NOVA SCOTIA COURT OF APPEAL
Citation: Gillan v. Mount Saint Vincent University, 2008 NSCA 55
Date: 20080618
Docket: CA 281973
Registry: Halifax
Between:
Brenda Anne Gillan
Appellant
v.
Mount Saint Vincent University
Respondent
Judges: MacDonald, C.J.N.S.; Saunders and Oland, JJ.A.
Appeal Heard: March 19, 2008, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of Oland, J.A.; MacDonald, C.J.N.S. and Saunders, J.A.
concurring.
Counsel: David W. Richey for the appellant
David A. Miller, Q.C. and Nancy Murray, Q.C. for the respondent
Reasons for judgment:
[1] The appellant, Brenda Gillan, fell and injured herself in the course of her employment with the respondent, Mount Saint Vincent University (the “University”). She brought an action in the Nova Scotia Supreme Court in the nature of occupier’s liability against the University. In its defence, among other things, the University claimed that, in light of its collective agreement with the appellant’s union, the certified bargaining agent pursuant to the Trade Union Act, R.S.N.S. 1989, c. 475 (the “Act”), the court had no jurisdiction in respect of that dispute.
[2] Justice Arthur J. LeBlanc directed that the jurisdiction issue be determined in advance of the balance of the trial on liability which was to have been heard by him with a jury. In his decision dated August 22, 2006, he held that the court did not have jurisdiction over the subject matter of the proceeding. The judge also determined that the jurisdiction issue did not have to be resolved at the pleadings stage well before trial. His decision is reported as 2006 NSSC 250, and his order issued May 9, 2007.
[3] For the reasons which follow, I would dismiss the appeal against his decision and order.
Background
[4] The parties provided the judge with an agreed statement of facts. In addition, Ms. Gillan testified and was cross-examined.
[5] The agreed statement of facts reads in part:
5. At all material times, Ms. Gillan was a member of the International Union of Operating Engineers, Local 968B (the “Union”). The Union was the certified bargaining agent pursuant to the Trade Union Act, R.S.N.S. 1989, c. 475 for certain employees of the University including Ms. Gillan.
6. The Collective Agreement dated July 1, 1993 to June 30, 1995 . . . was the Collective Agreement in force between the Union and the University at all times relevant to this matter. The Collective Agreement was continued in force for a period of time after June 30, 1995, including times relevant to this matter, by application of the Public Sector Compensation (1994-97) Act, S.N.S. 1994, c. 11.
7. Ms. Gillan was injured on December 4, 1995 as a result of a fall which occurred while she was at work at the University’s campus and in the course of performing her duties of employment as a Custodian. As she was spreading salt in the early morning, before the arrival of students and academic staff, Brenda Gillan fell on the steps in front of the E. Margaret Fulton Centre.
8. As of December 4, 1995, the Provisions of the Collective Agreement were applicable to Ms. Gillan’s employment with the University.
9. Pursuant to Article 22 of the Collective Agreement, the Plaintiff received full salary in the amount of $688.80 biweekly for a period of 17 weeks following December 4, 1995 . . . as a result of being injured in the performance of her duties.
10. Pursuant to the provisions of the Collective Agreement, Ms. Gillan was eligible to apply for long term disability benefits which were made available to her through a policy held with Maritime Life Assurance Company (“Maritime Life”) as a term of the Collective Agreement. Ms. Gillan applied for long term disability benefits and was approved for such benefits by Maritime Life effective April 2, 1996. Maritime Life continued payment of long term disability benefits to Ms. Gillan to April 1, 1998 in the total amount of $21,845.31 when LTD benefits were terminated. She has never returned to work with Mount St. Vincent University. No grievance or lawsuit was taken by the Plaintiff or the union as the result of termination of LTD benefits.
11. Ms. Gillan remained an employee of the University until December 4, 1996 when her employment was terminated. . . .
12. Neither Ms. Gillan nor the Union filed a grievance under the Collective Agreement arising from her injury at work, or with respect to unsafe working conditions at work, or with respect to the termination of her employment, or with respect to the termination of her LTD benefits.
13. Ms. Gillan, and other members of her bargaining unit, were not covered by the Workers’ Compensation Act of Nova Scotia for benefits throughout the course of her employment with the University, including all times relevant to the within action.
[6] In his decision, the judge described Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 as the starting point when the court’s jurisdiction is questioned on account of an allegedly exclusive collective agreement or statutory dispute settlement mechanism. He also referred to its companion decision, New Brunswick v. O’Leary, [1995] 2 S.C.R. 967, and to Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 356 (C.A.), Vaughn v. Canada, [2005] 1 S.C.R. 146; [2005] S.C.J. No. 12, and Lajoie v. Mount Saint Vincent University (2002), 232 N.S.R. (2d) 98 (S.C.) which concerned a similar collective agreement to that before him.
[7] The judge rejected Ms. Gillan’s argument that her claim was merely one for negligence and occupier’s liability, unrelated to her employment, and so outside the terms of the Collective Agreement. He was satisfied that the dispute, in its essential character, arose under the Collective Agreement, and that the court did not have jurisdiction over the subject matter of the proceeding. The judge also rejected the appellant’s submission that the jurisdiction issue should have been resolved at the pleadings stage, rather than at the outset of the trial.
[8] Ms. Gillan appeals the judge’s decision and order. The Union, which was made aware of her appeal, did not participate in it.
Issues
[9] While her notice of appeal set out nine discrete issues, the central question on this appeal is whether Ms. Gillan is able to sue in tort for the injuries she suffered in her workplace. All the grounds of appeal are captured in two issues:
1. whether the judge erred in law by concluding that the court did not have jurisdiction over the subject matter of this proceeding; and
2. whether he erred in law by failing to dismiss the University’s collective agreement defence for unreasonable delay.
Standard of Review
[10] The standard of review to be applied to the judge’s decision on the jurisdiction issue is that of correctness: Symington v. Halifax (Regional Municipality) 2007 NSCA 90, 50 C.C.L.T. (3d) 165, 2007 CarswellNS 358 at ¶ 52. The issue pertaining to unreasonable delay is a question of mixed law and fact. Here the facts were largely set out in an agreed statement of facts. Generally, the appropriate standard of review for a question related to undue delay, once the facts have been established without overriding and palpable error, is that of correctness. See St-Jean v. Mercier, [2002] S.C.J. No. 17 at ¶ 49 and Housen v. Nikolaisen, [2002] 2.S.C.R. 235 at ¶ 19-28.
Analysis
Jurisdiction Issue
[11] There is no dispute that Weber and Pleau are leading cases on this issue. What Ms. Gillan argues is that the judge failed to follow the analysis in those decisions. According to the appellant, the judge’s failure led to his wrong conclusion that the court did not have jurisdiction.
[12] A brief summary of the relevant portions of those cases is helpful to understand the appellant’s submissions which I will describe in detail later in my decision.
[13] The model of exclusive jurisdiction of arbitrators over disputes arising from collective agreements commenced with St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704. In Weber, McLauchlin J. for the majority referred to the analysis in that decision, before stating in ¶ 50 that if the difference between the parties arises from the collective agreement, then the claimant must proceed by arbitration and the courts have no jurisdiction in respect of that dispute. After identifying the two elements that must be considered in determining the appropriate forum for the proceedings as being the nature of the dispute and the ambit of the collective agreement, she elaborated:
52 In considering the dispute, the decision‑maker must attempt to define its "essential character", to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement . . . In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.
53 Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. . . .
54 This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Div. Ct.), at p. 258, per Osler J.; Butt v. United Steelworkers of America, supra; Bourne v. Otis Elevator Co., supra, at p. 326. Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra. (Emphasis added)
[14] In Pleau v. Canada, supra Cromwell, J.A. for the court described three inter-related considerations arising from several Supreme Court of Canada decisions, including Weber and O'Leary:
19 The first consideration relates to the process for resolution of disputes. Where the legislation and the contract show a strong preference for a particular dispute resolution process, that preference should, generally, be respected by the courts. While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so.
20 If the legislature and the parties have shown a strong preference for a dispute resolution process other than the court process, the second consideration must be addressed. It concerns the sorts of disputes falling within that process. This was an important question in the Weber decision. The answer given by Weber is that one must determine whether the substance or, as the court referred to it, the "essential character", of the dispute is governed, expressly or by implication, by the scheme of the legislation and the collective agreement between the parties. Unlike the first consideration which focuses on the process for resolution of disputes, the second consideration focuses on the substance of the dispute. Of course, the two are inter‑related. The ambit of the process does not exist in the abstract, but is defined by the nature of the disputes to be submitted to it.
21 The third consideration relates to the practical question of whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty. Generally, if there is a right, there should also be an effective remedy. (Emphasis in original)
[15] Where the appellant alleges that the judge’s error in not concluding that the courts had jurisdiction to hear her dispute arose from his failure to conduct the analysis set out in the case law, I will address her arguments in the context of the considerations identified in Pleau.
The Trade Union Act and the Collective Agreement
[16] The first consideration set out in Pleau relates to the process for resolving disputes. According to the appellant, the judge erred by failing to examine the dispute resolution scheme in the Act and the Collective Agreement. She submits that the Act does not explicitly oust the jurisdiction of the court and, moreover, that it was not within the contemplation of the parties that the Collective Agreement applies to a situation such as hers.
[17] It is helpful to set out, at this point, the appellant’s claim against the University. This will be followed by the relevant provisions of the Act and the Collective Agreement.
[18] Ms. Gillan framed her action in negligence and occupier’s liability. Her statement of claim reads in part:
3. On or about the 4th day of December, 1995, at or about the hour of 9:30 o’clock in the forenoon, the Plaintiff was working on the Defendant’s property as a custodian/cleaner when due to the dangerous conditions of a flight of concrete steps on which one step was broken, she fell and sustained serious personal injuries and suffered injury, loss and damage. All of this resulted from and was caused by the Defendant’s failure to take reasonable care to prevent damage to the Plaintiff from unusual danger, to wit, a broken step on the Defendant’s property which was obscured when covered by ice and/or snow.
The following paragraph listed particulars of the University’s alleged failure to take reasonable care, including failure to maintain and repair, to inspect, to warn her of the dangerous condition of its property, to rectify that dangerous condition, to provide safe working conditions, and to provide a safe working environment for her. The statement of claim made no mention of the Collective Agreement or of the appellant’s membership in the Union. The remedies sought are limited to damages; she did not seek to return to work at the University.
[19] Section 41 of the Act provides that a collective agreement entered into by an employer and a trade union as bargaining agent is binding upon the employer and upon the bargaining agent and every employee in the unit of employees. Section 42 is critical to the disposition of the jurisdiction issue under appeal. It reads in part:
Final settlement provision
42(1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.
. . .
(3) Every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement.
[20] The Collective Agreement between the appellant’s Union and her employer specifically deals with on‑the‑job injuries:
ARTICLE 22 ‑ INJURIES ON DUTY
22.1 The parties agree, injury on duty shall be understood to mean an injury suffered by employees during the course of their employment while engaged in work for the Employer or while on the Employer's premises consistent with reporting to and from work. Any member of the Bargaining Unit who is injured during the performance of his/her duties shall be paid his/her full salary while disabled due to the injury for up to seventeen (17) weeks.
[21] It also requires the University to provide a safe work environment:
ARTICLE 33 ‑ HEALTH AND SAFETY
33.4 The safety of its employees is a primary concern of the University. The University shall provide a safe work environment and shall provide protective clothing, equipment and related training to employees, as deemed appropriate, to ensure employee safety in the performance of position duties. Negligence or failure by an employee to comply with rules and procedures established by the Employer with respect to health and safety may be the subject of disciplinary action. (Emphasis added)
[22] The Collective Agreement sets out a process for the resolution of disputes. Its Article 7.1(1) reads in part:
7.1(1) Should differences arise between the Employer and the Union or its members employed by the University as to the meaning, application or violation of the provisions of this Agreement, there shall be no suspension of work because of such differences, but an earnest effort shall be made to settle the dispute . . .
[23] Article 7 sets out a grievance procedure applicable to all employees covered by the Collective Agreement. The procedure requires submissions of the employee’s grievance of his/her discharge or lay-off within five working days of that event. If a satisfactory decision is not reached, the matter may be referred to arbitration (Article 7.2).
[24] The arbitration procedure is found in Article 8, which begins:
ARTICLE 8 ‑ ARBITRATION PROCEDURE
8.1 Failing a decision under the Grievance Procedure Article satisfactory to the complainant, or in the event that there is no decision, the matter may be referred to arbitration, with either a Board of Arbitrators or a single Arbitrator . . .
Notice of the intention to refer the dispute to arbitration must be given to the other party within five days of the date “such decision was or should have been made.” A matter which has not been processed under the grievance procedure may not be submitted to arbitration (Article 8.5).
[25] The appellant argues that the judge failed to examine the process for settling disputes as set out in the Act and the Collective Agreement. She says that had he done so, it would have been apparent that, in her circumstances, there was no strong preference for a dispute resolution process other than the court process.
[26] In his decision, the judge referred to the provisions of the Act and of the Collective Agreement that are set out above. Moreover, he referred to and quoted from the applicable jurisprudence, including Weber, Pleau, Lajoie and Vaughn. It is apparent that he appreciated that the determination of the jurisdiction issue included a consideration of the dispute resolution process as set out in legislation and as agreed by the parties.
[27] In his reasons, the judge did not explain in detail how the Act and Collective Agreement together showed a strong preference for the dispute resolution process contained within the legislation and the contract between the parties for this matter, rather than a proceeding before the court. Much of his reasoning was directed to defining the essential character of the dispute. However, where the standard of review on this issue is that of correctness, his limited consideration of this aspect will not lead to appellate intervention unless an analysis shows that the Act and the Collective Agreement do not indicate that strong preference, and further that when all three inter-related considerations in Pleau are taken into account, the judge erred in his conclusion that the court lacks jurisdiction to hear this dispute.
[28] The appellant’s submissions also include specific arguments against a determination that the Act and the Collective Agreement show a strong preference for the dispute resolution process set out therein, rather than by the court. These I will address in turn.
[29] Section 42 of the Act requires every collective agreement to contain a provision for “final settlement . . . by arbitration or otherwise, of all differences . . . concerning its . . . violation.” According to the appellant, the phrase “or otherwise” means other than by arbitration; consequently, she can access the courts to resolve her claim against her employer. With respect, I do not accept that interpretation. Here, the University and the appellant’s Union provided in their Collective Agreement for final settlement of their disputes relating to a safe work environment, identified in Article 33.4 as a obligation on the part of the University, by a process of grievance and arbitration. They could have chosen another method of final settlement, but did not. In my view, “or otherwise” speaks of the means set out within the collective agreement. Consequently, the matter comes within s. 42 of the Act.
[30] I also reject the appellant’s submission that the use of the permissive “may” in Article 8 of the Collective Agreement signals that arbitration is not the only method of dispute resolution. Article 8, which deals with arbitration, is not available unless the dispute has not been resolved to the complainant’s satisfaction pursuant to the grievance procedure in Article 7, or there is no decision. That “the matter may be referred to arbitration” simply means that the complainant is not required to refer the matter on to arbitration, but may do so if the complainant wishes. See Vaughn at ¶ 28 (Binnie, J. for the majority) and ¶ 50 (Bastarache, J. for the minority).
[31] The Collective Agreement includes a process for final settlement, by grievance and arbitration, of differences concerning its violation. It also contains provisions dealing with injuries suffered by employees during the course of their employment while on the employer’s premises. In my view, these provisions, in combination with the Act’s requirement that every collective agreement incorporate provisions to settle differences concerning its violation, show a strong preference for the dispute resolution process set out in the legislation and the contract.
The Essential Character of the Dispute
[32] The second consideration identified in Pleau focuses on the nature or substance of the dispute. As stated in that decision at ¶20, this consideration is inter-related with the first which focuses on the process for resolution of disputes.
[33] The judge rejected Ms. Gillan’s argument that her claim did not fall within the terms of the Collective Agreement but, rather, was merely a claim for negligence and occupier’s liability, unrelated to her employment. He stated:
39 I find the analysis by McLachlin J. in O'Leary persuasive. The essence of the dispute in that case concerned the preservation of the employer's property and equipment. Framing the dispute in terms of negligence did not remove it from the collective agreement. The employer was required to exercise its rights consistently with the terms of the collective agreement, invoking the arbitration scheme established by the Act and the collective agreement as the exclusive avenue of recourse. The dispute arose from the collective agreement and the only means of redress was the statutory arbitration process.
40 Also highly persuasive is the reasoning of Richard J. in Lajoie, applying a similar collective agreement to the present one. He held that the nature of the dispute was the alleged violation of the University's duty to maintain a safe work environment for members of the bargaining unit. The operative wording of the collective agreement in Lajoie is all but identical to the wording here respecting health and safety (Art. 33.4).
41 In this case the employer was required to maintain safe working conditions. The allegation is that it failed to do so. The allegations, however characterized, arise from the claim that the University failed in its obligation under the collective agreement. It cannot be said that the essence of the dispute does not concern the failure of the defendant to maintain safe working conditions. Framing the action differently does not displace this conclusion.
[34] The appellant points out that, in her statement of claim, she did not allege any breach of the Collective Agreement, but rather a breach of a common-law duty. She argues that the University’s obligations arise in the common law of occupier’s liability and that the employer–employee relationship is “incidental” to the dispute. With respect, I am unable to agree.
[35] The essence of her claim as set out in the appellant’s statement of claim is that her employer failed to provide safe working conditions, which caused her to fall and injure herself. Ms. Gillan was employed as a custodian by the University. Her job description required her to report damage, needed repairs and potential hazards. She was injured at her workplace when, in the course of her employment, she fell while spreading salt, which was one of her duties. At the time, she was a member of the Union certified as the bargaining agent with respect to her work at the University. Article 22 of the Collective Agreement addresses injuries on duty and Article 33.4 declares that the safety of its employees is a primary concern of the University and requires it to provide a safe work environment.
[36] The submission that the employer–employee relationship is merely “incidental” to the dispute ignores these facts and their cumulative effect. Rather than being of little or no consequence, the relationship between the parties, the appellant’s injury at her workplace and during the course of her employment, and the University’s obligation to provide a safe workplace are clearly integral to the dispute.
[37] Finally, I reject the appellant’s argument that Article 33.4 pertains to safety in the workplace only in a limited manner, namely the provision of protective articles and related training. The wording of that provision is contrary to such a narrow interpretation. Rather, it sets out broad obligations on the part of the employer and reciprocal obligations on the part of employees, in relation to safety in the work environment.
[38] In summary, the judge’s finding that the essential character of the dispute arose from the Collective Agreement meets the standard of review of correctness.
Effective Redress
[39] The third consideration in Pleau is whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty.
[40] Before setting out and considering the appellant’s submissions, it would be helpful to review the remedies that she obtained as a result of being injured in late 1995, pursuant to the Collective Agreement. Ms. Gillan received full salary for 17 weeks. She applied for and received, for a period of two years, long term disability benefits. As set out in the agreed statement of facts, neither the appellant nor her Union filed any grievance against the University following her fall and injury in late 1995, the termination of her employment in 1996 in accordance with Collective Agreement, nor the termination of her long term disability benefits in 1998.
[41] The appellant contends that if the court does not hear her claim in tort, she cannot recover all her damages from the University. In her statement of claim, in addition to general, special, and aggravated damages, she claims exemplary or punitive damages. She alleges that in failing to keep the concrete steps on which she fell in a safe condition, the University acted in an “arrogant, callous and high handed manner demonstrating no concern for the health or welfare of the Plaintiff,” such as to found an award of exemplary or punitive damages.
[42] In his decision, the judge noted [¶ 46 Reasons] that the University agreed that while an arbitrator under the Collective Agreement could award general damages for pain and suffering, lost income, future lost income, determination of earning capacity and interest, he or she could not award aggravated damages or punitive damages. He continued:
49 Does the mere pleading of remedies that are beyond the arbitrator's jurisdiction create jurisdiction for the Court? I am mindful of the caution in Weber that the "overlapping jurisdiction" approach would "leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action ..." (p. 955). That concern is compounded here because the pleadings and the agreed statement of facts do not appear to establish facts or conduct that suggest that punitive or exemplary damages are appropriate. . . .
50 . . . without making any comment on the merits, I believe that the lack of an apparent foundation for exemplary or punitive damages supports the view that exclusive jurisdiction lies with the processes mandated by the collective agreement and the statute, as in Lajoie. If a (sic) merely pleading a specific remedy could remove a matter from an arbitrator's jurisdiction, this would make the principles set out in Weber a nullity.
[43] In my view, the judge did not err when he decided that the possibility exemplary or punitive damages might not be available would not be sufficient to create jurisdiction in the court.
[44] The appellant also claims that she cannot obtain effective redress under the Collective Agreement. This argument relates to the fact that neither she, nor the Union on her behalf, filed a grievance respecting her injury at work or the alleged unsafe working conditions. She says that her injuries took a long time to manifest, and that she did not contemplate any role for the Union in relation to her injury and subsequent termination of her employment. No grievance having been filed within the time periods stipulated in the Collective Agreement, she argues that she has lost the ability to grieve or to have the matter arbitrated in accordance with that dispute resolution process. Accordingly, only the courts can provide her with effective redress.
[45] None of the evidence before the judge supports the claim of a slow manifestation of injuries. This is not a situation where the appellant was without recourse or remedies for her injury. The Collective Agreement provided a dispute resolution process. Because of the terms in that contract with the University, her job was held open for her for some time. She received short term benefits, which were followed by long term benefits extending some two years. What she received may not be the amount she hopes to obtain through her action in negligence and occupier’s liability against her employer. However, she had a means to seek redress and she obtained the several types of redress negotiated by her Union on behalf of the employees, without any proof of fault for her loss. It should also not be forgotten that whether she can establish her claim in tort against the University, or the damages she claims is not certain, but is subject to the risks of litigation.
[46] As stated in St. Anne Nackawic at p. 729 and in Weber at ¶ 54 and ¶ 57, the courts possess limited residual jurisdiction in certain situations involving labour relations. In this situation, where the appellant could have sought effective remedies under the Collective Agreement, there is no need for the exercise of that residual jurisdiction.
[47] Finally, at the hearing of the appeal, the appellant took the position that if her action against the University should be heard in the court and succeed, she is entitled to retain the salary and long term disability benefits received pursuant to the Collective Agreement, together with any damages recovered pursuant to that action. This would appear to be contrary to Weber and the cases on the exclusive jurisdiction model.
[48] Having reviewed each of the considerations set out in the Pleau analysis, I am of the view that the judge’s conclusion that the court did not have jurisdiction over the subject matter of the proceeding brought by the appellant was correct. I would dismiss this ground of appeal.
Unreasonable Delay
[49] Ms. Gillan’s fall and injury happened on December 4, 1995. Her originating notice and statement of claim are dated December 3, 2001. In its defence dated April 8, 2002, the University stated, among other things, that her action is within the ambit of the Collective Agreement and that the court had no jurisdiction. Prior to trial, the parties agreed to sever the trial of liability from that of damages. The judge directed that the jurisdiction issue be heard at the outset of the liability trial in May 2006.
[50] Ms. Gillan submits that the jurisdiction issue should have been resolved at the pleadings stage rather than at the beginning of trial, and that the judge erred in failing to dismiss the University’s collective agreement defence for unreasonable delay. According to the appellant, the University should have brought either an application to strike the statement of claim under Rule 14.25, which reads in part:
14.25. (1) The court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that,
(a) it discloses no reasonable cause of action or defence; . . .(Emphasis added)
or, an application for a preliminary determination of a question of law under Rule 25, which reads in part:
25.01. (1) The court may, on the application of any party or on its own motion, at any time prior to a trial or hearing,
(a) determine any relevant question or issue of law or fact, or both; . . . (Emphasis added)
[51] After considering these submissions, the judge held:
54. . . . While the plaintiff cites cases in which jurisdiction issues were dealt with at earlier stages of the proceeding, none of them support the argument that the defendant must seek a resolution of this defence at the pleading stage. In the absence of any law supporting the plaintiff's position, I accept the defendant's argument that the jurisdiction defence is not subject to any particular "timeliness" requirement and may be dealt with at any stage of the proceeding.
[52] The jurisdictional issue having been raised in the University’s defence, the appellant was made aware of it immediately when that document was served in response to her claim. Obviously, it would have to be dealt with at some point in the proceeding. Neither before the judge nor this court on appeal was the appellant able to cite any case in support of her argument that failure to address the jurisdictional issue by way of an application in advance of trial is fatal to the collective agreement defence. It is noteworthy that in Lajoie, as here, the collective agreement defence was severed from the main action and heard at the commencement of the trial.
[53] Moreover, the wording of Rules 14.25(1) and 25.01(1) expressly permit an application at any time prior to a trial. The appellant relies on Curry v. Dargie (1984), 62 N.S.R. (2d) 416, [1984] N.S.J. No. 34, quoted with approval in Seacoast Tower Services Ltd. v. MacLean (1986), 75 N.S.R. (2d) 70 (C.A.). There, the defence of Crown immunity which formed the basis of the application to strike was neither raised in the defence nor at the pre-trial conference. Here, the collective agreement defence appeared in the first document filed by the University. It was not a surprise defence raised too late in the trial process.
[54] In addition, there are difficulties in bringing an application under these Rules. The question in a Rule 14.25(1)(a) application is whether the statement of claim discloses a cause of action: Roulston v. Nova Scotia (Attorney General) (1994), 130 N.S.R. (2d) 44 (C.A.). Here the pleading set out the facts for an action in occupier’s liability and was silent in regard to the appellant being a member of the Union and subject to the Collective Agreement. Furthermore, no evidence is admissible in an application under Rule 14.25(1)(a) or Rule 25.01: Sherman v. Giles (1994), 137 N.S.R. (2d) 52 (C.A.) at ¶ 12, and Seacoast Towers, supra. While the judge was presented with an agreed statement of facts, not all of the relevant facts were agreed to and the appellant gave evidence before him.
[55] Ultimately, I agree with the University that the appellant’s argument that unreasonable delay would lead to a finding of jurisdiction in the court is fundamentally flawed:
In essence, the Appellant submits that it is too late in the proceeding to have a trial on the issue of jurisdiction. The Appellant submits that because of an "unreasonable delay" since 2002 in bringing that issue to Court for determination, the Respondent's defence as to lack of jurisdiction ought to be disallowed, and the case against the Respondent ought to be reinstated in the Supreme Court of Nova Scotia (para. 229).
The Appellant's submission is fundamentally flawed, in the Respondent's submission. The parties cannot confer jurisdiction upon this Honourable Court. If this Honourable Court does not have jurisdiction over the matter because of the law set down by the Supreme Court of Canada in cases including St. Anne Nackawic Pulp & Paper Co. v. C.P.U. Local 219 and Weber v. Ontario Hydro, previously cited and discussed, then the Court is without jurisdiction to determine the action on its merits.
[56] I would dismiss this ground of appeal.
Disposition
[57] I would dismiss the appeal. The appellant shall pay costs to the respondent of $2,200, together with disbursements as agreed or taxed.
Oland, J.A.
Concurred in:
MacDonald, C.J.N.S.
Saunders, J.A.