Thorne v. College of the North Atlantic, (2015) 364 Nfld. & P.E.I.R. 327 (NLTD(G))

• Judge: Handrigan, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: April 14, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 364 Nfld. & P.E.I.R. 327 (NLTD(G))

Thorne v. North Atl. Coll. (2015), 364 Nfld. & P.E.I.R. 327 (NLTD(G));

    1136 A.P.R. 327

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.013

Deborah Thorne (plaintiff) v. College of the North Atlantic (defendant)

(201306G0131; 2015 NLTD(G) 63)

Indexed As: Thorne v. College of the North Atlantic

Newfoundland and Labrador Supreme Court

Trial Division (General)

Handrigan, J.

May 1, 2015.

Summary:

Thorne sued the College of the North Atlantic for breaching an employment contract, by failing to pay her the full amount of a cost of living allowance for part of the time she worked for the College in Qatar. She applied to have her action certified as a class action.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at 355 Nfld. & P.E.I.R. 63; 1106 A.P.R. 63, allowed the application. Thorne applied to amend the order by certifying a non-resident subclass and appointing Luyt as the representative plaintiff for the non-resident subclass.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at (2015), 364 Nfld. & P.E.I.R. 320; 1136 A.P.R. 320, allowed the application. The College defended the claim and included a counterclaim against Thorne and potential class members. Thorne applied to strike the counterclaim and for costs.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application in part, striking the counterclaim but refusing the request for costs.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Thorne sued the College of the North Atlantic for breaching an employment contract, by failing to pay her the full amount of a cost of living allowance (COLA) for part of the time she worked for the College in Qatar - The action was certified as a class action - The College defended the claim and included a counterclaim against Thorne and potential class members for special damages - The College asserted that the total compensation available to class members was capped by the budget the College and Qatar agreed to in a Comprehensive Agreement between them - The College also alleged that some individual class members received compensation that exceeded the maximum amounts for which Qatar agreed to reimburse the College - Thus, the College wanted to counterclaim against those class members for amounts they received in excess of the salary cap - Thorne applied to strike the counterclaim and sought costs - Thorne asserted that the counterclaim "... can and will most likely pervert the course of justice and defeat the principles surrounding class actions"; or was a procedural tactic "... strategically advanced to deter public participation"; and overall was "... offensive to the process" - Thorne went as far as suggesting that the College's counterclaim might be a "SLAPP" lawsuit, which stood for "Strategic Lawsuits Against Public Participation" and alluded to a trend that was noticeable in Canada, by which defendants tried to intimidate consumers from suing them in class actions - Thorne was also suspicious about the "timing" of the counterclaim - The Newfoundland and Labrador Supreme Court, Trial Division (General), struck the counterclaim but refused to award costs - The court did not agree with Thorne's characterization of the potential counterclaim as a SLAPP lawsuit; nor did it agree that the College deliberately waited until after the certification hearing to bring forward its counterclaim - The College noted correctly that it addressed the issues it wished to raise in the counterclaim at the certification stage and wanted them added to the common issues that were certified - As well, the College noted that it was always difficult to get the timing right in class proceedings; and to decide, in particular, when was the right time to file its defence and any counterclaims it contemplated - See paragraphs 30 to 33.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Thorne sued the College of the North Atlantic for breaching an employment contract, by failing to pay her the full amount of a cost of living allowance (COLA) for part of the time she worked for the College in Qatar - The action was certified as a class action - The College defended the claim and included a counterclaim against Thorne and potential class members for special damages - The College asserted that the total compensation available to class members was capped by the budget the College and Qatar agreed to in a Comprehensive Agreement between them - The College also alleged that some individual class members received compensation that exceeded the maximum amounts for which Qatar agreed to reimburse the College - Thus, the College wanted to counterclaim against those class members for amounts they received in excess of the salary cap - The Newfoundland and Labrador Supreme Court, Trial Division (General), struck the counterclaim - The College's counterclaim was based on the premise that the Comprehensive Agreement bound Thorne and other members of the class - That was wrong - Thorne was bound by the contract of employment she signed with the College -The College is "... subject to ... the Comprehensive Agreement between the State of Qatar and the College of the North Atlantic" but its employees were not - Thorne could not sue the College or Qatar under the Comprehensive Agreement to enforce any benefit conferred by it, nor could the College or Qatar sue Thorne under the Agreement to recover any benefit she received because of it - See paragraphs 21 to 29.

Cases Noticed:

GRI Simulations Inc. v. Pro-Dive Oceaneering Co. et al. (2004), 243 Nfld. & P.E.I.R. 50; 721 A.P.R. 50; 2004 NLCA 74, refd to. [para. 8].

Mushuau Innu Construction Inc. et al. v. Mushuau Innu Band Council et al. (2008), 274 Nfld. & P.E.I.R. 238; 837 A.P.R. 238; 2008 NLTD 43, refd to. [para. 9].

McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2005] O.T.C. 38; 74 O.R.(3d) 216; 2005 CarswellOnt 212 (S.C.), refd to. [para. 11].

Counsel:

James D. Highes, Q.C., for the plaintiff;

J. David B. Eaton, Q.C., for the defendant.

This application was heard at Grand Bank, N.L., on April 14, 2015, by Handrigan, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on May 1, 2015.