Date: 20001201
Docket: T-154-97
BETWEEN:
THOMAS WATT
Plaintiff
- and -
HER MAJESTY THE QUEEN (Transport Canada)
and NAV CANADA
Defendants
REASONS FOR ORDER
(Delivered from the bench at Ottawa, Ontario
on November 29, 2000)
HUGESSEN J.
[1] This is a motion by the defendant Crown for summary judgment. Two grounds are urged. The first is absence of jurisdiction because of the existence of a collective agreement providing for a mandatory grievance procedure and the second is that the action is time barred.
[2] The plaintiff is an air traffic controller. He worked for some time in the tower at Calgary. He asked for a transfer to the tower at Vancouver and when this was not forthcoming, he took matters into his own hands and resigned. He then moved to Vancouver where he reapplied for employment. He was in fact rehired some five months later in February 1988, not in Vancouver, but at Prince George and at a lower salary than what he had been receiving in Calgary.
[3] He brought a grievance under the terms of the collective agreement but it was dismissed at the first stage and not apparently pursued. He also made a complaint of harassment to the Public Service Commission and that too appears to have been unsuccessful.
[4] The present action was launched in January 1997, some 9 years after the events I have just recounted. Two causes of action are alleged. First, negligent misrepresentation by the defendant in telling him that he could renegotiate his salary rate after he was hired and then after he had been hired, telling him that he could not do so. The second is abuse of position in that the defendant's officers are said to have maliciously acted so as to cause loss to the plaintiff.
[5] On the motion for summary judgment, defendant's counsel attempted first to persuade me that this Court lacks jurisdiction because of the existence of the grievance process in the collective agreement. However, on a previous motion to strike brought by the defendant in this very case, the Court of Appeal, confirming in this respect the motion's judge, held that these two causes of action were not subject to the grievance procedure. Mr. Justice Marceau speaking for the Court said:
| It is clear that passages of the reasons for order given by the learned judge in support of his conclusion are subject to some criticism, at least for lack of clarity. Nevertheless, it is our opinion that he made no mistake in his analysis of the causes of action that sustain the statement of claim and in his conclusion that, at first blush, neither of them falls clearly under the exclusive grievance and arbitration provisions of the collective agreement. The alleged negligent misrepresentations and so-called abuse of public office of which the plaintiff says he was the victim would have taken place prior to the existence of the employment relationship which, in our view, was sufficient reason to refuse to accept that the provisions of the collective agreement would necessarily preclude the action.1 |
[6] I agree. the actions complained of were almost all in the period between the plaintiff's resignation from his position in Calgary and his re-engagement to a position in Prince George. That being so, there was at that time no employment relationship existing between the parties. That the plaintiff in fact grieved is nothing to the point. If his complaints did not fall within the scope of the collective agreement, and they did not, they were not subject to being grieved and this Court does not loose jurisdiction.
[7] The second ground for the motion for summary judgment is far more serious. It is common ground that the applicable period of prescription under the British Columbia statute is 6 years. The plaintiff's only justification for having brought an action so late is based on his allegation that it was only in 1994 that he learned first of all that the defendant had, as he said, acted deliberately to, in his words, punish him and second that it was at the same time that he learned that the defendant had in fact allowed other controllers, who, like the plaintiff, had resigned and been re-engaged, to come back to employment at the same salary grade. The allegation is that in 1994, the plaintiff learned from a former superior, first in an oral conversation and then in a letter from that superior as follows:
| This will confirm our discussion this date regarding my recollection of events relative to your moving from Calgary to British Columbia in the late 80's. |
| 1. Circa 1987, I had discussions with you, on more than one occasion, of your dissatisfaction with the management relationship you were experiencing in Calgary and your numerous requests for transfers. I requested the Regional Manager ATC to investigate the transfer issue and was informed that the short-staff situation in Calgary would not permit transfers. You were informed of this. Subsequently I was informed that you had resigned and moved to British Columbia. |
| 2. Some months later, I was contacted by you and we discussed your re-employment by Transport Canada in the Prince George tower. I understood you were re-employed at the lowest salary level. Subsequently, I discussed the location of your employment and salary with Archie Novakowski, Pacific Regional Manager ATC and Pierre Proulx, Director ATC Ottawa Headquarters. My recollection of the discussion is summarized as follows: an employee who resigns to achieve a relocation at his expense should have to work some months at a lower salary and at a less desirable location - e.g. your appointment at the lowest salary scale and assignment to Prince George tower was an example of the Departments' position. This would serve to deter others from thinking this was an easy route to transfer and would demonstrate to you that management wasn't pleased with your method of effecting a transfer. I further discussed this with Archie Novakowski and was under the impression you would be moved to Vancouver Tower, your desired location, in a few months. This was the last I heard of your case until our discussion on Mar 15th. |
| I trust the above recollections will meet your needs. If you require anything further, please call. |
| (Signed by Ronald G. Bell, former Director ANS, Western Region). |
[8] In my view, this is far from being enough to displace plaintiff's burden of proving that the running of time has been postponed or interrupted.
[9] First, assuming that the letter reveals new facts rather than merely constituting new evidence of known facts, it does not show that the plaintiff had exercised reasonable diligence, or indeed any diligence at all, in making inquiries as to the status or existence of his own claimed rights. During the whole of the period from 1988 to 1994, he was working as a controller in the tower in Vancouver, a position to which he had been transferred from Prince George in the summer of 1988. He could and should have been in a position to make inquiry and to find out these "new" facts well before 1994. There is no indication that he, in fact, made such inquiry after he had move to Vancouver and there is no explanation as to why he did not do so.
[10] Second, the evidence which is now being put forward in this letter is far from being enough to establish either abuse of power or negligent misrepresentation. The fact that the Vancouver tower may have hired other controllers who had previously resigned at their old salary scales (allegedly revealed by Mr. Bell during their conversation,) does not create in the plaintiff any right himself to be hired or to be hired on any particular conditions or at any particular place or at any particular salary. In fact, it is conceded that he had no right to be rehired. Likewise, the decision, if that is what it was, to make him serve at Prince George rather than in Vancouver is a purely management decision. We do not know whether or not there were other considerations than the one alleged in the letter which may have motivated that decision, but even if the decision was motivated only by a desire to discourage other employees from, so to speak, taking the law into their own hands and forcing the employer to give them a transfer which the employer was not otherwise minded to give, that is in my view, a perfectly proper consideration. The objective, which is expressed in the letter as having been the objective of management is a legitimate one. The letter, therefore, in my view, is far from constituting evidence of a malicious intent to cause loss which is the essential element of the tort of abuse of position and the facts revealed did not have the effect of starting time running again.
[11] I conclude, therefore, that the action must inevitably be dismissed as being statute barred and I therefore propose to do so.
[12] I now come to the question of costs and, in my view, this is not a case where I should award the defendant the costs of this day or of this motion. I regret to say that much of the defendant's argument on the motion was misplaced, also, a good deal of the written submissions dealt with a motion to strike which this is not and failed to draw the distinction between the motion to strike and a motion for summary judgment. This is not intended to be a reflection on counsel who pleaded the case at trial but the Court expects that when counsel file written memoranda of fact and law that they will set out fairly and fully the positions that they in fact adopt during the course of argument and not positions which are not sustainable and are abandoned without explanation. So the action will be dismissed with costs, but there will be no cost for the present motion or for today's hearing.
Judge
Montréal, Québec
December 1, 2000
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1 Her Majesty the Queen v. Thomas Watt, (January 21, 1998) File no.: A-448-97(F.C.A. [unreported].
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