Lethbridge v. Newfoundland (Minister of Health)

Newfoundland Supreme Court

Trial Division

Puddester, J.

November 3, 1992.

Summary:

Lethbridge sued the Newfoundland Minis­ter of Health for wrongful dismissal. The Province applied under rule 38 for a pre­liminary ruling on whether Lethbridge's employment was "at pleasure", giving the Province the right to dismiss or terminate without notice.

The Newfoundland Supreme Court, Trial Division, held that Lethbridge's employment was at pleasure and that the Province had the right to terminate it without providing reasonable notice or pay in lieu of notice.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See first Crown - Topic 5127 ].

Crown - Topic 1084

Contracts with Crown - Employment contracts - Duty of Crown to give notice of dismissal - [See Crown - Topic 5126 ].

Crown - Topic 1084

Contracts with Crown - Employment contracts - Duty of Crown to give notice of dismissal - [See first Crown - Topic 5127 ].

Crown - Topic 5125

Officials and employees - Appointment and employment - Appointment at pleas­ure - General - The Newfoundland Supreme Court, Trial Division, reviewed and affirmed the com­mon law principle that servants of the Crown serve or hold office at pleasure - See paragraphs 19 to 41 - The court noted that the common law position was restated by s. 21 of the New­foundland Interpreta­tion Act and reinforced by s. 16 of the Civil Service Act - See paragraphs 49 to 81 - The court further stated that "a con­tract per se" could not displace or "over­ride" s. 21 unless the contract was deemed to be within the scope of the "commission" or "appoint­ment" - See paragraphs 82 to 107.

Crown - Topic 5126

Officials and employees - Appointment and employment - Appointment at pleas­ure - What con­stitutes - Lethbridge was appointed Assis­tant Administrator within the Newfound­land Department of Health without a writ­ten contract - Due to a bona fide reorgan­ization, the position became redundant - Acting under a re­dundancy policy, the Province dismissed Lethbridge without cause, notice or pay in lieu of notice - The Newfoundland Supreme Court, Trial Divi­sion, concluded that Lethbridge's employ­ment, under both common law and statute, was at pleasure, carrying with it the con­comitant right of the Province to terminate without cause, notice or pay in lieu of notice - Nei­ther the provisions in or the existence of the policy affected the pleas­ure tenure - See para­graphs 19 to 115.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleas­ure - Termination of - The Crown employed Lethbridge at pleasure - Due to a bona fide reorganization, the position became redundant - The Crown, acting under a redundancy policy, dismissed him without cause, notice or pay in lieu of notice - The Newfound­land Supreme Court, Trial Division, held that a general duty of procedural fairness did not arise where (1) the termination was not based on performance, but on a policy requiring reorganiz­ation and (2) the policy did not provide either the right to be advised of the reasons for termina­tion or the right to be heard in the deci­sion-making process - If a duty of pro­cedural fairness did arise, it did not require the Crown to give rea­son­able notice or pay in lieu of notice - See paragraphs 116 to 150.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleas­ure - Termination of - In context of the termination of employment at the pleasure of the Crown, the Newfoundland Supreme Court, Trial Division, discussed the Crown's duty of procedural fairness - See paragraphs 116 to 147.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleas­ure - Termination of - The Newfoundland Supreme Court, Trial Division, stated that "... at common law, in a situation of 'at pleasure' employment in Crown service, termination may take place without the requirement for the giving of reasonable notice in the sense and meaning of that term in the field of employment law gen­erally." - See paragraphs 35 to 40.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleas­ure - Termination of - [See Crown - Topic 5126 ].

Master and Servant - Topic 7998

Dismissal without cause - Notice of dis­missal - When required - [See first Crown - Topic 5127 ].

Cases Noticed:

McKeen v. New Brunswick (1971), 3 N.B.R.(2d) 418 (Q.B.), refd to. [para. 19].

Washer v. British Columbia Toll Highways and Bridges Authority (1965), 53 D.L.R.(2d) 620 (B.C.C.A.), dist. [para. 19].

Malik v. Manitoba and Civil Service Commission (Man.) (1985), 35 Man.R.(2d) 48; 9 C.C.E.L. 121 (Q.B.), refd to. [para. 19].

Clarke v. Attorney General for Ontario et al., [1966] 1 O.R. 539 (C.A.), refd to. [para. 19].

Malone v. Ontario (1983), 45 O.R.(2d) 206 (H.C.), consd. [para. 20].

Mills v. Alberta, [1986] 5 W.W.R. 567 (Alta. C.A.), consd. [para. 21].

McKnight v. New Brunswick (1978), 21 N.B.R.(2d) 297; 37 A.P.R. 297 (Q.B.), consd. [para. 23].

Nicholson v. Haldimand-Norfolk Board of Commissioners of Police, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, dist. [para. 24].

Wilson and Nova Scotia Government Employees' Association v. Civil Service Commission of Nova Scotia (1981), 35 N.R. 103; 43 N.S.R.(2d) 631; 81 A.P.R. 631 (S.C.C.), dist. [para. 24].

Wuorinen v. Workers' Compensation Board (1983), 1 C.C.E.L. 29 (B.C.S.C.), dist. [para. 31].

Chadburn v. Sinclair Canada Oil Co. (1966), 57 W.W.R.(N.S.) 477 (Alta. S.C.), dist. [para. 36].

Gregory v. New Brunswick (1989), 97 N.B.R.(2d) 144; 245 A.P.R. 144 (Q.B.), dist. [para. 44].

Haché v. New Brunswick (1989), 97 N.B.R.(2d) 78; 245 A.P.R. 78 (Q.B.), dist. [para. 54].

Mallett v. New Brunswick (1983), 47 N.B.R.(2d) 234; 124 A.P.R. 234; 2 D.L.R.(4th) 766 (C.A.), dist. [para. 56].

Reilly v. The King, [1934] 1 D.L.R. 434 (P.C.), dist. [para. 69].

Hawkins v. Ontario (1985), 8 C.C.E.L. 183 (Ont. H.C.), dist. [para. 88].

Gilbert v. Saskatchewan, [1976] 1 W.W.D. 162 (Sask. Q.B.), dist. [para. 89].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; [1990] 3 W.W.R. 289, dist. [para. 92].

Mallock v. Aberdeen Corp., [1971] 2 All E.R. 1278 (H.L.), dist. [para. 122].

Statutes Noticed:

Civil Service Act, R.S.N. 1970, c. 41, sect. 2(a) [para. 47]; sect. 16 [para. 64]; sect. 16(1) [para. 47]; sect. 17 [para. 77]; sect. 17(1), sect. 47(1), sect. 47(2) [para. 47].

Interpretation Act, R.S.N. 1970, c. 182, sect. 21 [para. 45]; sect. 22 [para. 60]; sect. 22(1) [para. 46].

Labour Standards Act, S.N. 1977, c. 52, generally [para. 48].

Rules of Court (Nfld.), Supreme Court Rules, rule 38 [para. 2].

Authors and Works Noticed:

Harris, Wrongful Dismissal, p. 2-103 [para. 32].

Molot, H.I., Contractual Modification of Tenure, Employment During Good Be­haviour and at Pleasure (1989), 2 C.J.A.L.P. 238 [paras. 95, 101].

Wade, H.W.R., Administrative Law (3rd Ed. 1971), pp. 300, 301 [paras. 25, 83]; 305, 306 [para. 137].

Counsel:

Gillian D. Butler, for the plaintiff-respon­dent;

Lisa A. Byrne, for the defendant-appli­cant.

This application was heard on January 23 and 24, 1991, before Puddester, J., of the Newfoundland Supreme Court, Trial Divi­sion, who filed the following judgment on November 3, 1992.