Isley v. Northern Alberta Institute of Technology et al., 2004 ABQB 136

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 31, 2003
• Citations: 2004 ABQB 136;(2004), 353 A.R. 99 (QB)

Isley v. NAIT (2004), 353 A.R. 99 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MR.050

William Isley (applicant) v. Northern Alberta Institute of Technology and the Board of Governors of the Northern Alberta Institute of Technology (respondents) and Dr. Shirley Holloway (respondent/not a party in this action)

(0303 11791; 2004 ABQB 136)

Indexed As: Isley v. Northern Alberta Institute of Technology et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

February 25, 2004.

Summary:

The Northern Alberta Institute of Technology (N.A.I.T.) was a post secondary educational facility established and operated under the provisions of the Technical Institutes Act. N.A.I.T abolished Isley's management position and gave him three options. Isley accepted the first option and accepted a lower rated position. Approximately three years later, Isley took the position that N.A.I.T. had repudiated the offer respecting the first option and requested severance in accordance with the third option. N.A.I.T. rejected the request. Isley applied for judicial review under Part 56.1 of the Rules, seeking to quash N.A.I.T.'s decision denying his claim for severance and granting him a declaration of entitlement to $84,696 in severance pay. Isley sought a summary disposition under rule 410(e). N.A.I.T. applied under rule 129 to strike the originating notice and, alternatively, relied on rules 560 and 753.15 to seek a direction that the proceeding be continued by way of statement of claim.

The Alberta Court of Queen's Bench held that N.A.I.T's decisions concerning Isley's employment were amenable to judicial review for procedural fairness and on substantive grounds, and that the Part 56.1 judicial review could not be said to disclose no cause of action or to be frivolous or vexatious or an abuse of process. The originating notice, insofar as it was reliant on Part 56.1 of the Rules could proceed. However, summary disposition under rule 410(e) was not available because there were material facts in dispute.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - The Northern Alberta Institute of Technology (N.A.I.T.) was a post secondary educational facility established and operated under the Technical Institutes Act - N.A.I.T abolished Isley's management position and gave him three options - Isley accepted the first option and accepted a lower rated position - Isley subsequently took the position that N.A.I.T. had repudiated the offer respecting the first option and requested severance in accordance with the third option - N.A.I.T. rejected the request - Isley sought judicial review under Part 56.1 of the Alberta Rules of Court - N.A.I.T. sought to strike the originating notice, asserting that the decisions respecting Isley were not amenable to judicial review - The Alberta Court of Queen's Bench found that N.A.I.T. was a public body and had a duty to accord procedural fairness to employees appointed to office respecting decisions which had significant impact on them - It was arguable that Isley was an office holder and that the duty of procedural fairness applied - Accordingly, the decisions were amenable to judicial review for procedural fairness - It followed that they were also amenable to review on substantive grounds - See paragraphs 37 to 83.

Administrative Law - Topic 3214

Judicial review - General - Remedies - The Northern Alberta Institute of Technology (N.A.I.T.) was a post secondary educational facility established and operated under the Technical Institutes Act - N.A.I.T abolished Isley's management position and gave him three options - Isley accepted the first option which involved accepting a specified lower rated position -Isley subsequently took the position that N.A.I.T. had failed to honour assurances respecting the first option and that he was accepting N.A.I.T.'s repudiation of the offer - Isley requested severance in accordance with the third option - N.A.I.T. rejected the request - Isley applied for judicial review, seeking to quash N.A.I.T.'s decision denying him severance and a declaration of entitlement to $84,696 in severance pay - N.A.I.T. sought to strike the originating notice, asserting that the remedies sought were not available on judicial review - N.A.I.T. asserted that the amount claimed represented damages for repudiation and breach of contract - The Alberta Court of Queen's Bench rejected N.A.I.T.'s assertion - The court could grant an order in the nature of certiorari or direct the matter back to the decision maker for reconsideration under rule 753.4 of the Rules of Court - The court could also grant a declaration in the proper circumstances - See paragraphs 84 to 86.

Crown - Topic 5128

Officials and employees - Appointment and employment - Termination of employment - General - [See Administrative Law - Topic 2264 ].

Education - Topic 4802

Technical institutes and colleges - General - Nature of - [See Administrative Law - Topic 2264 ].

Cases Noticed:

Thomlinson et al. v. Alberta et al. (2003), 335 A.R. 85; 2003 ABQB 308, refd to. [para. 23].

Canadian Union of Public Employees, Local 3197 et al. v. Edmonton (City) et al. (1998), 212 A.R. 71; 168 W.A.C. 71 (C.A.), refd to. [para. 25].

Vanek v. University of Alberta (1975), 57 D.L.R.(3d) 595 (Alta. C.A.), refd to. [para. 27].

Fullowka v. Whitford et al. (1996), 147 D.L.R.(4th) 531 (N.W.T.C.A.), leave to appeal refused (1997), 222 N.R. 320 (S.C.C.), refd to. [para. 28].

Cerny v. Canadian Industries Ltd., [1972] 6 W.W.R. 88 (Alta. C.A.), refd to. [para. 29].

Canadian Union of Public Employees, Local 8 et al. v. Health Region No. 4 (1997), 200 A.R. 175; 146 W.A.C. 175 (C.A.), refd to. [para. 30].

Allen et al. v. Alberta et al. (2001), 286 A.R. 132; 253 W.A.C. 132 (C.A.), revd. [2003] 1 S.C.R. 128; 301 N.R. 174; 327 A.R. 1; 296 W.A.C. 1, refd to. [para. 34].

Young Estate et al. v. TransAlta Utilities Corp. et al. (1997), 209 A.R. 89; 160 W.A.C. 89 (C.A.), refd to. [para. 34].

Rich v. Melancthon (Township) Board of Health (1912), 26 O.L.R. 48 (Div. Ct.), refd to. [para. 37].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 38].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 39].

Goudie et al. v. Ottawa (City), [2003] 1 S.C.R. 141; 301 N.R. 201; 170 O.A.C. 201, refd to. [para. 40].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 42].

Hanis v. Teevan et al. (1998), 111 O.A.C. 91; 162 D.L.R.(4th) 414 (C.A.), refd to. [para. 42].

Lee v. Canadian Kennel Club Appeal Committee et al. (2003), 333 A.R. 52; 49 Admin. L.R.(3d) 90; 2003 ABQB 51, refd to. [para. 43].

Alberta Union of Provincial Employees et al. v. Alberta et al. (2002), 312 A.R. 9; 281 W.A.C. 9 (C.A.), refd to. [para. 44].

Atkins et al. v. Calgary (City) (1994), 162 A.R. 97; 83 W.A.C. 97 (C.A.), refd to. [para. 46].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 47].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 48].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 49].

Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.), refd to. [para. 54].

Kaplan v. Canadian Institute of Actuaries (1994), 161 A.R. 321 (Q.B.), affd. (1997), 206 A.R. 268; 156 W.A.C. 268 (C.A.), leave to appeal refused (1998), 227 N.R. 89; 219 A.R. 160; 179 W.A.C. 160 (S.C.C.), refd to. [para. 69].

Falk v. Calgary Real Estate Board Co-Operative Ltd. (2000), 265 A.R. 60 (Q.B.), refd to. [para. 69].

International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 720 v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers et al. (2000), 272 A.R. 1 (Q.B.), refd to. [para. 69].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 75].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 79].

Graduate Students' Association (University of Alta.) v. University of Alberta (1991), 117 A.R. 188; 2 W.A.C. 188 (C.A.), refd to. [para. 84].

Cockburn v. Workers' Compensation Board (Alta.) (1996), 45 Alta. L.R.(3d) 314 (Q.B.), refd to. [para. 84].

Edmonton Telephones Corp. v. Stephenson et al. (1994), 160 A.R. 352 (Q.B.), affd. (1994), 162 A.R. 139; 83 W.A.C. 139 (C.A.), leave to appeal refused (1995), 188 N.R. 319; 174 A.R. 399; 102 W.A.C. 399 (S.C.C.), refd to. [para. 88].

Richmond Road Inc. v. 177016 Canada Ltd., [1996] O.J. No. 585 (Gen. Div.), refd to. [para. 88].

Toronto (City) v. Canadian National Railway Co. (1993), 22 C.P.C.(3d) 336 (Ont. Gen. Div.), refd to. [para. 88].

Prenn v. Simmonds, [1971] 3 All E.R. 237 (H.L.), refd to. [para. 95].

Reardon Smith Line Ltd. v. Hansen-Tangen et al., [1976] 3 All E.R. 570 (H.L.), refd to. [para. 96].

Authors and Works Noticed:

Bryant, Michael J., and Sossin, Lorne Mitchell, Public Law: An Overview of Aboriginal, Administrative, Constitutional and International Law in Canada (2002), p. 168 [para. 45].

Jones, David P., and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), pp. 7, 8 [para. 74].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook 2004 (2004), pp. 113, 114 [para. 78]; 346 [para. 89].

Wade, H.W.R., Administrative Law (5th Ed. 1982), pp. 500, 501 [para. 67].

Counsel:

G. Brent Gawne, for the applicant;

Raylene Y. Palichuk (Neuman Thompson), for the respondents.

Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this application on October 31, 2003, and delivered the following reasons for judgment on February 25, 2004.