McLean v. Canada
T-2509-90
Lutfy J.
26/3/99
16 pp.
Wrongful dismissal-Motion for summary judgment dismissing plaintiff's action for wrongful dismissal (physical disability discharge from RCMP) on grounds: (1) no proceedings lie against Crown where pension or compensation has been paid concerning injury, damage or loss in respect of which claim made, pursuant to Crown Liability and Proceedings Act (CLPA), s. 9; (2) no proceedings lie against Crown, pursuant to Pension Act, s. 111 where pension awarded under Act or any other Act in respect of disability; (3) in alternative, grievance procedure concerning plaintiff's administrative discharge, provided for in RCMP Act, precludes action for wrongful dismissal against Crown and limits remedy to application for judicial review under Federal Court Act-Motion allowed but, applying Federal Court Rules, r. 57, plaintiff may pursue remedy by way of application for judicial review-(1) Statutory bar in CLPA, s. 9 not extending to actions in contract, as herein-No case law where s. 9 precluded action in contract-Provision not sufficiently free of ambiguity to preclude plaintiff's action in contract-(2) Pension Act, s. 111 (precluding actions against Crown) not applicable herein as neither definition of "pension" or "member of forces" in Pension Act nor terms of RCMP Superannuation Act bring plaintiff and her action within statutory bar of Pension Act, s. 111-(3) Principle that action in wrongful dismissal applies where employer fails to provide reasonable notice of termination not extending to member of RCMP appointed to serve during pleasure-Statutory and regulatory regime concerning grievance of member administratively discharged on account of physical disability plaintiff's sole remedy-Appropriate remedy herein to pursue Force's refusal of request for extension of time period for filing grievance presentation either to level II of grievance process or, to seek judicial review immediately-Plaintiff's action for wrongful dismissal precluded by statutory and regulatory scheme in place for grievance procedures concerning administrative discharges-Normally, in view of above, action should be dismissed-Counsel for defendant acknowledged in written submissions plaintiff's remedy lies in application for judicial review to Federal Court-Federal Court Rules, 1998, r. 57 providing that originating document shall not be set aside only on ground different originating document should have been used-Effect should be given to r. 57 even though action commenced more than eight years ago-Plaintiff's action commenced within ten-day time period stipulated in 1990 version of Federal Court Act, s. 28, for filing of application for judicial review-Accordingly, no time extension required if plaintiff chose to convert action into application for judicial review-Plaintiff given 30-day time period to file originating notice of motion in accordance with r. 300(a) in Trial Division, without prejudice to rights of parties, should either deem it appropriate, to seek order transferring plaintiff's new proceeding to Court of Appeal, pursuant to r. 49-Should plaintiff choose not to pursue remedy by way of application for judicial review, defendant's motion for summary judgment will be granted and action will be dismissed-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 9-Pension Act, R.S.C., 1985, c. P-6, s. 111-Federal Court Act, R.S.C., 1985, c. F-7, s. 28-Federal Court Rules, SOR/98-106, rr. 49, 57, 300(a)-Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10-Royal Canadian Mounted Police Superannuation Act, R.S.C., 1985, c. R-11.