Mcmillan v. Canada, (1999)

Parts:Mcmillan v. Canada
Reporting Judge:THE CHIEF JUSTICE
Docket Number:A-154-96
 
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Date: 19990127

Docket: A-154-96

CORAM: THE CHIEF JUSTICE

LINDEN J.A.

SEXTON J.A.

BETWEEN:
DONNA McMILLAN

Plaintiff

- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Defendant

Heard at Edmonton, Alberta, on Wednesday, January 27, 1999

Reason for Judgment of the Court delivered from the Bench at Edmonton, Alberta, Wednesday,January 27, 1999.

REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.

Date: 19990127

Docket: A-154-96

CORAM: THE CHIEF JUSTICE

LINDEN, J.A.

SEXTON, J.A.

BETWEEN:
DONNA McMILLAN

Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA

Defendant

REASONS FOR JUDGMENT

(Reasons for Judgment of the Court delivered from the Bench at Edmonton, Alberta

on Wednesday, January 27, 1999)

SEXTON, J.A.:

[1] These appeals arise from an Order of Jerome, A.C.J. in which he
(1) dismissed the Crown's application for summary judgment based on the Crown's argument that the plaintiff's claim was barred by the Limitation Act;
(2) struck out the part of the plaintiff's statement of claim based on alleged infringement of the plaintiff's Charter rights;
(3) dismissed the Crown's application to strike out the balance of the statement of claim based on the Crown's argument that no cause of action lies for breach of contract because service in the RCMP does not involve a contract of employment;
(4) dismissed the Crown's appeal from the Order of the Prothonotary relating to the provision of particulars.
A. With respect to the Crown's argument that the plaintiff's claim was statute-barred by reason of the lapse of more than two years, it is not clear as to when the plaintiff's cause of action arose and the parties differ on this question. There may well be facts in dispute and we feel this issue should be left to the trial Judge.
B. With respect to the Motion Judge's Order that the part of the plaintiff's statement of claim relating to the Charter of Rights should be struck out, we are of the view that the learned Judge erred. The Court will only strike out statements of claim if it is clear that the claim cannot possibly succeed. It is not clear to us that the plaintiff's claim on this level must fail on the ground cited by the Motions Judge to the effect that the Royal Canadian Mounted Police Act makes sexual harassment an offence. This matter should be left to the trial Judge.
C. With respect to the Crown's claim that no cause of action in contract...

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