Thomas Watt

T-154-97

Between: Thomas Watt, Plaintiff, and Her Majesty the Queen [Transport Canada] and Nav Canada, Defendants

Reasons for order and order

Denault J.:

This application is brought pursuant to Rule 419[1][a] and [f] of the Federal Court Rules and Section 50 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. The Defendant, Her Majesty the Queen [Transport Canada], seeks an Order staying or striking the action or, in the alternative, an Order extending the time of filing a defence in this matter for 30 days from the date of the decision in this motion.

With respect to the striking of pleadings, the Supreme Court has provided guidance in this area: pleadings are to be struck only in plain and obvious cases where the case is beyond doubt. [ Canada [A.G.] v. Inuit Tapirisat of Can., [1980] 2 S.C.R. 735.] The resolution of this matter must necessarily be rooted in that principle.

At first blush, the issue in this case appears to be that of employee-employer relations. From that perspective, it can be argued that this dispute was properly the subject of a grievance, which procedure was available under the collective agreement governing the relationship between the Plaintiff and the Defendants in the instant case. To the extent, however, that the Plaintiff is alleging negligent misrepresentation and abuse of public office, it is neither plain nor obvious that the collective agreement could have provided him with the pecuniary remedy which he is currently seeking. The question in such cases is, essentially, one of jurisdiction: does the existence of a collective agreement preclude all actions in the courts between an employee and his or her employer?

Madam Justice McLachlin recently addressed that very question in Weber v. Ontario Hydro. [ [1995] 2 S.C.R. 929.] The following reasoning flows out of her reflections on the "Exclusive Jurisdiction Model", according to which there is no overlap between the respective jurisdictions of judge and arbitrator:

On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

In considering the dispute, the decision-maker must attempt to define its "essential character"... . The fact that the parties are employer and employee may not be determinative. ... In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. However, a review of the decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation ... .

This approach does not preclude all actions in the courts between employer and employee. [ Weber, supra, at 956-957.]

Insofar as the Plaintiff Watt is seeking damages for alleged tortious conduct on the part of the Defendants, and to the extent that the conduct alleged is not characterized as either wrongful dismissal, bad faith on the part of the union, conspiracy and constructive dismissal or damage to reputation, it can be argued that, prima facie, the nature of the present dispute seemingly engages the exclusive jurisdiction of the courts.

With respect to the Defendants' claim that the Plaintiff's action is statute-barred, Justice Pratte, writing for the court in Kibale, [ Doc. A-1221-88, Nov. 29, 1990 [F.C.A.]. ] determined that a Statute of Limitations argument may not be pleaded in a motion brought pursuant to Rule 419; such an argument can only be raised by a Defendant in the context of a defence to the action. In the instant case, the Plaintiff admits that his claim for breach of contract is statute-barred. [ Plaintiff's Memorandum of Argument, at paragraph 29. ] However, as the Plaintiff's action in tort remains, it is open to the Defendants to advance a Statute of Limitations argument in their defence to that action.

Order

The Defendants' motion for an Order staying or striking this action is dismissed with costs to follow the issue in the case. The Defendants are hereby granted an extension of time of 30 days for filing a defence in this matter, which time will run from the date of this decision.

Ottawa, June 5, 1997

J.F.C.C.