Brousseau v. Foley, 2011 ABQB 813

Court of Queen ’ s Bench of Alberta Citation: Brousseau v. Foley, 2011 ABQB 813 Date: 20111223 Docket: 1104 00915 Registry: Grande Prairie Between: Yvon Brousseau Applicant - and - Dakota Foley and Devon Foley Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Based on an altercation he had with Dakota Foley’s father, Mr. Brousseau applies, without giving notice to the respondents, for a restraining order that would prevent Dakota Foley from continuing with his employment for the same employer who employs Mr. Brousseau and would also prevent Dakota Foley’s father, Devon Foley, from providing work-related transportation for his son. The common employer of Mr. Brousseau and Dakota Foley is aware of the altercation between Mr. Brousseau and the Foleys and has not terminated Dakota Foley’s employment. [ 2 ] The application is denied.

Rule 6.4 requires that Mr. Brousseau give notice of his application for a restraining order to the respondents. Moreover, he must make his new application returnable at a special chambers hearing that will hear whatever witnesses the parties may provide.

[ 3 ] Preventing a young person from maintaining employment is a decision that may have serious long term consequences; it is inappropriate to deal with such an issue without giving the respondents an opportunity to defend their position. 1. Background [ 4 ] Yvon Brousseau and Dakota Foley are both employed by the same company. Mr. Brousseau states that Dakota Foley’s father pulled him out of his truck one day after work to complain about Mr. Brousseau’s treatment of Dakota Foley. Mr.

Brousseau alleges that while he was being pulled out of his truck, he slipped and fell, and while he was on the ground, he was kicked in the head by Dakota Foley. [ 5 ] Mr. Brousseau does not indicate whether this incident was reported to the police and if any police action has been taken. [ 6 ] The construction foreman of the company which employs both Mr. Brousseau and Dakota Foley indicates that Dakota Foley is a high school student in the RAP student program who has been a member of the foreman’s crew since mid-October, 2011.

Dakota Foley lives in Sexsmith and must rely on rides to get to work; usually, his father takes him to work and picks him up from work; on some occasions, Dakota Foley has missed work due to road conditions and missed rides. [ 7 ] Without giving notice to Dakota Foley or to Devon Foley, Mr. Brousseau asks for a restraining order that would prevent Dakota Foley from continuing his employment at their mutual employer and would prevent Devon Foley from driving his son to that employment. 2.

Rule 6.4 requires a party who applies for a court to order to give notice to those who will be affected by the order unless giving notice will cause the applicant undue prejudice; in the circumstances here the applicant must give the usual notice [ 8 ] It is only in exceptional circumstances that a court will make an order at the request of one party without giving the party or parties who are affected by the order the opportunity of opposing the order. [ 9 ] Here, the information provided by the employer indicates that Dakota Foley is a young person, with not much work experience, who is part of a work program which gives young people with ambition to join the work force the opportunity to watch and assist experienced workers.

The construction foreman for the unit which employs both Mr. Brousseau and Dakota Foley indicates that he himself has noticed that Dakota Foley’s conduct has given rise to some complaints from fellow workers and that these complaints arise out of Dakota Foley’s lack of work experience and work habits. [ 10 ] Mr. Brousseau states that Dakota Foley’s father should not have lost his temper over Mr. Brousseau’s complaints to Dakota Foley about a radio being too loud. [ 11 ] Mr. Brousseau states that he believes that Dakota should lose his job. [ 12 ] Clearly, the court order which Mr.

Brousseau wants could have long lasting effects on Dakota Foley. Mr. Brousseau, on the other hand, will not suffer undue prejudice if he has to give notice to Dakota and Devon Foley of the application. [ 13 ] In the circumstances here, which include the fact that the parties are at the moment unrepresented by lawyers and that the circumstances of the incident which give rise to Mr. Brousseau ‘s application may well be contested, it is foreseeable that a court will have to hear from witnesses before making any decision on Mr. Brousseau’s request. Therefore, Mr.

Brousseau must give notice to the Foley’s of his application. Moreover, Mr. Brousseau will have to make his application returnable at a special chambers hearing during

which witnesses can be heard for what the court sometimes refers to as a viva voce hearing. For that purpose, at least ½ day will have to be set aside. Mr. Brousseau should make arrangements for that hearing with the Clerk of the Court. Application brought before the Justice on 14 th and 21 st days of December, 2011. Dated at the City of Grande Prairie, Alberta this 23 rd day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Yvon Brousseau, on his own behalf