Malcolm, Re, (1977) 17 N.B.R.(2d) 137 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 28, 1976
• Jurisdiction: New Brunswick
• Citations: (1977), 17 N.B.R.(2d) 137 (CA)

Malcolm, Re (1977), 17 N.B.R.(2d) 137 (CA);

    17 R.N.-B.(2e) 137; 23 A.P.R. 137

MLB headnote and full text

Sommaire et texte intégral

Re Malcolm

Indexed As: Malcolm, Re

Répertorié: Malcolm, Re

New Brunswick Court of Appeal

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

January 28, 1977.

Summary:

Résumé:

This case arose out of a grievance by several employees of the Department of Agriculture of the Province of New Brunswick. The employees claimed that they were denied pay increments and cost of living increases which were granted to most employees. The grievances of the employees were dismissed and they applied for adjudication. An adjudicator was appointed but he declined jurisdiction because the employee's grievances did not arise out of "disciplinary action resulting in a ... financial penalty" as required by s. 92(1) of the Public Service Labour Relations Act.

On appeal by the employees to the New Brunswick Court of Queen's Bench, the appeal was allowed and the adjudicator's decision was set aside - see 15 N.B.R.(2d) 356. The New Brunswick Court of Queen's Bench held that the employees were entitled to refer their claims to adjudication because the alleged losses resulted in a financial penalty within the meaning of s. 92(1) of the Public Service Labour Relations Act.

On appeal to the New Brunswick Court of Appeal the appeal was allowed, the judgment of the Court of Queen's Bench was set aside and the decision of the adjudicator was restored.

Labour Law - Topic 9128

Public service labour relations - Grievances - Matters referable to adjudication - Jurisdiction of adjudicators - Public Service Labour Relations Act, s. 92(1) - What constitutes "disciplinary action resulting in a ... financial penalty"- Employees of the Department of Agriculture of the Province of New Brunswick claimed that they were denied pay increments and cost of living increases which were given to most employees - An adjudicator refused to take jurisdiction pursuant to s. 92(1) of the Public Service Labour Relations Act - The New Brunswick Court of Appeal affirmed that the adjudicator did not have jurisdiction to hear the grievance of the employees - The New Brunswick Court of Appeal stated that the withholding of pay increments and cost of living increases did not constitute disciplinary action resulting in a financial penalty because the granting of pay increments and cost of living increases was discretionary and could not be claimed by the employees as a right.

Statutes - Topic 516

Interpretation of statutes - General principles - Ordinary meaning of words - The New Brunswick Court of Appeal stated that words of a statute are to be given their ordinary meaning - See paragraph 10.

Words and Phrases

Penalty - The New Brunswick Court of Appeal discussed the meaning of the word "penalty" as found in s. 92(1) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25.

Words and Phrases

Financial penalty - The New Brunswick Court of Appeal discussed the meaning of the words "financial penalty" as found in s. 92(1) of the Public Service Labour Relations Act, R.S.N.B. 1973, C. P-25.

Cases Noticed:

Cristopher Brown Ltd. v. Genossenschaft, etc., [1953] 2 All E.R. 1039, folld. [para. 10].

Statutes Noticed:

Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, sect. 92(1) [para. 8].

Authors and Works Noticed:

Oxford Dictionary [para. 10].

Counsel:

David M. Norman, for the Province of New Brunswick;

David J. Malcolm and Norman Laverty, appearing on their own behalf;

Albert J. Deveaux and Skip Hambling, not appearing.

This case was heard by HUGHES, C.J.N.B., LIMERICK and RYAN, JJ.A., at Fredericton, N.B., on September 28, 1976. The judgment of the New Brunswick Court of Appeal was delivered by HUGHES, C.J.N.B., on January 28, 1977.