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CIVIL PROCEDURE - Judgments and orders - Enforcement - Stay of

Monday, June 17, 2019 @ 11:12 AM  


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Appeal by the Attorney General from a decision of a motion judge refusing to extend the stay of a decision of the Labour and Employment Board declaring s. 8 of the Essential Services in Nursing Homes Act unconstitutional. While the respondent was involved with the Province and nursing homes in the designation of essential services of nursing home staff in the event of a strike according to the Essential Services in Nursing Homes Act, a dispute arose regarding the level of services to be provided by licensed practical nurses and resident attendants. The dispute was referred to the Board, in accordance with s. 8 of the Act, for determination. The respondent also alleged that the Act violated s. 2(d) of the Charter because it denied certain employees the right to strike. The Board declared s. 8 of the Act unconstitutional and dismissed the entire application, thereby placing the respondent in an immediate position to strike without having any designations of levels of care and services established for any of the employees. The Attorney General applied for judicial review of the constitutional decision and obtained a 10-day stay of the Board’s decision pending disposition of the judicial review.

HELD: Appeal allowed. On the assessment of the irreparable harm criterion, the motion judge erred by focusing on the interest of the respondent rather than on the public interest represented by the Attorney General. The motion judge erred by misconstruing the interest as including harm to the respondent’s members arising from the collective bargaining dispute. At this stage of the analysis, harm to a party responding to a stay application was irrelevant. To the extent the public interest included the interests of vulnerable individuals in need of care as well as their families, the element of a high risk to the health, safety and security of nursing home residents in the event of a strike by nursing home employees was more than sufficient to meet the reduced onus on the Attorney General to establish irreparable harm. By misdirecting herself on the analysis of irreparable harm with a focus on the respondent, the motion judge also misdirected herself with respect to the analysis of the balance of convenience. There was no evidence that the harm the respondent might face while the stay was in place would exceed the harm which could occur to the public interest should the stay not be extended. The extension of the stay did not, in any way, affect the collective bargaining positions of the parties pending the imminent judicial review. The balance of convenience heavily favoured the Attorney General in this case.

New Brunswick (Attorney General) v. New Brunswick Council of Nursing Homes Unions, [2019] N.B.J. No. 112, New Brunswick Court of Appeal, K.A. Quigg, R.T. French and C.A. LeBlond JJ.A., May 9, 2019. Digest No. TLD-June172019001