Smith v. Can. (A.G.),

• Jurisdiction: New Brunswick
• Judge: Daigle, Deschênes and Robertson, JJ.A.
• Neutral Citation: 2007 NBCA 58
• Citation: 2007 NBCA 58,(2007), 316 N.B.R.(2d) 180 (CA),316 NBR (2d) 180,282 DLR (4th) 193,[2007] NBJ No 244 (QL),[2007] N.B.J. No 244 (QL),316 N.B.R.(2d) 180,(2007), 316 NBR(2d) 180 (CA),316 NBR(2d) 180,282 D.L.R. (4th) 193
• Date: 21 February 2007
• Court: Court of Appeal (New Brunswick)

Smith v. Can. (A.G.) (2007), 316 N.B.R.(2d) 180 (CA);

    316 R.N.-B.(2e) 180; 816 A.P.R. 180

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: [2007] N.B.R.(2d) TBEd. JL.009

Renvoi temp.: [2007] N.B.R.(2d) TBEd. JL.009

The Attorney General of Canada As Represented by the Royal Canadian Mounted Police, Timothy Joseph Quigley, Daniel Anselm Nugent, Donald Rex Domenie, Glenn Martindale, Rene Joseph Toussaint Bertrand, Joseph Fernand Jocelyn Themens and Edward James MacEachern (defendants/appellants) v. Kenneth Earl Smith and Paulette Marie Delaney-Smith (plaintiffs/respondents)

Daniel Louis Lefebvre and James Jeffrey Payne (defendants/appellants) and Kenneth Earl Smith and Paulette Marie Delaney-Smith (plaintiffs/respondents)

(41/06/CA; 36/06/CA; 2007 NBCA 58)

Indexed As: Smith v. Canada (Attorney General) et al.

Répertorié: Smith v. Canada (Attorney General) et al.

New Brunswick Court of Appeal

Daigle, Deschênes and Robertson, JJ.A.

July 5, 2007.

Summary:

Résumé:

Smith and his wife were members of the Royal Canadian Mounted Police (RCMP). They sued the RCMP and other members, alleging that Smith's superiors took administrative and disciplinary action against him, abused the complaint process, improperly transferred him, wrongfully promoted one of the defendants and conspired to discredit him in his trade and calling. Smith characterized this conduct as breach of contract, breach of fiduciary duty, breach of statutory duty and, alternatively, as negligence. The defendants moved for a stay or dismissal of the action under rule 23.01(2)(a) on the basis that the court lacked jurisdiction to try the action.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 300 N.B.R.(2d) 363; 782 A.P.R. 363, dismissed the motion and awarded $10,000 costs to the plaintiffs. The defendants sought leave to appeal the decision.

The New Brunswick Court of Appeal, per Larlee, J.A., in a decision reported at [2006] N.B.R.(2d) Uned. 85, granted leave to appeal.

The New Brunswick Court of Appeal dismissed the appeals and awarded $10,000 costs to the plaintiffs.

Crown - Topic 4084

Actions by and against Crown in right of Canada - Defences, bars or exclusions - Receipt of compensation from consolidated revenue fund - Smith and his wife were RCMP officers - They sued the RCMP (i.e., Canada) and other RCMP members for damages arising out of their employment relationship - The allegations related to Smith's harassment by his superiors - The defendants alleged that the claims were statute barred by s. 9 of the Crown Liability and Proceedings Act (CLPA) and s. 12 of the Government Employee Compensation Act (GECA) - The New Brunswick Court of Appeal disagreed - Section 9 of the CLPA provided that no proceedings laid against the Crown in respect of a "claim" if compensation had been paid or was payable out of the Consolidated Revenue Fund in respect of the damage or loss tied to the claim - The object of s. 9 was to prevent "double recovery" for the same claim - The GECA was intended to ensure that workers' compensation benefits available under provincial schemes to provincial workers were available to federal workers who suffered work-related injuries - In return, the federal scheme required that the provincial governments be reimbursed for the cost of administering claims made by federal workers - This was not a workers' compensation case - See paragraphs 12 and 13.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - Smith and his wife were RCMP officers - They sued the defendants for damages arising out of the employment relationship - The allegations related to Smith's harassment by his superiors - The defendants alleged that the court lacked jurisdiction to try the action because the plaintiffs should have continued to pursue their claims through the RCMP grievance process prescribed by federal legislation - The New Brunswick Court of Appeal disagreed - The court held that "as a matter of principle, there is no obligation to pursue relief under an administrative scheme in cases involving serious allegations of workplace harassment, rooted in bad faith conduct on the part of one or more superiors, in circumstances where the administrative scheme makes no provision for independent adjudication by a third party. The application of this principle qualifies as an exception to the general rule that requires curial deference to a comprehensive scheme for resolving employment disputes. The other recognized exception applies to the 'whistleblower' cases." - See paragraph 3.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - Section 32(1) of the Royal Canadian Mounted Police Act provided that "The Commissioner constitutes the final level in the grievance process and the Commissioner's decision in respect of any grievance is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court." - The New Brunswick Court of Appeal held that s. 32(1) was insufficient to oust the jurisdiction of the courts so as to establish an exclusive jurisdiction model for resolving employment disputes - The court had to defer to the statutory scheme for resolving employment disputes within the RCMP by staying any civil proceedings that sought to by-pass the statutory scheme, unless exceptional circumstances existed - The grievance scheme available under the RCMP Act did not provide for independent adjudication - It was an internal process that was overseen by those in the RCMP management structure including the grievors' supervisors - In contrast, the scheme available in the collective bargaining context provided for compulsory independent third party adjudication for employment disputes - Invariably, those decisions were insulated from review by the presence of a "full" privative clause - See paragraphs 17 and 18.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - Smith and his wife were RCMP officers - They sued the RCMP and other members for damages arising out of their employment relationship - The allegations related to Smith's harassment by his superiors - The defendants moved for a stay or dismissal of the action on the basis that the court lacked jurisdiction to try the action - The New Brunswick Court of Appeal affirmed a dismissal of the motion - The court held that the administrative scheme available to RCMP officers was incapable of providing the plaintiffs with effective redress because, even if they fully pursued the relief available under the administrative scheme, they could not obtain the redress that was available in their action - The RCMP scheme was incapable of dealing with difficult cases, such as this one, because it not only failed to provide for independent third party adjudication, but also failed to provide for oral hearings, and therefore precluded the opportunity to challenge and make essential findings respecting credibility - Moreover, the scheme failed to provide for adequate disclosure by those against whom harassment complaints were levelled - As for the right of grievors to challenge an administrative decision within the RCMP, what you got was a paper review of a paper decision which, in turn, was subject to a paper review in the Federal Court.

Police - Topic 4077

Internal organization - Discipline of members - Grievances - [See all Labour Law - Topic 9076 ].

Police - Topic 6002

Actions by police - When available - [See all Labour Law - Topic 9076 ].

Couronne - Cote 4084

Actions par et contre la Couronne du chef du Canada - Moyens de défense, obstacles ou exclusions - Indemnité versée du Fonds consolidé du revenu - [Voir Crown - Topic 4084 ].

Droit du travail - Cote 9076

Relations de travail dans la fonction publique - Recours - Possibilité d'intenter une poursuite civile - [Voir Labour Law - Topic 9076 ].

Police - Cote 4077

Régie interne - Mesures disciplinaires à l'égard des membres - Griefs - [Voir Police - Topic 4077 ].

Police - Cote 6002

Poursuites par la police - Conditions d'ouverture - [Voir Police - Topic 6002 ].

Cases Noticed:

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 2].

Adams v. Cusack (2006), 242 N.S.R.(2d) 66; 770 A.P.R. 66; 2006 NSCA 9, appld. [para. 3].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 5].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 10].

Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263; 2002 SCC 28, refd to. [para. 12].

D.W. v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2005), 288 N.B.R.(2d) 26; 751 A.P.R. 26; 257 D.L.R.(4th) 594; 2005 NBCA 70, refd to. [para. 12].

Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2004), 224 N.S.R.(2d) 276; 708 A.P.R. 276; 2004 NSCA 83, refd to. [para. 12].

Rees v. Royal Canadian Mounted Police et al. (2005), 246 Nfld. & P.E.I.R. 79; 731 A.P.R. 79; 2005 NLCA 15, refd to. [para. 12].

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, refd to. [para. 14].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 14].

Pleau v. Canada (Attorney General) et al. (1999), 181 N.S.R.(2d) 356; 560 A.P.R. 356; 1999 NSCA 159, refd to. [para. 16].

Guenette et al. v. Canada (Attorney General) et al. (2002), 162 O.A.C. 371; 60 O.R.(3d) 601 (C.A.), refd to. [para. 16].

Phillips v. Harrison (2000), 153 Man.R.(2d) 1; 238 W.A.C. 1; 196 D.L.R.(4th) 69; 2000 MBCA 150, refd to. [para. 28].

Prentice v. Royal Canadian Mounted Police, [2006] 3 F.C.R. 135; 346 N.R. 201; 2005 FCA 395, refd to. [para. 54].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 9 [para. 12].

Government Employee Compensation Act, R.S.C. 1985, c. G-5, sect. 12 [para. 12].

Counsel:

Avocats:

Kathleen McManus and Leanne Wrathall, for the appellants;

Richard J. Scott, Q.C., for the appellants, Daniel Louis Lefebvre and James Jeffrey Payne;

William R. Gilmour, for Kenneth Earl Smith and Paulette Marie Delaney-Smith.

These appeals were heard on February 21, 2007, by Daigle, Deschênes and Robertson, JJ.A., of the New Brunswick Court of Appeal. Robertson, J.A., delivered the following decision for the court in both official languages on July 5, 2007.