Roberts v. Browning Ferris Industries Ltd., (1998) 170 Nfld. & P.E.I.R. 228 (NFCA)

• Judge: O'Neill, Marshall and Wells, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 23, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 170 Nfld. & P.E.I.R. 228 (NFCA)

Roberts v. Browning (1998), 170 Nfld. & P.E.I.R. 228 (NFCA);

    522 A.P.R. 228

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. JA.007

George Roberts (appellant) v. Browning Ferris Industries Limited (respondent)

(97/170)

Indexed As: Roberts v. Browning Ferris Industries Ltd.

Newfoundland Supreme Court

Court of Appeal

O'Neill, Marshall and Wells, JJ.A.

December 9, 1998.

Summary:

Roberts brought an action against his former employer, alleging that he was wrongfully dismissed. The employer applied to strike out the statement of claim on the basis that there was no cause of action. The employer argued that the court lacked juris­diction where the dispute was within the exclusive jurisdiction of the arbitration pro­cess provided for in a collective agree­ment or, alternatively, that Roberts voluntar­ily terminated his employment and was not dismissed. The trial judge allowed the em­ployer's application and struck out the state­ment of claim. Roberts appealed.

The Newfoundland Court of Appeal allowed the appeal.

Labour Law - Topic 7201

Industrial relations - Collective agreement -Enforcement - Civil action - When avail­able - Roberts brought an action against his former employer, alleging that he was wrongfully dismissed - The employer applied to strike out the state­ment of claim on the basis that there was no cause of action - The employer argued that the court lacked jurisdiction where the dispute was within the exclusive jurisdic­tion of the arbitration process provided for in a collec­tive agreement - The motions judge struck out the statement of claim - The New­foundland Court of Appeal allowed Ro­berts' appeal - On the face of the statement of claim alone, it could not be said with certainty that the essential characteristic of the matters alleged in the statement of claim was that they arose out of the collec­tive agreement - See para­graphs 52 to 65.

Practice - Topic 2208

Pleadings - Striking out pleadings - Ap­plication for - Evidentiary limitations - Roberts brought an action against his former employer, alleging that he was wrongfully dismissed - The employer applied, under rule 14.24(1)(a), to strike out the statement of claim on the basis that there was no cause of action - The New­foundland Court of Appeal stated that matters pleaded in a defence may not be relied upon by the court to support an application to strike, but, if they provide support for the plaintiff's claim, may be relied upon in determining, on the plead­ing, that a cause of action is disclosed (i.e., to support a refusal to strike) - See para­graphs 42 to 51.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Roberts brought an action against his former employer for wrongful dismissal - He alleged that the employer made a representation and a promise that was acted on by him and was subsequently dishonoured by the employer as a result of which he suffered damages - The employer applied, under rule 14.24(1)(a), to strike out the statement of claim on the basis that there was no cause of action - The Newfoundland Court of Appeal held that, assuming that the court, and not an arbitration tribunal, had juris­diction, the statement of claim disclosed a cause of action that should proceed to trial - See paragraphs 66 to 74.

Practice - Topic 2244

Pleadings - Striking out pleadings - Bars - Delay - Roberts brought an action against his former employer, alleging that he was wrongfully dismissed - The employer applied, under rule 14.24(1)(a) to strike out the statement of claim on the basis that there was no cause of action - Roberts submitted that there was an inor­dinate delay between the time of the filing of the statement of claim and the applica­tion to strike - Roberts also submitted that the application to strike should not be made after the filing of a defence - The New­foundland Court of Appeal stated that neither the amount of time that had elapsed nor the fact that other proceedings had been taken and materials filed had any bearing on the question of whether it was plain and obvious that the pleaded position could not succeed - See paragraphs 32 to 41.

Cases Noticed:

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, refd to. [para. 11].

Ainscough et al. v. McGavin Toastmaster Ltd., [1976] 1 S.C.R. 718; 4 N.R. 618, refd to. [para. 21].

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, refd to. [para. 21].

Bond Architects and Engineers Ltd. v. McNamara Corp. of Newfoundland (1988), 69 Nfld. & P.E.I.R. 229; 211 A.P.R. 229 (Nfld. C.A.), refd to. [para. 24].

Crossan v. Mortgage and Appraisals Ltd. et al. (1993), 110 Nfld. & P.E.I.R. 1; 346 A.P.R. 1 (Nfld. C.A.), refd to. [para. 25].

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. 25].

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

Drummond-Jackson v. British Medical Association, [1971] All E.R. 1024 (C.A.), refd to. [para. 29].

Marco Ltd. v. Newfoundland Processing Ltd. et al. (1995), 130 Nfld. & P.E.I.R. 308; 405 A.P.R. 308 (Nfld. T.D.), refd to. [para. 33].

Nardini, Nardini Ltd. and Raphael Nardini Ltd. v. Labatt Brewing Co. (1983), 44 Nfld. & P.E.I.R. 221; 130 A.P.R. 221 (Nfld. T.D.), refd to. [para. 33].

SNC-Lavalin Inc. v. Newfoundland and Labrador Hydro Electric Corp et al. (1998), 162 Nfld. & P.E.I.R. 172; 500 A.P.R. 172 (Nfld. C.A.), refd to. [para. 45].

Duchy of Lancaster (Attorney General) v. London and North Western Railway Co., [1982] 3 Ch. 274, refd to. [para. 46].

Teale v. United Church of Canada at Wood Lawn (Trustees) (1979), 34 N.S.R.(2d) 313; 59 A.P.R. 313 (C.A.), refd to. [para. 49].

Ruscetta v. Graham (1997), 39 O.T.C. 76 (Gen. Div.), refd to. [para. 58].

Syndicat catholique des employées des magasins de Québec inc. v. Compagnie Paquet Ltée (1959), 18 D.L.R.(2d) 346 (S.C.C.), refd to. [para. 64].

King v. Board of Commissioners of Public Utilities (Nfld.) et al. (1991), 90 Nfld. & P.E.I.R. 160; 280 A.P.R. 160 (Nfld. Q.B.), refd to. [para. 68].

Minnes v. Minnes (1962), 39 W.W.R. (N.S.) 112 (B.C.C.A.), refd to. [para. 69].

Sloan v. Union Oil Co. of Canada Ltd., [19554 D.L.R.664 (B.C.S.C.), refd to. [para. 71].

Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256 (C.A.), refd to. [para. 71].

Central London Property Trust Ltd. v. High Trees House Ltd., [1947] K.B. 130, refd to. [para. 72].

Engineered Homes Ltd. v. Mason et al., [1983] 1 S.C.R. 641; 47 N.R. 379. refd to. [para. 73].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 74].

Statutes Noticed:

Labour Relations Act, R.S.N. 1990, c. L-1, sect. 86(1) [para. 53].

Rules of Court (Nfld.), Supreme Court Rules, rule 14.24 [para. 8]; rule 57.20(1)(b) [para. 78].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 16, para. 1514 [para. 73].

Counsel:

Ronald A. Cole, for the appellant;

Daniel Boone, for the respondent.

This appeal was heard on September 23, 1998, before O'Neill, Marshall and Wells, JJ.A., of the Newfoundland Court of Appeal. On December 9, 1998, Wells, J.A., delivered the following judgment for the court.