Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC
14
Corporation of the City of Ottawa Appellant
v.
Ken Goudie, Ron Labonté, Lloyd Laframboise,
Conrad Lirette and Rémi Séguin Respondents
Indexed as: Goudie v. Ottawa (City)
Neutral citation: 2003 SCC 14.
File No.: 28469.
2002: December 10; 2003: March 20.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache,
Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Labour relations — Jurisdiction of labour arbitrators
and courts — Employees’ action arising out of alleged pre‑employment
agreement with municipality — Whether cause of action asserted by employees
within jurisdiction of courts or labour arbitrator under collective agreement.
Civil procedure — Determination of an issue before
trial — Jurisdiction — Employees’ action arising out of alleged pre‑employment
agreement with municipality — Jurisdictional issue as to whether courts or
labour arbitrator had jurisdiction — Disagreement between parties essentially
factual, not legal — Whether jurisdictional issue could be determined on
preliminary motion — Rules of Civil Procedure, R.R.O. 1990, Reg. 194,
rr. 20, 21.01(3)(a).
The respondents, who had been civilian members of the
Ottawa Police Force and covered by its collective agreement with the Ottawa
Police Association (an employees’ union), were transferred to the City of
Ottawa’s Physical Environment Department, whose employees were represented by
the Canadian Union of Public Employees (CUPE). The respondents claimed that in
1983 the City had agreed, while they were still members of the Police Force
represented by the police union, that they would continue to enjoy the same
terms and conditions when they eventually joined the City as they had enjoyed
with the Police Force. The City denied that any such agreement had been made.
The respondents were not transferred to the City until 1985. Thereafter they
asserted a complaint about reduced wages and benefits and brought this action against
the City for damages. The City counterclaimed for an over‑payment of
wages to some of the respondents. Given that the respondents were now covered
by the CUPE collective agreement, the City moved, under clause 21.01(3)(a)
of the Ontario Rules of Civil Procedure to have the respondents’ claim
struck out for want of jurisdiction on the basis that the court had no
jurisdiction over a “labour relations” subject matter. The motions judge gave
effect to this objection and dismissed the action. The Court of Appeal
reversed that decision on the basis that it would be open to a trial judge to
find a pre‑employment agreement altogether outside the City’s collective
agreement with CUPE.
Held: The
appeal should be dismissed.
While a dispute which “in its essential character”
arises from a collective agreement is to be determined by an arbitrator
appointed in accordance with the collective agreement, access to the courts is
not denied to a plaintiff who alleges a cause of action outside the collective
agreement. If, as alleged in this case, the City’s officials entered into a
pre‑employment agreement with the respondents, a dispute over such an
agreement, in its essential character, could not have arisen out of the
interpretation, application or administration of the collective agreement
between CUPE and the City. A court therefore had jurisdiction to deal with the
cause of action asserted by the respondents.
As to the procedure adopted in this case, the Court of
Appeal properly held that the jurisdictional issue could not be dealt with by
way of a preliminary motion. The disagreement between the parties was
essentially factual, not legal. To meet the allegation of a pre‑employment
contract, the City filed an affidavit to show that there was no such contract.
Yet it confirmed, by doing so, the existence of a serious factual dispute.
While it is the practice in Ontario for the motions court to receive limited
evidence pertinent to the jurisdictional issue, it was not appropriate for the
City to attempt to turn a jurisdictional challenge under
clause 21.01(3)(a) into a mini‑trial on a disputed, central question
of fact. The City could not avoid the exigencies of a summary judgment motion
(rule 20) by framing its attack as a jurisdictional challenge under
clause 21.01(3)(a). If the City was of the view that the pleading of a
pre‑employment contract was a sham and raised no genuine issue for trial,
it ought to have moved for summary judgment pursuant to rule 20.01.
However, this was not a jurisdictional issue that turned on uncontroverted or
easily ascertainable facts. Credibility is very much an issue. The decision
of the Court of Appeal was therefore correct.
Cases Cited
Distinguished: St.
Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219,
[1986] 1 S.C.R. 704; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Regina
Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1
S.C.R. 360, 2000 SCC 14; referred to: Wainwright v.
Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser
Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Jadwani v. Canada
(Attorney General) (2001), 52 O.R. (3d) 660; Giorno v. Pappas
(1999), 170 D.L.R. (4th) 160; Bhaduria v. Toronto Board of Education
(1999), 173 D.L.R. (4th) 382; Bhairo v. Westfair Foods Ltd., [1997] M.J.
No. 219 (QL); Allen v. Alberta (2001), 286 A.R. 132; Young
Estate v. TransAlta Utilities Corp. (1997), 209 A.R. 89; Roberts v.
Browning Ferris Industries Ltd. (1998), 170 Nfld. & P.E.I.R. 228; Dawson
v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257; Donoghue
v. Stevenson, [1932] A.C. 562; Adler v. Dickson, [1954] 1 W.L.R.
1482; Leufkens v. Alba Tours International Inc. (2001), 53 O.R. (3d)
112; S. (J.R.) v. Glendinning (2000), 191 D.L.R. (4th) 750; Transamerica
Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R.
(3d) 423; 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R.
(3d) 547; Aguonie v. Galion Solid Waste Material Inc. (1998), 156 D.L.R.
(4th) 222; Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545; Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959.
Statutes and Regulations Cited
Labour
Relations Act, R.S.O. 1990, c. L.2, s. 45(1) [now
1995, c. 1, Sched. A, s. 48(1)].
Police Act, R.S.O. 1980, c. 381, s. 8(5).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 20.01, 21.01, 21.02.
APPEAL from a judgment of the Ontario Court of
Appeal (2001), 197 D.L.R. (4th) 543, 139 O.A.C. 372, [2001] O.J.
No. 101 (QL), setting aside a decision of the Superior Court of Justice.
Appeal dismissed.
Eugene Meehan, Q.C.,
and Stuart Huxley, for the appellant.
Emilio S. Binavince and
Helen Lanctôt, for the respondents.
The judgment of the Court was delivered by
1
Binnie J. — It is well
established that a dispute between an employer and an employee that arises in
its essential character from the interpretation, application, administration or
violation of a collective agreement is to be determined not in the courts but
according to the arbitration provisions of the collective agreement.
2
The problem in this case is that the motions judge, summarily dismissing
the respondent employees’ action on a preliminary motion, placed too much
emphasis on the collective bargaining environment and insufficient weight on
the essential character of the dispute.
3
It is true that the respondents’ complaint about reduced wages and
benefits was asserted against their employer, the City of Ottawa, at a time
when the respondents were covered by a collective agreement between the
appellant and the Canadian Union of Public Employees, Local 503 (“CUPE”).
4
The essential character of the dispute, however, is a claim under an
alleged pre-employment contract. The respondents’ entitlement, if any, did not
arise out of the interpretation, application, administration or violation of
the CUPE agreement. On the contrary, the respondents’ complaint is precisely
that they were paid according to the CUPE contract rather than under the more
advantageous terms of the alleged pre-employment contract.
5
Whether or not there actually was a pre-employment contract is a hotly
disputed fact that is not amenable to resolution on a preliminary motion. I
think the Court of Appeal was correct to set aside the judgment of the motions
court and to allow the action to proceed. The appeal from that court should be
dismissed.
Facts
6
Prior to 1983, the respondents were Animal Control Officers employed by
the Ottawa Police Force. They were members of a union, the Ottawa Police
Association, and their terms of employment were governed by a collective
agreement. In that year, 1983, discussions took place between the Police Force
and the City of Ottawa about transferring the Animal Control Division, and thus
the respondents, from the Ottawa Police to the Physical Environment Department
of the City of Ottawa. The underlying concern appeared to be that animal
control should be dealt with by municipal employees rather than members of the
Police Force.
7
The transfer of the employees to the City of Ottawa was approved in
principle by Ottawa City Council on September 7, 1983, but did not in fact
occur until more than a year and a half later, on May 1, 1985.
8
The respondents allege that in September 1983, while they were still
employees of the Police Force, they had a meeting with representatives of the
City of Ottawa, the Police Force and union officials representing both the
Ottawa Police Association (the employees’ then union) and CUPE (their future
union). The respondents allege that in the course of this meeting the City of
Ottawa agreed that, to secure the respondents’ agreement to the proposed
transfer, the respondents would continue to enjoy the same terms and conditions
as employees of the City of Ottawa as they had previously enjoyed as civilian
employees of the Police Force. Paragraph 11 of the statement of claim
reads as follows:
In the course of the [September 1983] meeting, the Defendant [City of
Ottawa], in an attempt to induce the Plaintiffs to agree to the transfer,
expressly assured and represented to the Plaintiffs that the level of the terms
and conditions that each of the Plaintiffs enjoyed with the Ottawa Police Force
shall be retained, and that the Plaintiffs shall not be in a “worse position”
as a result of their transfer to the Department of the Physical Environment.
The Plaintiffs relied, and the Defendant was aware of the Plaintiffs’ reliance,
on the agreement. . . .
9
The City agrees that such a meeting took place but denies that any such
agreement was made. Further, the appellant says that, on at least three
occasions after September 1983 but before the transfer, the respondents were
told that, once their transfer was finalized, their terms and conditions of
employment would be the same as other municipal employees, similarly
classified, under the collective agreement between the City of Ottawa and CUPE.
Issue was thus joined.
10
I note parenthetically that the appellant has not taken the position
that any pre-employment agreement somehow became unenforceable as a matter of
law once the employees entered the CUPE bargaining unit on May 1, 1985. Its
position, purely and simply, is that no such pre-employment contract was made.
The
Essential Character of the Claim
11
On May 5, 1985, four days after the respondents’ transfer to the CUPE
bargaining unit, they were told by the appellant that the Animal Control
Officers would be required to work a 40-hour week just like other municipal
employees. This change was effective July 5, 1985. Previously, as employees
of the Police Force, they were required to work only 35 hours a week.
12
The respondents plead that they worked the additional five hours a week
“under protest”. Three years later, on July 18, 1988, they filed a grievance
under the CUPE agreement. A settlement was agreed to on November 18, 1988, but
the settlement did not deal with the period prior to the date of settlement.
13
Apart from the lengthened work week, the respondents claim loss of
benefits including accumulated sick days, their benefits under the “Age 60
Retirement Pension Plan” in effect with the Police Force, and that their
salaries were “red-circled”, effectively freezing their income.
14
The respondents also claim compensation for lost benefits, together with
“damage to the plaintiffs’ professional status and reputation”, and damages for
“substantial stress and anxiety” as a result of their treatment by the City.
15
All of these claims are rooted in the alleged pre-employment contract.
The
Proceedings
16
On April 6, 1990, the respondents commenced the present action claiming
damages in excess of a million dollars. The statement of claim supplemented
their contractual claims with related allegations of fraudulent or negligent
misrepresentation, and unjust enrichment.
17
The appellant City denied the existence of any pre-employment contract,
affirmed that from and after May 1, 1985, the respondents were covered by the
CUPE collective agreement, and indeed counter-claimed for what the appellant
alleged was an over-payment of wages to some of the respondents in 1987 and
1988.
18
After the exchange of pleadings, not much was done by the respondents
until they were jolted into action on July 29, 1998, by an order of the Ontario
Court (General Division) dismissing their action as abandoned. The respondents
say this order was the result of a misunderstanding. In any event, the
respondents having survived this mishap, the City then moved to have the action
dismissed on the basis that the court had no jurisdiction over a “labour
relations” subject matter. As stated, the motions judge gave effect to this
objection and dismissed the action.
19
The Court of Appeal for Ontario reversed that dismissal on the basis
that “it would be open to a trial judge to find that the plaintiffs had a
pre-employment agreement with the respondent. If so, their claims do not arise
out of the collective agreement with the Police Association” ((2001), 197
D.L.R. (4th) 543, at para. 9). However, the court added, it would be open to
the City to argue at trial, in light of the evidence, that “the court has no
jurisdiction once the true nature of the alleged [pre-employment] agreement is
established” (para. 9).
Relevant
Legislative Provisions
20
Labour Relations Act, R.S.O. 1990, c. L.2
45. — (1) Every collective agreement shall
provide for the final and binding settlement by arbitration, without stoppage
of work, of all differences between the parties arising from the
interpretation, application, administration or alleged violation of the
agreement, including any question as to whether a matter is arbitrable.
Rules of
Civil Procedure, R.R.O. 1990, Reg. 194
rule 20 summary judgment
where available
To Plaintiff
20.01 (1) A plaintiff may, after the
defendant has delivered a statement of defence or served a notice of motion,
move with supporting affidavit material or other evidence for summary judgment
on all or part of the claim in the statement of claim.
(2) The plaintiff may move, without notice, for
leave to serve a notice of motion for summary judgment together with the
statement of claim, and leave may be given where special urgency is shown,
subject to such directions as are just.
To Defendant
(3) A defendant may, after delivering a statement
of defence, move with supporting affidavit material or other evidence for
summary judgment dismissing all or part of the claim in the statement of claim.
rule 21 determination of an issue before trial
where available
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of
a question of law raised by a pleading in an action where the determination of
the question may dispose of all or part of the action, substantially shorten
the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground
that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1)(a), except with leave of
a judge or on consent of the parties;
(b) under clause (1)(b).
To Defendant
(3) A defendant may move before a judge to have an
action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the
subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity
to commence or continue the action or the defendant does not have the legal
capacity to be sued;
Another Proceeding Pending
(c) another proceeding is pending in Ontario
or another jurisdiction between the same parties in respect of the same subject
matter; or
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or
is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
motion to be made promptly
21.02 A motion under rule 21.01 shall be
made promptly and a failure to do so may be taken into account by the court in
awarding costs.
Analysis
21
This appeal raises two issues: firstly, the jurisdiction of the court
to deal with the cause of action asserted by the respondents; and secondly,
whether the jurisdictional issue could properly be dealt with in the
circumstances of this case by way of a preliminary motion. Both issues can be
resolved briefly.
A. Is the
Cause of Action Asserted by the Respondents Within the Jurisdiction of the
Courts or a Labour Arbitrator?
22
The principle that disputes arising under a collective agreement should
be resolved by labour arbitrators, not courts, is based on legislative intent.
In St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union,
Local 219, [1986] 1 S.C.R. 704, Estey J. laid down the general
principle at pp. 718-19:
The more modern approach is to consider that labour relations
legislation provides a code governing all aspects of labour relations, and that
it would offend the legislative scheme to permit the parties to a collective
agreement, or the employees on whose behalf it was negotiated, to have recourse
to the ordinary courts which are in the circumstances a duplicative forum to
which the legislature has not assigned these tasks.
23
Subsequent cases have confirmed that if the dispute between the parties
in its “essential character” arises from the interpretation, application,
administration or violation of the collective agreement, it is to be determined
by an arbitrator appointed in accordance with the collective agreement, and not
by the courts. See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at
paras. 41 and 52, and Regina Police Assn. Inc. v. Regina (City) Board of
Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 23
and 25.
24
None of these cases purported to deny access to the courts by plaintiffs
who allege a cause of action outside the collective agreement. The appellant
complains that the decision in the courts below undermines “the sanctity of
agreed arbitration clauses in collective agreements” and permits unionized
employees to “get out of collective agreements and litigate labour relations
issues, instead of going through regular grievance arbitration process”, and
says the issue here is “whether the approximately 4 million unionized workers
in Canada should each, individually, be given the opportunity to forum shop”
(appellant’s factum, at para. 1). In my view, with respect, this case
raises no such issues. In Wainwright v. Vancouver Shipyards Co. (1987),
38 D.L.R. (4th) 760 (B.C.C.A.), it was held that the courts have jurisdiction
over contracts predating the collective agreement. See also Johnston v.
Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.). Both of
these cases were cited with approval by this Court in Weber, supra,
at para. 52. Such disputes are foreign to the collective agreement and
are not embraced by the legislative intent favouring arbitration.
25
If, as alleged, the appellant’s officials agreed to a pre-employment
agreement with the respondents in September 1983, it seems apparent that a
dispute over such an agreement, in its essential character, could not arise
from the collective agreement between CUPE and the City. For one thing, the
respondents were not employees of the City in September 1983. For another
thing, the respondents were not at that time in the bargaining unit or members
of CUPE, Local 503. They were employed by the Ottawa Police Force, which is an
entity separate and distinct from the Corporation of the City of Ottawa.
(Under s. 8(5) of the Police Act, R.S.O. 1980, c. 381, the Board of
Commissioners of Police “may contract and may sue and be sued in its own
name”.) In September 1983, and until May 1985, the respondents were covered by
a collective agreement between the Board of Commissioners of Police and the
Ottawa Police Association. It follows that I cannot agree with the proposition
at para. 101 of the appellant’s factum that:
The danger of the Court of Appeal decision below is
that it opens the flood gates not only to a tidal wave of grievance and labour
disputes in the courts but to the potential dismantling of the entire
collective bargaining process and grievance arbitration system in Canada.
26
If a pre-employment agreement was made in September 1983, as alleged, a
claim for its enforcement cannot be said to arise from the interpretation,
application, administration or violation of the CUPE collective agreement.
B. The
Appropriateness of the Preliminary Motion
27
The appellant complains that it is being put to the trouble and expense
of a law suit merely on the bare allegation of a pre-employment contract. This
is true, but of course the courts are open to any litigant who “merely” alleges
a cause of action. Procedures exist under the rules of practice to obtain
particulars or to bring frivolous or unsupportable claims to an early
resolution. The losing litigant may, depending on the view taken of the matter
by the motions judge, find itself burdened with costs.
28
In an effort to hasten the end of this lawsuit, counsel for the
appellant (who was not counsel on this appeal) belatedly moved on April 25,
1999, about 10 years after the action was begun, to have the respondents’
statement of claim struck out for want of jurisdiction under clause 21.01(3)(a)
on the basis that “the court has no jurisdiction over the subject matter of the
action”. I note, in passing, that rule 21.02 requires that such a motion
“shall be made promptly”.
29
Clause 21.01(3)(a), and its equivalent permitting a jurisdictional
challenge in other provinces, has been widely utilized in labour relations
disputes. See, e.g., Jadwani v. Canada (Attorney General) (2001), 52
O.R. (3d) 660 (C.A.); Giorno v. Pappas (1999), 170 D.L.R. (4th) 160
(Ont. C.A.), at para. 16; Bhaduria v. Toronto Board of Education (1999),
173 D.L.R. (4th) 382 (Ont. C.A.), at para. 2; and Bhairo v. Westfair
Foods Ltd., [1997] M.J. No. 219 (QL) (C.A.). Although Alberta and
Newfoundland lack a special rule on jurisdictional challenges, the courts in
those provinces achieve the same result on a motion to strike: Allen v.
Alberta (2001), 286 A.R. 132 (C.A.); Young Estate v. TransAlta
Utilities Corp. (1997), 209 A.R. 89 (C.A.); and Roberts v. Browning
Ferris Industries Ltd. (1998), 170 Nfld. & P.E.I.R. 228 (Nfld. C.A.).
30
In the present case, the principal difficulty confronting the appellant
was not legal but factual. To meet the allegation of a pre-employment
contract, the appellant felt it necessary to file the affidavit of Rosemarie
Leclair, Commissioner of Corporate Services of the City of Ottawa. The
affidavit, according to the appellant, showed that there was no such
pre-employment contract. Yet it confirmed, at the same time, the existence of
a serious factual dispute. That being the case, I do not think that the
appellant could avoid the exigencies of a summary judgment motion (rule 20) by
framing its attack as a jurisdictional challenge under clause 21.01(3)(a). As
Borins J.A. pointed out in Dawson v. Rexcraft Storage and Warehouse
Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), a pleadings motion
generally “offers no assistance in weeding out cases where a substantively
adequate claim, or defence, has been pleaded, but cannot be proved”
(para. 14).
31
The appellant’s dilemma is illustrated by the great “snail in the
bottle” case of Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), which, as
every law student knows, laid the basis for the modern law of negligence. After
the House of Lords had decided that a soft drinks manufacturer could indeed be
tortiously liable for shock “and severe gastro-enteritis” suffered by a
consumer who allegedly found a decomposed snail in her bottle of ginger beer,
and therefore allowed the case to proceed to trial, it was held by the trial
court that in fact there was no snail in the bottle after all. (See reference
by Jenkins L.J. in Adler v. Dickson, [1954] 1 W.L.R. 1482 (C.A.), at
p. 1483.) In Donoghue, supra, the defendant brought a
preliminary motion to test a proposition of law, the answer to which, in the
words of Ontario clause 21.01(1)(a), “may dispose of all or part of the
action”. The equivalent to what was tried here would have occurred if the soft
drinks manufacturer, instead of arguing the legal point, had attempted to use
the preliminary motion to establish that there was no snail in the bottle.
Such a genuine issue of fact there, as here, had to be sent to trial.
32
It is the practice in Ontario for the motions court to receive evidence
pertinent to the jurisdictional issue, such as a copy of the collective
agreement (see the cases cited in para. 29), or other affidavit evidence (Leufkens
v. Alba Tours International Inc. (2001), 53 O.R. (3d) 112 (S.C.J.), and, on
the issue of capacity, S. (J.R.) v. Glendinning (2000), 191 D.L.R.
(4th) 750 (S.C.J. Ont.)), but it was not appropriate for the appellant to
attempt to turn a jurisdictional challenge under clause 21.01(3)(a) into a
mini-trial on a disputed, central question of fact. If the appellant was of
the view that the pleading of a pre-employment contract was a sham and raised
no genuine issue for trial, it ought to have moved for summary judgment
pursuant to rule 20.01. In that case, while the onus would have been on the appellant
as the moving party to establish the absence of a genuine issue for trial, each
side would have been required to “put its best foot forward” (Transamerica
Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R.
(3d) 423 (Gen. Div.), at p. 434, per Sharpe J., as he then
was), with respect to the existence or non-existence of the pre-employment
contract, or, as Osborne J.A. put it in 1061590 Ontario Ltd. v. Ontario
Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), at p. 557, “a respondent
on a motion for summary judgment must lead trump or risk losing”. See also Aguonie
v. Galion Solid Waste Material Inc. (1998), 156 D.L.R. (4th) 222 (Ont.
C.A.), and Dawson, supra. Generally, if there is an issue of credibility
which is material, summary judgment will be refused: Irving Ungerman Ltd.
v. Galanis (1991), 4 O.R. (3d) 545 (C.A.).
33
The respondents were under no evidentiary obligation at this stage to
prove the existence of a pre-employment contract for the purposes of surviving
a jurisdictional challenge under clause 21.01(3)(a). The pleadings themselves
established that the central allegation of jurisdictional fact (the existence
of a pre-employment contract) was also the central issue on liability in the
law suit. This is not a jurisdictional issue that turns on uncontroverted or
easily ascertainable facts. Clearly, credibility would very much be an issue.
34
I agree with the Ontario Court of Appeal that the appellant’s approach
was misconceived. The disagreement between the parties was essentially
factual, not legal. In light of the factual issues raised by the pleadings,
the jurisdictional issue could not be determined on a preliminary motion. The
motions judge should not therefore have driven the respondents so precipitously
“from the judgment seat”, per Wilson J. in Hunt v. Carey Canada
Inc., [1990] 2 S.C.R. 959, at p. 973.
Disposition
35
I would dismiss the appeal with costs to the respondents.
Appeal dismissed with costs.
Solicitors for the appellant: Lang Michener, Ottawa;
Corporation of the City of Ottawa, Ottawa.
Solicitors for the respondents: Binavince Smith, Ottawa.