Court of Appeal

CASE NO.                                                                                                                        VOL. NO.                                                                                                                                   PAGE

Cite as: Nova Scotia (Labour Relations Board) v. Future Inns Canada Inc., 1999 NSCA 94

LABOUR RELATIONS BOARD (NOVA SCOTIA),                                                                                                                                                         FUTURE INNS

PETER DARBY, BRUCE ARCHIBALD, LEO MacKAY,                                                                                                                                                CANADA INC.

SANDRA WHITEHEAD, PAULA WEDGE and

DIRKJE JOHNSON

(Appellants)                                                                                                                      - and -                                                                                                                  (Respondent)

- and -

N. S. FEDERATION OF LABOUR

(Intervenor)

C.A. No. 152113 and 152110                                                                  Halifax, N.S.                                                                                                         PUGSLEY, J.A.

APPEAL HEARD:                                                                                         June 1, 1999

JUDGMENT DELIVERED:                                                                   July 16, 1999

SUBJECT:                                   C.P.R. 14.25; Immunity of the Labour Relations Board, and its members, from actions based on their alleged malice and bad faith. Constitutionality of s. 5 of the Public Inquiries Act, R.S.N.S. 1989, c-372.

ISSUE:                                           The Chambers judge dismissed a motion to strike the respondent's statement of claim on the ground that questions of law are not matters to be brought before the court on an application under C.P.R. 14.25. The Chambers judge, in addition, accepted the respondent's submission that the extent of the immunity of administrative boards and their members is, as yet, unclear in Canada.

RESULT:                                      Appeal allowed in part.

The court unanimously concluded that C.P.R. 14.25 is an appropriate procedure for application to strike a statement of claim in cases where the law is clear, and no further extrinsic evidence is required to resolve the issues raised.

Section 16(7) of the Trade Union Act, R.S.N.S. 1989 c-47, together with s. 5 of the  Public Inquiries Act, conveys a specific statutory immunity on the Board, and its members, for acts performed in their capacity as a board, or as board members, even if performed with malice, or in bad faith. See Morier v. Rivard, [1985] 2 S.C.R. 716.

The appeal was allowed with respect to the action commenced against the Board, and the individual members, apart from the chairman, as the statement of claim relates only to actions taken by the Board, and those individual appellants, taken within their capacity as a board, or board members. Those members are protected by the Board and the immunity granted by statute.

With respect to the chairman, it is not plain and obvious that his statements in the circumstances of this case were covered by the statutory immunity. Although there are some "defects" in the statement of claim, a question "fit to be tried" against the chairman is presented in certain of the paragraphs.

Accordingly, the appeal was dismissed with respect to the allegations against the chairman.

The submission that s. 5 of the Public Inquiries Act is ultra vires the Nova Scotia Assembly under the Constitution Act, 1867, because it would have the effect of constituting members of the Board as s. 96 judges, was not accepted.