Gillan v. Mount Saint Vincent University

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: MacDonald, C.J.N.S., Saunders and Oland, JJ.A.
• Citation: (2008), 266 N.S.R.(2d) 78 (CA),2008 NSCA 55
• Date: 18 June 2008
• Subject Matter: PRACTICE,LABOUR LAW

Gillan v. Mount St. Vincent Univ. (2008), 266 N.S.R.(2d) 78 (CA);

    851 A.P.R. 78

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JN.041

Brenda Anne Gillan (appellant) v. Mount Saint Vincent University (respondent)

(CA 281973; 2008 NSCA 55)

Indexed As: Gillan v. Mount Saint Vincent University

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Oland, JJ.A.

June 18, 2008.

Summary:

A university employee covered by a collective agreement and the Trade Union Act was injured at work. At issue was whether the court had jurisdiction to entertain a civil action for damages against the university, or whether it was precluded by the collective agreement provisions respecting work injuries and the Act.

The Nova Scotia Supreme Court, in a judgment reported (2006), 247 N.S.R.(2d) 170; 785 A.P.R. 170, held that the collective agreement and Act ousted the court's jurisdiction to entertain the action. The essential character of the dispute related to the interpretation, application, administration or alleged violation of the collective agreement, giving exclusive jurisdiction to an arbitrator. In a subsequent judgment reported (2007), 257 N.S.R.(2d) 198; 820 A.P.R. 198, the court awarded the defendant party and party costs of $5,500. The employee appealed, submitting that the trial judge erred in finding that the civil action was precluded by the collective agreement and in failing to dismiss the university's collective agreement defence on the ground that there was an unreasonable delay in raising it.

The Nova Scotia Court of Appeal dismissed the appeal.

Labour Law - Topic 6906

Industrial relations - Collective agreement - Civil action - Jurisdiction - A university employee covered by a collective agreement and the Trade Union Act was injured at work in October 1992 - The employee did not pursue available grievance and arbitration remedies under the collective agreement - She received long-term disability benefits until they were terminated in April 1998 - She then sued for damages based on negligence and occupiers' liability - At issue was whether the court had jurisdiction to entertain a civil action - The trial judge held that the collective agreement and Act ousted the court's jurisdiction to entertain the action - The essential character of the dispute related to the interpretation, application, administration or alleged violation of the collective agreement - The dispute concerned the alleged violation of the employer's duty under the collective agreement to maintain a safe work environment - The fact that the employee did not exercise her right to seek a remedy under the grievance and arbitration provisions of the collective agreement did not alter the jurisdiction - The collective agreement provided effective redress - Merely pleading a remedy that an arbitrator might lack jurisdiction to grant, such as punitive damages, did not remove jurisdiction from the arbitrator to the court - The Nova Scotia Court of Appeal affirmed, as correct, the decision that the court lacked jurisdiction to hear the civil claim - See paragraphs 11 to 48.

Practice - Topic 1621

Pleadings - The defence - Jurisdiction - In December 1995, the unionized university employee commenced an action for damages against the university for injuries she suffered in a slip and fall accident while performing her employment duties - The university's April 2002 statement of defence pleaded that the court's jurisdiction was ousted by the collective agreement grievance procedure - The issues of liability and damages were severed and the judge directed that the jurisdiction issue be heard when the May 2006 trial began - The employee argued that the university, which should have applied to strike the statement of claim or to have the issue resolved by a preliminary determination of a question of law, was now precluded from relying on the jurisdiction defence because of unreasonable delay - The Nova Scotia Court of Appeal rejected the submission, stating that "neither before the judge nor this court on appeal was the [employee] able to cite any case in support of her argument that failure to address the jurisdictional issue by way of an application in advance of trial is fatal to the collective agreement defence" - In any event, the court agreed with the university that if the court lacked jurisdiction because of the collective agreement, such jurisdiction could not be conferred on the court by dismissing the collective agreement defence for delay - See paragraphs 49 to 55.

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 6].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 6].

Pleau v. Canada (Attorney General) et al. (1999), 181 N.S.R.(2d) 356; 560 A.P.R. 356 (C.A.), refd to. [para. 6].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, refd to. [para. 6].

Lajoie v. Mount Saint Vincent University (2002), 232 N.S.R.(2d) 98; 737 A.P.R. 98 (S.C.), refd to. [para. 6].

Symington v. Halifax (Regional Municipality) et al. (2007), 258 N.S.R.(2d) 69; 824 A.P.R. 69; 50 C.C.L.T.(3d) 165; 2007 CarswellNS 358; 2007 NSCA 90, refd to. [para. 10].

St-Jean v. Mercier (2002), 282 N.R. 310 (S.C.C.), refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 10].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 13].

Curry v. Dargie (1984), 62 N.S.R.(2d) 416; 136 A.P.R. 416 (C.A.), refd to. [para. 53].

Seacoast Towers Services Ltd. v. MacLean (1986), 75 N.S.R.(2d) 70; 186 A.P.R. 70 (C.A.), refd to. [para. 53].

Roulston v. Nova Scotia (Attorney General) (1994), 130 N.S.R.(2d) 44; 367 A.P.R. 44 (C.A.), refd to. [para. 54].

Sherman v. Giles (1994), 137 N.S.R.(2d) 52; 391 A.P.R. 52 (C.A.), refd to. [para. 54].

Counsel:

David W. Richey, for the appellant;

David A. Miller, Q.C., and Nancy Murray, Q.C., for the respondent.

This appeal was heard on March 19, 2008, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On June 18, 2008, Oland, J.A., delivered the following judgment for the Court of Appeal.