Kim v. University of Regina, (1990) 85 Sask.R. 166 (CA)

• Judge: Sherstobitoff, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 28, 1990
• Jurisdiction: Saskatchewan
• Citations: (1990), 85 Sask.R. 166 (CA)

Kim v. Regina Univ. (1990), 85 Sask.R. 166 (CA)

MLB headnote and full text

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

(No. 594)

Indexed As: Kim v. University of Regina

Saskatchewan Court of Appeal

Sherstobitoff, J.A.

June 29, 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 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 paragraphs 12 to 35 below, 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. A judge in Chambers of the Saskatchewan Court of Appeal, in paragraphs 1 to 11 below, granted leave to appeal. The judge refused to grant the professor the interim relief requested pending the hearing of the appeal.

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 the determination of arbitration proceedings - He sought an interim order restraining the university from removing him pending his appeal from the stay - A judge of the Saskatchewan Court of Appeal, assuming jurisdiction, refused to grant the interim relief, as the professor would not suffer irreparable loss not compensable in damages for the short time (two months) until the appeal would be heard - See paragraphs 31 to 32.

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 breach of procedural fairness - The arbitration proceedings were already underway when the professor commenced his action - The issues in both were similar, as was the relief sought - The Saskatchewan Court of Queen's Bench stayed the civil action pending determination of the arbitration procedure - A judge of the Saskatchewan Court of Appeal granted the professor leave to appeal - See paragraphs 13 to 31.

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:

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832, and Labour Board (Man.) [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, appld. [para. 6].

St. Anne Nackawic Pulp & 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. 28].

Statutes Noticed:

Trade Union Act, R.S.S. 1978, c. T-17, sect. 25(1)(a) [para. 26].

Counsel:

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

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

This application was heard before Sherstobitoff, J.A., of the Saskatchewan Court of Appeal, in Chambers, on June 28, 1990. The decision of Sherstobitoff, J.A., was delivered on June 29, 1990.