Mourant v. Sackville (Town), (2014) 423 N.B.R.(2d) 330 (CA)

• Judge: Deschênes, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 29, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 423 N.B.R.(2d) 330 (CA);2014 NBCA 56

Mourant v. Sackville (2014), 423 N.B.R.(2d) 330 (CA);

    423 R.N.-B.(2e) 330; 1103 A.P.R. 330

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. SE.004

Renvoi temp.: [2014] N.B.R.(2d) TBEd. SE.004

Eric Joseph Mourant (appellant) v. Town of Sackville, a municipal body corporate (respondent)

(111-13-CA; 2014 NBCA 56)

Indexed As: Mourant v. Sackville (Town)

Répertorié: Mourant v. Sackville (Town)

New Brunswick Court of Appeal

Deschênes, Robertson and Richard, JJ.A.

September 4, 2014.

Summary:

Résumé:

Mourant was terminated from his position as Chief Administrative Officer of the Town of Sackville. He brought an action against the Town, seeking a declaration that there was no cause at law for his termination, and reinstatement with full salary and benefits. The Town moved to have the action dismissed pursuant to rule 23.01(1)(a), which provided for the determination prior to trial of a question of law that might dispose of an action. The Town submitted that the remedy requested by Mourant had to be sought by an application for judicial review rather than an action.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 412 N.B.R.(2d) 29; 1070 A.P.R. 29, agreed with the Town. The court granted the Town's motion and dismissed Mourant's action. Mourant appealed.

The New Brunswick Court of Appeal allowed the appeal. The motion judge was correct that Mourant's claim for relief had to be sought by judicial review. However, the motion judge erred by dismissing the underlying action without there being a motion for summary judgment or a direction under rule 37.01(a) to convert the motion into one for judgment.

Municipal Law - Topic 423

Councils - Decisions of - Judicial review - [See Practice - Topic 73 ].

Municipal Law - Topic 6260

Actions against municipality - Restrictions - General - [See Practice - Topic 73 ].

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - Mourant was terminated from his position as Chief Administrative Officer of the Town of Sackville - He brought an action against the Town, seeking a declaration that there was no cause at law for his termination, and reinstatement with full salary and benefits retroactive to the date of his dismissal - The Town moved to have Mourant's action dismissed on the basis that the remedy Mourant requested had to be sought by an application for judicial review - A motion judge granted the motion - Mourant appealed - The New Brunswick Court of Appeal held that the motion judge was correct when he found that the request for reinstatement along with back pay and benefits took the matter outside the common law situation of wrongful dismissal or dismissal for cause - Although nothing precluded an action for wrongful dismissal, that was not what Mourant sought - Mourant was asking the court to effectively quash the Town's decision - This kind of relief could only be obtained on an application for judicial review made under rule 69 - See paragraphs 13 to 32.

Practice - Topic 5260.1

Trials - General - Trial of preliminary issues - Dismissal of action or striking claim - [See Practice - Topic 5384 ].

Practice - Topic 5264

Trials - General - Trial of preliminary issues - Application - Question of law - [See Practice - Topic 5384 ].

Practice - Topic 5384

Dismissal of action - Application or motion for dismissal - Circumstances when granted - Mourant was terminated from his position as Chief Administrative Officer of the Town of Sackville - He brought an action against the Town, seeking a declaration that there was no cause at law for his termination, and reinstatement with full salary and benefits retroactive to the date of his dismissal - The Town moved to have the action dismissed pursuant to rule 23.01(1)(a), which provided for the determination prior to trial of a question of law that might dispose of an action - The Town submitted that the remedy requested by Mourant had to be sought by an application for judicial review rather than an action - The motion judge granted the motion and dismissed Mourant's action - The New Brunswick Court of Appeal granted Mourant's appeal, stating "there was neither a motion for summary judgment under Rule 22 before the motion judge, nor a direction under Rule 37.01(a) that the motion under Rule 23.01(1)(a) be converted into a motion for judgment. Had either one of these events occurred, Mr. Mourant might have asked the motion judge for leave to amend his pleadings ... He might have asked to include a claim for damages for wrongful dismissal. ... I conclude there was no authority for the judge to dismiss this action as he did. The motion was one for the determination of a question of law raised by the pleadings ... In the absence of a motion for judgment or of a direction pursuant to Rule 37.10(a), the judge should have limited his ruling to determining the question of law that was laid before him." - See paragraphs 33 to 41.

Droit municipal - Cote 423

Conseil municipal - Décisions - Révision judiciaire - [Voir Municipal Law - Topic 423 ].

Droit municipal - Cote 6260

Actions contre une municipalité - Restrictions - Généralités - [Voir Municipal Law - Topic 6260 ].

Procédure - Cote 73

Introduction de l'action - Choix de la méthode d'instruction de l'action - Action ou requête? - [Voir Practice - Topic 73 ].

Procédure - Cote 5260.1

Procès - Généralités - Instruction de questions préjudicielles - Rejet de l'action - [Voir Practice - Topic 5260.1 ].

Procédure - Cote 5264

Procès - Généralités - Instruction de questions préjudicielles - Requête - Question de droit - [Voir Practice - Topic 5264 ].

Procédure - Cote 5384

Rejet de l'action - Requête ou motion en rejet - Circonstances justifiant l'octroi - [Voir Practice - Topic 5384 ].

Cases Noticed:

Cronkhite v. Nackawic (Town) (2009), 344 N.B.R.(2d) 317; 884 A.P.R. 317; 2009 NBQB 110 (T.D.), refd to. [para. 15].

Hughes v. Moncton (1991), 118 N.B.R.(2d) 306; 296 A.P.R. 306 (CA), refd to. [para. 16].

Ouellette v. Saint-André (Rural Community) (2013), 402 N.B.R.(2d) 228; 1044 A.P.R. 228; 2013 NBCA 21, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 21].

New Brunswick et al. v. LeBlanc et al. (2012), 398 N.B.R.(2d) 83; 1032 A.P.R. 83; 2013 NBCA 9, refd to. [para. 27].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, leave to appeal refused (2007), 379 N.R. 393 (S.C.C.), refd to. [para. 27].

Smith v. Human Rights Commission (N.B.) et al. (1999), 217 N.B.R.(2d) 336; 555 A.P.R. 336 (C.A.), refd to. [para. 28].

McArthur v. Canada (Attorney General), [2010] 3 S.C.R. 626; 273 O.A.C. 55; 410 N.R. 55; 2010 SCC 63, refd to. [para. 31].

Parrish & Heimbecker Ltd. v. Canada (Minister of Agriculture and Agri-Food) et al., [2010] 3 S.C.R. 639; 410 N.R. 72; 2010 SCC 64, refd to. [para. 31].

Nu-Pharm Inc. v. Canada (Attorney General) et al., [2010] 3 S.C.R. 648; 410 N.R. 82; 2010 SCC 65, refd to. [para. 31].

Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada et al., [2010] 3 S.C.R. 57; 410 N.R. 94; 2010 SCC 66, refd to. [para. 31].

Manuge v. Canada, [2010] 3 S.C.R. 672; 410 N.R. 113; 2010 SCC 67, refd to. [para. 31].

Norris v. Lloyd's of London (1998), 205 N.B.R.(2d) 29; 523 A.P.R. 29 (C.A.), leave to appeal refused (1999), 249 N.R. 395; 218 N.B.R.(2d) 400; 558 A.P.R. 400 (S.C.C.), refd to. [para. 36].

Sewell v. ING Insurance Co. of Canada - see/voir Sewell v. Sewell.

Sewell v. Sewell (2007), 314 N.B.R.(2d) 330; 812 A.P.R. 330; 2007 NBCA 42, refd to. [para. 37].

Michaud v. Robertson et al. (1992), 126 N.B.R.(2d) 247; 317 A.P.R. 247 (C.A.), refd to. [para. 39].

Lawpost et al. v. New Brunswick (1999), 220 N.B.R.(2d) 146; 565 A.P.R. 146 (C.A.), refd to. [para. 39].

Jones Masonry Ltd. v. Defence Construction (1951) Ltd. (2010), 353 N.B.R.(2d) 359; 910 A.P.R. 359; 2010 NBCA 8, refd to. [para. 39].

Statutes Noticed:

Rules of Court (N.B.), rule 23 [para. 34].

Counsel:

Avocats:

George E. Kalinowski, for the appellant;

James F. LeMesurier, Q.C., for the respondent.

This appeal was heard on January 29, 2014, before Deschênes, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal. Richard, J.A., delivered the following judgment for the court in both official languages on September 4, 2014.