MacEachern v. Nova Scotia (Attorney General), (1988) 83 N.S.R.(2d) 57 (TD)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 18, 1987
• Jurisdiction: Nova Scotia
• Citations: (1988), 83 N.S.R.(2d) 57 (TD)

MacEachern v. N.S. (A.G.) (1988), 83 N.S.R.(2d) 57 (TD);

    210 A.P.R. 57

MLB headnote and full text

Deborah A. MacEachern v. Attorney General of Nova Scotia

(S.H. No. 59203)

Indexed As: MacEachern v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Trial Division

Nathanson, J.

December 18, 1987

Supplemental reasons: January 29, 1988.

Summary:

MacEachern was a permanent Crown employee holding the position of supervisor of account regulation for the Provincial Tax Commissioner, an administrative body of the Department of Finance charged with the function of collecting overdue health services tax. MacEachern was dismissed after 4.5 years' employment on the ground of "lack of interpersonal skills" in dealing with her subordinates and the public. MacEachern brought an action for damages for wrongful dismissal.

The Nova Scotia Supreme Court, Trial Division, allowed the action and awarded her 10 months' salary in lieu of notice. The court held that the Crown could not dismiss at pleasure, because the Civil Service Act required cause and compliance with the Regulations under the Act. The court held that the Crown failed to comply with the Regulations and failed to prove cause, therefore the dismissal was wrongful.

Crown - Topic 1087

Contracts with Crown - Employment contracts - Power to dismiss - The Nova Scotia Supreme Court, Trial Division, stated that the Crown's common law prerogative to dismiss employees at pleasure remained absolute, except where changed by statute or contract - Section 26 of the Civil Service Act, S.N.S. 1980, c. 3, provided that a civil servant may be dismissed "for cause" and "in accordance with the regulations" - The court therefore held that the Crown had no authority to dismiss at pleasure - See paragraphs 71 to 82.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Crown - Topic 1087 above].

Labour Law - Topic 9151

Public service labour relations - Discipline and dismissal of civil servants - Crown - Prerogative of - Respecting dismissal - [See Crown - Topic 1087 above].

Master and Servant - Topic 7505

Dismissal of employees - Procedure - Statutory regulation - Section 87(1) of the Regulations under the Civil Service Act permitted dismissal of permanent civil servants for "wilful misconduct, disobedience, neglect of duty or incompetence" - The Nova Scotia Supreme Court, Trial Division, held that dismissal of an employee for "lack of interpersonal skills" was contrary to the Regulations and therefore wrongful, where "lack of interpersonal skills" was not an enumerated cause for dismissal - See paragraphs 85 to 94.

Master and Servant - Topic 7550

Dismissal of employees - Grounds - Cause defined - A civil servant was dismissed for "lack of interpersonal skills" - There was no misconduct, neglect of duty, incompetence, conduct incompatible with her duties or prejudicial to her employer, nor a breach of the implied terms of her employment contract - The overriding reason for her dismissal, being a poor situation in her unit, was caused primarily by factors beyond her control - The employee's own contributions to the problem were relatively minor - The Nova Scotia Supreme Court, Trial Division, held that the Crown failed to establish cause for dismissal - See paragraphs 96 to 102.

Master and Servant - Topic 7710

Dismissal of employees - Damages for wrongful dismissal - Deductions for insurance benefits received by the employee - The Nova Scotia Supreme Court, Trial Division, held that unemployment insurance benefits received by a wrongfully dismissed employee were not deductible from damages - See paragraphs 105 to 111.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - MacEachern was a permanent Crown employee holding the position of supervisor of account regulation for the Provincial Tax Commissioner, an administrative body of the Department of Finance charged with the function of collecting overdue health services tax - MacEachern was dismissed after 4.5 years' employment - She was 38 years old, divorced, with one teenaged child - The Nova Scotia Supreme Court, Trial Division, held that 10 months constituted reasonable notice of dismissal - See paragraphs 103 to 104.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting - The Nova Scotia Supreme Court, Trial Division, held that an employee's contribution to her own wrongful dismissal was a factor that reduced the period of reasonable notice; that her employer's refusal to supply a letter of recommendation was a factor that increased the period of reasonable notice - See paragraphs 103 to 104.

Master and Servant - Topic 8062

Dismissal without cause - Damages - Elements - The Nova Scotia Supreme Court, Trial Division, held that an employee entitled to damages for wrongful dismissal was not entitled to an allowance for Canada Pension Plan and unemployment insurance premiums that would have been paid during the period of reasonable notice - See paragraphs 105 to 111.

Master and Servant - Topic 8069

Dismissal without cause - Damages - Expenses in seeking new employment - A wrongfully dismissed employee claimed damages for expenses incurred in seeking new employment - The Nova Scotia Supreme Court, Trial Division, allowed a portion of the claim - See paragraphs 105 to 111.

Cases Noticed:

McKeen v. Province of New Brunswick (1971), 3 N.B.R.(2d) 418, consd. [para. 72].

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; 119 D.L.R.(3d) 1 (S.C.C.), consd. [para. 72].

Nova Scotia Civil Service Commission v. Nova Scotia Government Employees' Union and Ferguson (1985), 69 N.S.R.(2d) 440; 163 A.P.R. 440, consd. [para. 72].

Malik v. Manitoba and Civil Service Commission (Man.) (1985), 35 Man.R.(2d) 48, consd. [para. 72].

MacDonald v. Richardson Greenshields of Canada Ltd. (1985), 12 C.C.E.L. 22 (B.C.S.C.), consd. [para. 99].

Brown v. Fidinam (Canada) Ltd. (1980), 23 A.R. 608, refd to. [para. 104].

Jivrag v. City of Calgary et al. (1986), 71 A.R. 87; 45 Alta. L.R.(2d) 343, refd to. [para. 104].

Mayhew v. Canron Inc. (No. 2) (1982), 50 N.S.R.(2d) 349; 98 A.P.R. 349, appld. [para. 114].

Jack Cewe Ltd. v. Jorgenson (1980), 32 N.R. 1; 111 D.L.R.(3d) 577 (S.C.C.), appld. [para. 114].

Statutes Noticed:

Civil Service Act, R.S.N.S. 1967, c. 34, sect. 22, sect. 57 [para. 79].

Civil Service Act, S.N.S. 1980, c. 3, sect. 26 [para. 79].

Civil Service Act Regulations, Reg. 20/81, sect. 86 [para. 86]; sect. 87(1), sect. 87(2) [para. 91]; sect. 87(3), sect. 87(4), sect. 87(5), sect. 87(6) [para. 88]; sect. 88 [para. 89]; sect. 89 [para. 86]; sect. 90 [para. 90].

Counsel:

P.M. Landry and D. Presse, for the plaintiff;

J. Davies, for the defendant.

This action was heard on November 9 and 10, 1987, before Nathanson, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following decision on December 18, 1987 and the following addendum on January 29, 1988.