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T-2448-76
Vernon A. Phillips (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, January 20 and 21, 1977.
Practice Public Service Original statement of claim
struck out with leave to apply to file fresh statement Fresh statement filed without leave — Whether procedures under s. 31 of Public Service Employment Act contrary to principles of natural justice — New matters raised unsupported by allega tions of fact — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 31 — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, ss. 91 and 92 Canadian Bill of Rights, S.C.
1960, c. 44 Federal Court Rule 419(1)(a).
Plaintiff claims that procedures established by the Public Service Commission pursuant to section 31 of the Public Service Employment Act are contrary to the principles of natural justice and deprived him of his right to a fair hearing contrary to section 2(e) of the Canadian Bill of Rights.
Held, the statement of claim will be struck out, since even if the allegations of fact therein were true and capable of proof, the statement does not disclose those causes of action.
ACTION. COUNSEL:
W. R. Hunter for plaintiff. P. B. Annis for defendant.
SOLICITORS:
Vice & Hunter, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren dered in English by
MAHONEY J.: This is, in essence, an action for wrongful dismissal by a former public servant. On August 24, 1976, my brother Dubé made the following order herein':
I hereby order that the statement of claim be struck out with leave to plaintiff to apply within thirty days to file a fresh statement of claim.
' [1977] 1 F.C. 756 at p. 759.
The reason for the order going in that particular form appears from the following passage in his reasons [at page 759]:
Not pleaded in the statement of claim but raised by counsel for the plaintiff at the hearing was the argument that there might have been a breach of natural justice because plaintiff was not properly informed of the reasons for his dismissal. As the matter was not pleaded I am unable on the material before me to determine whether a cause of action within the jurisdic tion of the Trial Division based on such an allegation could properly be framed.
I should have thought that compliance with Mr. Justice Dubé's order would have entailed an application to the Court for an order granting leave to file the fresh statement of claim. The plaintiff did not do that; he filed the fresh state ment of claim and the Registry accepted it without an order within the 30-day period stipulated. The fresh statement of claim was not served on the defendant until a few days ago and her motion to strike was filed promptly.
The defendant does not rely on the plaintiff's failure to comply with the terms of Mr. Justice Dubé's order but simply on Rule 419(1)(a) which provides for striking a pleading that discloses no reasonable cause of action or defence, as the case may be. The only new matters raised in the fresh statement of claim are set forth in subparagraphs 19(b) and 19(c):
19. The Plaintiff further states that his dismissal was wrong ful in that:
(b) the procedures established by the Public Service Com mission pursuant to Section 31 of the Public Service Employ ment Act are contrary to the principles of natural justice;
(c) the procedures established by the Public Service Com mission pursuant to Section 31 of the Public Service Employ ment Act deprived the Plaintiff of a right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations contrary to Sec tion 2(e) of the Canadian Bill of Rights.
Mr. Justice Dubé set out the full text of section 31 of the Public Service Employment Act 2 in his reasons and I will not repeat it. The plaintiff does not, in his statement of claim, set forth any facts as to the procedures established by the Public Service Commission under section 31 which would
2 R.S.C. 1970, c. P-32.
enable the Court to ascertain whether there was any merit to his allegations in fact that would lead to a consideration of whether, in law, either sub- paragraphs 19(b) or 19(c) disclose a reasonable cause of action. What the plaintiff has done is annex a copy of a legal opinion attesting to the difficulty of trying to import into proceedings involving a dismissal for incompetence under sec tion 31, the grievance rights and procedures pre scribed pursuant to sections 90 and 91 of the Public Service Staff Relations Act 3 pertinent to disciplinary action.
In addition, the statement of claim discloses that the plaintiffs difficulties arose because he did not exercise his right to appeal at all. The most favour able interpretation that can be put on that failure is that it flowed from ignorance of the law.
The causes of action advanced in the fresh statement of claim, that are not res judicata as a result of Mr. Justice Dubé's order, are that the procedures adopted under section 31 are contrary to the principles of natural justice and contrary to the requirements of section 2(e) of the Canadian Bill of Rights. However, accepting as true and capable of proof all of the allegations of fact therein, the fresh statement of claim does not disclose those causes of action, assuming for this purpose that they are reasonable causes of action.
The fresh statement of claim will be struck out. The defendant has not asked for costs.
3 R.S.C. 1970, c. P-35.
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