Firefighters in Saint John cannot be both employees of the city
and receive a permanent disability pension, according to the New
Brunswick Court of Appeal.
“The court determined a person cannot simultaneously be a
‘lifetime’ pensioner and an
employee. Nor can you be a
retiree and an employee of a single employer,” said city solicitor
John Nugent.
“The decision, frankly, was
quite a surprise. The court ruled
against us all the way through,”
said Joël Michaud, managing
partner of Pink Larkin in Fredericton who represented the
respondents.
“The decision,” he added, “is
potentially detrimental to an
individual’s right to claim a duty
to accommodate after an injury.”
Between 1999 and 2003, five
unionized firefighters in Saint
John applied for and received a
permanent disability pension
under the City of Saint John Pension Act. In 2007, the pensioners
were found to be no longer totally
and permanently disabled.
Four of the individuals were
eligible to receive a regular pen-
sion under the Pension Act but
wanted to return to the work-
place. The Saint John Firefight-
ers’ Association filed a policy
grievance claiming the former
pensioners had a right to return
to active service or to be placed
on sick leave under the collective
agreement until accommodated
in the workplace. The city main-
tained that, under the Pension
Act, the employment relation-
ship is severed once an employee
is granted a permanent disabil-
ity pension, thereby negating
any duty to accommodate the
former firefighters. The majority
of the arbitration board agreed
with the city.
“The city maintained that, under the Pension
Act, the employment relationship is severed
once an employee is granted a permanent
disability pension, thereby negating any duty
to accommodate the former firefighters.
arbitrators who are called on to
resolve pension disputes between
the City and its unionized
employees will be presented with
the opportunity to interpret the
Act. In point of fact, this is only
the second reported case where
an arbitration board has been
called on to look at the provisions
of the City’s Pension Act.”
The court also made specific
reference to Smith v. Alliance
Pipeline Ltd., [2011] S.C.J. No. 7,
noted Nugent. In this decision by
utes are to be interpreted like
public statutes,” Nugent noted.
Reasons: The City of Saint John v. Saint
John Firefighters’ Assn., [2011] N.B.J. No.
104.
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