Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: McPhee v. Canadian Union of Public Employees,

2008 NSCA 104

Date: 20081031

Docket: CA 280391

Registry: Halifax

Between:

Janice McPhee, Mary Hill and Sharon MacLean

Appellants

v.

Canadian Union of Public Employees and

Canadian Union of Public Employees, Local 2094

Respondents

Judge:                   The Honourable Justice Thomas Cromwell

Appeal Heard:      September 29, 2008

Subject:                 Trade unions – duty of fair representation – costs

Summary:             The appellants sued the respondent unions for harassment and intimidation, intentionally and negligently causing them psychiatric damage and for failing to represent their interests fairly.  Two of these claims were dismissed as a result of a non-suit motion by the respondents and the other two were dismissed after trial.  The trial judge, without giving reasons, declined to award costs to the successful respondents. The appellants appealed the dismissal of their action and the respondents by notice of contention challenged the judge’s costs order.

Issues:                   Did the judge make any reviewable error in dismissing the appellants’ claims?

Did the judge err in depriving the successful respondents of their costs without giving reasons for doing so?

Result:                  Appeal dismissed and notice of contention allowed.  Most of the appellants’ submissions challenged the judge’s findings of fact.  There was no palpable and overriding error which would permit appellate intervention.  However, the judge erred in principle in denying the successful respondents their costs.  The judge did not give reasons for doing so and no justification for his order was apparent on the record.