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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.