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T-3125-75
Pierre P. Montreuil (Plaintiff) v.
The Queen in right of the Post Office Department of Canada (Defendant)
Trial Division, Addy J.—Quebec City, November 18; Ottawa, December 9, 1975.
Practice—Plaintiff claiming loss of salary—Defendant filing defence—Defendant subsequently moving to strike pleadings on grounds that statement of claim an abuse of process and discloses no reasonable cause of action—Federal Court Rules 419(1)(a) -(f).
Plaintiff claims from defendant sums of money as loss of salary for work not actually performed, but which he claims should have been assigned to him. Defendant, having submitted a defence without objection, now seeks to strike the pleadings, on the basis that the statement of claim (1) is an abuse of process and (2) discloses no reasonable cause of action.
Held, allowing the motion, the Court lacks jurisdiction and there is no reasonable cause of action. The general defence in reply to the statement of claim is fatal to defendant's first ground. Where a party pleads in reply to allegations in an opponent's pleading without objecting to its form or content, he may not then object to that pleading without withdrawing or altering his own. However, such principle does not apply to situations where the pleading objected to discloses no reason able cause of action. As to (2), the Court could dismiss the motion, since a party may not move that his own pleading be struck out when it is open tO the party to withdraw or alter it in view of the fact that the other party has not replied. But, since at any time, a defendant may ask for dismissal on this ground, as well as lack of jurisdiction, as submitted orally, to require further proceedings and incur additional expense would be unnecessary. The matter must be considered on the merits.
Dominion Sugar Co. v. Newman (1917-18) 13 O.W.N. 38, referred to.
MOTION. COUNSEL:
Plaintiff for himself.
Y. Brisson for defendant.
SOLICITOR:
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
ADDY J.: In the motion at bar, the defendant asks that pleadings be struck on two grounds:
(1) that the statement of claim is an abuse of process and
(2) that the statement of claim discloses no reasonable cause of action.
The defendant only filed the motion at bar after submitting a defence to the claim, without object ing in her defence to the form or content of the claim.
When the motion was heard, the Court asked counsel for the defendant whether he wished to make an oral motion for leave to withdraw or alter his defence; he declined, and requested the Court to hear the motion with the pleadings in their present state.
In so far as the first ground relied on by counsel for the defendant is concerned, the general defence raised in reply to the statement of claim is fatal to it; when a party pleads in reply to allegations contained in the opponent's pleading without rais ing an objection in law to the form or content of the pleading, he may not subsequently raise an objection to the opponent's pleading, without with drawing or altering his own pleading, submitted in reply to that against which he is objecting (see Dominion Sugar Co. v. Newman'). The Federal Court Rule 419(1)(b) to (f) inclusive must be interpreted in light of this basic principle.
However, the same principle cannot be applied to a motion filed under Rule 419(1)(a), which deals with situations where the pleading to which applicant objects discloses no reasonable cause of action or defence, since such a motion goes to the very nature of the action or defence, and its funda mental and essential right to be heard by the Court. Accordingly, when such a motion is allowed by the Court, the pleading or part thereof objected to is rendered legally void.
(1917-18) 13 O.W.N. 38.
This brings me to the second part of the present motion to strike out pleadings, namely, the appli cant's allegation that the statement of claim dis closes no reasonable cause of action. The Court could dismiss the motion since a party, in this case the defendant, may not move that his own pleading be struck out when it is open to the party to withdraw or alter his pleading in view of the fact that the other party has not replied thereto. How ever, since a defendant may, at any time, before and even during the trial, ask that an action be dismissed on this ground, as well as that submitted orally at the hearing of this motion, namely that the Court has no jurisdiction, I have reached the conclusion that it would be unnecessary and unfair to require that the parties institute further pro ceedings and incur additional expense, which would be the case should the objections raised by the defendant prove fatal to the plaintiff's action. The motion must accordingly be considered on its merits with respect to the argument based on alleged lack of a reasonable cause of action as well as lack of jurisdiction.
In his capacity as an employee of the Post Office Department of Canada, the plaintiff claims, in accordance with a collective agreement, that the defendant must pay him certain sums of money as a loss of salary for work which he did not actually perform, but which he claims his employer should have assigned to him rather than to other employees.
He made no allegation of fault. The claim accordingly is not based on tort committed by the Crown. Since the work was not performed by the plaintiff, he cannot base his claim on the right to compensation for services rendered to the Crown at the request of the latter and his claim must therefore be based on a contractual relationship. There exists no contractual relationship at law, in the strict sense, between the Crown and an employee (see Reilly v. The King 2 ; Zamulinski v. The Queen 3 ; and Peck v. The Queen 4 ). The claim may only be based on the collective agreement. A
2 [1932] S.C.R. 597 at 600.
3 (1957) 10 D.L.R. (2d) 685 at pages 693 and 694.
4 [1964] Ex.C.R. 966.
complete procedure for the settlement of griev ances is provided for in the agreement. The plain tiff availed himself of this procedure up to and including the last level, but failed to win his case. Under section 9.23 of the collective agreement, the procedure for settling grievances is final and bind ing on the employee unless the grievance is of the type that may be referred to arbitration.
The plaintiff made no attempt to refer the matter to arbitration. In this case, it is not neces sary to settle the question of whether the grievance was one which could be referred to arbitration since this Court clearly would not have jurisdiction in any event; if the plaintiff is entitled to go to arbitration, the Court would not have jurisdiction since it may not interfere in a collective agreement when provision is made for settling a grievance, and if he is not entitled to arbitration, the collec tive agreement itself provides that the grievance procedure is final between the parties.
This Court accordingly has no jurisdiction and furthermore the plaintiff has no cause of action. The motion is allowed and the action is dismissed with cost to the defendant against the plaintiff.
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