Kim v. University of Regina, (1990) 87 Sask.R. 118 (CA)

• Judge: Tallis, Cameron and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 14, 1990
• Jurisdiction: Saskatchewan
• Citations: (1990), 87 Sask.R. 118 (CA)

Kim v. Regina Univ. (1990), 87 Sask.R. 118 (CA)

MLB headnote and full text

Dong Yun Kim (plaintiff/appellant) v. University of Regina (defendant/respondent)

(No. 594)

Indexed As: Kim v. University of Regina

Saskatchewan Court of Appeal

Tallis, Cameron and Sherstobitoff, JJ.A.

September 21, 1990.

Summary:

A tenured university professor sued the university for lack of procedural fairness when he was allegedly forced to accept early retirement. The university applied for an order under Queen's Bench Rule 188 that a point of law be set down for pretrial determination. The legal issue concerned whether the professor's right to bring a civil action was precluded by the grievance procedures in his collective agreement.

The Saskatchewan Court of Queen's Bench, in a decision reported in 84 Sask.R. 13, dismissed the application for pretrial determination. Subsequently, the university applied to stay the professor's civil action pending the determination of his arbitration. The professor also applied for an interlocutory injunction restraining the university from interfering with his status, a stay of the arbitration proceedings pending disposition of the civil action, an early trial date for the civil action, and leave to amend his statement of claim.

The Saskatchewan Court of Queen's Bench, in a decision reported in 85 Sask.R. 169, allowed the university's application and stayed the professor's civil action pending arbitration. The court granted the professor leave to amend his statement of claim, but otherwise dismissed his application. The professor subsequently applied for leave to appeal the stay of his civil action and the refusal to grant him interim injunctive relief. The professor also sought an interim order preserving his status pending the hearing of the appeal and the arbitration. A judge in Chambers of the Saskatchewan Court of Appeal, in a decision reported in 85 Sask.R. 166, granted leave to appeal. The judge refused to grant the professor the interim relief requested. The professor appealed the judge's refusal to grant him interim relief.

The Saskatchewan Court of Appeal, in the following decision, allowed the appeal in part. The court set aside the stay of the professor's civil action, holding that it and the arbitration proceedings could proceed side by side. The court held that the professor failed to establish a sufficiently strong case to warrant the granting of a mandatory interim injunction.

Injunctions - Topic 1778

Interlocutory or interim injunctions - Preservation of status quo - Pending outcome of labour arbitration - Appeal from stay of civil action - A tenured university professor allegedly forced to take early retirement sued the university - His action was stayed pending arbitration - He sought an interim order restraining the university from removing him pending the arbitration and his appeal from the stay - The Saskatchewan Court of Appeal refused to grant the interim relief, as the professor did not establish a prima facie case, prove irreparable harm or show that the balance of convenience weighed in his favour - See paragraphs 8 to 12.

Labour Law - Topic 7201

Industrial relations - Collective agreement - Enforcement - Civil action - When available - Stay of action - A tenured university professor, allegedly forced to accept early retirement, initiated a grievance and a civil action claiming, inter alia, breach of procedural fairness - The arbitration proceedings were already underway when the professor commenced his action - The two proceedings overlapped but were not co-extensive - The action was more broadly based and raised issues beyond an arbitrator's jurisdiction - The Saskatchewan Court of Appeal refused to stay the civil action pending determination of the arbitration, holding that the two procedures could co-exist - See paragraphs 6 to 8, 13 to 15.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - [See Labour Law - Topic 7201].

Practice - Topic 8934

Appeals - Preservation of status quo pending appeal - Injunctions - [See Injunctions - Topic 1778].

Cases Noticed:

St. Anne Nackawic Pulp and Paper Co. Ltd. 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. 4].

Counsel:

A.J. Beke, Q.C., and J.L. Nugent, for the appellant;

G.J. Kuski, Q.C., for the respondent.

This appeal was heard before Tallis, Cameron and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal, whose decision was delivered orally on September 14, 1990 by Cameron, J.A. and transcribed in writing on September 21, 1990.