Des Champs v. R.C. Sep. Sch. Bd., (1999) 125 O.A.C. 279 (SCC)

• Judge: L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1999), 125 O.A.C. 279 (SCC)

Des Champs v. R.C. Sep. Sch. Bd. (1999), 125 O.A.C. 279 (SCC)

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. SE.049

Florent Des Champs (appellant) v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, Suzanne Charette, Roch Lalonde, Ronald Lalonde, R. Serge Lalonde, Hélène Leblanc, Pierre Leblanc, Jean Lemay, Paul Paradis, Marcel Perras, Gilles Taillon, François Théoret and Jean-Paul Scott (respondents)

(25898)

Indexed As: Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell et al.

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie, JJ.

September 17, 1999.

Summary:

A reorganization of educational services resulted in Des Champs' position as a Super­intendent being declared redundant. Des Champs was assigned to be a school princi­pal. Des Champs, claiming that he was downgraded contrary to his contractual entitlement, commenced an action against the School Board, its trustees and the Director of Education almost eight months after the events giving rise to the cause of action. The defendants moved to dismiss the action on the basis that it was statute barred by s. 7(1) of the Ontario Public Authorities Protection Act, which provided that no action could be instituted against a public authority for an act done in execution of "any statutory or other public duty or authority" unless it was commenced within six months of the act complained of.

The Ontario Court (General Division), in a decision reported at 16 O.R.(3d) 278, held that the six month limitation period did not apply because the conduct complained of did not entail a public aspect, but was more of an internal or operational nature having a predominantly private aspect. The court struck out the action against the individual defendants on other grounds, allowing the matter to proceed against the School Board only. The School Board appealed.

The Ontario Court of Appeal, in a decision reported at [1997] O.A.C. Uned. 43, allowed the appeal, gave effect to the limitation defence and dismissed the action. The court held that the acts complained of were direct­ly within the sphere of public action pro­tected by the statute. Des Champs appealed.

The Supreme Court of Canada, Major, J., dissenting, allowed the appeal and reinstated the order of the Ontario Court (General Division) permitting the action to proceed against the Board.

Crown - Topic 1604

Torts by and against Crown - Actions against Crown - Public authority protection legislation - Persons or acts protected - [See all Limitation of Actions - Topic 7584 ].

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - Section 7(1) of the Ontario Public Authorities Protection Act provided that no action could be instituted against a public authority for an act done in execution of "any statutory or other public duty or authority" unless it was commenced within six months of the act complained of - The Supreme Court of Canada stated that "[t]he reference to the 'intended execution of any statutory or other public duty or authority' limits the protection to public duties and powers and confirms inferentially that a public author­ity may well have other duties and powers that are essentially of a private nature. In drawing the line between the public aspects and private aspects, the general principle is that the wording of s. 7 is to be read nar­rowly and against the party seeking its special protection" - See paragraph 12.

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - The Supreme Court of Canada stated that a court confronted with a limitation defence under s. 7(1) of the Ontario Public Authorities Protection Act might ask: (1) Is the defendant a pub­lic authority within the class of entities or individuals for whom the limitation protec­tion was intended; (2) What was the public authority doing, and pursuant to what duty or power was it doing it; (3) Is the power or duty of the public authority properly classified as entailing "a public aspect or connotation" or is it more readily classifi­able as "private executive or private ad­ministrative or subordinate in nature"; (4) Is the activity of the public authority "in­herently of a public nature" or is it more of "an internal or operational nature having a predominantly private aspect"; (5) Does the plaintiff's claim or alleged right "corre­late" to the exercise by the public authority of a public power or duty - If the answer to question five was in the affirmative, the limitation period would apply - See para­graphs 50 to 51.

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - A reorganization of educational services resulted in Des Champs' position as a Superintendent being declared redundant - Des Champs was assigned to be a school principal - Des Champs, claiming that he was downgraded contrary to his contractual entitlement, commenced an action against the School Board almost eight months after the events giving rise to the cause of action - Section 7(1) of the Ontario Public Authorities Protection Act provided that no action could be instituted against a public author­ity for an act done in execution of "any statutory or other public duty or authority" unless it was commenced within six months of the act complained of - The Supreme Court of Canada held that the limitation period in s. 7(1) did not apply - While the School Board's reorganization was a public initiative, Des Champ's alleged injury was created by the School Board's implementation of the reorganiza­tion and raised only routine labour rela­tions issues - Des Champ's complaint was with respect to a decision that was subordi­nate and incidental to the execution of the School Board's public duty and authority and which had a predominantly private aspect - See paragraphs 52 to 59.

Cases Noticed:

Tolson v. Kaye (1822), 3 Brod. & B. 217; 129 E.R. 1267, refd to. [para. 1].

Deaville v. Boegeman (1984), 6 O.A.C. 297; 14 D.L.R.(4th) 81 (C.A.), refd to. [para. 1].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, appld. [para. 9].

Gallant v. Roman Catholic Separate School Board (1985), 7 O.A.C. 309; 56 O.R.(2d) 160 (Eng.); 56 O.R.(2d) 151 (Fr.) (C.A.), not folld. [para. 10].

Colledge v. Niagara Regional Police Com­mission (1983), 1 O.A.C. 23; 44 O.R.(2d) 289 (C.A.), refd to. [para. 14].

Lacarte v. Board of Education of Toronto, [1954] O.R. 435 (C.A.), not folld. [para. 14].

Berardinelli v. Ontario Housing Corp. (1976), 71 D.L.R.(3d) 56 (Ont. H.C.), refd to. [para. 16].

Riddle v. University of Victoria (1979), 95 D.L.R.(3d) 193 (B.C.C.A.), not folld. [para. 16].

Clarke v. Board of Education of Ottawa (1975), 54 D.L.R.(3d) 321 (Ont. Co. Ct.), refd to. [para. 17].

Beauchamp v. Espanola (Town) (1981), 122 D.L.R.(3d) 149 (Ont. Div. Ct.), affd. (1981), 128 D.L.R.(3d) 766 (Ont. C.A.), refd to. [para. 17].

Collier v. Board of Education of Lake Superior (1986), 14 C.C.E.L. 183 (Ont. Dist. Ct.), refd to. [para. 17].

Molloy v. Human Rights Commission (Ont.) (1992), 41 C.C.E.L. 101 (Ont. Gen. Div.), refd to. [para. 17].

McGonegal v. Gray, [1952] 2 S.C.R. 274, refd to. [para. 18].

Bradford Corp. v. Myers, [1916] 1 A.C. 242 (H.L.), folld. [para. 22].

Cloudfoam Ltd. v. Toronto Harbour Com­mission, [1968] 2 O.R. 497 (H.C.), affd. [1969] 2 O.R. 194 (C.A.), folld. [para. 23].

Firestone Tire & Rubber Co. (SS) Ltd. v. Singapore Harbour Board, [1952] A.C. 452 (P.C.), refd to. [para. 23].

Sharpington v. Fulham Guardians, [1904] 2 Ch. 449 (H.C.), folld. [para. 27].

Griffiths v. Smith, [1941] A.C. 170 (H.L.), consd. [para. 28].

Moffatt v. Board of Education of Dufferin County, [1973] 1 O.R. 351 (C.A.), refd to. [para. 28].

Malaysia (Government) v. Lee Hock Ning, [1974] A.C. 76 (P.C.), refd to. [para. 30].

Comstock International Ltd. v. Ontario (1981), 126 D.L.R.(3d) 323 (Ont. Div. Ct.), refd to. [para. 33].

Clarke v. St. Helen's Borough Council (1915), 85 L.J.K.B. 17 (C.A.), refd to. [para. 37].

Stewart v. Board of Education of Lincoln County (1972), 8 O.R.(2d) 168 (H.C.), not folld. [para. 45].

Goodwin v. Board of Education of Oxford County (1980), 30 O.R.(2d) 359 (H.C.), not folld. [para. 45].

Wright v. Board of Education of Hamilton (1977), 16 O.R.(2d) 828 (H.C.), not folld. [para. 45].

Cossette v. Ombudsman (1980), 28 O.R.(2d) 92 (H.C.), not folld. [para. 45].

Hanna v. Ontario Hydro (1982), 37 O.R.(2d) 783 (H.C.), refd to. [para. 47].

Schnurr v. Royal Ottawa Hospital (1986), 15 O.A.C. 382; 56 O.R.(2d) 589 (C.A.), refd to. [para. 49].

Compton v. West Ham Borough Council, [1939] 1 Ch. 771 (H.C.), refd to. [para. 58].

McManus v. Bowes, [1938] 1 K.B. 98 (C.A.), refd to. [para. 58].

Statutes Noticed:

Public Authorities Protection Act, R.S.O. 1990, c. P-38, sect. 7(1) [para. 11].

Authors and Works Noticed:

Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on Limitation of Actions (1969), gen­erally [para. 67].

Counsel:

Denis J. Power, Q.C., and Steven Welch­ner, for the appellant;

Paul S. Rouleau and Bruce Hutchison, for the respondents.

Solicitors of Record:

Nelligan Power, Ottawa, Ontario, for the appellant;

Genest Murray DesBrisay Lamek, Toronto, Ontario, for the respondents.

This appeal was heard on November 10, 1998, by L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie, JJ., of the Supreme Court of Canada. The deci­sion of the court was delivered in both official languages on September 17, 1999, and the following opinions were filed:

Binnie, J. (L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci, JJ., concurring) - see paragraphs 1 to 60;

Major, J., dissenting - see paragraphs 61 to 121.