July 22, 2010

Unusually, Exceptional Circumstances Warrant Stay

Filed under: Uncategorized — ruleswatch @ 8:25 pm

The Nova Scotia Court of Appeal has granted a stay pending appeal where the moving party had failed to satisfy the traditional Metropolitan Stores, tripartite test of 1.arguable issue 2. Irreparable harm to the appellant if the stay is not issued and “co-called” balance of convenience.

In Cape Breton-Victoria Regional School Board v.

Canadian Union of Public Employees, Local 5050

, 2010 NSCA 6, HD was a 44 year old school maintenance worker who entered a sexual relationship with a 15 year old girl who was a student under the same Board where HD work, albeit in another school. When word came out, the Board fired HD. He was ordered reinstated to pay and to work by arbitration. The arbitration was quashed in Supreme Court judicial review. While the Supreme Court had stayed HD’s return to work, his pay and benefits continued.

HD appealed to the Court of Appeal and wanted to go back to work in the meantime. The Board wanted the return to work stayed pending the appeal.

The Board had an arguable case on appeal. Moreover Hamilton J.A. went on to conclude that there was no irreparable harm to the Board should HD be back on site. The Board, it concluded, could explain the return in the context of the judicial proceeding:

[9] I agree with the Union that the Board would not suffer irreparable harm if
the stay was not granted. If the Board ensured the reason for Mr. Delaney’s
reinstatement was available to the public, including the process followed after his
dismissal as outlined in the Union’s argument, the Board’s appeal of the judicial
review order to this Court and my refusal to stay that order, any outrage at Mr.
Delaney’s reinstatement would be directed at the Court, not the Board, and thus
would not irreparably harm the Board’s reputation.

For the same reason the Board’s inconvenience by way of public criticism, the Court decided would be outweighed by countervailing inconvenience to HD (who would earn money he might have to repay should the appeal be successful).

On traditional bases, therefore, the Court could not order the stay.

But it did find that it could find in the little used alternative to the three part test, “exceptional circumstances,” a vehicle to award the stay.

The rational was as follows

[14] I find that the interests of the students, as opposed to the interests of the
parties themselves, are exceptional circumstances here. Arbitrator Ashley satisfied
herself that there was no reason to have reservations about Mr. Delaney working
close to children (para. 77). However, she also clearly found that while his
behaviour did not warrant dismissal, it was repugnant (para. 61) and that had the
sexual relationship commenced less than a year after it did, Mr. Delaney would
likely have been found guilty of a criminal offence (para. 78). Weighing these
findings, the fact that Justice Bourgeois granted a similar stay prior to conducting
her judicial review and the minimal harm to Mr. Delaney of granting the stay, I am
satisfied I should exercise my discretion to grant the requested stay.


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