A-615-75
The Queen (Appellant) (Defendant)
v.
Albin Achorner (Respondent) (Plaintiff)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, June 17, 1976.
Practice—Public Service—Respondent (plaintiff) alleging
that due to illegal acts of servants of appellant (defendant) he
was unable to report for duty and was released because of
"abandonment of his position", claiming he never abandoned
position, seeking cancellation of any contract between himself
and Post Office, and judgment for $250,000—Trial Division
dismissing motion by appellant for preliminary determination
of question whether respondent's claim barred by prescrip-
tion—Appellant claiming decision erroneous and seeking to
have question answered affirmatively—Federal Court Act, s.
52(b) and Rule 474—Public Service Employment Act, R.S.C.
1970, c. P-32, s. 27.
Respondent (plaintiff) claimed that, due to illegal acts by
servants of appellant (defendant), it was impossible for him to
report for duty, and that his release for "abandonment of his
position" was false; further, he claimed that he was never
legally dismissed, and had always been ready and willing to
work. He claimed cancellation of any contract between himself
and the Post Office, and judgment for $250,000 plus interest.
Appellant moved, under Rule 474, for a preliminary determina
tion of the question whether the claim was barred by prescrip
tion. The Trial Division dismissed the motion, as it was unable
to weigh the import of the allegations without evidence or to
adjudge upon the legal consequences of such facts unless
proven. To hold otherwise, in its opinion, would negate respond
ent's right to have his case heard on the merits. Appellant
submitted that this decision was wrong, and sought to have it
reversed, seeking to have the question answered affirmatively.
Held, the appeal is dismissed. Instead of using the Rules
under which the question as to whether a cause of action was
disclosed might have been determined in advance of further
proceedings, or letting the matter proceed to discovery, or
discovery and trial (after which the facts might be clear so that
respondent might then vary the statement of claim to reflect a
more obvious cause of action), appellant chose to ask the Court
to determine, under Rule 474, before discovery or trial, whether
the action was barred by prescription. Under the Rule, the duty
of the Trial Division was to form a discretionary opinion as to
the expediency, from the point of view of the efficient carrying
on of the action, of dealing with the prescription question
before other steps were taken. If the Trial Judge had so
addressed himself and formed a negative opinion, in the
absence of some special reason, this Court should not interfere.
However, it does not seem that the Trial Judge addressed
himself to the proper question, and it is the duty of this Court
to decide what conclusion he should have reached. There is
substantial doubt as to what respondent's cause of action, if
any, is. As a cause of action not apparent from the statement of
claim may ultimately emerge if the matter is left to run its
course, and may be reflected in an amended statement of claim,
it does not seem expedient to set down the prescription question
at this stage. Also, this Court has no jurisdiction to determine
a question of law which the Trial Division has refused to set
down under Rule 474. The Trial Division did not deal with the
proposed question, and there is not before this Court an appeal
from a decision on that question.
APPEAL.
COUNSEL:
P. Coderre, Q. C., for appellant (defendant).
C. E. Schwisberg for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (defendant).
Schwisberg, Golt & Benson, Montreal, for
respondent (plaintiff).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from an order
of the Trial Division dismissing with costs an
application made by the appellant, who is the
defendant in the Trial Division, and reading, in
part, as follows:
MOTION FOR PRELIMINARY DETERMINATION OF QUESTIONS
OF LAW IN ACCORDANCE WITH RULE 474.
TAKE NOTICE that a Motion will be made before this Hon
ourable Court in Montreal, at Montreal Court Building on the
11th floor on Monday October 27, 1975 and Defendant will ask
for the authorization to be heard on the following question of
law before trial:
Assuming all the allegations in the Statement of Claim to be
true, is Plaintiffs action barred by prescription?
Rule 474 reads as follows:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
(2) Upon application, the Court may give directions as to
the case upon which a question to be decided under paragraph
(1) shall be argued.'
The relevant part of the "Order" dismissing the
application reads as follows:
After having read and heard the motion under the provisions
of section 474 of the Rules of the Court made by Defendant,
hearing counsel for the parties, taking the facts alleged in the
statement of claim as true, as required by the provision of the
above Rule of the Court, not being in a position to justly weigh
the import of the facts alleged in the statement of claim
without evidence nor to adjudge upon the legal consequences of
these facts unless proven, which evidence may be put before the
Court when the matter is heard on its merits, it being that to
hold otherwise would negate the right of the Plaintiff to have
his case heard upon the merits, the motion is dismissed with
costs ....
The relief sought in this Court, according to the
appellant's memorandum, is disclosed by Part IV
thereof which reads, in part:
Appellant respectfully submits that the trial judge's decision
was erroneous and prays that it be reversed.
That this Honourable Court answer in the affirmative the
question of law submitted, consequently dismissing Plaintiff's
action; the whole with costs both in this Court and the Court
below.
The respondent's memorandum concludes as
follows:
CONCLUSION
That the RELIEF SOUGHT by Appellant (page 14 of his memo
randum) be denied and the Appeal dismissed with costs and as
a consequence the judgment of the judge of the Trial Division,
be confirmed.
The allegations in the statement of claim, which
is verbose, may be summarized for present pur
poses, in so far as I can appreciate its effect, as
follows:
1. The respondent started to work as an
employee in the Post Office Department in
1961.
2. In 1965, there was an illegal strike in that
department in which the respondent refused to
participate, and, as a result, "he aroused furious
enmity of his co-workers", and many acts of
' Note that Rule 474 contemplates a preliminary application,
when the Court determines whether it is "expedient" and gives
the Rule 474(2) "directions" prior to the argument and deci
sion if a question of the preliminary application is decided in
favour of the applicant.
harassment occurred against him "by co-work
ers".
3. Beginning in 1971, the respondent was, at
times, not able to report for duty because of fear
for his safety by reason of harassment by
co-workers including one of his supervisors; and,
on May 29, 1972, he informed one of his supe
riors that it was not possible for him to report
for work because of "real fear for his safety"
and asked to be advised "of the date on which,
in his supervisor's opinion, he could resume
work".
4. On August 15, 1972, the respondent was
notified that he was being "released" under
section 27 of the Public Service Employment
Act, which reads:
27. An employee who is absent from duty for a period of
one week or more, otherwise than for reasons over which, in
the opinion of the deputy head, the employee has no control
or otherwise than as authorized or provided for by or under
the authority of an Act of Parliament, may by an appropri
ate instrument in writing to the Commission be declared by
the deputy head to have abandoned the position he occupied,
and thereupon the employee ceases to be an employee.
because of "abandonment of his position"
which, the respondent alleges, is "completely
false in the circumstances, since he had never
abandoned his position".
5. The respondent alleges that "as a matter of
fact" he "was legally never really dismissed, at
all, and he had at all times been ready, willing
and wishing for work, from May 27 onwards,
and merely was seeking assurance from his
supervisors that he would be protected from the
totally illegal harassments of the supervisor that
made him fear for his very life ...".
6. On November 25, 1974, the respondent made
a demand on the appellant
(a) to re-instate him in his original position,
and
(b) to pay him "all loss of salary up to Janu-
ary 1, 1974, to wit $20,300", and pointed out
that he estimated damages suffered, in addi
tion to loss of salary, at $126,000. (In addi
tion, he now estimates damages at $104,000
in lieu of pension, making a total of
$250,000.)
The statement of claim concludes with claims by
the respondent for
(a) "cancellation of any contract between him
self and the Canada Post Office ... for all
future legal purposes," and
(b) judgment for $250,000 plus interest.
As I read it, what this statement of claim comes
to is this: by reason of the illegal acts of third
persons (who are servants of the appellant appar
ently performing such illegal acts outside the scope
of their employment as such servants), the
respondent, who may or may not have been a
servant of the appellant during all or part of the
period in question, has not performed the duties of
a position that he previously had as an employee of
the appellant, nor has he tendered performance
thereof, since May, 1972, and, on the basis of the
fact that the appellant has not prevented such
illegal acts, he is claiming cancellation of a con
tract that the appellant is not asserting against
him, salary for services that he neither performed
nor tendered and damages for loss of
employment. 2
Faced with such a statement of claim two pos
sibilities that were open to counsel for the appel
lant, as it seems to me, were
(a) to avail themselves of the Rules of Court
under which the question whether the statement
of claim disclosed any cause of action against
the appellant might have been determined in
advance of further proceedings in the matter, 3
or
(b) to let the matter proceed to discovery, or to
discovery and trial, after which the facts of the
matter might be clearer so that the respondent
might take steps to vary the statement of claim
so as to reflect a more obvious cause of action
against the appellant.
Instead of either of these courses of action, the
appellant has chosen to ask the Court to exercise
its jurisdiction under Rule 474 to have determined,
before discovery or trial, the question whether the
"Plaintiff's action" is barred by prescription. The
Trial Division has decided to reject such request.
2 There is no suggestion in the statement of claim that he
performed services for which he has not been paid.
3 This would presumably raise inter alia the question of
prescription.
This appeal is from that decision of the Trial
Division.
The duty of the Trial Division on the application
in question, in my view, having regard to the words
of Rule 474, was to form a discretionary opinion as
to whether it is "expedient", from the point of view
of the most efficient carrying on of the action, to
have the "prescription" question dealt with before
other steps are taken in the action. If it were clear
that the learned Trial Judge had addressed himself
to that question, and had formed a negative opin
ion with regard thereto, in my opinion this Court
should not, in the absence of some special reason,
interfere with his conclusion. As, however, it does
not seem to me, having regard to the reasons given
by him, that the learned Trial Judge addressed
himself to the proper question, it is, in my opinion,
the duty of this Court to decide what conclusion
should have been reached by the Trial Division. 4 I
turn, therefore, to a consideration of the applica
tion to the Trial Division as if this Court were
hearing it as originally made to the Trial Division.
When considering the question whether it is
"expedient" to interrupt the ordinary procedures
for the conduct of an action by setting down the
question of "prescription" for preliminary decision,
the first thing that strikes me is that a reading of
the statement of claim (which the appellant has
chosen as the subject matter for the decision of the
single question of law proposed) leaves me in
substantial doubt as to what the respondent's
cause of action, if any, is; and I am conscious of
the fact that, if the matter is otherwise left to run
its course, a cause of action may ultimately emerge
that is not apparent from a mere reading of the
statement of claim and that may be reflected in an
amended statement of claim. That being so, it does
not seem to me that it is "expedient" to set down
the proposed question of law at this stage. In my
view, a question of law should not, ordinarily, be
set down for decision at the outset of an action
unless it is sufficiently clear cut that it may prob
ably be decided in such way as may dispose of the
action or some substantial part of it. In my view,
this is not such a question of law and I am,
therefore, of opinion that the appeal should be
dismissed with costs.
4 Compare section 52(b) of the Federal Court Act.
Having regard to the judgment proposed by the
memorandum of the appellant, I should add that,
in my view, this Court has no jurisdiction, on an
appeal from a decision of the Trial Division dis
missing an application under Rule 474 to set down
a question of law, to decide the question of law
that that Division has refused to set down. The
situation might be different if, by consent, the
Trial Division had dealt with the question of law
as though it had been set down. In this case,
however, the Trial Division has not dealt with the
proposed question of law and there is not before
us, therefore, an appeal from a decision on that
question. This Court has not, therefore, in my
view, any jurisdiction to decide it.
* * *
PRATTE J. concurred.
* * *
HYDE D.J. concurred.
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.