Johnston v. Fraser et al., 2006 SKQB 349

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 27, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKQB 349;(2006), 283 Sask.R. 69 (QB)

Johnston v. Fraser (2006), 283 Sask.R. 69 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. JL.059

Wayne Johnston (plaintiff) v. Lee Fraser and the Attorney General of Canada representing Her Majesty the Queen in Right of Canada (defendants)

(2002 Q.B.G. No. 1349; 2006 SKQB 349)

Indexed As: Johnston v. Fraser et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

July 27, 2006.

Summary:

The plaintiff was a member of the RCMP. He was transferred out of the Identification Unit after he made an erroneous fingerprint verification. The plaintiff grieved the transfer under the Royal Canadian Mounted Police Act. He was ordered reinstated subject to remedial training, but did not pursue that redress. The plaintiff commenced an action claiming damages for constructive dismissal. He also claimed damages for abuse and intentional infliction of mental distress in relation to an alternate dispute resolution process which the parties had participated in during the grievance procedure. The defendants applied for an order dismissing the plaintiff's claim for want of jurisdiction or striking out the plaintiff's claim as an abuse of process on jurisdictional grounds.

The Saskatchewan Court of Queen's Bench, in a decision reported at 251 Sask.R. 231, allowed the application in part. The court held that effective redress had been provided with respect to the plaintiff's transfer and the court should decline jurisdiction over the claim for constructive dismissal. However, the court held that the plaintiff chose not to grieve the misconduct which was said to have occurred within the alternate dispute resolution process and exclusive jurisdiction was not conferred on the grievance process with respect to that claim. It followed that there was no reason for the court to decline jurisdiction with respect to the plaintiff's claim for abuse and infliction of mental distress. However, the court added that the trial judge might find that the alternate dispute resolution process was so intertwined with the grievance process that jurisdiction should be declined. The plaintiff filed an amended statement of claim which included additional allegations in relation to the alternate dispute resolution process. The defendants applied to strike out the claim on the ground that the court should defer to the statutory grievance process and decline jurisdiction.

The Saskatchewan Court of Queen's Bench granted the application and struck out the plaintiff's statement of claim.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - [See Police - Topic 6002 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - [See Police - Topic 6002 ].

Police - Topic 4007

Internal organization - Jurisdiction - General - [See Police - Topic 6002 ].

Police - Topic 5285

Actions against police - Defences - Limitation of actions - The plaintiff was a member of the RCMP - He was transferred out of the Identification Unit after he made an erroneous fingerprint verification - The plaintiff grieved the transfer under the Royal Canadian Mounted Police Act - The plaintiff subsequently sued for damages for abuse and intentional infliction of mental distress, which he was allegedly subjected to within an alternate dispute resolution process during the grievance procedure - The Saskatchewan Court of Queen's Bench held that the Public Officers' Protection Act barred the plaintiff's claim where it was not commenced within 12 months of the occurrence of the last incident - Since the limitation period ran from a fixed date rather than when the cause of action arose, the discoverability principle had no application - Although the Limitations Act had repealed the Public Officers' Protection Act, the Public Officers' Protection Act remained the applicable limitation period - Limitations defences that accrued prior to the enactment of the Limitations Act were not affected unless the legislature so intended - See paragraphs 29 to 35.

Police - Topic 6002

Actions by police - When available - The plaintiff was a member of the RCMP - He was transferred out of the Identification Unit after he made an erroneous fingerprint verification - The plaintiff grieved the transfer under the Royal Canadian Mounted Police Act - The plaintiff subsequently sued for damages for abuse and intentional infliction of mental distress, which he was allegedly subjected to within an alternate dispute resolution process during the grievance procedure - The defendants applied to strike out the claim on the ground that the court should defer to the statutory grievance process and decline jurisdiction - The Saskatchewan Court of Queen's Bench granted the application - The alternate dispute resolution process was so intertwined with the grievance process that it amounted to one process and, therefore, jurisdiction should be declined - See paragraphs 7 to 21.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - The plaintiff was a member of the RCMP - He was transferred out of the Identification Unit after he made an erroneous fingerprint verification - The plaintiff grieved the transfer under the Royal Canadian Mounted Police Act - The plaintiff subsequently sued for damages for abuse and intentional infliction of mental distress, which he was allegedly subjected to within an alternate dispute resolution process during the grievance procedure - The Saskatchewan Court of Queen's Bench struck out the claim - It was plain and obvious that the plaintiff's allegations did not disclose a reasonable cause of action for either "abuse" or "infliction of mental stress" - Unkind comments made to the plaintiff in connection with the alternate dispute resolution process were not extreme or outrageous conduct that caused or inflicted mental suffering - See paragraphs 22 to 28.

Cases Noticed:

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; 28 D.L.R.(4th) 1; 86 C.L.L.C. 14,037, consd. [para. 7].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321; 125 D.L.R.(4th) 583; 95 C.L.L.C. 210-027; 12 C.C.E.L.(2d) 1; 24 C.C.L.T.(2d) 217, consd. [para. 11].

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; 125 D.L.R.(4th) 609, consd. [para. 11].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, consd. [para. 15].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 183 D.L.R.(4th) 14; 2000 SCC 14, refd to. [para. 17].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, refd to. [para. 22].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

586903 Saskatchewan Ltd. v. Dube Investments Ltd. (1994), 123 Sask.R. 315; 74 W.A.C. 315 (C.A.), refd to. [para. 22].

Montreal Trust Co. of Canada v. Jaynell Inc. et al. (1993), 111 Sask.R. 178 (Q.B.), affd. (1993), 116 Sask.R. 13; 59 W.A.C. 13 (C.A.), refd to. [para. 23].

Ellis v. Chretien et al. (2001), 210 Sask.R. 138; 2001 SKQB 378, affd. (2002), 223 Sask.R. 117; 277 W.A.C. 117; 2002 SKCA 35, refd to. [para. 23].

Roynat Inc. v. Northland Properties Ltd. et al., [1994] 2 W.W.R. 43; 115 Sask.R. 272 (Q.B.), refd to. [para. 24].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 25].

Bielitski v. Obadiak (1922), 65 D.L.R. 627 (Sask. C.A.), refd to. [para. 26].

Rahemtulla v. Vanfed Credit Union, [1984] 3 W.W.R. 296 (B.C.S.C.), refd to. [para. 26].

R.J.G. v. Canada (Attorney General) (2004), 249 Sask.R. 244; 325 W.A.C. 244; 2004 SKCA 102, refd to. [para. 30].

F.P. v. Saskatchewan (2004), 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, refd to. [para. 33].

Hackett v. Ginther and Schedlosky (1986), 46 Sask.R. 34 (C.A.), refd to. [para. 34].

Counsel:

Ralph K. Ottenbreit, Q.C., for the plaintiff;

Scott R. Spencer, for the defendants.

This application was heard on July 27, 2006, before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on July 27, 2006.