Small v. Newfoundland and Labrador (Department of Human Resources and Employment) et al., (2003) 227 Nfld. & P.E.I.R. 1 (NFTD)

• Judge: Mercer, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 20, 2003
• Jurisdiction: Newfoundland and Labrador
• Citations: (2003), 227 Nfld. & P.E.I.R. 1 (NFTD);2003 NLSCTD 90

Small v. Nfld. (2003), 227 Nfld. & P.E.I.R. 1 (NFTD);

    677 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. JN.027

James Small (plaintiff) v. Her Majesty the Queen (as represented by the Department of Human Resources and Employment and the Department of Justice) (first defendant) and Desmond Dillon (second defendant) and David Hayley (third defendant)

(1998 St. J. No. 1470; 2003 NLSCTD 90)

Indexed As: Small v. Newfoundland and Labrador (Department of Human Resources and Employment) et al.

Newfoundland and Labrador Supreme Court

Trial Division

Mercer, J.

June 20, 2003.

Summary:

The plaintiff social worker sued, inter alia, his former employer, the Province of New­foundland for wrongful dismissal or con­structive dismissal, malicious prosecution and breach of his s. 7 Charter rights.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the action.

Editor's note: for a prior related case see 211 Nfld. & P.E.I.R. 175; 633 A.P.R. 175.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - [See both Labour Law - Topic 9655 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - A unionized social worker was dismissed by his employer, the Province of Newfound­land, for, inter alia, fraudulent conduct - The employee negotiated a settlement which involved the withdrawal of the dismissal in return for the withdrawal of a grievance and his resignation - The employee was subsequently charged with and acquitted of fraud - The employee sued the employer for wrongful dismissal or constructive dismissal - He argued, inter alia, that the employer repeatedly failed to comply with the collective agreement and therefore could not demand that he be confined to the grievance and arbitration provisions of the collective agreement - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the argu­ment - The court had no jurisdiction over the unjust or constructive dismissal claims as the dispute arose under the collective agreement - By the settlement agreement, the employee had surrendered his right to seek redress under the collective agreement - The agreement also foreclosed the em­ployee's right to litigate issues arising from the cessation of his employment - See paragraphs 63 to 97.

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - A unionized social worker was dismissed by his employer, the Province of Newfound­land, for, inter alia, fraudulent conduct - The employee negotiated a settlement which involved the withdrawal of the dismissal in return for the withdrawal of a grievance and his resignation - The employee was subsequently charged with and acquitted of fraud - The employee sued the employer for, inter alia, damages for breach of his s. 7 Charter rights - The Newfoundland and Labrador Supreme Court, Trial Division, held that it had no juris­diction over the alleged Charter breach - The claim related to the employee's em­ployment and dismissal therefrom and had to be adjudicated by the forum provided under the collective agreement - Character­izing the alleged wrongs as a Charter breach, rather than an unjust or construc­tive dismissal, did not change the jurisdic­tional conclusion - See paragraphs 114 to 117.

Torts - Topic 6163

Abuse of legal procedure - Malicious prosecution - Persons responsible - A unionized social worker was dismissed by his employer, the Province of Newfound­land, for, inter alia, fraudulent conduct - The employee negotiated a settlement which involved the withdrawal of the dismissal in return for the withdrawal of a grievance and his resignation - The employee was subsequently charged with and acquitted of fraud - The employee sued, inter alia, the employer and two of the employer's managers' for malicious prosecution - He alleged that they con­spired to cause the criminal prosecution - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the claim - The proceedings were not initiated by these defendants - The information sup­plied to the police was not provided falsely or maliciously - The facts relating to the alleged crime were not exclusively within their knowledge or any one of them - There was no impediment to the police conducting as complete an investigation as was necessary - The defendants' conduct did not make it virtually inevitable that a prosecution would result - See paragraphs 101 to 105.

Cases Noticed:

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, refd to. [para. 66].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 66].

Allen et al. v. Alberta et al. (2003), 301 N.R. 174; 327 A.R. 1; 296 W.A.C. 1 (S.C.C.), refd to. [para. 66].

Roberts v. Browning Ferris Industries Ltd. (1998), 170 Nfld. & P.E.I.R. 228; 522 A.P.R. 228 (Nfld. C.A.), refd to. [para. 66].

Kavanagh v. Newfoundland (Minister of Education) et al., [2000] Nfld. & P.E.I.R. Uned. 61 (Nfld. T.D.), revd. (2000), 183 Nfld. & P.E.I.R. 282; 556 A.P.R. 282 (Nfld. C.A.), refd to. [para. 66].

Radhakrishnan v. University of Calgary Faculty Association et al. (1995), 178 A.R. 221; 110 W.A.C. 221; 36 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 72].

Piko v. Hudson's Bay Co. (1998), 116 O.A.C. 92; 41 O.R.(3d) 729 (C.A.), refd to. [para. 78].

Radhakrishnan v. University of Calgary Faculty Association et al. (1999), 251 A.R. 298; 81 Alta. L.R.(3d) 308 (Q.B.), refd to. [para. 92].

Pao On v. Lau Yiu Long, [1980] A.C. 614 (P.C.), refd to. [para. 94].

Radhakrishnan v. University of Calgary Faculty Association et al. (2002), 312 A.R. 143; 281 W.A.C. 143 (C.A.), refd to. [para. 97].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 100].

Proulx v. Québec (Procureur général) (2001), 276 N.R. 201 (S.C.C.), refd to. [para. 100].

Martin v. Watson, [1996] A.C. 74; 185 N.R. 125 (H.L.), refd to. [para. 103].

Wood v. Kennedy (1998), 76 O.T.C. 321; 165 D.L.R.(4th) 542 (Gen. Div.), refd to. [para. 104].

Hicks v. Faulkner (1878), 8 Q.B.D. 167, refd to. [para. 110].

McTaggart v. Ontario (1991), 6 O.R.(3d) 456 (Gen. Div.), refd to. [para. 113].

Lacombe v. André, [2003] Q.J. No. 1376 (C.A.), refd to. [para. 113].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 177 D.L.R.(4th) 124, refd to. [para. 118].

Trask v. Terra Nova Motors Ltd. (1995), 127 Nfld. & P.E.I.R. 310; 396 A.P.R. 310 (Nfld. C.A.), refd to. [para. 119].

Authors and Works Noticed:

Clerk, John F., and Lindsell, The Law of Torts (18th Ed. 2000), para. 16-12 [para. 103].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), pp. 849, 850, 851 [para. 104]; 852 [para. 108].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 19.154 [para. 58].

Counsel:

John W. Lavers and Geoffrey Penney, for the plaintiff;

Tanya Carter, for the defendants.

This action was heard on February 26-28, March 3-7, 10-13, 25 and 26, 2003, before Mercer, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who released the following decision on June 20, 2003.