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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.