McLean v. Miramichi (City), (2011) 377 N.B.R.(2d) 245 (CA)

• Judge: Robertson, Richard and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 30, 2010
• Jurisdiction: New Brunswick
• Citations: (2011), 377 N.B.R.(2d) 245 (CA);2011 NBCA 80

McLean v. Miramichi (2011), 377 N.B.R.(2d) 245 (CA);

    377 R.N.-B.(2e) 245; 972 A.P.R. 245

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2011] N.B.R.(2d) TBEd. SE.033

Renvoi temp.: [2011] N.B.R.(2d) TBEd. SE.033

Arthur McLean (appellant) v. City of Miramichi, a municipal corporation, by virtue of the Municipalities Act (respondent)

(142-10-CA; 2011 NBCA 80)

Indexed As: McLean v. Miramichi (City)

Répertorié: McLean v. Miramichi (City)

New Brunswick Court of Appeal

Robertson, Richard and Bell, JJ.A.

September 22, 2011.

Summary:

Résumé:

A police officer suffered post traumatic stress after an August 2006 accident where he struck and killed a pedestrian while on duty. An inquiry found him not at fault. He was in receipt of workers' compensation benefits. In March 2008, the Workplace Health, Safety and Compensation Committee advised the city that the officer was unable to return to work as a police officer. The officer took an occupational retraining program. As required under the collective agreement, the city maintained benefits for the officer while he was retraining, but also considered his employment terminated. As of December 2009, workers' compensation benefits ended and the city terminated his benefits under the collective agreement. The officer filed a complaint with the Police Commission that he was dismissed without compliance with the Police Act. The Chair of the Commission advised that they had no jurisdiction over the complaint. The officer applied under rule 69 to rescind his termination and for an order reinstating him as a police officer. He further claimed lost benefits and wages from December 2009 to date.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2010), 364 N.B.R.(2d) 392; 937 A.P.R. 392, dismissed the application for want of jurisdiction. The officer appealed.

The New Brunswick Court of Appeal allowed the appeal and ordered the officer's reinstatement on the terms set out in the Notice of Application.

Contracts - Topic 3825

Performance or breach - Frustration - General - [See first Master and Servant - Topic 2203 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - [See Police - Topic 4102 ].

Master and Servant - Topic 2203

Breach of contract - General - Frustration - The New Brunswick Court of Appeal stated that "the doctrine of frustration has the effect of automatically relieving both parties to the contract of their obligations to perform where there is an unforeseen or unexpected change in circumstances, brought about without the fault of either party and for which the contract does not make sufficient provision, and which makes further performance of their contract impossible, impracticable or radically different from what the parties might have intended had they thought about the matter" - See paragraph 23.

Master and Servant - Topic 2203

Breach of contract - General - Frustration - The New Brunswick Court of Appeal stated that "the doctrine of frustration has provided an excuse for non-performance on the basis of changing circumstances in three kinds of circumstances: (1) where the frustrating event has rendered performance impossible; (2) cases in which performance remains possible, but the purpose for which one or both parties entered the agreement has been undermined; and (3) cases where temporary impossibility has grounded discharge for frustration ... In the employment context, the third category is manifested in cases where the employee is off work because of a debilitating illness (delay in performance). The second category is not relevant to the employment context. ... The first category manifests itself in cases involving the death of an employee or an individual employer. ... Save for those cases involving the death of an employee, the question most frequently addressed is whether an employee's absence due to 'illness' brings about a frustration of the underlying employment contract. In that regard, absence from work due to a 'temporary' illness is not just cause for summary dismissal, nor does it bring about the application of the frustration doctrine. However, a 'permanent' disabling illness does bring about a frustration of the employment contract. ... only an absence arising from a permanent condition can justify a finding of frustration of contract." - See paragraphs 24, 26.

Master and Servant - Topic 7612

Discipline or dismissal of employees - Defences - Frustration - [See both Master and Servant - Topic 2203 ].

Police - Topic 4102

Internal organization - Dismissal of members - Statutory regulation - A police officer was off work for three years with post traumatic stress caused by his striking and killing a pedestrian while on duty - He was not at fault - He received workers' compensation benefits - Benefits ceased when the Workplace Health, Safety and Compensation Commission determined that the officer was no longer subject to work "restrictions" - When the officer announced his intention to return to work, the city declared his employment contract "frustrated" - The officer filed a complaint that he was dismissed without compliance with the Police Act - The Chair of the Police Commission advised that they had no jurisdiction over the complaint - The officer applied under rule 69 for rescission of his termination and reinstatement with lost benefits and wages from December 2009 to date - The trial judge dismissed the application for want of jurisdiction, finding that the officer first had to exhaust his remedies under the collective agreement - The New Brunswick Court of Appeal allowed the appeal and ordered the officer's reinstatement on the terms set out in the Notice of Application - Section 17.91(1) of the Police Act prohibited termination of a police officer for "unsatisfactory work performance" without a recommendation by the Chief of Police and a decision by an arbitrator - Section17.91(1), interpreted contextually and not literally or narrowly, applied to termination of an employment contract on the ground of frustration - Accordingly, the officer's dismissal had to be dealt with under the Police Act and "not in a court room or under a grievance procedure set out in a collective agreement" - Where the termination did not accord with the Police Act, the trial judge erred in failing to set aside the termination - There was never a finding that the officer's incapacity or disability was permanent - There was evidence to support the officer's argument that his termination was not for frustration, but that it was "disguised discipline" - The court ordered the officer reinstated on the terms set out in the Notice of Application, but noted that the city was not precluded from pursuing the termination and frustration issues under the Police Act process - See paragraphs 1 to 40.

Contrats - Cote 3825

Exécution ou rupture - Inexécutabilité ou impossibilité d'exécution - Généralités - [Voir Contracts - Topic 3825 ].

Droit du travail - Cote 9655

Relations de travail dans la fonction publique - Convention collective - Poursuite civile - Compétence - [Voir Labour Law - Topic 9655 ].

Employeurs et employés - Cote 2203

Rupture de contrat - Généralités - Inexécutabilité - [Voir Master and Servant - Topic 2203 ].

Employeurs et employés - Cote 7612

Congédiement d'employés ou recours disciplinaire - Moyens de défense - Inexécutabilité - [Voir Master and Servant - Topic 7612 ].

Police - Cote 4102

Régie interne - Congédiement de membres - Règlement d'application de la loi - [Voir Police - Topic 4102 ].

Cases Noticed:

Davis Contractors Ltd. v. Fareham Urban District Council, [1956] A.C. 696 (H.L.), refd to. [para. 23].

National Carriers Ltd. v. Panalpina (Northern) Ltd., [1981] A.C. 675 (H.L.), refd to. [para. 23].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 23].

Turner v. Clark (1983), 49 N.B.R.(2d) 340; 129 A.P.R. 340 (C.A.), refd to. [para. 23].

Krell v. Henry, [1903] 2 K.B. 740 (C.A.), refd to. [para. 24].

Hyde v. Dean and Canons of Windsor (1597), Cro. Eliz. 552; 78 E.R. 798, refd to. [para. 25].

Hall v. Wright (1859), 120 E.R. 695 (C.A.), refd to. [para. 25].

Dartmouth Ferry Commission v. Marks (1903), 34 S.C.R. 366, refd to. [para. 26].

Wilmot v. Ulnooweg Development Group Inc. (2007), 253 N.S.R.(2d) 376; 807 A.P.R. 376; 2007 NSCA 49, refd to. [para. 26].

Marshall v. Harland & Wolff Ltd., [1972] 2 All E.R. 715 (N.I.R.C.), refd to. [para. 27].

Yeager v. Hastings (R.J.) Agencies Ltd., [1984] B.C.J. No. 2722 (S.C.), refd to. [para. 27].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 27].

White v. Woolworth Canada Inc. - see White v. Woolworth (F.W.) Co.

White v. Woolworth (F.W.) Co. (1996), 139 Nfld. & P.E.I.R. 324; 433 A.P.R. 324 (Nfld. C.A.), refd to. [para. 28].

Naccarato v. Costco Wholesale Canada Ltd., [2010] O.T.C. Uned. 2651; 2010 ONSC 2651, refd to. [para. 28].

Duong v. Linamar Corp. et al., [2010] O.T.C. Uned. 3159; 2010 ONSC 3159, dist. [para. 28].

Parks v. Atlantic Provinces Special Education Authority Resource Centre For The Visually Impaired (1992), 109 N.S.R.(2d) 113; 297 A.P.R. 113 (C.A.), refd to. [para. 29].

Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd. (1998), 53 O.T.C. 291 (Gen. Div.), refd to. [para. 29].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) v. Hydro-Québec, [2008] 2 S.C.R. 561; 377 N.R. 136; 2008 SCC 43, refd to. [para. 29].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 30].

Lévesque v. New Brunswick et al. (2011), 372 N.B.R.(2d) 202; 961 A.P.R. 202; 2011 NBCA 48, refd to. [para. 32].

Imperial Tobacco Canada Ltd. et al. v. New Brunswick - see New Brunswick v. Rothmans Inc. et al.

New Brunswick v. Rothmans Inc. et al. (2010), 357 N.B.R.(2d) 160; 923 A.P.R. 160; 2010 NBCA 35, refd to. [para. 32].

Creighton v. Workplace Health, Safety and Compensation Commission (N.B.) (2009), 350 N.B.R.(2d) 352; 903 A.P.R. 352; 2009 NBCA 73, refd to. [para. 32].

Beal v. Grant (1984), 52 N.B.R.(2d) 163; 137 A.P.R. 163 (C.A.), refd to. [para. 35].

Statutes Noticed:

Police Act, S.N.B. 1977, c. P-9.2, sect. 17.91(1), sect. 17.92(1), sect. 17.95(c), sect. 17.95(d), sect. 17.96(1)(b)(ii), sect. 17.96(2), sect. 17.97, sect. 32.991, sect. 33(1), sect. 33(2), sect. 33.01, sect. 33.02(1), sect. 33.02(2) [Schedule A].

Authors and Works Noticed:

Barnacle, Peter, and Wood, Roderick, Employment Law in Canada (2005), pp. 18-8 [para. 25]; 18-13 [para. 29].

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006) (2011 Looseleaf Update), p. 2-69, fn. 11 [para. 30].

Echlin, Randall Scott, and Certosimo, Matthew L.O., Just Cause: The Law of Summary Dismissal in Canada (2010), p. 9-15 [para. 35].

McCamus, John D., Essentials of Canadian Law: The Law of Contracts (2005), p. 573 [para. 24].

Swan, Angela, Canadian Contract Law (2nd Ed. 2009), p. 704 ff. [para. 23].

Counsel:

Avocats:

Harold L. Doherty, for the appellant;

Richard G. Petrie, for the respondent.

This appeal was heard on June 20, 2011, before Robertson, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal.

On September 30, 2010, Robertson, J.A., delivered the following judgment in both official languages for the Court of Appeal.