McPhee et al. v. Canadian Union of Public Employees et al.,

• Jurisdiction: Nova Scotia
• Judge: Cromwell, Saunders and Oland, JJ.A.
• Neutral Citation: 2008 NSCA 104
• Citation: 2008 NSCA 104,(2008), 270 N.S.R.(2d) 265 (CA),[2008] NSJ No 483 (QL),270 NSR (2d) 265,[2008] NS.J. No 483 (QL),270 N.S.R.(2d) 265,270 NSR(2d) 265,(2008), 270 NSR(2d) 265 (CA)
• Date: 31 October 2008
• Court: Court of Appeal of Nova Scotia (Canada)

McPhee v. CUPE (2008), 270 N.S.R.(2d) 265 (CA);

    865 A.P.R. 265

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. NO.008

Janice McPhee, Mary Hill and Sharon MacLean (appellants) v. Canadian Union of Public Employees and Canadian Union of Public Employees, Local 2094 (respondents)

(CA 280391; 2008 NSCA 104)

Indexed As: McPhee et al. v. Canadian Union of Public Employees et al.

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

October 31, 2008.

Summary:

Three unionized workers brought an action for damages against their parent union and union local alleging harassment and intimidation, intentional and negligent infliction of psychiatric damage, and breach of the duty of fair representation by failing to pursue grievances.

The Nova Scotia Supreme Court, in a judgment reported (2007), 252 N.S.R.(2d) 358; 804 A.P.R. 358, dismissed the first two claims on the unions' non-suit motion and the negligent infliction of psychiatric damage and fair representation claims at the end of the trial. The trial judge, without reasons, declined to award costs to the successful unions. The workers appealed the dismissal of the latter two claims. The unions challenged the denial of costs by way of notice of contention.

The Nova Scotia Court of Appeal dismissed the workers' appeal. The trial judge erred in denying the successful unions their costs without providing reasons for doing so and the record disclosed no basis for denying costs. The workers were jointly and severally liable for $20,500 in trial costs and $2,000 in appeal costs.

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - Three nursing home workers and others were blamed for a 1999 wildcat strike - One worker later returned to work - The other two did not, claiming that they were subjected to harassment and intimidation by other workers in their union local - Formal complaints and other proceedings against the union local were dismissed - The two workers were dismissed by the employer for being absent - The workers filed grievances, submitting that they were absent for medical reasons - The union local, because of the workers' proceedings against them and the animosity, delegated the responsibility of investigating the grievances to the national union's regional director for the Atlantic provinces - After an investigation that was delayed by the workers' initial refusal to cooperate, the director decided not to pursue the grievances on the ground that they had no reasonable prospect of success - The workers sued the national union and union local, alleging a breach of the duty of fair representation - The trial judge dismissed the action - The national union and union local acted in good faith, objectively and honestly after a thorough investigation - The investigation was conducted fairly, genuinely and competently, with no serious negligence or hostility - Even if the failure to refer the matter quickly was an error (which the court was not satisfied that it was), such did not constitute major or gross negligence because there was no reasonable chance that the grievances would succeed - The Nova Scotia Court of Appeal affirmed the decision, where the trial judge applied the correct legal principles, made no palpable and overriding error in his fact findings and made no error in applying the legal principles to the facts - The court noted that the workers basically wanted the case retried, which was not the appellate court's function - See paragraphs 1 to 67.

Practice - Topic 7020

Costs - Party and party costs - Entitlement to party and party costs - Successful party - General principles - Three unionized workers brought an action for damages against their parent union and union local alleging harassment and intimidation, intentional and negligent infliction of psychiatric damage, and breach of the duty of fair representation by failing to pursue grievances - Their claims were dismissed - The trial judge, without providing reasons, declined to award the successful unions their trial costs - The Nova Scotia Court of Appeal held that the trial judge erred - Absent a reason for departing from the general rule that a successful party was entitled to costs, the unions, who incurred over $100,000 in legal costs, should have been awarded costs - The record disclosed no reason for denying costs - The workers' sympathetic personal circumstances were not sufficient - The court found the workers jointly and severally liable for $20,500 in trial costs and $2,000 in appeal costs - See paragraphs 68 to 82.

Torts - Topic 8712

Duty of care - Particular relationships - Claim for nervous shock and emotional suffering - Foreseeability - Three nursing home workers and others were blamed for a 1999 wildcat strike - One worker later returned to work - The other two did not, claiming that they were subjected to harassment and intimidation by other workers in their union local - Formal complaints and other proceedings against the union local were dismissed - The two workers were dismissed by the employer for being absent - The workers filed grievances, submitting that they were absent for medical reasons - The union local, because of the workers' proceedings against them and the animosity, delegated the responsibility of investigating the grievances to the national union's regional director for the Atlantic provinces - After an investigation that was delayed by the workers' initial refusal to cooperate, the director decided not to pursue the grievances on the ground that they had no reasonable prospect of success - The workers sued the national union and union local, alleging negligent infliction of psychiatric damage - The trial judge dismissed the action - The workers failed to establish that they suffered a recognizable psychiatric illness as a foreseeable consequence of negligent conduct by the national union or union local - The Nova Scotia Court of Appeal affirmed the decision, where the trial judge applied the correct legal principles, made no palpable and overriding error in his fact findings and made no error in applying the legal principles to the facts - The court noted that the workers basically wanted the case retried, which was not the appellate court's function - See paragraphs 1 to 67.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 16].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 17].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 17].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 18].

Romard v. Canadian Union of Public Employees, Local 3264 et al. (2000), 188 N.S.R.(2d) 31; 587 A.P.R. 31 (S.C.), refd to. [para. 49].

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 NSCA 94, refd to. [para. 70].

Bent v. Farm Loan Board (N.S.), Horsnell and Horsnell (1978), 30 N.S.R.(2d) 552; 49 A.P.R. 552 (C.A.), refd to. [para. 71].

Kelly v. Wawanesa Mutual Insurance Co. et al. (1979), 30 N.S.R.(2d) 294; 49 A.P.R. 294 (C.A.), refd to. [para. 71].

Griffin v. Corcoran (2001), 193 N.S.R.(2d) 279; 602 A.P.R. 279; 2001 NSCA 73, refd to. [para. 71].

British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (C.A.), refd to. [para. 72].

Zinck v. Hatt et al. (1979), 34 N.S.R.(2d) 12; 59 A.P.R. 12 (C.A.), refd to. [para. 12].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53 refd to. [para. 74].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 74].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 74].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 76].

Authors and Works Noticed:

Mewett, Alan W., and Sankoff, Peter J., Witnesses (1991) (2008 Looseleaf Update, Release 1), p. 11-2 [para. 17].

Counsel:

Janice McPhee et al., on their own behalf;

Susan Coen, for the respondents.

This appeal was heard on September 29, 2008, at Halifax, N.S., before Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On October 31, 2008, Cromwell, J.A., delivered the following judgment for the Court of Appeal.