Kim v. University of Regina, (1992) 107 Sask.R. 100 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 30, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 107 Sask.R. 100 (QB)

Kim v. Regina Univ. (1992), 107 Sask.R. 100 (QB)

MLB headnote and full text

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

(1989 Q.B. No. 3862)

Indexed As: Kim v. University of Regina

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

December 30, 1992.

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 grievance procedures in his collective agreement.

The Saskatchewan Court of Queen's Bench, in a decision reported at 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 at 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 at 85 Sask.R. 166, granted leave to appeal. The judge refused to grant the professor the interim relief requested. The professor appealed the decision not to grant him interim relief.

The Saskatchewan Court of Appeal, in a decision reported at 87 Sask.R. 118, 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 granting of a mandatory interim injunction. The arbitration board dismissed the professor's grievance. The university applied for an order per­mitting it to amend its statement of defence. The university also requested that all or certain portions of the professor's statement of claim be struck out as well as its reply to the university's defence. The professor applied to have two paragraphs struck from the university's defence.

The Saskatchewan Court of Queen's Bench allowed the university's application to amend its statement of defence. The other applica­tions were dismissed.

Practice - Topic 2123

Pleadings - Amendment of pleadings - Statement of defence - General - An university professor initially accepted an offer of early retirement - Later, he grieved enforcement of the arrangement under the collective agreement - The professor also commenced a parallel action in the courts - The action at law used the same grounds as the grievance as well as a claim of discrimination based on the Charter and on the Human Rights Code - The grievance was dismissed - The professor did not appeal the board's decision - The university applied for leave to amend its statement of defence in order to plead that the issues decided under the grievance could not be relitigated in the courts - The Saskatchewan Court of Queen's Bench granted the university leave to amend - See paragraph 21.

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - An university professor initially accepted an offer of early retirement - Later, he grieved en­forcement of the arrangement under the collective agreement - The professor also commenced a parallel action in the courts - The action at law used the same grounds as the grievance as well as a claim of discrimination based on the Charter and on the Human Rights Code - When the grievance was dismissed, the university applied to have the professor's pleadings struck on the grounds of res judicata and issue estoppel - The professor submitted that the two claims overlapped and that there was no clear demarcation which could facilitate the striking of certain portions - The Saskatchewan Court of Queen's Bench dismissed the application to strike - See paragraphs 3 to 20.

Cases Noticed:

Kim v. University of Regina (1990), 87 Sask.R. 118; 74 D.L.R.(4th) 120 (C.A.), consd. [para. 3].

Teachers' Credit Union Ltd. v. Robertson (1987), 58 Sask.R. 41 (Q.B.), consd. [para. 14].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133, (C.A.), consd. [para. 15].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 165 [para. 20].

Counsel:

A.J. Beke, Q.C., for the plaintiff;

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

This matter was heard by Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following deci­sion on December 30, 1992.