Burchill v. Yukon Territory (Commissioner), (2002) 165 B.C.A.C. 295 (YukCA)

• Judge: Hall, Mackenzie and Saunders, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: March 21, 2002
• Jurisdiction: Yukon
• Citations: (2002), 165 B.C.A.C. 295 (YukCA);2002 YKCA 4

Burchill v. Yukon (2002), 165 B.C.A.C. 295 (YukCA);

    270 W.A.C. 295

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. MR.092

Frank Burchill (appellant/plaintiff) v. The Commissioner of the Yukon Territory (respondent/defendant)

(YU440; 2002 YKCA 4)

Indexed As: Burchill v. Yukon Territory (Commissioner)

Yukon Court of Appeal

Hall, Mackenzie and Saunders, JJ.A.

March 21, 2002.

Summary:

In August 1988 the plaintiff was dismissed from his employment as Administrator of Corporate Affairs in the Consumer and Corporate Affairs Branch of the Department of Justice, Yukon Territory. Nearly six years after his dismissal, the plaintiff sued for a declaration that the dismissal was void ab initio, reinstatement and payment of lost wages and benefits.

The Yukon Supreme Court dismissed the action. The plaintiff appealed.

The Yukon Court of Appeal dismissed the appeal.

Equity - Topic 2067

Equitable defences - Laches - Limitation period - [See Limitation of Actions - Topic 520 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - The Yukon Court of Appeal stated that the establishment of issue estoppel required that the earlier decision was a final judicial decision, concerning the same issue, involving the same parties, and that it was appropriate to apply issue estoppel in the circumstances of the case - See paragraph 26.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - A dismissed government employee sued for reinstatement, etc. - He did not include in his statement of claim the facts supporting a claim for issue estoppel - Consequently, the trial judge did not address the matter - On appeal, the plaintiff claimed that his employer was estopped from asserting cause for dismissal because a Board of Referees, for purposes of his claim for unemployment insurance, held he was not at fault - The employer had only minimally participated in that hearing - The Yukon Court of Appeal held that issue estoppel was inapplicable, because the matters did not involve the same issues or parties - See paragraphs 22 to 33.

Labour Law - Topic 9103

Public service labour relations - Grievances - Employee defined - Persons entitled to grieve - The plaintiff lawyer was hired as Administrator of Corporate Affairs with the Yukon Territory - From the beginning his relationship with his supervisor was troubled - He was dismissed in less than two years for insubordination and lack of professionalism - The Yukon Court of Appeal affirmed that the plaintiff had no right to appeal his dismissal to an adjudicator as he was not a member of the bargaining unit - See paragraphs 6 to 8, 41 to 43.

Labour Law - Topic 9155

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - What constitutes cause for - Insubordination - The plaintiff lawyer was hired as Administrator of Corporate Affairs with the Yukon Territory - From the beginning his relationship with his supervisor was troubled - He failed to complete two assigned tasks: completion of an "acting pay" form for an employee, and of a memorandum permitting his supervisor to assume his legislative duties during his vacation - A dispute ensued over the plaintiff's delegation of his statutory authority - The Yukon Court of Appeal affirmed the government's decision that the plaintiff's insubordination and lack of professionalism warranted his dismissal - See paragraphs 2 to 8, 15 to 21.

Labour Law - Topic 9157

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - What constitutes cause for - Negative attitude - [See Labour Law - Topic 9155 ].

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - A government employee was dismissed in August 1988 - Nearly six years later, he sued for a declaration that the dismissal was void ab initio, reinstatement and back pay - The trial judge applied the doctrine of laches to bar a remedy because of delay - The employee contended that the Limitation of Actions Act, s. 2(1)(h), prohibited consideration of the doctrine because he was within the six year limitation period for commencement of an action for a declaration - The Yukon Court of Appeal held that s. 50 of the Act preserved the application of equitable defences such as laches - The court affirmed that laches applied, that the passage of time rendered the remedies inappropriate - See paragraphs 51 to 58.

Practice - Topic 2185

Pleadings - Amendment of pleadings on appeal - New basis for action not pleaded at trial - A dismissed government employee sued for reinstatement, etc. - He did not include in his statement of claim the facts supporting a claim for issue estoppel - Consequently, the trial judge did not address the matter - On appeal, the plaintiff claimed that his employer was estopped from asserting cause for dismissal because a Board of Referees, for purposes of his claim for unemployment insurance, held he was not at fault - The employer had only minimally participated in that hearing - The Yukon Court of Appeal declined, in the interests of the administration of justice, to allow the plaintiff to amend his pleadings or adduce fresh evidence on appeal - See paragraphs 22 to 33.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Practice - Topic 2185 ].

Cases Noticed:

Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1975), 61 D.L.R.(3d) 36 (Ont. Div. Ct.), refd to. [para. 11].

Candy v. C.H.E. Pharmacy Inc. (1997), 90 B.C.A.C. 138; 147 W.A.C. 138; 27 C.C.E.L.(2d) 301 (C.A.), refd to. [para. 16].

Stein v. British Columbia (Housing Management Commission) (1992), 65 B.C.L.R.(2d) 181 (C.A.), refd to. [para. 16].

Spackman v. The Plumpstead District Board of Works (1885), 10 A.C. 229 (H.L.), refd to. [para. 17].

Danyluk v. Ainsworth Technologies Inc. et al. (2001), 272 N.R. 1; 149 O.A.C. 1; 201 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 23].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 40 C.C.E.L.(2d) 1; 168 D.L.R.(4th) 270; 42 O.R.(3d) 321 (C.A.), refd to. [para. 27].

Statutes Noticed:

Limitation of Actions Act, R.S.Y. 1986, c. 104, sect. 2(1)(h) [para. 55]; sect. 50 [para. 56].

Public Service Act, R.S.Y. 1986, c. 41, sect. 137 [para. 36]; sect. 139 [para. 37]; sect. 152 [para. 36].

Counsel:

The appellant, on his own behalf;

P. Gawn, for the respondent.

This appeal was heard before Hall, Mackenzie and Saunders, JJ.A., of the Yukon Court of Appeal, at Whitehorse, Yukon, on November 19 and 20, 2001. The decision of the court was delivered by Saunders, J.A., on March 21, 2002.