PRACTICE |
Pleadings |
Motion to Strike |
Dawe v. Canada
T-722-01
2002 FCT 486, O'Keefe J.
29/4/02
12 pp.
Appeal from dismissal of motion to strike statement of claim--Plaintiff member of Royal Canadian Mounted Police (RCMP) until resignation in 1995--Deteriorating health conditions resulting from accidents suffered while on active duty with RCMP prompting request for non-operational work--Instead RCMP posted him to active duty--Plaintiff, viewing this as constructive dismissal, resigned--RCMP gave poor references, released confidential medical information to potential employers thereby impairing plaintiff's ability to seek alternate employment--Statement of claim alleging constructive dismissal, bad faith, negligence, discrimination pursuant to Charter of Rights--Appeal dismissed--Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) holding where discretionary orders raising questions vital to final issue of case, judge ought to exercise own discretion de novo-- Decision which can be either interlocutory or final depending on how it is decided, even if interlocutory because of result, nevertheless vital to resolution of case--Had Prothonotary allowed motion for order to strike, would have been issue vital to final issue of case--Therefore appropriate for Court to exercise discretion de novo--McMillan v. Canada (Minister of Citizenship and Immigration) (1999), 237 N.R. 8 (F.C.A.) holding Crown's claim no cause of action in contract can arise out of employment with RCMP unclear, better left to trial judge--Thus inappropriate to strike out constructive dismissal portion of claim herein--As in McMillan, plaintiff had resigned, could not avail himself of internal grievance procedure--Not plain, obvious discrimination under Charter argument would not succeed--Court not persuaded plaintiff required to mention Crown Liability and Proceedings Act in order to succeed in action in tort against Crown--Not satisfied allegations of bad faith, negligence as pleaded without factual background, sufficient particulars--Such matters should be considered by trial judge--Improper release of personal information clearly related to constructive dismissal claim, plaintiff's ability to secure alternate employment--Issue to be determined by trial judge--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50.