2015 NBCA 17, 2015 NBCA 17

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 71-13-CA NEW BRUNSWICK COMMUNITY COLLEGE, ANNETTE ALBERT, SANDRA MABER, DIANE BURT and LORNA MUNRO APPELLANTS NEW BRUNSWICK COMMUNITY COLLEGE, ANNETTE ALBERT, SANDRA MABER, DIANE BURT et LORNA MUNRO APPELANTS - and - - et - THOMAS VIHVELIN RESPONDENT THOMAS VIHVELIN INTIMÉ New Brunswick Community College et al. v. Vihvelin, 2015 NBCA 17 New Brunswick Community College et autres c.

Vihvelin, 2015 NBCA 17 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 21, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 21 mai 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 227 Décision frappée d’appel : 2013 NBBR 227 Preliminary or incidental proceedings: [2013] N.B.J.

No. 339 Procédures préliminaires ou accessoires : [2013] A.N.-B. n o 339 Appeal heard: March 24, 2014 and January 20, 2015 Appel entendu : le 24 mars 2014 et le 20 janvier 2015 Judgment rendered: April 2, 2015 Jugement rendu : le 2 avril 2015

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellants: Daniel A. Standing Thomas Vihvelin appeared in person Avocats à l’audience : Pour les appelants : Daniel A. Standing Thomas Vihvelin a comparu en personne The Court The appeal is dismissed.

While the Court of Queen’s Bench judge applied an overly stringent test to determine the appellants’ motion for an order dismissing the action on the ground that the court lacks jurisdiction to try it, he did not commit reversible error in dismissing the motion. LA COUR Rejette l’appel.

Bien que le juge de la Cour du Banc de la Reine ait appliqué un critère trop strict afin de trancher la motion des appelants en vue d’obtenir une ordonnance portant rejet de l’action pour le motif que la Cour n’a pas compétence pour s’en saisir, il n’a pas commis d’erreur justifiant l’infirmation de sa décision en rejetant la motion. The judgment of the Court was delivered by DRAPEAU, C.J.N.B I. Introduction [ 1 ] The respondent worked as an instructor for New Brunswick Community College before taking an “entrepreneurial” leave beginning in January 2007.

The College deemed his employment terminated on July 25, 2008, in the aftermath of its rejection of his request for a leave extension. The appeal stems from the appellants’ unsuccessful motion for an order under Rule 23.01(2)(

a) dismissing the underlying action for damages on the ground that the court does not have jurisdiction to try it. Briefly stated, the appellants’ contention is that the court’s jurisdiction over the underlying dispute is ousted by the combined effect of a collective agreement and the Public Service Labour Relations Act , R.S.N.B. 1973, c. P-25 (“ Act ”), and that the respondent’s only recourse was to file a grievance and pursue non-judicial adjudication. [ 2 ] As is typically the case, the parties disagree on the essential nature of the dispute being litigated.

The appellants view it as encompassing issues within the exclusive adjudicative jurisdiction contemplated by the collective agreement and the Act . Those issues would arise from one line of inquiry, which is whether the collective agreement was violated by: (1) the denial of the respondent’s request for an extension of the entrepreneurial leave previously approved; (2) the decision to deem his

employment terminated on July 25, 2008; and (3) the handling of his request to buy back pensionable time. The latter issue would not give rise to a discrete justiciable dispute, but would be subsumed in a polybasic controversy over the

interpretation and application of the collective agreement. [ 3 ] By way of counter, the respondent argues the appellants are re-casting the case to give their jurisdictional argument a veneer of credibility. He contends the action is no more than a means of asserting his entitlement to damages for the appellants’ wrongful conduct in dealing with his post-employment request to buy back pensionable time.

In this regard, he points to the following allegations in the Statement of Claim: (1) he first attempted to buy back pensionable time in late August 2008 (i.e. after the appellants say his employment ceased); (2) the appellants owed him “a duty of care to properly instruct him in relation to the buy back of his pensionable time and to properly process his request to so buy it back”; and (3) he is entitled to damages for their “failure to process his request” and their “bad faith” in depriving him of “the opportunity to exercise his right” to buy back the pensionable time in question.

Correlatively, he emphasizes no claim in damages is made for wrongful dismissal, wrongful denial of his request for a leave extension or breach of any term or condition of his employment, the collective agreement or the Act . [ 4 ] The judge dismissed the motion because it was not “plain and obvious” the court lacked jurisdiction to try the action. The appellants submit this test has no application under Rule 23.01(2)(a), the only Rule invoked in their Notice of Motion. I agree, but find the case for dismissal of the action under Rule 23.01(2)(

a) has not been made. I come to that conclusion on the basis of the allegations in the pleadings and, more to the point, the evidence, particularly the appellants’ own evidence that the respondent was no longer an employee when the process to buy back pensionable time was initiated. [ 5 ] In the result, I would dismiss the appeal. Needless to say, I do not decide issues that are not before the Court, such as whether there is actually any merit to the underlying action. II. Background [ 6 ] The Statement of Claim is detailed.

It features allegations that bear repeating as they contextualize the dispute, shed light on the respondent’s complaint and, in material respects, find support in the evidential record: 1. The plaintiff, Thomas Vihvelin, is a resident of the City of Saint John, New Brunswick and a former employee of the defendant New Brunswick Community College (“NBCC”). 2. The defendant NBCC is a Crown Corporation created under the New Brunswick Community Colleges Act , S.N.B. 2010, c. N-4.05 with its head offices located in Fredericton, New Brunswick.

The defendant is made a defendant in the within action pursuant to section 54(1) of that Act . 3. The defendant Annette Albert was the acting principal of NBCC from in or about March 2008 until in or about February, 2009. 4. The defendant Diane Burt was the principal of NBCC Saint John, now the Saint John campus of the corporate defendant, from in or about February, 2009 until the date of the filing of this Action. 5. The defendant Lorna Munro was, at all times relevant hereto, employed by NBCC Saint John, now the Saint John campus of the corporate defendant, in the human resources department. 6.

The defendant Sandra Maber was, at all times relevant hereto, employed by NBCC Saint John, now the Saint John campus of the corporate defendant, as a supervisor to the human resources department. 7. Beginning in or about January 2007 the plaintiff was on an approved entrepreneurial leave from his job as an instructor at NBCC Saint John.

8. In or about April, 2008, the plaintiff applied to NBCC for an extension of his leave period for another 18 months. The application was refused and the plaintiff was informed of this fact in a letter received by him in or about May, 2008. 9. The plaintiff appealed the refusal of his said application to the then Minister of Post-Secondary Education, Training and Labour, the Hon Dr. Ed Doherty in or about May, 2008. NBCC had full knowledge and awareness of this appeal. 10. On or about August 20, 2008, the plaintiff was informed that Dr. Doherty had rejected his appeal.

On the same day, the plaintiff telephoned the human resources department at NBCC Saint John and spoke to the individual defendant Lorna Munro. The purpose and import of that telephone call was for the plaintiff to inquire about the procedure for buying back his pensionable time both while he was on entrepreneurial leave and while he was in the federal service. The plaintiff clearly explained the purpose for his call. 11. Knowledge of the issuance of pensions, the buyback of pension time and the procedure therefore was within the scope of employment for the defendant Lorna Munro. 12.

The defendant Lorna Munro informed the plaintiff, inter alia , that: a. He was eligible to buy back his pensionable time for the entire 18 month period of his entrepreneurial leave; b. She would begin to process the paperwork necessary for him to buy back his pensionable time; c. His status on the corporate database was “active employee”; and d. She was currently processing a pension buyback for another employee in an identical situation. 13.

At some time between August 20, 2008 and August 29, 2008, inclusive of those dates, the defendant Lorna Munro was informed by the defendant Sandra Maber, her supervisor, that the plaintiff could not buy back his pensionable time. 14. The information from the defendant Sandra Maber was given to her, at least in part, by the defendant Annette Albert. 15. The information regarding the plaintiff’s ability to buy back his pensionable time was wrong and was made in bad faith. 16.

The defendants Lorna Munro, Sandra Maber, and Annette Albert owed the plaintiff a duty of care to properly instruct him in relation to the buy back of his pensionable time and to properly process his request to so buy it back. 17. On or about August 29, 2008 the defendant Lorna Munro called the plaintiff and informed him that she had made a mistake and that he was not eligible to buy back his pensionable time because he was on unpaid leave. This information was wrong. 18.

On or about September 17, 2008 the plaintiff received a letter from the corporate defendant, NBCC, stating that he was deemed to have resigned his position effective July 25, 2008. The letter included a “Record of Employment”. The pension form included with the letter had been filled out for a “refund of contributions”. 19. During the following fall and winter the plaintiff made a number of unsuccessful attempts to buy back his pensionable time by dealing directly with the pension department in Fredericton.

20. On or about February 21, 2009 the plaintiff sent a letter to the Hon. Victor Boudreau, then Minister of Finance, attempting to buy back his pensionable time. In or about March, 2009 the letter was forwarded to the attention of the Hon. Rick Brewer, then Minister of Human Resources. 21. On or about March 27, 2009 the plaintiff received a letter from the Hon. Rick Brewer in which he advised the plaintiff that he was not eligible to buy back his pensionable time because he was no longer employed by NBCC. The Hon.

Rick Brewer further advised the plaintiff that he would be so eligible if he returned to work and resumed contributing to the pension plan. 22. The plaintiff e-mailed the individual defendant Diane Burt on or about May 15, 2009 to request a meeting to see if he could return to work and thus become eligible to buy back his pensionable time. He was told that she would not be able to meet with him for approximately 2 months. 23. On or about July 17, 2009 the plaintiff met with the individual defendant Diane Burt. She requested a copy of the plaintiff’s Curriculum Vitae .

The plaintiff provided it with the understanding that Diane Burt would provide him with an opportunity for short-term employment so that he would be eligible to buy back his pensionable time. In this context short-term was clearly defined between the parties as being between 2 and 4 weeks. 24. In or about November, 2009, having heard nothing from her in that interim, the plaintiff called Diane Burt to inquire about any short-term job opportunities. He was told that there was money available for a job and lots of short-term jobs that needed to be filled, but Diane Burt did not offer the plaintiff a job. 25.

Over the course of the following year the plaintiff continued to wait in anticipation of a short-term job offer so that he would be eligible to buy back his pensionable time. 26. In or about November, 2010 the plaintiff came to the conclusion that he was not going to be offered a short-term job by the corporate defendant. [ 7 ] The prayer for relief defines the special damages claimed as “the difference in the [respondent’s] pension over the course of [his] life between what he actually will receive and what he would have received had he purchased the relevant pensionable time”.

That claim appears immediately after this description of the cause of action: 27. The plaintiff states, and the fact is, that throughout the course of the above events the defendants, jointly and separately, acted in bad faith to deprive the plaintiff the opportunity to exercise his right to buy back his pensionable time. 28.

As a result of the defendants’ failure to process the plaintiff’s request for purchasing his pensionable time, the plaintiff has suffered, continues to suffer, and will continue to suffer, inter alia , the future loss of increased income from his pension, and significant personal inconvenience, emotional pain, and personal suffering. [ 8 ] That description is broadly consistent with the notice the respondent served on the Attorney General pursuant to s. 15 of the Proceedings Against the Crown Act , R.S.N.B. 1973, c. P-18.

In the notice, the respondent indicates his claim will be “based on the refusal of the New Brunswick Community College to process [his] request to buy back his pensionable time in August 2008”. [ 9 ] In the Statement of Defence, the appellants offer a somewhat different

interpretation of the events referenced in the Statement of Claim. More pertinently for our present purposes, they also state: (1) the respondent was a bargaining employee in

Part I of the Public Service and member of the New Brunswick Union of Public and Private Employees; (2) the terms and conditions of his employment were subject to the grievance and adjudication process specified in a collective agreement and the Act ; and (3) it follows the court is without jurisdiction to try the action. [ 10 ] As a segue to that plea, the Notice of Motion pursues an order that “[p]ursuant to Rule 23.01(2) (

a) the Notice of Action and Statement of Claim be struck as the Court of Queen’s Bench does not have jurisdiction in this matter” based

upon the following grounds: The [respondent] was at all material times a unionized employee subject to a collective agreement in force between the New BrunswickUnion of Public and Private Employees and Board of Management of the Province. Further pursuant to the […] collective agreement andsection 92 of the […] he had at all material times a grievance and adjudication process available to him therefore the [c]ourt does nothave jurisdiction in this matter. The Supreme Court of Canada [held] in Webber v. Ontario Hydro (SCC), [1995] S.C.J. No, 59 and New Brunswick v.O’Leary (SCC), [1995] S.C.J.

No. 60 that where the essential character of the dispute was the employment relationshipwhich arose out of and was governed by the collective agreement the [c]ourt was deprived of jurisdiction. […]. Rule 23.01(2)(

a) authorizes the court to dismiss the action. That is the remedy actually sought by the reference in the Notice of Motionto an order striking the Notice of Action and Statement of Claim. Nothing further need be said on that point. [11] At the hearing in the court below, the appellants relied upon an affidavit by the ExecutiveDirector of the College in which it is stated the respondent’s employment ceased on July 25, 2008.

Nevertheless, she goes on to venturethe opinion that “at all material times, the [respondent] was a unionized employee under the […] Act and subject to a collectiveagreement”, a copy of which is attached as an exhibit. [12] The collective agreement includes the following provisions: 1.01 This Agreement applies to and is binding on the Union, the employees, and the Employer. 2.09 In this Agreement, words defined in the Public Service Labour Relations Act have the same meaning as in the Act. 5.01 The Employer retains all the rights of management except as specifically limited by this Agreement. 25.01 The Employer may, at his discretion, and upon such terms as he deems advisable, grant leaves of absence with or without pay to anemployee. 49.01 (

a) Where an employee feels himself to be aggrieved by the

interpretation or application in respect of him of a provision by astatute, or a regulation, by-law, direction or other instrument made or issued by the Employer, dealing with terms and conditions ofemployment or, an alleged violation of any of the provisions of this Agreement by the Employer, or, as result of any occurrence or matteraffecting his terms and conditions of employment in respect of which no administrative procedure for redress is provided in or under anAct of the Legislative Assembly of New Brunswick, and, where the employee has the written consent of the Union respecting anygrievance relating to the

interpretation or application of this Agreement, the following [grievance] procedure shall apply: […] 50.01 Where an employee has presented a grievance up to and including the final level in the grievance process with respect to

a) the

interpretation or application in respect of him of a provision of a collective agreement or an arbitral award, or

b) disciplinary action resulting in discharge, suspension or a financial penalty, and his grievance has not been dealt with to his satisfaction, he may, subject to subsection 50.02 of this Article, refer the grievance toadjudication. 50.02 Where a grievance that may be presented by an employee to adjudication is a grievance relating to the

interpretation or applicationin respect of him of a provision of a collective agreement or an arbitral award, the employee is not entitled to refer the grievance toadjudication unless the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applied signifies in a

prescribed manner:

a) its approval of the reference of the grievance to adjudication; and

b) its willingness to represent the employee in the adjudication proceedings. 50.03 Where a grievance is referred to Adjudication, it shall be processed in accordance with the Public Service Labour Relations Act and Regulations thereunder. [Emphasis added.] [ 13 ] The respondent filed an affidavit in opposition to the motion. It targets the request to buy back pensionable time. The key paragraphs read as follows: 15.

On August 20, 2008 […] I called Lorna Munro at the NBCC – Saint John Human Resources Department and she told me that I was not terminated and I was eligible to buy back my pension but would not be able to continue with Blue Cross coverage after termination. She also confirmed that I am showing as an “active” employee on her computer that is connected to the main human resources database in Fredericton. Ms. Munro also told me that there was another employee in an identical situation who was also buying back his pensionable time. I instructed Ms.

Munro to proceed with the calculation and buyback of my pension before my termination. I did believe at that point in time that the information provided by Ms. Munro was true. 16. I sent two emails to Ms. Munro after our phone call; one on August 20 and the other was on August 22, neither of which was answered until August 29. Ms. Munro’s August 29 response stated that she had made an error and I was unable to purchase back my pensionable time because I was on an approved leave without pay. This turned out to be untrue.

In fact, I was eligible to buy back my pensionable time, but I would have had to return to work to do so. 17. On September 11, 2008 I requested the policy from NBCC where it states I cannot buy back my pension. It took 56 days and many reminders before I received the policy from NBCC, which was a link to the Public Service Superannuation Act. 18. On September 17, 2008 I received a registered letter from NBCC Human Resource Manager Sandra Maber dated September 10 advising me that “we have deemed that you have resigned from your position effective July 25, 2008”.

This was the first notice I received that NBCC had terminated my employment. 19. Starting in or about December, 2008, I made several attempts to buy back my pension directly by contacting the Fredericton Office of Human Resources and the Minister of Finance and the Minister of Human Resources. 20. By letter dated March 25, 2009 the Minister of Human Resources stated that “You may be eligible to purchase the period of entrepreneurial leave if you return to work and resume contributing to the pension plan once again”. I do attach a copy of this letter as Exhibit “C”. 21.

On May 15, 2009 I requested a meeting with then Principal of NBCC-Saint John Diane Burt but she was unavailable to meet with me until July 13, 59 days later. 22. On July 13, 2009 I met with Diane Burt the results of which are documented by emails where I agreed to make myself available to return to work for duration of two to four weeks so that I could buy back my pensionable time. I do attach an email from Diane Burt dated May 11, 2010 as Exhibit “D”. 23.

On April 6, 2011, I filed a Notice of Action and Statement of claim after receiving no job offers from NBCC of duration of two to four weeks or similar short timeframe.

[14] The judge dismissed the appellants’ motion for the following reasons: In support of its position, the defendants rely on such decisions such as Weber v. Ontario Hydro, (SCC), [1995] S.C.J.No. 59 and its companion case, New Brunswick v. O’Leary, (SCC), [1995] S.C.J. No. 60 and Smith v. Canada (RoyalCanadian Mounted Police), 2007 NBCA 58 [2007] N.B.J. No. 244 where at paragraph 14 the Court of Appeal summarized theeffect of decisions such as Weber and New Brunswick v. O’Leary.

From the point of view of the plaintiff his complaint against the defendants is an odd and unique situation that falls outside of thecollective agreement and arose only after it was clear to everybody he was ceasing to be an employee. He also makes the point that itarose more than a year and a half after he stopped paying union dues and more than a year and a half after he appears to have lost anystatus as an active member of that union. He points to

Article 3.01 of the Collective Agreement which indicates that, “Members in good standing are entitled to be represented bythe union” and then defines, “Members in good standing” without referring to people on such things as long-term leaves. The only typesof members identified and recognized in 3.01 on leave as being still active members were members on leave of absence resulting from aworker’s compensation or long-term disability claim, not someone on a lengthy entrepreneurial leave or other leave in the absolutediscretion of the employer.

There is a possibility that at some point the board of directors of the union may have made some other determination of circumstances tofind a member in good standing but there is no proof of that today. There have been a number of cases that have grappled with specific problems and specific people in odd situations. For example inAdams v. Cusack, 2006 NSCA 9 [2006] N.S.J. No. 25 (C.A.), Mr. Justice Cromwell made the comment at paragraph 66: The real issue is whether the processes available to the appellant within the public service provided an answer to the problem he raised.

In that case, Justice Cromwell concluded that those processes in that case did provide an answer. In this case, in my view, it is not plain and obvious that the duty of the union to represent the plaintiff in light of that membershipdefinition clause in 3.01 would have really been “... processes available to the appellant within the public service provid[ing] an answerto the problem he raised” to borrow Judge Cromwell’s words. I am not a hundred percent sure of that. I see there is room for argument.Probably it does.

Probably there was a remedy for him as a unionized employee on a leave to get the help of his union. In an Ontario case, City of Ottawa v. Stephen Girard 2012 ONSC 7256 the judge addressed a problem that has some vague and indirectrelationship to this one and came to the conclusion at para 28: The plaintiff will be without remedial recourse if the jurisdiction of this Court is ousted. He pointed out that both Weber and the earlier St. Anne Nackawic involved employees still employed and therefore still subject to acollective agreement. He distinguished those cases on that basis. Probably Mr.

Vihvelin did have the right to have that union represent him and if it would not do so then probably he had the right topursue them to force fair representation. Thus probably the exclusive jurisdiction in this case - as indicated in cases like Weber - was inthe processes under the Public Service Labour Relations Act - not before this Court. However I cannot resolve those issues in this case. Now by pre-trial motion under Rule 23.01(2)(

a) the defendants are asking for this case to be dismissed. The standard in deciding whetheror not to dismiss a case at this stage is higher than just “probably.” The Courts have used words like “plain and obvious” which is aheavier burden than just “probably.”

Accordingly for these reasons in my opinion although probably the plaintiff’s action will eventually be found to be barred, at this stage on what is before me especially with indications with someone on a long-term absence falling outside the definition of active member of the union, I am not satisfied that it is plain and obvious that this action should be dismissed. Thus the motion is dismissed . As I see it the result is divided. Although the defendant’s motion did not succeed, the plaintiff has to face the reality that probably at trial his case will be found to be barred by the legal rules that apply.

In my view it would not be helpful to the resolution of this matter for there to be an order of costs today and I will let each side bear their own. [paras. 9-21] [Emphasis added.] [ 15 ] Importantly, at the hearing on appeal and with the consent of all parties, the Court received, as further evidence, a letter from the respondent detailing his unsuccessful efforts to secure an extension of the time to file a grievance pursuant to the collective agreement and the Act .

The letter indicates: (1) a Union representative informed the respondent it was not prepared to request an extension of time and that his “pension issue was not grievable at the material times and further, if the identical circumstances arose today, it also would not be grievable”; and (2) the representative’s decision was upheld by the Union’s Board of Directors. [ 16 ] As mentioned, the appellants contend the “plain and obvious” test is inapplicable on a motion under Rule 23.01(2)(a). In their submission, Rule 23.01(2)(

a) requires the court to determine whether the moving party has established the court is without jurisdiction over the subject-matter of the action; the court either has jurisdiction or it does not. The appellants disagree with the view that the underlying dispute was not grievable and wrap up their case on appeal with the submission that the respondent’s failure to file a grievance on time cannot trigger subject-matter jurisdiction in the Court of Queen’s Bench where none would otherwise exist. They cite Allen v. Alberta , 2003 SCC 13 , [2003] 1 S.C.R. 128, at para. 17 , and Giesbrecht v.

McNeilly et al. , 2008 MBCA 22 , [2008] M.J. No. 74 (QL), at paras. 60-63 , in support of this submission. III. Analysis and Decision [ 17 ] Before addressing the substantive merits of the appellants’ motion, the Court must resolve two closely related procedural questions: (1) does the “plain and obvious” test apply on a motion under Rule 23.01(2)(a)?; and (2) if not, what is the applicable standard? A. The test for motions under Rule 23.01(2)(a) [ 18 ] Rule 23 provides as follows: 23.01 Where Available

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (

a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (

b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or 23.01 Applicabilité

(1) Le demandeur ou le défendeur peut, avant la mise au rôle de l’action, demander à la cour

a) que toute question de droit soulevée par une plaidoirie dans l’action en cours soit tranchée avant le procès, si la solution de cette question peut régler le litige, abréger le procès ou réduire considérablement les frais,

b) qu’une plaidoirie qui ne révèle aucune cause d’action ni de défense raisonnable soit radiée ou

(

c) for judgment on an admission of fact in the pleadings, in the examination of an adverse party, or in answer to a Request to Admit Facts;

(2) A defendant may, at any time before the action is set down for trial, apply to the court to have the action stayed or dismissed on the ground that (

a) the court does not have jurisdiction to try the action, (

b) the plaintiff does not have legal capacity to commence or continue the action, or (

c) another action is pending in the same or another jurisdiction between the same parties and in respect of the same claim. (

d) New Brunswick is not a convenient forum for the trial or hearing of the proceeding. 23.02 Evidence Except with leave of the court, on applications under Rule 23.01(1), evidence shall not be admitted except (

a) a transcript of a relevant examination, and (

b) affidavits which are necessary to identify a document or prove its execution. 23.03 Effect of Judgment Under This Rule Where a plaintiff obtains judgment under this rule, such judgment shall not prejudice his right to proceed against the same defendant for other relief, or against any other defendant for the same or other relief, unless the court orders otherwise.

c) que jugement soit rendu, fondé sur des faits avoués dans les plaidoiries, pendant l’interrogatoire d’une

partie adverse ou en réponse à une demande d’aveux.

(2) Le défendeur peut, avant la mise au rôle de l’action, demander à la cour de suspendre ou de rejeter l’action au motif

a) que la cour n’a pas compétence pour s’en saisir,

b) que le demandeur n’a pas la capacité juridique d’introduire ou de continuer l’action ou

c) qu’une autre action est en cours dans cette juridiction ou dans une autre, entre les mêmes parties et pour la même demande ou

d) le Nouveau-Brunswick n’est pas un endroit propice à l’instruction ou à l’audition de l’instance. 23.02 Preuve Sauf avec permission de la cour, aucune preuve n’est admise dans des demandes présentées en application de la règle 23.01(1), excepté

a) la transcription d’interrogatoires pertinents et

b) les affidavits nécessaires pour identifier un document ou prouver sa passation. 23.03 Effet du jugement rendu en application de la présente règle Le demandeur qui obtient un jugement en application de la présente règle est libre de poursuivre le même défendeur pour d’autres mesures de redressement ou un autre défendeur pour des mesures de redressement identiques ou différentes, sauf ordonnance contraire de la cour.

[ 19 ] As the motion judge correctly underscored, a finding that the court probably lacks subject- matter jurisdiction would not suffice to meet the “plain and obvious” test; the burden of persuasion and proof imposed by that standard is significantly heavier than the one associated with a balance of probabilities standard. The respondent submits the “plain and obvious” test applies not only to a motion to strike out a pleading under Rule 23.01(1)(b), but also to a motion to dismiss the action for want of jurisdiction under Rule 23.01(2)(a).

He relies on a number of decisions in the Federal Court (Trial Division), including Roy Little Chief v. Siksika Nation , 2003 FCT 708 , [2003] F.C.J. No. 911 (QL), and Robertson v. Beauvais , 2011 FC 378 , [2011] F.C.J. No. 487 (QL). [ 20 ] In each of those cases, however, the court was asked to strike out the plaintiff’s pleading pursuant to Rule 221(1)(

a) of the Federal Courts Rules , and to succeed, the moving party had to show it was plain and obvious the pleading failed to disclose a reasonable cause of action because it was not justiciable by the court . Rule 221 reads as follows: 221.

(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (

a) discloses no reasonable cause of action or defence, as the case may be, (

b) is immaterial or redundant, (

c) is scandalous, frivolous or vexatious, (

d) may prejudice or delay the fair trial of the action, (

e) constitutes a departure from a previous pleading, or (

f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly.

(2) No evidence shall be heard on a motion for an order under paragraph (1)( a ). 221.

(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou

partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :

a) qu’il ne révèle aucune cause d’action ou de défense valable;

b) qu’il n’est pas pertinent ou qu’il est redondant;

c) qu’il est scandaleux, frivole ou vexatoire;

d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder;

e) qu’il diverge d’un acte de procédure antérieur;

f) qu’il constitue autrement un abus de procédure. Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence.

(2) Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1) a ). [ 21 ] As can be seen, both our Rule 23.01(1)(

b) and Rule 221(1)(

a) of the Federal Courts Rules allow the court to strike out a pleading for failure to disclose a reasonable cause of action. Critically, the Federal Courts Rules do not contain a provision similar to our Rule 23.01(2)(

a) and, as a result, objections to subject-matter jurisdiction processed under Rule 221(1)(

a) can only succeed if it is “plain and obvious” the targeted pleading fails to disclose a reasonable cause of action. In this jurisdiction, the issue of want of jurisdiction is not determined on a motion to strike out a pleading, but rather by way of a motion for an order dismissing the action under Rule 23.01(2)(a).

[22] In both of the Federal Court cases mentioned above, the “plain and obvious” test was applied onthe precedential authority of the decision in first instance in Hodgson v. Ermineskin Indian Band No. 942, (FC),[2000] F.C.J. No. 313 (T.D.) (QL), affirmed (FCA), [2000] F.C.J. No. 2042 (QL), leave to appeal refused [2001]S.C.C.A. No. 67 (QL).

In Hodgson, Madam Justice Reed held the “plain and obvious” test applies to all motions to strike out a pleadingunder Rule 221(1)(a), whether lack of subject-matter jurisdiction or substantive deficiency is the basis for the contention that thepleading fails to disclose a reasonable cause of action (para. 10). On appeal, the correctness of that approach was not debated, let aloneendorsed, because the defendants conceded “that on a motion to strike under Rule 221(1)(

a) the case must be plain and obvious andbeyond doubt” (para. 4). [23] The “plain and obvious” test has rarely found its way into reasons for granting or denying reliefunder Rule 23.01(2)(a). Robichaud v. Attorney General of Canada, 2012 NBQB 152, 388 N.B.R. (2d) 380 is an exception. In that case,the motion judge referred to the “plain and obvious” standard in refusing to dismiss the action. However, on appeal, the Court reversed.It did so without applying the “plain and obvious” test.

The Court found, on its assessment of the record, that the defendant hadestablished the lack of jurisdiction required by Rule 23.01(2)(a): 2013 NBCA 3, 398 N.B.R. (2d) 259, per Robertson J.A. for the Court.Very nearly all decisions involving the application of Rule 23.01(2)(

a) make no mention of the “plain and obvious” standard; afteridentifying the essential nature of the dispute, the court simply determines whether the moving party has established it is not justiciable(see Munn v. New Brunswick et al., 2013 NBQB 51, 400 N.B.R. (2d) 184, affirmed 2013 NBCA 43, 405 N.B.R. (2d) 398; A/S NyborgPlast v. Groupe-Qualité Lamèque Ltée/Lamèque Quality Group Ltd., 2001 NBCA 86, 242 N.B.R. (2d) 98, leave to appeal refused[2001] S.C.C.A. No. 587 (QL); Strait Crossing Inc. v.

Workplace Health, Safety and Compensation Commission of New Brunswick,2002 NBQB 66, 248 N.B.R. (2d) 308, affirmed 2002 NBCA 70, 252 N.B.R. (2d) 51, at para. 40; and Smith v. Att. Gen. of Canada, 2006NBQB 86, 300 N.B.R. (2d) 363, affirmed 2007 NBCA 58, 316 N.B.R. (2d) 180). [24] Admittedly, there are observations in Dugas v. Landry (1997), (NB CA), 194N.B.R. (2d) 150, [1997] N.B.J. No. 511 (C.A.) (QL) that provide, through analogical reasoning, some support for the application of the“plain and obvious” standard to motions under Rule 23.01(2)(a). In that case, Rule 23.01(1)(

c) was in play and the issue was whether themotion judge committed reversible error in granting judgment to the defendants on the basis of admissions of fact. At paragraph 11 of itsreasons, the Court expressed the view that “the evidence before the court must be such as to demonstrate clearly, patently and beyond areasonable doubt that the [action] would not succeed” before the defendants can prevail under Rule 23.01(1)(c). On that view, the “plainand obvious” test would not be confined to motions to strike out a pleading under Rule 23.01(1)(

a) and, indeed, would govern theapplication of other provisions of Rule 23, including those where evidence is allowed and, indeed, expected, and the actual dismissal ofthe action is permissible. I respectfully reject that argument for the following reasons. [25] First, in Dugas v. Landry, the issue of the proper test to apply under Rule 23.01(2)(a), or Rule23.01(1)(

c) for that matter, was not debated. Second, the observations quoted in the preceding paragraph were made without reference tojurisprudence or any interpretative discussion and analysis. Third, the observations in question are at odds with the approach adopted inthe decisions of this Court referenced in paragraph 23. Fourth, the observations are not an essential component of the Court’s decision-making and, accordingly, fall within the category of dicta. Indeed, the Court’s decision to intervene in Dugas v.

Landry is clearly case-specific, being traceable to the motion judge’s failure: (1) to appreciate the significance of credibility-related issues that could not beresolved without a trial; and (2) to take into consideration all of the admissions in the record (see para. 10). [26] Significantly, courts have abstained from applying the “plain and obvious” test in disposing ofmotions under Rule 19.05(2)(b), which allows a defendant who is served outside of New Brunswick to apply for an order setting asideservice and staying or dismissing the proceeding on the ground that the court lacks jurisdiction.

In that context, the court simply decideswhether the moving party has established the requisite lack of jurisdiction (see New Brunswick v. Rothmans Inc., 2010 NBQB 381, 373N.B.R. (2d) 157, leave to appeal refused [2011] N.B.J. No. 116 (C.A.) (QL), leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 221(QL); Shannon v. Canadian Medical Protective Association, 2006 NBQB 274, 310 N.B.R. (2d) 22; La Succession de Feu AndréGauthier v. Coutu et al., 2006 NBCA 16, 296 N.B.R. (2d) 34; and Cosman v. UsedRides.com et al., 2014 NBQB 129, 419 N.B.R. (2d)370).

There is no principled reason for a more stringent standard under Rule 23.01(2)(a). [27] Furthermore, it bears noting the “plain and obvious” test is not applied under Rule 21.01(3)(a)of the Ontario Rules of Civil Procedure, which is identical, in all pertinent respects, to our Rule 23.01(2)(a). In TeleZone Inc. v. Canada(Attorney General), 2008 ONCA 892, (sub nom. McArthur et al. v. The Attorney General of Canada et al.) [2008] O.J. No. 5291 (QL),affirmed 2010 SCC 63, [2010] 3 S.C.R. 626, the issue was whether the action should be dismissed for want of jurisdiction pursuant toRule 21.01(3)(a).

The Ontario Court of Appeal ruled the “plain and obvious” test applies to a motion to strike out a pleading for failure todisclose a reasonable cause of action, but not to a motion under Rule 21.01(3)(a) (see para. 92). The correctness of that understandingwas not doubted in the Supreme Court of Canada. See, as well, McCracken v. Canadian National Railway Co., 2010 ONSC 4520,[2010] O.J. No. 3466 (QL), at paras. 93 and 108, reversed on other grounds 2012 ONCA 445, [2012] O.J. No. 2884 (QL). [28] There are sound process-related reasons to limit the “plain and obvious” test to Rule 23.01(1)(b).

On a motion by a defendant, the question is whether the statement of claim, on its face, discloses a reasonable cause of action, notwhether the plaintiff actually has a reasonable chance of prevailing at trial. As a general rule, one that admits of few exceptions, the courtmust accept as proven all allegations of fact in the contested pleading and dismiss the motion unless the fundamental deficiency is “plain

and obvious”. It has long been widely accepted that the power to strike out should only be exercised where there is no doubt the pleading century ago, the animating concern was described as follows: “[t]here is always some danger of a pruner cutting off a fruitful boughmistaking it for an unfruitful one”: Sentinel-Review Co. v. Robinson, [1926] O.J. No. 94 (S.C.) (QL). [29] The test under Rule 23.01(1)(

b) is stringent because of: (1) a fear that, if it were otherwise,access to justice might be denied for meritorious, but poorly articulated claims; and (2) the belief in the curative power of appropriateamendments to pleadings. Moreover, that test is applied to a factual matrix shaped without resort to evidence. A different process iscontemplated under Rule 23.01(2)(a). [30] On a motion under Rule 23.01(2)(a), pleaded allegations of fact are not deemed proven and,although the hearing should not be turned into a full-blown trial, evidence is both admissible and expected.

The focus is on the truenature of the underlying dispute, rather than its formal description, and an amendment to the statement of claim will rarely, if ever, becapable of relieving against a jurisdictional deficiency. Rule 23.01(2)(

a) requires a “determination” of the issue of subject-matterjurisdiction, a question of mixed fact and law. Evidence-dependent determinations under the Rules of Court stand to be made byapplication of the ordinary civil standard: the balance of probabilities. The burden of proof and persuasion typically lies with the movingparty. [31] In my judgment, on a motion for dismissal of the action under Rule 23.01(2)(a), the defendantmust show that the court probably lacks subject-matter jurisdiction. If the defendant fails to discharge that burden, the motion must bedismissed: A/S Nyborg Plast, at para. 8.

If the motion is allowed and the action is dismissed, the plaintiff may appeal, without leave, tothis Court. [32] In the result, I agree with the appellants’ submission that the motion judge applied the wrongtest to dispose of their motion. That said, appeals are, stricto jure, against the decision in first instance, not the court’s supportingreasons. B. The merits of the appellants’ motion [33] In cases like the present one, the court’s task is to determine whether the dispute underlying thelawsuit is subject to the grievance and adjudication processes provided by the collective agreement.

The focus is on the dispute’sessential nature, rather than its formulation in the statement of claim. In carrying out that task, the court must follow the pathwayprescribed by the Supreme Court of Canada, most famously in Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929,[1995] S.C.J. No. 59 (QL), where Justice McLachlin, now Chief Justice of Canada, made the following oft-quoted observations: On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether thedispute or difference between the parties arises out of the collective agreement.

Two elements must be considered: the dispute and theambit of the collective agreement. In considering the dispute, the decision-maker must attempt to define its “essential character”, to use the phrase of La Forest J.A. inEnergy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), (NB CA), 148 D.L.R. (3d) 398 (N.B.C.A.).The fact that the parties are employer and employee may not be determinative.

Similarly, the place of the conduct giving rise to thedispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, noteverything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), (ON CA), 75 O.R. (2d) 609(C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Somecases, however, may be less than obvious.

The question in each case is whether the dispute, in its essential character, arises from theinterpretation, application, administration or violation of the collective agreement. Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize theclasses of case that will fall within the exclusive jurisdiction of the arbitrator.

However, a review of decisions over the past few yearsreveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith onthe part of the union; conspiracy and constructive dismissal; and damage to reputation (Bartello v. Canada Post Corp. (1987), 1987

177 (ON SC), 46 D.L.R. (4th) 129 (Ont. H.C.); Bourne v. Otis Elevator Co. (1984), 45 O.R. (2d) 321 (H.C.); Butt v. UnitedSteelworkers of America (1993), (NL SC), 106 Nfld. & P.E.I.R. 181 (Nfld. T.D.); Forster v. Canadian AirlinesInternational Ltd. (1993), (BC SC), 3 C.C.E.L. (2d) 272 (B.C.S.C.); Bell Canada v. Foisy (1989),(QC CA), 26 C.C.E.L. 234 (Que. C.A.); Ne-Nsoko Ndungidi v. Centre Hospitalier Douglas, (QC CS), [1993] R.J.Q.536). This approach does not preclude all actions in the courts between employer and employee.

Only disputes which expressly or inferentiallyarise out of the collective agreement are foreclosed to the courts: Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C.250 (Div. Ct.), at p. 258, per Osler J.; Butt v. United Steelworkers of America, supra; Bourne v. Otis Elevator Co., supra, at p. 326.Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra. […] It might occur that a remedy is required which the arbitrator is not empowered to grant.

In such a case, the courts of inherent jurisdictionin each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residualinherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of BritishColumbia in Moore v.

British Columbia (1988), (BC CA), 50 D.L.R. (4th) 29, at p. 38, accepted that the court’sresidual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise thatjurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to thelabour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a “real deprivation of ultimateremedy”. […] On the

interpretation outlined above, the question is whether the conduct giving rise to the dispute between the parties arises eitherexpressly or inferentially out of the collective agreement between them. The appellant contends that the dispute in this case falls outside the collective agreement. The act of hiring private investigators whoused deception to enter his family home and report on him does not, he contends, relate to the

interpretation, application or administrationof the collective agreement. It is not in its essential character a labour matter; it is rather a matter of the common law and theconstitutional rights of himself and his family. It follows, he submits, that the arbitrator does not have jurisdiction over the claims andthat the courts may entertain them.

Hydro, on the other hand, argues that the essential character of the dispute places it firmly within the scope of the collective agreement.It points out that the conduct complained of arose in response to a claim for sick benefits provided for in the collective agreement, andargues that the manner in which the employer monitors entitlement to those benefits is part of the administration of the agreement. Isolated from the collective agreement, the conduct complained of in this case might well be argued to fall outside the normal scope ofemployer-employee relations.

However, placed in the context of that agreement, the picture changes. The provisions of the agreementare broad, and expressly purport to regulate the conduct at the heart of this dispute.

Article 2.2 of the collective agreement extends the grievance procedure to “[a]ny allegation that an employee has been subjected to unfairtreatment or any dispute arising out of the content of this Agreement. . .”. The dispute in this case arose out of the content of theAgreement. Item 13.0 of Part A of the Agreement provides that the “benefits of the Ontario Hydro Sick Leave Plan ... shall be consideredas part of this Agreement”.

It further provides that the provisions of the plan “are not an automatic right of an employee and theadministration of this plan and all decisions regarding the appropriateness or degree of its application shall be vested solely in OntarioHydro”. This language brings the medical plan and Hydro’s decisions concerning it expressly within the purview of the collectiveagreement. Under the plan, Hydro had the right to decide what benefits the employee would receive, subject to the employee’s right togrieve the decision. In the course of making such a decision, Hydro is alleged to have acted improperly.

That allegation would appear tofall within the phrase “unfair treatment or any dispute arising out of the content of [the] Agreement” within

Article 2.2. I conclude that the wide language of

Article 2.2 of the Agreement, combined with item 13.0, covers the conduct alleged against Hydro.Hydro’s alleged actions were directly related to a process which is expressly subject to the grievance procedure. While aspects of thealleged conduct may arguably have extended beyond what the parties contemplated, this does not alter the essential character of the

conduct. In short, the difference between the parties relates to the “administration ... of the agreement” within s. 45(1) of the Labour Relations Act . [paras. 51-54, 57 and 68-73] [Emphasis added.] [ 34 ] Once the court has identified the essential character of the dispute that underlies the lawsuit, it must determine whether the dispute in question is covered by the grievance and adjudication processes provided by the collective agreement.

In making that determination, the court considers whether the conduct that gave rise to the dispute is regulated, either expressly or inferentially, by the collective agreement. If the dispute could have been grieved and adjudicated under the collective agreement, the jurisdiction of the court is ousted. [ 35 ] The appellants contend a review of the Statement of Claim, particularly paragraphs 7-10, 13 and 18, confirms the essential character of the dispute concerns the employment relationship between the respondent and his employer, the College.

That would be so because of the pleaded references to the respondent’s employment, the approved “entrepreneurial leave”, the denial of its extension, and the deemed termination of employment. In the appellants’ ultimate submission, all of the respondent’s “workplace issues” could have been grieved and, as a consequence, there was “an alternative dispute resolution scheme prescribed by law and his collective agreement”. [ 36 ] The appellants place particular reliance upon

Article 49.01. They point out a similarly-worded provision has been described as “very broad” because it is “not limited to matters relating to the terms or conditions of employment, but extends to situations in which ‘any employee feels aggrieved … as a result of any occurrence or matter affecting the terms and conditions of employment of the employee”: Adams v. Cusack , 2006 NSCA 9 , [2006] N.S.J. No. 25 (QL), at para. 55 , per Cromwell J.A., as he then was. In the appellants’ submission, there is nothing exceptional about the present case; it raises issues similar to the ones considered grievable in Taylor v.

New Brunswick (Department of Training and Employment Development) , [2004] N.B.L.A.A. No. 27 (QL) and Treslan v. Memorial University of Newfoundland, [1996] N.J. No. 281 (S.C.) (QL) . [ 37 ] I respectfully disagree. [ 38 ] In my view, the case for an order under Rule 23.01(2)(

a) has not been made. In a nutshell, the appellants have failed to establish on a balance of probabilities that, at the material time, which is when they engaged in the conduct for which the claim in damages is made, the respondent was “an employee” entitled to file and prosecute a grievance for the purposes of securing a related remedy. Admittedly, on this point, my view is at odds with the motion judge’s.

However, I am confident he would have concluded differently had the significance of the respondent’s status as an ex-employee been appropriately highlighted, and had the record at his disposal included, as ours does, evidence from the respondent’s former Union that the dispute over the buy-back of pensionable time was not grievable. [ 39 ] The Statement of Claim does not put forward a claim for damages by reason of the denial of the request for a leave extension, termination of employment, non-compliance with a term or condition of employment or breach of the collective agreement.

If that were the case, the court’s lack of jurisdiction would seem apodictic having regard to

Article 9 (“Discipline, Suspension and Discharge”),

Article 24 (“Miscellaneous Leave”),

Article 49 (“Grievance Procedure”),

Article 50 (“Adjudication”) and the Act ’s definition of the terms “employee” and “grievance”. I realize pleadings can be drafted in ways that camouflage the real nature of the underlying complaint and I readily accept courts must be vigilant to ensure that substance trumps form in determining whether lack of subject-matter jurisdiction has been established.

That said, while the narrative in the Statement of Claim includes references to decisions made while the respondent was in the employ of the College (e.g. the denial of a leave extension and the deemed termination of his employment on July 25, 2008), the action does not seek recovery of compensation for losses attributable to those decisions. The respondent’s suit is for compensatory and other damages for the handling of his request to buy back pensionable service.

The appellants’ pre-termination conduct may be relevant in determining whether they acted in bad faith in handling his request, but that is a far cry from saying that conduct is the basis for the cause of action asserted in the Statement of Claim. [ 40 ] By virtue of

Article 2.09, the Act ’s

definitions are incorporated into the collective agreement, and the appellants have not provided a satisfactory answer to the contention that the statutory

definitions of “employee” and “grievance” operate to deny former employees the right to file and pursue to adjudication a complaint of wrongdoing in connection with a request to buy back pensionable time. The collective agreement allows an employee to file and prosecute a grievance . Subject to exceptions that have no application here, the Act provides an “employee” is someone employed in the Public Service. It defines “grievance” as follows:

“grievance” means (

a) a complaint in writing presented in accordance with a collective agreement or an arbitral award by the employer, an employee or a bargaining agent […] except that for the purposes of grievances with respect to discharge or suspension, a reference to an “employee” includes a former employee […] [Emphasis added.] « grief » désigne

a) une plainte présentée par écrit, conformément à une convention collective ou à une sentence arbitrale, par l’employeur, un employé ou un agent négociateur […] à l’exception qu’aux fins des griefs concernant un congédiement ou une suspension, le renvoi à un « employé » s’entend également d’un ancien employé […] [C’est moi qui souligne.] [ 41 ] If, as the College’s evidence suggests, the respondent ceased to be an employee on July 25, 2008, he was not an “employee” within the meaning of Articles 49 and 50 at the material time, which, it bears repeating, is when the appellants engaged in the conduct for which the claim for damages is made.

Moreover, the underlying dispute does not relate to a discharge or suspension and, as a result, it does not fall into the category of grievances prosecutable by an ex-employee. As Brown & Beatty state in Canadian Labour Arbitration (Toronto: Thomson Reuters Canada, 2014) (loose-leaf updated 2014, release 39) ch. 2 at 14, “[i]t is obviously fundamental to the arbitrator’s jurisdiction … that the grievor be covered by [the collective agreement’s] terms”. IV. Conclusion and Disposition [ 42 ] The motion judge erred in applying the “plain and obvious” test to determine the appellants’ motion under Rule 23.01(2)(

a) for an order dismissing the action on the ground the court lacks jurisdiction to try it. However, that error is inconsequential because the judge rightly dismissed the motion, the appellants having failed to establish on a balance of probabilities the requisite lack of subject-matter jurisdiction. Specifically, the appellants have not persuasively countered the contention that the

definitions of “employee” and “grievance” under the Public Service Labour Relations Act operate to deny former employees, like the respondent, an entitlement to file and pursue to adjudication a grievance for wrongdoing in connection with a post-termination request to buy back pensionable time. [ 43 ] In the result, I would dismiss the appeal. As noted in the introduction to these reasons, the question of whether there is merit to the underlying action stands unresolved.

Without etching in stone the basis for liability articulated in the Statement of Claim, the litigation raises a number of interesting questions, including whether, at the material time, the respondent was legally entitled to buy back pensionable time and whether the appellants were subject to a duty of good faith and “a duty of care to properly instruct him in relation to the buy back of his pensionable time and to properly process his request to so buy it back”. [ 44 ] I would wrap up the proceedings by confirming the appellants’ joint and several liability for the respondent’s appeal-related taxable disbursements, and by suggesting that consideration be given to the appropriateness of processing the action under Rule 79 (“Simplified Proceedings”). ____________________________________ J.

ERNEST DRAPEAU, C.J.N.B. WE CONCUR :

__________________________________ KATHLEEN A. QUIGG, J.A. ___________________________________ BRADLEY V. GREEN, J.A.