McLean v. Miramichi (City), 2011 NBCA 80

• Judge: Robertson, Richard and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: December 08, 2011
• Jurisdiction: New Brunswick
• Citations: 2011 NBCA 80;(2011), 380 N.B.R.(2d) 398 (CA)

McLean v. Miramichi (2011), 380 N.B.R.(2d) 398 (CA);

    380 R.N.-B.(2e) 398; 980 A.P.R. 398

MLB headnote and full text

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. DE.012

Renvoi temp.: [2011] N.B.R.(2d) TBEd. DE.012

Arthur McLean (responding party on motion/appellant) v. City of Miramichi (moving party on motion/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.

December 8, 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, in a judgment reported (2011), 377 N.B.R.(2d) 245; 972 A.P.R. 245, allowed the appeal and ordered the officer's reinstatement on the terms set out in the Notice of Application. The municipality moved for clarification, asking whether the officer had to deduct from his award all sums that at common law would be regarded as the product of the duty to mitigate.

The New Brunswick Court of Appeal held that nothing received in mitigation had to be deducted from the award.

Damages - Topic 6753

Contracts - Employment relationship or contract - Breach by employer - Mitigation by employee - [See Police - Topic 4102 ].

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 - On a subsequent motion for clarification, the court stated that the officer was not required "to deduct from his award all sums that at common law would be regarded as the product of the duty to mitigate".

Dommages-intérêts - Cote 6753

Contrats - Relation employeur-employé ou contrat de travail - Violation par l'employeur - Limitation des dommages par l'employé - [Voir Damages - Topic 6753 ].

Police - Cote 4102

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

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 1].

Counsel:

Avocats:

Richard G. Petrie, for the moving party;

Harold Doherty, for the responding party.

This motion was heard on November 15, 2011, before Robertson, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal.

On December 8, 2011, the following judgment was delivered in both official languages by the Court.