Ottawa, Ontario, January 19, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
the PUBLIC SERVICE ALLIANCEOF CANADA
and the UNION OF PUBLIC SERVICE EMPLOYEES
Defendants
REASONS FOR ORDER AND ORDER
[1] These are interlocutory motions brought by Her Majesty the Queen (defendant Crown), as well as the Public Service Alliance of Canada and the Union of Public Service Commission Employees (defendant unions) for summary judgment dismissing the action brought by Josephine E. Marshall (the plaintiff).
FACTS
[2] The action that is now subject to interlocutory motions for summary judgment was filed on May 6, 1992. The plaintiff commenced the action as a self-represented litigant, against the defendants, seeking declaratory relief and damages relative to her employment as an employee of the public service of Canada at various times between 1972 and 1986.
[3] The original claim was never served and the plaintiff subsequently served an amended claim on May 6, 1993. By order dated May 10, 1994, Mr. Justice Strayer ordered the plaintiff to amend her 112 page claim to make it more concise. The plaintiff eventually amended her claim three years later on May 22, 1997.
[4] Mr. Justice Blais issued an order requiring inter alia, discoveries to be completed by March 31, 1999. Mr. Justice Blais issued a further order dated May 13, 1999 ordering the plaintiff to file her affidavit of documents and complete discoveries by June 30,1999. Madam Prothonotary Aronovitch was designated as Case Management Prothonotary and a revised timetable was set on June 28, 1999.
[5] By motion dated November 8, 1999, the plaintiff moved to stay the proceeding. The defendants objected on the basis of the plaintiff's inordinate delay. The motion was denied by Madam Prothonotary Aronovitch and another timetable was set. The timetable was later temporarily suspended in order to facilitate mediation. The mediation did not succeed and another revised timetable was set. This was varied again by order dated December 6, 2000.
[6] This action was dismissed by order for want of prosecution on November 3, 2003. However, that order was set aside on reconsideration. A further timetable was set by the Case Management Prothonotary dated March 22, 2005. That timetable is currently in force and contemplates the bringing of these motions.
[7] The plaintiff's claim makes allegations relating to her employment within the federal public service and the manner in which her employment ended. The plaintiff was, at all material times, a member of the defendant unions. Over the years, along with her amended claim, the plaintiff filed at least 34 grievances which, for the most part mirror the allegations in the amended claim.
[8] The plaintiff claimed compensation for workplace injuries, for stress from alleged mistreatment and for health difficulties, via her claim for workers compensation under the Government Employees Compensation Act. Within that process, it was determined that her alleged injuries were not due to any mistreatment by co-workers or supervisors and had not, for the most part, arisen out of her employment or workplace. Certain matters which were found to be attributable to the physical condition of the plaintiff's workplace were compensated under that statutory process. Appeals from these decisions were dismissed and further appeals to the Nova Scotia Court of Appeal are being held in abeyance, at the plaintiff's request.
[9] The plaintiff has yet to conduct an examination for discovery. She was first ordered to complete this step by June 30, 1999.
[10] The plaintiff commenced an earlier action T-1085-85. That action encompassed substantially the same facts and matters as the current claim. The plaintiff did not move her action forward and it was eventually dismissed for delay on status review, 11 years later by order of Chief Justice Jerome. Reconsideration was dismissed on April 13, 2000.
[11] In A-259-00, the plaintiff appealed the dismissal of T-1085-85. The appeal was dismissed for delay, after several extensions, by order of the Court on August 28, 2003.
ISSUE
[12] Does the Court have jurisdiction over this matter?
ANALYSIS
[13] The purpose regarding summary judgment is to allow the Court to dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried. What is important is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. Each case is to be interpreted in its own context and where there are serious issues of credibility the matter should go to trial. Further, difficult issues of fact and law should not be decided on a summary judgment motion. (Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853, at paragraph 8)
[14] The plaintiff claims damages for alleged wrongdoing she suffered as a federal crown servant in her workplace. The defendant Crown submits that her amended statement of claim for this action raises complaints regarding the terms and conditions of employment, rights upon lay off, workplace issues, and/or rights to certain employment benefits such as administrative priority and statutory priority under the Public Service Employment Act. The defendant Crown is of the opinion that the Supreme Court of Canada in Vaughan v. Canada, [2005] S.C.J. No. 12 (Vaughn) confirmed that all such matters, previously listed, must be grieved as required by the plaintiff's collective agreement and the process established under the PSSRA.
[15] In determining whether or not this Court has jurisdiction regarding the present matter, I must decide whether deference should be accorded to the procedure mandated by parliament in the PSSRA to deal with the plaintiff's claims. The pertinent provisions of the PSSRA are as follows:
| 91(1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
|
91(1)Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé :
(a) par l'interprétation ou l'application à son égard :
(i)soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
(b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
92(1)Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :(a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4),soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
(c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire. |
[16] The PSSRA allows for grievances to be made in respect to a large range of workplace disputes, however, there exists strict limits concerning which grievances may be taken to independent arbitration. In Canada(Attorney General) v. Assh[2005] F.C.J. No. 923 (Assh), Justice Strayer comments on this particular situation at paragraph 11, by stating:
[...]under section 91 there is a wide range of complaints that an employee may grieve concerning the application to him of statutes, regulations, or other instruments such as the Code. There are a myriad of possible complaints of this nature where such instruments affect the employee in his workplace. Many rules, if disobeyed, could lead to disciplinary action. But by section 92 it is clear that in respect of the interpretation and application of such instruments adjudication is only provided in respect of a limited field of grievances, namely those involving disciplinary actions resulting in suspension or a financial penalty or termination of employment or demotion.
[17] The Supreme Court of Canada in Vaughanemphasized that courts are to adopt a deferential approach towards the decisions of independent arbitrators with regards to labour relations matters. Such would be the case for decisions taken by arbitrators in matters relating to section 92 of the PSSRA. However, the real question in Vaughanconcerned whether deference should be accorded to decisions which are statute barred from independent arbitration. Specifically, should deference apply to the internal decisions which relate to those grievances falling under section 91, but not falling under the arbitration provisions of section 92 of the PSSRA.
[18] Justice Binnie, writing for the majority in Vaughan, is satisfied that "the language of the PSSRA is not strong enough to oust the jurisdiction of the ordinary courts with respect to matters grievable but not arbitrable". However he is also of the opinion that in the run-of-the-mill case "falling under section 91 of the PSSRA, but not arbitrable under section 92, the courts should generally, in my view, as a matter of discretion, decline to get involved except on the limited basis of judicial review".
[19] A situation dealing with whistle-blowers is the example provided in Vaughanto illustrate a case that is not "run-of-the-mill". Such an example would be an exception to the deference rule and consequently would merit intervention by this Court. On this point, Justice Binnie states the following at paragraph 39:
While the absence of independent third-party adjudication may in certain circumstances impact on the court's exercise of its residual discretion (as in the whistle-blower cases) the general rule of deference in matters arising out of labour relations should prevail.
[20] In the present matter, the plaintiff acknowledges that her action was commenced on a run-of-the-mill grievance dealing with the termination of her employment which would ultimately fall into the natural purview of a section 91 grievance. However, she submits that the termination was just an accrual point of all the wrongdoing directed towards her. She claims that ultimately her termination grievance is founded on a number of allegations of misconduct in the workplace by fellow federal public servants during the course of her employment. She submits that the following misconduct directed towards her was outside the scope of issues normally dealt with under the PSSRA process:
[...]collusion, conspiracy to cause injury, loss and damage; negligence in repeatedly exposing her to environmental toxins; intentional and malicious conduct designed to discredit the plaintiff; intention infliction of mental suffering; sexual assault and harassment, rape, assault and battery, abuse of office and authority and negligent exercise of authority.
[21] The plaintiff submits that the essential character of the alleged misconduct, mentioned above, is not the run of the mill variety that would be dealt with by a section 91 grievance, nor is it referable to adjudication under section 92 of the PSSRA. As a result, the plaintiff submits that the Court should exercise its residual jurisdiction as it has in the past with situations dealing with whistle-blowers. The plaintiff suggests that without such intervention of the Court, her grievances will never be properly addressed.
[22] I disagree with the plaintiff's argument for various reasons. She submits that the procedure found in section 91 should not be used because her claims do not touch upon the run-of-the-mill issues habitually dealt with by that particular grievance mechanism. This argument is unfounded, specifically considering many of the claimed acts of wrongdoing date back close to 30 years and on numerous occasions she has used grievance procedures to address them. Just because she did not get the result she desired under these procedures, does not mean that the section 91 grievance mechanism is inappropriate.
[23] To circumvent the general rule of deference in matters arising out of labour relations, the plaintiff suggests that the Court should exercise its residual discretion in the present matter because of an alleged parallel between her situation and the whistle-blower exception mentioned in Vaughan. Regarding this point, I agree with the rationale of the defendant Crown. That is, there is no suggestion in the plaintiff's statement of claim that she attempted to draw attention to any "government waste or abuse", as described in Vaughan, within any of the departments she worked. Her claim focuses solely the allegation that she herself was mistreated.
[24] The special situation referred to in Pleau v. Canada(Attorney General) [1999] N.S.J. No 448, mentioned by the plaintiff, has to be distinguished from the present matter because the grievance procedure was completed and satisfactory to the applicant. Nevertheless the action was allowed to proceed on the basis that this was not a case where the dispute between the parties could be referred to adjudication under the Act or the collective agreement. In Vaughan,Justice Binnie, writing for the majority held at paragraphs 19 and 20:
In Pleau (Litigation Guardian of) v. Canada(Attorney General) (1999), 182 D.L.R. (4th) 373 (N.S.C.A.), the plaintiff alleged that he suffered harassment because he reported "what he believed to be evidence of misconduct in the operation of a government facility" (p. 380). In Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (C.A.), two employees in the Department of Foreign Affairs and International Trade complained of "punitive steps" taken by their superiors because they reported "mismanagement and waste of taxpayers' money" (para. 1) in respect of properties held abroad. In both cases, the actions were allowed to proceed.
The courts were understandably reluctant to hold that in such cases the employees' only recourse was to grieve in a procedure internal to the very department they blew the whistle on, with the final decision resting in the hands of the person ultimately responsible for the running of the department under attack, namely the Deputy Minister (or designate). The judges concluded that at some point their complaints should be dealt with by an adjudicator independent of the department but that the PSSRA did not provide for it. In both cases, it was pointed out that the "exclusivity" language of ss. 91 to 96 of the PSSRA was weaker than the labour relations provision at issue in Weber. The legislative door had been left open enough for the judiciary to enter.
[25] Despite the fact that the grievance mechanism found in section 91 of the PSSRA does not allow for independent arbitration by an independent third-party in all situations, there is still the possibility for judicial review. In Assh, Justice Strayer defends the aforementioned process by stating at paragraph 12:
Nor does this lead to any serious injustice. What it means is that once a grievance has been dealt with at the final level, and is not referable for adjudication, the grievor can seek judicial review in this Court of the final level grievance decision. This is not an illusory remedy. As was said by Evans J.A. in Vaughn v. Canada [2003] 3 F.C. 645 (C.A.):
136 Fourth, the availability of judicial review of an adverse final level decision on a grievance that cannot be referred to an adjudicator under section 92 provides external discipline for decision-makers, and brings an independent measure of quality control to both process and outcome. On an application for judicial review to the Trial Division under section 18.1 of the Federal Court Act, the Court can be asked to review the fairness of the administrative process, the rationality of material findings of fact[...]
[26] The plaintiff herself has attempted to seek judicial review on more than one occasion of the decisions that resulted from internal grievance mechanisms. There are also many decisions that resulted from internal grievance mechanisms in which the plaintiff decided not to ask for judicial review.
[27] In a more recent decision, the Court of Appeal in Grenier c. Canada[2005] A.C.F. no 1778, reaffirms the obligation to challenge the legality of a decision by a federal tribunal by way of judicial review and not by a statement of claim. In short, a decision remains valid and applies unless it is successfully challenged by judicial review:
En somme, une décision d'un organisme fédéral, comme celle en l'espèce du directeur, conserve sa force et son autorité légales, demeure juridiquement opérante et produit des effets légaux tant qu'elle n'a pas été invalidée.
[...]
Or, accepter que le contrôle de la légalité des décisions des organismes fédéraux puisse se faire par le biais d'une action en dommages-intérêts, c'est permettre un recours en vertu de l'article 17. Permettre à cette fin un recours sous l'article 17, c'est tout d'abord soit ignorer, soit dénier l'intention clairement exprimée par le législateur au paragraphe 18(3) que le recours doit s'exercer seulement par voie de demande de contrôle judiciaire. La version anglaise du paragraphe 18(3) met l'emphase sur ce dernier point en utilisant le mot "only" dans l'expression "may be obtained only on an application for judicial review".
C'est aussi réintroduire judiciairement le partage des compétences entre la Cour fédérale et les tribunaux des provinces. C'est faire renaître dans les faits une ancienne problématique à laquelle le législateur fédéral a remédié par l'adoption de l'article 18 et l'attribution d'une compétence exclusive à la Cour fédérale et, dans les cas de l'article 28, à la Cour d'appel fédérale. C'est précisément cette intention législative que la Cour d'appel du Québec a reconnu dans l'affaire Capobianco, précitée, afin d'éviter que l'action en dommages, introduite en Cour supérieure du Québec et s'attaquant à la légalité des décisions d'offices fédéraux, ne conduise, en fait et en droit, à un démembrement dysfonctionnel du droit administratif fédéral.
[28] I conclude that the dispute and grievance mechanisms under section 91 of the PSSRA should be utilized. Efficient labour relations are undermined when the courts attempt to act in competition with the statutory scheme detailing the way in which to deal with grievances. I find that this Court does not have jurisdiction in the present matter and as such there is no genuine issue to be tried.
[29] For the sake of completeness, I will now address the other issues raised in the defendants' motions, even though I find that this Court does not have jurisdiction.
Government Employees Compensation Act
[30] I agree with the defendant's submission that much of the plaintiff's claim is in fact seeking damages for wrongful dismissal and that this Court is not the appropriate forum for such an action. Such reasoning was confirmed by Justice Dubé in Blais v. Canada(Attorney General) [1994] F.C.J. No 917, by stating the following at paragraph 6:
Accordingly this is clearly an action based on the dismissal of the plaintiff and falling within the statutory framework of the Act. The Federal Court therefore has no jurisdiction in the matter.
[31] The defendant Crown submits that the plaintiff's claim for damages alleges health problems and/or injuries arising in the workplace. However, such claims for damages are barred by the operation of the Government Employees Compensation Act (GECA). The definition of "accident" in section 2 of the GECA includes injuries arising out of any intentional act such as those alleged by the plaintiff.
| "accident" includes a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause; |
« accident » Sont assimilés à un accident tout fait résultant d'un acte délibéré accompli par une autre personne que l'agent de l'État ainsi que tout événement fortuit ayant une cause physique ou naturelle. |
[32] Further, as was pointed out by the defendant Crown, monies have been paid to the plaintiff in respect of certain alleged injuries out of the Consolidated Revenue Fund within the workers' compensation scheme, as mandated by the GECA. Consequently, those portions of the plaintiff's claim for which she received compensation via the GECA are barred by the combined application of sections 4 and 12 of the GECA and by the operation of section 9 of the Crown Liability and Proceedings Act which are listed as follows:
| 4. (1) Subject to this Act, compensation shall be paid to(a) an employee who(i) is caused personal injury by an accident arising out of and in the course of his employment, or
12. Where an accident happens to an employee in the course of his employment under such circumstances as entitle him or his dependants to compensation under this Act, neither the employee nor any dependant of the employee has any claim against Her Majesty, or any officer, servant or agent of Her Majesty, other than for compensation under this Act.
9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
|
4. (1) Sous réserve des autres dispositions de la présente loi, il est versé une indemnité : a) aux agents de l'État qui sont : (i) soit blessés dans un accident survenu par le fait ou à l'occasion de leur travail.
12. L'agent de l'État ou les personnes à sa charge qui, par suite d'un accident du travail, ont droit à l'indemnité prévue par la présente loi ne peuvent exercer d'autre recours contre Sa Majesté ou un fonctionnaire, préposé ou mandataire de celle-ci pour cet accident.
9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte -- notamment décès, blessure ou dommage -- ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État. |
Abuse of process
[33] The defendant Crown submits that the plaintiff's claim be struck because it is an abuse of process, pursuant to Rule 221(1)(f) of the Federal Courts Rules, 1998, as it attempts to relitigate matters which have already been determined. Further, the defendant Crown submits that many of the plaintiff's claims in the present matter, relating to personal injury, are before the Nova Scotia Court of Appeal, in accordance with the mandated statutory process governing the plaintiff's situation. The defendant Crown submits that permitting the plaintiff to relitigate those questions in this forum, following adjudication in a forum specially designed to address such problems, is an abuse of process.
[34] The defendant Crown further submits that the plaintiff's claim is an abuse of process because it makes substantially the same allegations as in T-1085-85. However, the plaintiff argues that T-1085-85 was never heard on its merits because it was dismissed for delay on status review and as such, the present matter would not constitute an abuse of process.
[35] The plaintiff insists that there is no relitigation and consequently no abuse of process in the present matter because the issues surrounding her termination and the various torts raised have never been before an impartial third-party adjudicator.
[36] The plaintiff submits that the defendant Crown did not plead facts or law related to an allegation of abuse of process in its defense and, therefore, should not receive summary judgment on that basis. Further, the defendant Crown had 13 years to request that this claim be struck for abuse of process and did not do so.
[37] In Aventis Pharma Inc. v. Apotex Inc. [2005] F.C.J. No. 1843, Justice Tremblay-Lamer discuses in detail the doctrine of abuse of process by stating the following at paragraph 28:
The doctrine provides the Court with an inherent and residual discretion to prevent the misuse of its procedure. The doctrine is flexible and is "unencumbered by the specific requirements of res judicata": C.U.P.E., supra, at para. 42. Whereas issue estoppel focuses "on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicate process": C.U.P.E., supra, at para. 51. As explained by Layden-Stevenson J. in AB Hassle, supra, at para. 94:
While critics have argued that when the doctrine of abuse of process is used as proxy for issue estoppel it obscures the true question, while adding nothing but a vague sense of discretion, that is not so. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative function of courts. The focus is less on the interests of the parties and more on the integrity of judicial decision making as a branch of the administration of justice. When the focus is properly on the integrity of the adjudicative process, the motive of the party who seeks to relitigate cannot be a decisive factor.
[38] In Telus Communications (Edmonton) Inc. v. Canada[2005] F.C.J. No. 775, the Federal Court of Appeal at paragraph 24, confirmed that pleading a cause of action beyond the jurisdiction of the Court is an abuse of process:
I am reminded that in Weider v. Beco Industries (1976), 29 C.P.R. (2d) 175 (FCTD) at 176, Mahoney J. observed that " ... pleading a cause of action that is beyond the Court's jurisdiction to adjudicate is a clear abuse of process ...".
[39] In the present matter, I have already concluded that this Court does not have jurisdiction as a forum for the plaintiff's claims because the dispute and grievance mechanisms under section 91 of the PSSRA should be utilized instead. As a consequence of not having jurisdiction I must conclude that addressing the plaintiff's claims would be an abuse of process pursuant to Rule 221(1)(f).
Delay
[40] The defendant Crown submits that the plaintiff's claims should be dismissed, pursuant to Rule 167, because of an extreme delay in prosecuting the action. This action was first commenced in 1992 based on allegations occurring in 1985-1986. However, an amended claim deals with allegations reaching as far back as 1972.
[41] The defendant Crown submits that the procedural history of this case shows repeated and lengthy delays on the plaintiff's part. The record shows that the plaintiff has consistently failed to abide by timelines ordered by the Court. Further, the defendant Crown submits that it would be severely prejudiced if this action were to go to trial seeing as many of the witnesses are retired or in poor health.
[42] In Nichols v. Canada (1990), 36 F.T.R. 77, Justice Dubé outlines the test to be applied in matters dealing with dismissal for delay:
The issue to be resolved is whether, under the circumstances, it is still possible to have a fair trial after such a long delay. The classic test to be applied in these matters is threefold: first, whether there has been an inordinate delay; secondly, is the delay inexcusable; and thirdly, whether the defendants are likely to be seriously prejudiced by the delay (See Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. [[1968] 2 Q.B. 229 at page 268]).
[43] More recently, as the plaintiff argues, the Court has held that the general test for dismissal should not apply to proceedings which have survived status review and that motions to dismiss for delay should rarely be brought now that the Court has significant case management capacity and is active in monitoring proceedings (Bell v. Bell Estate (2000), 187 F.T.R. 64). As such, if I had not already granted the motions for summary judgment in the present matter, the delay which occurred would not have constituted grounds for dismissal because the proceeding had already survived a status review.
Limitation period
[44] The defendant Crown and defendant Unions both claim that the limitation period for bringing all of the allegations mentioned above expired prior to the commencement of this action pursuant to the Limitations of Actions Act.
[45] The plaintiff was terminated on May 6, 1986 and this action was filed on May 6, 1992. As a result, I find that the claim regarding her wrongful dismissal falls within the six-year limitation period. Regarding claims that exceed the six-year limitation period, the plaintiff alleges that they relate to her final dismissal. I find such an argument to be farfetched as it is unlikely that events which took place more than two decades ago could influence the plaintiff's dismissal. However, seeing as this motion for summary judgment has been granted, I do not believe it is necessary to discuss the merits of this assertion.
[46] The defendant Crown also requests to amend her statement of defense. Given that this motion for summary judgment has been granted, it is not necessary to address this request.
ORDER
THIS COURT ORDERS THAT:
- The interlocutory motions for summary judgement be granted;
- The plaintiff's amended statement of claim is struck out;
- The plaintiff's action is dismissed;
- The defendants shall file and serve their written submissions on costs no later than 15 days from the date of this order;
- The plaintiff shall file and serve her written submissions on costs no later than 15 days after the filing of the defendants' submission; and
- The defendants are allowed 5 days after the filing of the plaintiff's submission to file a reply, if necessary.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1029-92
STYLE OF CAUSE: Josephine E. Marshall v. Her Majesty the Queen, the Public Service Alliance of Canada and the Union of Public Service Employees
DATE OF HEARING: November 1, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
| Mr. Kenneth MacLean
|
|
| Mr. James Klassen
Mr. David Yazbek
|
MINISTER OF JUSTICE
FOR THE DEFENDANT UNION |
SOLICITORS OF RECORD:
| Mr. Kenneth MacLean Boyne Clarke Halifax, NS
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Halifax, NS
Mr. David Yazbek Rayen Allen Ottawa, ON
|
MINISTER OF JUSTICE
FOR THE DEFENDANT UNION
|