Date: 19990203
Docket: T-2092-98
BETWEEN:
JOHN TRUDGIAN,
Plaintiff,
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiff's action is for damages for wrongful dismissal from an RCMP Cadet program. The Defendant moves by motion in writing to strike out the action on several grounds.
Want of a Cause of Action
[2] The Crown points out that fundamental to an action for wrongful dismissal is that there be an employee/employer relationship. In the defence the Crown says not only that the Plaintiff was not an employee of the Defendant, but also that the relationship was governed by a contract which does not allow the Plaintiff to maintain a cause of action for wrongful dismissal. However, this is not one of the grounds on which the Defendant says the action ought to be struck out. Moreover, there is nothing in the material to show the nature of the agreement in question, a Cadet training agreement. Instead the Defendant points to a passage in the Plaintiff's reply in which the Plaintiff agrees that he was not an employee of the Government of Canada, but rather was participating in the Defendant's cadet training program and relies upon an alleged wrongful termination of that contract without cause, without notice, without any proper procedure and apparently, from the Statement of Claim, without the opportunity to defend himself.
[3] In answer to the Defendant's argument, that the Plaintiff was not an employee of the Crown, the Plaintiff submits that he was an employee of the RCMP for he felt, perhaps mistakenly, that being an employee of the RCMP did not make him an employee of the Government of Canada, all as set out in paragraph 2 of the Plaintiff's written representations.
[4] The statement in the reply, that the Plaintiff agrees he was not an employee of the Government of Canada, is an admission. The admission in this case is one of law. An admission of law may be withdrawn at any time, although permission to withdraw it ought not to be granted, generally, unless it is made without authority or by mistake. In the present instance, the test for striking out being onerous and the consequences being to deprive the Plaintiff of a day in court, I will take no notice of an admission which was clearly made by mistake when counsel for the Defendant and Mr. Trudgian, who acts for himself, were pleading at cross purposes.
[5] While the Plaintiff may not be an employee and while the contract between the Plaintiff and the Defendant, as to the cadet program may not leave room for a wrongful dismissal action, there is not enough material before me to make it plain and obvious that the action cannot succeed by reason of want of a cause of action.
Want of Jurisdiction
[6] The Defendant submits that the Court lacks the jurisdiction to entertain a wrongful dismissal proceeding, referring to three cases, although without making any particular point in the brief written submission.
[7] First, counsel refers to Pacific Western Airlines Ltd. v. The Queen, [1980] 1 F.C. 86, a decision of the Federal Court of Appeal. There the Plaintiffs were the owner and the lessee of an airplane which had been destroyed in a landing accident. The action was against a large number of defendants, including servants of the Crown, the builder of the aircraft and some of its employees and the City of Cranbrook and its employees. The Trial Judge (reported, [1979] 2 F.C. 476) noted that the Court had jurisdiction over the Queen in Right of Canada, but not over the other parties. The Court of Appeal agreed. In the present instance, nothing in the Crown's written material explains the significance or the application of the decision. I do not understand the relevance of the decision in the present context.
[8] The next case referred to by the Defendant is Arsenault et al. v. The Queen et al. (1996), 131 D.L.R. (4th) 105, an action in the Federal Court in which the plaintiffs sued both the Crown and three physicians, the latter as servants of the Crown. At issue was whether action ought to be struck out as against the three physicians and also as against the Crown. In the Arsenault case the jurisdiction over the Crown depended on the Pension Act, R.S.C. 1985, c. P-6, circumstances which have no relevance in the present instance. Moreover, in the present instance, there is no claim against individual defendants. Again, I do not see the relevance of this case.
[9] The final case to which the Crown refers, for the proposition that the Court lacks jurisdiction to entertain an action against the Crown in contract or in tort, is Gracey v. Canadian Broadcasting Corporation, [1991] 1 F.C. 739. There Mr. Justice Rouleau followed the standard jurisdiction cases, including ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752. At issue in Gracey was whether the Court had jurisdiction against the CBC: Mr. Justice Rouleau found that the fact that the claim was against a national broadcasting institution and a federal corporation were not sufficient to confer jurisdiction unless the remedy sought was one contemplated by the Broadcasting Act or by the Crown Liability Act. Now the principle set out in Miida Electronics may well have some application and I will touch upon that case, however, again, I do not see the direct relevance of Gracey v. Canadian Broadcasting Corporation in the context of striking out Mr. Trudgian's action against the Queen.
[10] The Defendant next refers to the Miida Electronics case (supra) and to McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654, for the proposition that "There is no existing body of federal law referenced in the pleadings which is essential to the disposition of this case and nourishes the grant of jurisdiction under section 17 of the Federal Court Act.". I take it that the Crown, in the present instance, concedes that the Court does have jurisdiction under section 17 of the Federal Court Act, in order to satisfy the first branch of the requirements in Miida Electronics to test for jurisdiction in the Federal Court, but somehow runs afoul of the second requirement. The requirements in order to find jurisdiction for the Federal Court are:
| 1. There must be a statutory grant of jurisdiction by the federal Parliament. |
| 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction. |
| 3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867. |
[11] The statutory grant of jurisdiction may be found in section 17 of the Federal Court Act, however that is not enough. There must, as the Court pointed out in Miida Electronics, be an existing body of federal law essential to the disposition of the case by which to nourish the statutory grant of jurisdiction. This is a point touched upon by the Supreme Court in the McNamara decision (supra) at page 659 and following. There the Court points out that the existing federal law can include common law. The Court in McNamara went on to refer, at page 662, to Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054, pointing out that the mere fact that the Crown is a party to a contract on which it is suing as Plaintiff, does not satisfy the requirement of applicable federal law but that:
| "the situation is different if Crown liability is involved because in that respect there were existing common law rules respecting Crown liability in contract and immunity in tort, rules which have been considerably modified by legislation." |
In the present instance, the issue is Crown liability. I do not think it is plain, obvious and beyond doubt that the action will fail because the second test from Miida Electronics has not been met.
[12] I now come to the third requirement from Miida Electronics, that the case must be based on a law of Canada as used in section 101 of Constitution Act, 1867. This is a point which the Defendant raises as a bare proposition. To this bare proposition I can do no more than refer to a passage from Hogg on Liability of the Crown, Carswell, 1989:
| With one unimportant exception, the Crown Liability Act and the Federal Court Act confer on the Federal Court of Canada exclusive jurisdiction over proceedings against the Federal Crown. (page 268) |
This comment, as to exclusive jurisdiction in the Federal Court over actions against the Federal Crown was written in 1989 and of course does not take into account the 1992 reforms making concurrent jurisdiction the norm and exclusive jurisdiction the exception: here I would refer to section 21 of the Crown Liability and Proceedings Act. Hogg then refers to Quebec North Shore Paper (supra) and the requirement that a case in the Federal Court be governed by the laws of Canada, however Hogg goes on to point out that the result of this is that the Federal Court has a difficulty with claims against Crown servants, agents, co-defendants, third parties and counter-claims by the Crown. Here the claim is only against the Crown. Thus I do not see that the Defendant has made it plain, obvious and beyond doubt that the action cannot succeed by reason of want of jurisdiction.
Conclusion
[13] The test for striking out an action, be it for want of a reasonable cause of action, or for want of jurisdiction, is not an easy one to come within. A defendant moving to strike out must show that it is plain, obvious and beyond doubt that the action will not succeed, in short, that it is a futile action. The Defendant, on the material presented, has not met that test in this instance.
[14] This current conclusion does not mean that the Plaintiff will succeed, for the action is not an easy one. Indeed, it may even be that the Plaintiff ought to have considered a grievance procedure and then, if dissatisfied, judicial review. However that is not the present issue.
[15] The Defendant having failed on the motion, the usual procedure would be to award costs to the Plaintiff. Here the Plaintiff acts for himself. Thus I may not award costs. However I may award out-of-pocket expenses, which I set at $50.00, payable at the conclusion of the action.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 February 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2092-98
STYLE OF CAUSE: JOHN TRUDGIAN
v.
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated February 3, 1999
WRITTEN SUBMISSIONS BY:
Mr. John Trudgian for Plaintiff
Mr. Curtis Workun for Defendant
SOLICITORS OF RECORD:
Morris Rosenberg for Defendant
Deputy Attorney General
of Canada