Date: 20000505
Docket: T-903-95
BETWEEN:
PIERRE AUSSANT AND JANINE AUSSANT
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
DAWSON, J.
[1] On August 13, 1978, Pierre Aussant was a constable with the Royal Canadian Mounted Police on duty with the Ottawa Traffic Section. While seated in a police car, issuing a ticket to a traffic violator, his police car was hit from behind by a car travelling at approximately 52 miles per hour.
[2] As a result, Constable Aussant, as he then was, suffered injuries of a significant and apparently permanent effect.
[3] It does not appear to be in dispute that he has since 1978, as a result of the accident, required in excess of ten surgical interventions, narcotic medication and physiotherapy. Nor is it disputed that he continues to suffer from, and receive treatment for, Post Traumatic Stress Syndrome, Chronic Pain Syndrome, opioid dependence and chronic major depressive disorder.
[4] In this action he claims general damages for bad faith, breach of contract, negligent and intentional tortious conduct, harassment, discrimination, intentional infliction of nervous shock and constructive dismissal.
[5] Janine Aussant, Pierre Aussant"s wife, claims damages pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F. 3 of Ontario.
[6] In bringing this action, the plaintiffs assert that Pierre Aussant"s physical and psychological injuries have in substantial measure been caused not by the tortfeasor in the 1978 motor vehicle accident, but have been caused, or contributed to, by the wrongful and intentional acts of the RCMP, an agency of the defendant.
[7] Pierre Aussant asserts that he continually requested authorization for necessary medical procedures and reimbursement for necessary medical expenses, but that his requests for payment and authorization of treatment were continually thwarted and intentionally refused by the defendant.
[8] Pierre Aussant also asserts that in 1991 and following, he made requests for transfer to British Columbia on medical grounds. He says that his attending physicians were all of the opinion that a transfer to a more favourable climate would improve his health condition, reduce the cost of his medical care, and insure the continuation of productive employment. The request was denied, notwithstanding Pierre Aussant"s repeated requests and the unanimous recommendation of the Grievance Advisory Board which he had recourse to.
[9] Pierre Aussant says that due to the deterioration of his medical condition and the defendant"s failure to accommodate his disability, he was forced to leave the RCMP and treat himself as having been constructively dismissed, effective January 8, 1996. He left the force with the rank of corporal.
[10] As a result, Corporal Aussant says that he lost the benefit of his 12 best years of employment, the pension contributions which he would have made during those 12 years, and the actuarial loss resulting from his inability to participate in a pension plan for those 12 years.
[11] He cites specific examples to support his claim of harassment, abuse and bad faith by his superiors in the course of seeking assistance with his work related injury.
[12] These allegations of wrongful conduct are very much in dispute.
[13] Janine Aussant says that throughout she has experienced the lost of her husband"s care, guidance and companionship, and has faithfully cared for her husband throughout the relevant time period.
[14] Pierre Aussant admitted at his examination for discovery that he applied for a pension under the Pension Act, R.S.C. 1985, c. P-6 and as a result received a pension of $361 per month retroactive to the day he departed the RCMP.
[15] As of January 1, 2000 Pierre Aussant receives under the Pension Act amounts in respect of an exceptional incapacity allowance, an attendance allowance and a disability pension rated for a 100% disability.
THE ISSUE
[16] The defendant has moved for summary judgment dismissing all or a portion of the plaintiffs" claim. The motion for judgment argued before me was based solely on the ground that both section 9 of the Crown Liability Act and section 111 of the Pension Act state that no action or other proceeding lies against the Crown in respect of any injury if a pension is paid in respect of that injury. Thus the defendant asserts that these legislative provisions are a complete bar to this action.
[17] In response, among other things, the plaintiffs state that this is a highly opportunistic position for the defendant to take given that, they say, the defendant continued to maintain throughout Corporal Aussant"s employment that no accident occurred, or if it did, it did not occur in the course of Corporal Aussant"s employment, or that if an accident occurred in the course of his employment the accident did not cause his injuries.
RELEVANT STATUTORY PROVISIONS
[18] It is agreed that the following provisions are relevant to the defendant"s motion for judgment. Section 9 of the Crown Liability Act :
| 9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
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9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte " notamment décès, blessures ou dommages " ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.
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[19] Section 111 of the Pension Act:
| 111. No action or other proceeding lies against Her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death.
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| 111. Nulle action ou autre procédure n'est recevable contre Sa Majesté ni contre un fonctionnaire, préposé ou mandataire de Sa Majesté relativement à une blessure ou une maladie ou à son aggravation ayant entraîné une invalidité ou le décès dans tous cas où une pension est ou peut être accordée en vertu de la présente loi ou de toute autre loi, relativement à cette invalidité ou à ce décès.
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[20] The Pension Act exists to provide pension and other benefits to members of the Canadian Forces. The defendant says that it is made relevant to this proceeding by paragraph (b) of subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act which provides:
| 32(1) Subject to this Part, an award in accordance with the Pension Act shall be granted to or in respect of ... (b) any person who served in the Force at any time after March 31, 1960 as a contributor under Part I of this Act, and who has suffered a disability, either before or after that time, or has died, in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for pension is made arose out of, or was directly connected with, his service in the Force.
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32(1) Sous réserve des autres dispositions de la présente partie, ne concession de pension conforme à la Loi sur les pensions doit être accordée à toute personne ou à l"égard de toute personne : ... b) qui a accompli du service dans la Gendarmerie en tout temps après le 31 mars 1960 comme contributeur selon la partie I de la présente loi, et qui a subi une invalidité, soit avant, soit après cette date, ou est décédée, chaque fois que la blessure ou maladie ou son aggravation ayant occacionné l"invalidité ou le décès sur lequel porte la demande de pension était consécutive ou se rattachait directement à son service dans la Gendarmerie.
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THE POSITION OF THE PARTIES
(i) The defendant"s position
[21] It is not now in dispute in this proceeding that a pension is paid to Corporal Aussant in respect of the injuries which flowed from the traffic accident.
[22] The defendant says that once it has been established that a pension is being received by Corporal Aussant with respect to injuries he sustained and that the present claim is in respect of those same injuries, all of the criteria of section 9 of the Crown Liability Act are met and summary judgment should be granted to the defendant dismissing the plaintiffs" claim.
[23] The defendant points to the very broad wording of the Crown Liability Act. The defendant says that as soon as any pension is paid or payable any type of proceeding is barred. The defendant relies upon the decision of the Federal Court of Canada, Appeal Division in Langille v. Canada, [1992] 2 F.C. 208 (F.C.A.). There the Court was considering subsection 4(1) of the Crown Liability Act, the predecessor of section 9 and noted that the statutory wording must be interpreted broadly in that the words "in respect of" are words of the widest possible scope.
[24] The defendant says that section 111 of the Pension Act is relevant because of the fact that subsection 32(1) of the RCMP Superannuation Act speaks of a pension award "in accordance with the Pension Act". The defendant says this "piggy backs" in all of the provisions of the Pension Act . The defendant also points to the fact that section 111 of the Pension Act itself refers to a pension awarded "under this Act or any other Act".
[25] While the motion for judgment is based upon the effect to be given to the two limitation provisions, the defendant submits that if the defendant has aggravated the plaintiff"s medical condition by any breach of its duty of care or breach of employment contract, which is denied, the plaintiff has been compensated in that the disability pension and exceptional incapacity allowance reflects consideration of the totality of his medical condition.
(ii) The plaintiffs" position
[26] The plaintiffs emphasize that summary judgment should only be given in the clearest cases.
[27] The plaintiffs state that section 9 of the Crown Liability Act only applies to actions in tort. Moreover, they state that section 9 of the Crown Liability Act does not apply where an RCMP member"s supervisors engage in abusive and harassing behaviour towards a member.
[28] The plaintiffs argue that section 111 of the Pension Act does not apply because the Pension Act only applies to members of Canada"s Army, Navy or Air Force and that absent a specific incorporation of section 111 in other legislation, that section of the Pension Act does not apply to RCMP members.
[29] The Plaintiffs state that the words "or any other Act" in section 111 of the Pension Act do not serve to expand the scope of application of the section to other classes of individuals, but simply ensure that if members of the Armed Forces are receiving a pension under any other Act those members will not be able to bring an action against the Crown. The plaintiffs note that there is no provision in the Royal Canadian Mounted Police Superannuation Act equivalent to section 111 of the Pension Act and that the words found in subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act with respect to an "award in accordance with the Pension Act" simply incorporate some of the provisions of the Pension Act but not all of the provisions.
[30] The plaintiffs note that there is no case law which discusses the application of section 111 of the Pension Act to members of the RCMP and state that this is a genuine issue that should be determined at trial after a review of the evidence.
[31] The plaintiffs state that claims under the Family Law Act, claims for breach of contract and harassment and claims for aggravated and punitive damages are not claims which can be compensated for by a pension.
ANALYSIS
[32] As will be noted from the description of the plaintiffs" claim found above, the plaintiffs" claims lie in both contract and tort.
[33] In my view it follows that the issues before me are as follows:
| (i) What is the test to be used to determine if summary judgment should be granted? |
| (ii) Should the claim for damages in contract be dismissed? |
| (iii) Should the claim for damages in tort be dismissed? |
| (iv) Should the claim by Janine Aussant for damages under the Family Law Act be dismissed? |
(i) Summary judgment
[34] The rules applicable to motions for summary judgment are found in rules 213 to 219 of the Federal Court Rules, 1998. In applicable part, these rules provide:
| 213(2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
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215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is:
...
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
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| 213(2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
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215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l'existence d'une véritable question litigieuse.
216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est :
...
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
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| [35] In terms of whether a claim should be dismissed on a summary basis, the appropriate test is whether the case, interpreted in its context, is so doubtful that it deserves no further consideration: see Granville Shipping Co. v. Pegasus Lines Ltd. (T.D.), [1996] 2 F.C. 853 (F.C.T.D.). |
| (ii) The claim in contract |
| [36] The plaintiffs point to recent case law from this Court to suggest that it is as yet unsettled law as to whether an RCMP officer has a contractual relationship with the force. In McMillan v. Canada, (Minister of Citizenship and Immigration), (1996) 108 F.T.R. 32 (T.D.), the plaintiff was an RCMP officer who resigned alleging sexual harassment. Among the claims she brought against the RCMP was a claim for constructive dismissal. The Crown brought a motion to strike out her claim on the ground that it disclosed no reasonable cause of action. |
| [37] In considering the Crown"s motion Associate Chief Justice Jerome, as he then was, stated that previous jurisprudence had held that RCMP members have a "special and ambiguous status". He referred, at paragraph 19 of his judgment, to: |
| [T]he fact that members of the R.C.M.P. fall somewhere between ordinary citizens who are eligible to benefit from the protection of contract law in their employment relationships, and members of the Armed Forces, who are not eligible for such benefits, serving as they do at the pleasure of the Crown. |
| [38] In the following paragraph Associate Chief Justice Jerome stated that "there may be... issues of contract law which could apply to members of the R.C.M.P. The plaintiff should have the opportunity to lead evidence at trial of unofficial discrimination in her former workplace. This issue should be decided after full discovery and argument based upon the merits of the case". He declined to strike the statement of claim. |
| [39] In upholding the judgment on this point, (1999) 237 N.R. 8 (F.C.A.), the Court of Appeal stated: |
| With respect to the Crown"s claim that no cause of action in contract can arise out of employment with the R.C.M.P., we agree with the Motions Judge in which he said the issue is not clear. This issue should be left to the trial Judge. |
| (a) Section 9 of the Crown Liability Act |
| [40] In McLean v. Canada, (1999) 164 F.T.R. 208 (F.C.T.D.), Justice Lutfy, of this Court, as he then was, considered a motion for summary judgment seeking dismissal of the plaintiff"s action for wrongful dismissal. The plaintiff had been an officer with the Royal Canadian Mounted Police and on the motion for summary judgment Justice Lutfy was required to consider whether the Crown Liability Act precluded the plaintiff"s action for wrongful dismissal. |
| [41] He stated, at paragraphs 10 and 11 of his judgment, as follows: |
| 10 Section 9 purports to preclude "proceedings... in respect of the claim" and, in French, "poursuites pour toute perte" where the claimant has received a pension or compensation in respect of the same injury. The broad scope of these words, however, appears to be limited by the context in which the provision is found. In 1953, the Crown Liability Act [see Note 7 below] introduced comprehensive provisions removing the federal Crown"s immunity from actions in tort. The headings in the 1953 legislation and the wording of the original version of section 9 have not changed. It has been suggested that Part I of the Crown Liability and Proceedings Act deals only with claims in tort. [See Note 8 below] Upon review of Part I, it is difficult to envisage a matter relating to contracts being encompassed in the wording of any of its sections. Counsel for the defendant acknowledges that in each of the decisions he relied upon where section 9 was successfully invoked to bar a proceeding, the claim was in tort. Neither party identified any case law where section 9 precluded an action in contract. |
| Note 7: S.C. (1952-53), c. 30. |
| Note 8: D. Sgayias, Q.C. et al, The Annotated Crown Liability and Proceedings Act 1995 (Toronto: Carswell, 1994) at 1. |
| 11 Even if the annuity and severance payments received by the plaintiff constitute "pension or compensation" [See Note 9 below] within the meaning of section 9, I have serious doubts as to whether this provision is sufficiently free of ambiguity so as to preclude the plaintiff"s action in contract. I am not prepared to consider favourably the dismissal of the plaintiff"s claim in contract on the basis of section 9. |
| Note 9: The plaintiff continues to receive an annuity pursuant to paragraph 11(2)(b) of the Royal Canadian Mounted Police Superannuation Act... |
| [42] I adopt that reasoning, and similarly I am not prepared to dismiss on a summary basis Corporal Aussant"s claim in contract on the basis of section 9 of the Crown Liability Act . |
| (b) Section 111 of the Pension Act |
| [43] In McLean (supra), Justice Lutfy noted that section 111 of the Pension Act might affect a member of the RCMP if such a member received a pension under the Pension Act. The plaintiff before him had not asserted any entitlement to a pension under subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act, so it was not necessary for him to consider this. In the present case the plaintiff is in receipt of such a pension. |
| [44] As noted above, the defendant says that because subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act contemplates an award "in accordance with the Pension Act" and because section 111 of the Pension Act speaks of a pension payable under that "or any other Act", section 111 applies to a member of the RCMP. |
| [45] Neither party cited to the Court the provisions of what is now section 32.2 of the Royal Canadian Mounted Police Superannuation Act, but which was originally subsection 32(2) of the Act. Prior to the most recent amendment this section provided: |
| 32(2) All claims for pension under this Part shall be dealt with and adjudicated on in like manner as claims under the Pension Act, and all provisions of that Act not inconsistent with this Part apply with such modifications as the circumstances require in respect of any claim under this Part. (emphasis added)
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32(2) Toutes les réclamations de pension selon la présente partie doivent être étudiées et jugées de la même manière que les réclamations sous le régime de la Loi sur les pensions, et toutes les dispositions de cette loi non incompatibles avec la présente partie s'appliquent, compte tenu des adaptations de circonstances, à l"égard de toute réclamation prévue par la présente partie. (Le souligné est de moi.)
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| [46] In light of this provision, in my view section 111 of the Pension Act does apply to Corporal Aussant"s claim because section 111 is not inconsistent with anything found in Part II of the Royal Canadian Mounted Police Superannuation Act . |
| [47] However, that does not end the inquiry. |
| [48] Section 111 states that no action lies against the Crown "in respect of any injury or disease or aggravation thereof resulting in disability or death in any case". In my view it is not clear that the claim for constructive dismissal lies "in respect of any injury or disease or aggravation thereof". The fact that the conduct alleged to constitute a breach of the employment contract arose out of an injury, and the alleged refusal by the defendant to accept it, may well be found to be irrelevant to the determination of whether or not the claim is "in respect of any injury or disease" within the scope of section 111 of the Pension Act . |
| [49] For this reason, and because of the uncertainty in the jurisprudence as to whether an RCMP officer has a contractual relationship with the force, I do not believe that the action based on breach of contract should be dismissed summarily on the basis of section 111 of the Pension Act. |
| (a) Section 9 of the Crown Liability Act |
| [50] As noted in McLean (supra), Justice Lutfy, as he then was, accepted that the limitation contained in section 9 of this Act was limited to claims brought in tort. |
| [51] The plaintiffs rely upon the decision of this Court in Clark v. Canada, [1994] 3 F.C. 323 (F.C.T.D.) to argue that section 9 does not bar a claim in tort where an RCMP member"s immediate supervisors breach their duty of care by deliberately participating and condoning abusive behaviour towards that member and where the harassing behaviour plays a direct causative role in the damage suffered by the member. The plaintiffs say that in such circumstances the Crown is vicariously liable and unable to rely on section 9 of the Crown Liability Act. |
| [52] In my view, Clark (supra) does not so assist the plaintiffs. First, in Clark there is nothing to suggest that the plaintiff was in receipt of a pension or payment out of the consolidated fund within the ambit of section 9 of the Crown Liability Act. Second, it appears that even if the plaintiff had been in receipt of any payment out of the consolidated fund (in that case pursuant to the Government Employees Compensation Act, R.S.C. 1985, c. G-5) her claim would have been found to be barred. In this regard, Justice Dubé noted in Clark at page 348 of his reasons: |
| ...while it is true that section 9 of the CLA [Crown Liability Act] acts as a bar to proceedings under that statute where compensation has been paid or is payable out of the Consolidated Revenue Fund, counsel for the defendant submitted no authority, and I am aware of none, which suggests the plaintiff"s claim falls within the GECA"s [Government Employees Compensation Act ] definition of "accident". [Footnotes omitted] |
| [53] Thus it may well be that section 9 of the Crown Liability Act bars the plaintiff"s claim in tort. |
| (b) Section 111 of the Pension Act |
| [54] As noted above, I conclude that by virtue of what was then section 32(2)of the RCMP Superannuation Act section 111 of the Pension Act is operative to bar any action "in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under the Act or any other Act in respect of the disability or death". As the pension received by Corporal Aussant is in respect of "disability" section 111 of the Pension Act may well be operative to bar the claim. |
| [55] Having concluded that both limitation provisions may well, as a matter of law, be operative to bar Corporal Aussant"s claim in tort, the question remains as to whether or not judgment should be given on a summary basis dismissing those of Corporal Aussant"s claims which sound in tort in circumstances where I have concluded that his claim in contract ought not to be dismissed on a summary basis. |
| [56] The chief difficulty which I have is severing those portions of the claim brought in contract from those portions brought in tort. Much of the amended statement of claim is narrative. The salient provisions appear, however, to be as follows: |
| Cpl. Aussant"s Injury and Medical Condition |
| 4. On or about August 13, 1978, while on duty with the Ottawa Traffic Section, the Plaintiff Cpl. Aussant was involved in a motor vehicle accident in which the police vehicle he was driving was hit from behind at high speed. The force of the impact threw Cpl. Aussant forward in the vehicle, such that his mouth and jaw area hit the steering wheel of the car. |
| Requests Made to the RCMP for Reimbursement of Medical Expenses |
| 10. The Plaintiff Cpl. Aussant has continually requested authorization and payment for legitimate medical needs since 1987. His requests for payment have repeatedly been met with delay, unreasonableness, harassment and discrimination at the hands of the Defendant. The particulars of such conduct are set out in the following paragraphs. |
| The Plaintiff Cpl. Aussant"s Claim |
| (i) Claims arising during the course of the employment relationship |
| 19. The Plaintiff Cpl. Aussant pleads that the Defendant has breached the contract of employment between the Plaintiff and the Defendant by failing or refusing to authorize full medical and dental treatments as required by Cpl. Aussant"s attending physicians, resulting in further injury and complication of Cpl. Aussant"s medical condition. |
| 20. The Plaintiff Cpl. Aussant pleads that the Defendant owes a duty of care to Cpl. Aussant to ensure that Cpl. Aussant receives all necessary medical and dental treatments as prescribed by Cpl. Aussant"s attending physicians, including an immediate transfer to Victoria. The Plaintiff Cpl. Aussant further pleads that the Defendant has breached this duty resulting in aggravation and exacerbation of Cpl. Aussant"s medical condition. |
| 21. The Plaintiff Cpl. Aussant pleads that the Defendant wilfully and without reason subjected Cpl. Aussant to delay, harassment, threats and refusal to grant a compassionate transfer, the result of which is that Cpl. Aussant"s medical condition has been severely exacerbated and aggravated. |
| 22. The Plaintiff Cpl. Aussant pleads that the Defendant"s failure or refusal to provide Cpl. Aussant with appropriate medical and dental care has resulted in the complication and exacerbation of his medical condition and a concomitant loss of employment and career opportunity for Cpl. Aussant. |
| 24. The Plaintiff pleads that the Defendant knew or ought to have known that the Plaintiff"s medical condition would be aggravated and exacerbated by the actions of the Defendant. The Plaintiff further pleads that the Defendant knew or ought to have known that the Plaintiff, due to his extreme pain, was particularly vulnerable to the increased stress and mental anguish occasioned by the Defendant"s unreasonable behaviour. |
| 26. The Plaintiff pleads that the conduct of the Defendant demonstrates a wanton and callous disregard of the Plaintiff"s rights, for which the Plaintiff is entitled to an award of punitive and exemplary damages. |
| (ii) Constructive Dismissal |
| 26c. More particularly, the Plaintiff pleads that he has been constructively dismissed by the Defendant in that: |
| (i) the Defendant failed to comply with the provisions of the Directive in failing to follow the prescribed steps for redeployment of a member from a deleted position; |
| (ii) the Defendant failed to advise the Plaintiff of all possible job opportunities in Canada from the date of the Plaintiff"s position deletion as mandated by the Directive; |
| (iii) the Defendant has failed to respond to the Plaintiff"s request for discharge in accordance with the Directive; and, |
| (iv) the Defendant has refused to respond to the Plaintiff"s repeated requests for the benefits to which he is entitled under the Directive. |
| 26e. In or about the month of October 1995 the Plaintiff was prevented from entering his place of work both inside and outside office hours as his access card had been deactivated. The Plaintiff was not advised that his card would be deactivated, nor has he ever received an explanation for this. Access has not been denied to other employees in like circumstances. It is the Plaintiff"s position that the Defendant"s conduct in denying him access to his building constitutes constructive dismissal. |
| 26f. Moreover, it is the Plaintiff"s position that these facts and all of the other conduct of the RCMP alleged herein represent a refusal by the RCMP to continue the Plaintiff in his employment, and accordingly amount to a fundamental breach of the employment contract by the RCMP, and therefore constructive dismissal. As such, the Plaintiff claims to be entitled to treat the employment relationship as being at an end, and to sue for those damages occasioned by the Defendant"s breach of contract. |
| 26g. The Plaintiff states that it was an implied term of his contract of employment with the Defendant that his employment would not be terminated by the Defendant, in the absence of just cause, without giving reasonable notice of such termination or pay in lieu thereof. |
| (iii) Workforce Adjustment Directive |
| 26i. It is the Plaintiff"s position that the RCMP failed to honour its obligations as mandated by the Directive respecting a member whose job has been deleted. Pursuant to the provisions of the Directive the Plaintiff was served with a Notice of Position Deletion ("the Notice") on December 16, 1993, effective April 1, 1994. The Notice was deficient in a number of ways. |
| [57] From the above it can be seen that much of the misconduct alleged by Corporal Aussant may give rise to concurrent liability in contract and tort, and that even if claims sounding in tort are dismissed, significant issues will remain to be tried. |
| [58] In Marine Atlantic Inc. v. Blyth, (1994), 77 F.T.R. 97 (T.D.), Justice Reed of this Court declined to grant summary judgment where one issue could not be separated from other, pending issues in the action. |
| [59] The general principles governing summary judgment were summarized by Justice Tremblay-Lamer of this Court in Granville Shipping Co. (supra). She noted that the Court may determine questions of fact and law on a motion for summary judgment if this can be done on the material before the Court but that on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so. |
| [60] I find on the material before me that in all of the circumstances it would be unjust and would be of little practical benefit to grant summary judgment dismissing Corporal Aussant"s claim in tort. |
| (iv) The claim of Janine Aussant |
| [61] To the extent that Janine Aussant"s claim is a derivative claim, in my view it follows that it should not be dismissed either. |
| [62] In the result, the defendant"s motion is dismissed. |
| [63] The costs of this motion are in the cause. |
"Eleanor R. Dawson"
_________________________________________
Judge
OTTAWA, Ontario
May 5, 2000
Date: 20000505
Docket: T-903-95
Ottawa, Ontario, Friday the 5th day of May, 2000
| PRESENT: The Honourable Madam Justice Dawson |
BETWEEN:
PIERRE AUSSANT AND JANINE AUSSANT
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
ORDER
DAWSON, J.
Upon motion by the defendant for an order determining that the plaintiffs" action is statute barred at law and dismissing the plaintiffs" action on the ground that there is no genuine issue to be tried;
And upon hearing the submissions of counsel for the parties;
It is hereby ordered that:
1. The defendant"s motion for summary judgment is dismissed.
2. The costs of this motion are in the cause.
"Eleanor R. Dawson"
__________________________________________
Judge
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