Vihvelin v. New Brunswick Community College et al., 2015 NBCA 17

• Judge: Drapeau, C.J.N.B., Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 24, 2014
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 17;(2015), 435 N.B.R.(2d) 75 (CA)

Vihvelin v. NBCC (2015), 435 N.B.R.(2d) 75 (CA);

    435 R.N.-B.(2e) 75; 1134 A.P.R. 75

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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: [2015] N.B.R.(2d) TBEd. AP.005

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AP.005

New Brunswick Community College, Annette Albert, Sandra Maber, Diane Burt and Lorna Munro (appellants) v. Thomas Vihvelin (respondent)

(71-13-CA; 2015 NBCA 17)

Indexed As: Vihvelin v. New Brunswick Community College et al.

Répertorié: Vihvelin v. New Brunswick Community College et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Quigg and Green, JJ.A.

April 2, 2015.

Summary:

Résumé:

Vihvelin was employed with the New Brunswick Community College. He was allowed to take an entrepreneurial leave. It was disputed whether he could buy back pension time at the end of his leave. He was deemed to have resigned. Vihvelin sued the Community College and its officers for damages, claiming that he was treated unfairly and in bad faith. The defendants moved to dismiss the action under rule 23.01(2)(a), on the basis that the court did not have jurisdiction as Vihvelin's terms and conditions of employment were governed by a collective agreement and the Public Service Labour Relations Act. Thus, the proper process was to file a grievance under the collective agreement.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 408 N.B.R.(2d) 85; 1058 A.P.R. 85, dismissed the motion because it was not "plain and obvious" the Court lacked jurisdiction. The defendants appealed, submitting that the "plain and obvious" test had no application under rule 23.01(2)(a).

The New Brunswick Court of Appeal dismissed the appeal. The motion judge erred in applying the "plain and obvious" test to determine the motion. However, the defendants failed to establish on a balance of probabilities the requisite lack of subject-matter jurisdiction.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - [See third Practice - Topic 5359.1 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - [See third Practice - Topic 5359.1 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Practice - Topic 5359.1 ].

Practice - Topic 5359.1

Dismissal of action - Grounds - General and want of prosecution - Lack of jurisdiction - The motion judge applied the "plain and obvious" test to determine the defendants' motion under rule 23.01(2)(a) for an order dismissing the action on the ground the court lacked jurisdiction - The New Brunswick Court of Appeal held that the "plain and obvious" test was confined to motions to strike out a pleading which did not disclose a reasonable cause of action or defence, under rule 23.01(1)(b) - "On a motion by a defendant, the question is whether the statement of claim, on its face, discloses a reasonable cause of action, not whether the plaintiff actually has a reasonable chance of prevailing at trial. As a general rule, one that admits of few exceptions, the court must accept as proven all allegations of fact in the contested pleading and dismiss the motion unless the fundamental deficiency is 'plain and obvious'. It has long been widely accepted that the power to strike out should only be exercised where there is no doubt the pleading fails to disclose a reasonable cause of action or defence, as the case may be ... . The test under Rule 23.01(1)(b) is stringent because of: (1) a fear that, if it were otherwise, access to justice might be denied for meritorious, but poorly articulated claims; and (2) the belief in the curative power of appropriate amendments to pleadings. Moreover, that test is applied to a factual matrix shaped without resort to evidence. A different process is contemplated under Rule 23.01(2)(a)." - See paragraphs 28 and 29.

Practice - Topic 5359.1

Dismissal of action - Grounds - General and want of prosecution - Lack of jurisdiction - The motion judge applied the "plain and obvious" test to determine the defendants' motion under rule 23.01(2)(a) for an order dismissing the action on the ground the court lacked jurisdiction to try it - The New Brunswick Court of Appeal held that the motion judge applied the wrong test - "There are sound process-related reasons to limit the 'plain and obvious' test to Rule 23.01(1)(b). ... A different process is contemplated under Rule 23.01(2)(a). On a motion under Rule 23.01(2)(a), pleaded allegations of fact are not deemed proven and, although the hearing should not be turned into a full-blown trial, evidence is both admissible and expected. The focus is on the true nature of the underlying dispute, rather than its formal description, and an amendment to the statement of claim will rarely, if ever, be capable of relieving against a jurisdictional deficiency. Rule 23.01(2)(a) requires a 'determination' of the issue of subject-matter jurisdiction, a question of mixed fact and law. ... In my judgment, on a motion for dismissal of the action under Rule 23.01(2)(a), the defendant must show that the court probably lacks subject-matter jurisdiction. If the defendant fails to discharge that burden, the motion must be dismissed" - See paragraphs 28 to 32.

Practice - Topic 5359.1

Dismissal of action - Grounds - General and want of prosecution - Lack of jurisdiction - The defendant Community College denied the plaintiff's request for an extension of entrepreneurial leave, and deemed his employment terminated - The College refused his request to buy back pensionable time - The defendants moved for an order under rule 23.01(2)(a) dismissing the underlying action for damages - The defendants contended that the court's jurisdiction was ousted by the combined effect of the collective agreement and the Public Service Labour Relations Act - The motion judge dismissed the motion - The New Brunswick Court of Appeal dismissed the appeal - Although the motion judge erred in applying the "plain and obvious" test, the error was inconsequential as the defendants failed to establish the requisite lack of subject-matter jurisdiction - "[T]he appellants have failed to establish on a balance of probabilities that, at the material time, which is when they engaged in the conduct for which the claim in damages is made, the respondent was 'an employee' entitled to file and prosecute a grievance for the purposes of securing a related remedy. ... Specifically, the appellants have not persuasively countered the contention that the definitions of 'employee' and 'grievance' under the Public Service Labour Relations Act operate to deny former employees, like the respondent, an entitlement to file and pursue to adjudication a grievance for wrongdoing in connection with a post-termination request to buy back pensionable time." - See paragraphs 38 to 42.

Droit du travail - Cote 9076

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

Droit du travail - Cote 9655

Relations de travail dans les services publique - Convention collective - Poursuite civile - Compétence - [Voir Labour Law - Topic 9655 ].

Procédure - Cote 2230

Plaidoiries - Radiation des plaidoiries - Motifs - Défaut de révéler une cause d'action ou un moyen de défense - [Voir Practice - Topic 2230 ].

Procédure - Cote 5359.1

Rejet de l'action - Motifs - Généralités et défaut de procéder - Manque de compétence - [Voir Practice - Topic 5359.1 ].

Cases Noticed:

Allen et al. v. Alberta et al., [2003] 1 S.C.R. 128; 301 N.R. 174; 327 A.R. 1; 296 W.A.C. 1; 2003 SCC 13, refd to. [para. 16].

Giesbrecht v. McNeilly et al. (2008), 225 Man.R.(2d) 223; 419 W.A.C. 223; 2008 MBCA 22, refd to. [para. 16].

Little Chief et al. v. Siksika Nation et al. (2003), 235 F.T.R. 300; 2003 FCT 708, refd to [para. 19].

Robertson v. Beauvais et al., [2011] F.T.R. Uned. 227; 2011 FC 378, refd to. [para. 19].

Hodgson et al. v. Ermineskin Indian Band et al. (2000), 180 F.T.R. 285 (T.D.), affd. (2000), 267 N.R. 143 (F.C.A.), leave to appeal denied (2001), 276 N.R. 193 (S.C.C.), consd. [para. 22].

Robichaud v. Canada (Attorney General) et al. (2012), 388 N.B.R.(2d) 380; 1006 A.P.R. 380; 2012 NBQB 152; revd. (2013), 398 N.B.R.(2d) 259; 1032 A.P.R. 259; 2013 NBCA 3, consd. [para. 23].

Munn v. New Brunswick et al. (2013), 400 N.B.R.(2d) 184; 1038 A.P.R. 184; 2013 NBQB 51, affd. (2013), 405 N.B.R.(2d) 398; 1050 A.P.R. 398; 2013 NBCA 43, refd. [para. 23].

Groupe Qualité Lamèque ltée - Lamèque Quality Group Ltd. v. A/S Nyborg Plast (2001), 242 N.B.R.(2d) 98; 628 A.P.R. 98; 2001 NBCA 86, leave to appeal denied (2002), 300 N.R. 199; 253 N.B.R.(2d) 400; 660 A.P.R. 400 (S.C.C.), refd to. [para. 23].

Lamèque Quality Group Ltd. v. A/S Nyborg Plast Nyborg - see/voir Groupe Qualité Lamèque ltée - Lamèque Quality Group Ltd. v. A/S Nyborg Plast.

Strait Crossing Inc. et al. v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2002), 248 N.B.R.(2d) 308; 646 A.P.R. 308; 2002 NBQB 66, affd. (2002), 252 N.B.R.(2d) 51; 658 A.P.R. 51; 2002 NBCA 70, refd to. [para. 23].

Smith v. Canada (Attorney General) et al. (2006), 300 N.B.R.(2d) 363; 782 A.P.R. 363; 2006 NBQB 86, affd. (2007), 316 N.B.R.(2d) 180; 816 A.P.R. 180; 2007 NBCA 58, refd to. [para. 23].

Dugas v. Landry et al. (1997), 194 N.B.R.(2d) 150; 496 A.P.R. 150 (C.A.), consd. [para. 24].

New Brunswick v. Rothmans Inc. et al. (2010), 373 N.B.R.(2d) 157; 964 A.P.R. 157; 2010 NBQB 381, leave to appeal denied, [2011] N.B.R.(2d) Uned. 25 (C.A.), leave to appeal denied (2011), 428 N.R. 393 (S.C.C.), refd to. [para. 26].

Shannon v. Canadian Medical Protective Association (2006), 310 N.B.R.(2d) 22; 800 A.P.R. 22; 2006 NBQB 274, refd to. [para. 26].

Coutu v. Gauthier Estate (2006), 296 N.B.R.(2d) 34; 769 A.P.R. 34; 2006 NBCA 16, refd to. [para. 26].

La Succession de Feu André Gauthier v. Coutu et al. - see/voir Coutu v. Gauthier Estate.

Cosman v. Used Rides.com et al. (2014), 419 N.B.R.(2d) 370; 1090 A.P.R. 370; 2014 NBQB 129, refd to. [para. 26].

McArthur v. Canada (Attorney General) (2008), 245 O.A.C. 91; 2008 ONCA 892; affd. [2010] 3 S.C.R. 626; 410 N.R. 55; 273 O.A.C. 55; 2010 SCC 63, refd to. [para. 27].

TeleZone Inc. v. Canada (Attorney General) - see/voir McArthur v. Canada (Attorney General).

McCracken v. Canadian National Railway Co., [2010] O.T.C. Uned. 4520; 2010 ONSC 4520; 2010 ONSC 4520, revd. on other grounds (2012), 293 O.A.C. 274; 2012 ONCA 445, refd to. [para. 27].

Tri-Development Ltd. v. Auffrey, LeBlanc, LeBlanc, Frontenac Development Co. and Club D'Investissement de Saint-Antoine Ltée (1976), 15 N.B.R.(2d) 308; 18 A.P.R. 308 (S.C.), refd to. [para. 28].

Sentinel-Review Co. v. Robinson, [1926] O.J. No. 94 (S.C.), refd to. [para. 28].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 33].

Adams v. Cusack (2006), 242 N.S.R.(2d) 66; 770 A.P.R. 66; 2006 NSCA 9, refd to. [para. 36].

Taylor v. New Brunswick (Department of Training and Employment Development), [2004] N.B.L.A.A. No. 27, refd to. [para. 36].

Treslan et al. v. Memorial University of Newfoundland (1996), 149 Nfld. & P.E.I.R. 12; 467 A.P.R. 12 (Nfld. T.D.), refd to. [para. 36].

Statutes Noticed:

Rules of Court (N.B.), rule 23.01(2)(a), rule 23.02, rule 23.03 [para. 18].

Authors and Works Noticed:

Brown & Beatty, Canadian Labour Arbitration (2014), looseleaf, release 39, ch. 2, p. 14 [para. 41].

Counsel:

Avocats:

Daniel A. Standing, for the appellants;

Thomas Vihvelin, appeared in person.

This appeal was heard on March 24, 2014, and January 20, 2015, before Drapeau, C.J.N.B., Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Drapeau, C.J.N.B., the Court delivered the following judgment, dated April 2, 2015, in both official languages.