Smith v. Canada (Attorney General) et al., 2006 NBQB 86

• Judge: Garnett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 30, 2006
• Jurisdiction: New Brunswick
• Citations: 2006 NBQB 86;(2006), 300 N.B.R.(2d) 363 (TD)

Smith v. Can. (A.G.) (2006), 300 N.B.R.(2d) 363 (TD);

    300 R.N.-B.(2e) 363; 782 A.P.R. 363

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[French language version follows English language version]

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

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Temp. Cite: [2006] N.B.R.(2d) TBEd. MR.046

Kenneth Earl Smith and Paulette Marie Delaney-Smith (plaintiffs) v. Attorney General of Canada as represented by the Royal Canadian Mounted Police, Timothy Joseph Quigley, Daniel Louis LeFebvre, James Jeffrey Payne, Daniel Anselm Nugent, Donald Rex Domenie, Glenn Martindale, Rene Joseph Toussaint Bertrand, Joseph Fernand Jocelyn Themens, Edward James MacEachern (defendants)

(F/C/132/04; 2006 NBQB 86)

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

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Garnett, J.

March 15, 2006.

Summary:

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, dismissed the motion and awarded $10,000 costs to the plaintiffs.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - 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 on the basis that the court lacked jurisdiction to try the action - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion - The dispute described in the statement of claim "in its essential charac­ter" arose out of the employer/employee relationship - However, the internal scheme designed to address members' claims had failed repeatedly in Smith's case - Smith had lost faith in its fairness and so had the court.

Police - Topic 4077

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

Police - Topic 6002

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

Cases Noticed:

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers 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. 59].

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, refd to. [para. 59].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97; 125 D.L.R.(4th) 609, refd to. [para. 59].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 59].

Phillips v. Harrison (2000), 153 Man.R.(2d) 1; 238 W.A.C. 1; 196 D.L.R.(4th) 69 (C.A.), refd to. [para. 71].

Counsel:

B. Richard Bell, Q.C., for the plaintiffs;

Martin Ward, Q.C., and Andrea Jamieson, for the defendants, 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;

Richard Scott, Q.C., for the defendants, Daniel Louis LeFebvre and James Jeffrey Payne.

This motion was heard on January 30, 2006, by Garnett, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who deliv­ered the following decision on March 15, 2006.