2014 NBCA 56, 2014 NBCA 56

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 111-13-CA ERIC JOSEPH MOURANT APPELLANT ERIC JOSEPH MOURANT APPELANT - and - - et - TOWN OF SACKVILLE, a municipal bodycorporate RESPONDENT TOWN OF SACKVILLE, une corporationpersonnalisée INTIMÉE Mourant v. Town of Sackville, 2014 NBCA 56 Mourant c.

Town of Sackville, 2014 NBCA 56 CORAM: The Honourable Justice Deschênes The Honourable Justice Robertson The Honourable Justice Richard CORAM : l’honorable juge Deschênes l’honorable juge Robertson l’honorable juge Richard Appeal from a decision of the Court of Queen’sBench: October 4, 2013 Appel d’une décision de la Cour du Banc de laReine : le 4 octobre 2013 History of case: Decision under appeal: 2013 NBQB 325 Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : 2013 NBQB 325 , 2013 NBBR 325 Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 29, 2014 Appel entendu : le 29 janvier 2014

Judgment rendered: September 4, 2014 Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Justice Deschênes The Honourable Justice Robertson Jugement rendu : le 4 septembre 2014 Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Robertson Counsel at hearing: For the appellant: George E. Kalinowski For the respondent: James F. LeMesurier, Q.C. THE COURT The appeal is allowed without costs, and, although the motion judge’s conclusion on the question of law determined pursuant to Rule 23.01(1)(

a) of the Rules of Court is confirmed, the dismissal of the action is set aside. Avocats à l’audience : Pour l’appelant : George E. Kalinowski Pour l’intimé : James F. LeMesurier, c. r. LA COUR L’appel est accueilli sans dépens et, bien que la conclusion du juge saisi de la motion sur la question de droit tranchée en vertu de la règle 23.01(1)

a) des Règles de procédure soit confirmée, le rejet de l’action est annulé. The following is the judgment delivered by RICHARD J.A. I. Introduction [ 1 ] The chief administrative officer and certain other officers of a New Brunswick municipality enjoy greater security of tenure than is generally the case for other employees. The protection is afforded by statute. Other than retirement, death or resignation, these municipal officers can only be dismissed for cause by the affirmative vote of two thirds of the whole council.

The first question raised in this appeal is as follows: when a municipal officer is removed from office for cause by such a vote, can reinstatement be sought by means other than judicial review? In the present case, the officer sought reinstatement by commencing an action in the Court of Queen’s Bench. In determining a question of law before trial, in the context of a motion under Rule 23.01(1)(a), a judge of that Court answered “no”. I agree. The judge then went on to dismiss the action without there being a motion for

summary judgment or a direction under Rule 37.01(

a) to convert the motion into one for judgment. Thus, we must address a further issue: whether the judge erred in dismissing the underlying action. In my view, he erred.

[ 2 ] The following reasons address solely the two questions outlined above. If necessary, all unanswered questions will have to be resolved as this matter moves forward by whatever future procedure the parties choose to follow. II. Factual background [ 3 ] On February 9, 2010, the Council of the Town of Sackville passed a resolution appointing Eric Joseph Mourant Sackville’s chief administrative officer, a position that, under both the Town’s By-law No. 217 and s. 74(5) of the Municipalities Act , R.S.N.B. 1973, c.

M-22, affords the office holder security of tenure until “retirement, death, resignation, or dismissal for cause by the affirmative vote of at least two thirds of the whole council ” (emphasis added). [ 4 ] On June 21, 2011, the Town Council received a letter of complaint against Mr. Mourant signed by a number of the Town’s senior employees. The complaint was processed pursuant to the Town’s workplace harassment policy, and a professional person was retained to conduct an investigation into the allegations.

Eventually, the investigator’s mandate was expanded to bring “to Council’s attention any other issues [arising out of the complaint] that Council should address, whether within the scope of the Harassment Policy or otherwise”. The results of the investigation were delivered to the Town on August 15, 2011, and a clarification letter was delivered the following day. On August 16, 2011, the Town informed Mr. Mourant of the results of the investigation and provided him with copies of the reports and the letter of clarification. At the same time, Mr.

Mourant was advised of the following: 1) Town Council would be considering what action, if any, was to be taken as a result of the conclusions and findings and the investigator’s letter of clarification; 2) Town Council would be considering what action, if any was to be taken as a result of the conclusions and findings reached by the investigator; this could include disciplinary action up to and including termination of his employment; 3) Town Council would be holding a special meeting on Wednesday, August 31, 2011 at 7:00 pm at the Town Hall in order to consider the matter; 4) He was entitled to attend this meeting and to make whatever representations he deemed appropriate; 5) If he wished, he was also entitled to have legal counsel present to speak on his behalf; and 6) If he wished to make written representations to Town Council (in addition to or in place of oral submissions), he was also entitled to do so, and was requested to have such written representations provided to Town Council no later than 5:00 pm on August 30, 2011. [ 5 ] Through his legal counsel, Mr.

Mourant advised that neither he nor his lawyer would attend the special meeting but would instead make submissions in writing. These were received and provided to members of Council prior to the meeting. [ 6 ] At the meeting, a motion was passed by a two-third-majority vote of all members of Council dismissing Mr. Mourant for cause. Mr. Mourant’s counsel was informed of that decision that same evening and Mr. Mourant was informed by electronic and registered mail the next day. [ 7 ] More than 20 months later, on May 13, 2013, Mr. Mourant commenced an action against the Town of Sackville.

In the Statement of Claim, he alleges that “cause, at law, did not exist to justify his termination” and claims that, as a result of the termination of his employment, he suffered “loss and damage, specifically, loss of all pay and benefits since the date of his termination”. He seeks the following relief: (

a) a declaration that there was no cause at law for his termination and re-instatement to the office of CAO retroactive to August 31,

2011 with full salary and benefits from August 31, 2011; (

b) pre-judgment and post-judgment interest; (

c) costs of this action; (

d) such further and other relief as this Honourable Court deems just. [ 8 ] Sackville defended the action claiming not only that Mr. Mourant was properly terminated, but also that the remedy he seeks in the Statement of Claim is one that had to be sought by judicial review of the Town Council’s decision under Rule 69 of the Rules of Court . Since an application for judicial review should have been filed within three months of the decision of the Town Council, and since there had been no application for an extension of time, it follows, according to Sackville, that Mr.

Mourant’s action is “untimely and statute-barred”. [ 9 ] By Notice of Motion, Sackville applied to the Court of Queen’s Bench for an order dismissing Mr. Mourant’s action on the ground that the relief claimed “may be obtained only on an application for judicial review made under Rule 69 of the Rules of Court ”.

Sackville’s motion was brought pursuant to Rule 23.01(1)(a), which allows a party, at any time before an action is set down for trial, to apply to the court “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 savings of costs”. In a decision dated October 4, 2013, reported at 2013 NBQB 325 , 412 N.B.R. (2d) 29 , a judge of the Court of Queen’s Bench granted Sackville the relief sought. The judge concluded that Mr.

Mourant was effectively seeking, by way of an action, what had traditionally been a writ of mandamus to force the Town to rehire him. Since such a remedy is only available by way of judicial review pursuant to Rule 69, the motion judge concluded the action was without merit. He also dismissed the action. III. Issues on appeal [ 10 ] Mr. Mourant appeals the motion judge’s decision.

He invokes a single ground of appeal alleging the judge “erred in law in finding that judicial review was mandated and in dismissing” the action. [ 11 ] In my view, that single ground of appeal raises two distinct issues: (1) did the motion judge err in determining that judicial review was the only procedure by which Mr. Mourant could seek reinstatement as the chief administrative officer of the municipality; and (2) having answered that question in favour of the municipality, was the judge empowered to dismiss the action? IV.

Analysis [ 12 ] It is common ground that this appeal raises questions of law and must be assessed on the review standard of correctness. A . The claim for reinstatement [ 13 ] Mr. Mourant was appointed Sackville’s chief administrative officer by resolution of the Town Council made pursuant to s. 74(1) of the Municipalities Act . The tenure of his position was, therefore, unquestionably governed by s. 74(5) , which provides as follows:

74(5) With the exception of auditors, allofficers employed solely by the municipalityon a full time basis and appointed under thissection, are entitled, subject to

section 85 andsubsection (6), to hold office until retirement,death, resignation, or dismissal for cause bythe affirmative vote of at least two thirds ofthe whole council. 74(5) À l’exclusion des vérificateurs, tous lesfonctionnaires employés exclusivement et àplein temps par une municipalité et nommésen vertu du présent

article ont le droit, sousréserve de l’article 85 et du paragraphe (6),d’exercer leurs fonctions jusqu’à leur retraite,leur décès, leur démission ou leur renvoi pourun motif valable, décidé à la majorité desdeux tiers au moins des voix du conseilplénier. [14] Neither of the exceptions, to which

section 85 or subsection (6) refer, applied to Mr. Mourant. [15] Neither Sackville nor Mr. Mourant took issue with the motion judge’s adoption of the following statement ofGarnett J. in Cronkhite v. Town of Nackawic, 2009 NBQB 110, 344 N.B.R. (2d) 317: Section 74(5) imposes additional restrictions on the employer's ability to dismiss the employee. Only New Brunswick and Prince EdwardIsland have provisions which prevent dismissal of "municipal officers" except for cause. These statutory provisions were introduced tocombat the common-law principle that government employees served "at pleasure".

This principle meant that the employee could bedismissed without notice and without cause. Beginning in 1950, New Brunswick municipalities began to incorporate protection formunicipal officers into City charters. For example, in 1950 the Town of Campbellton included a provision which provided that city"officers" ... "shall not be removed from office except for cause by a two-thirds vote of council". The City of Fredericton adopted asimilar provision in 1951. (See "The Extraordinary Employment Tenure of New Brunswick Municipal Officers: A case of quasi-judicialindependence?" Paper presented by Dr.

Geoff Martin at the annual meeting of the Atlantic Provinces' Political Science Association at St.Francis Xavier University in October 2005). [para. 9] [Emphasis added] [16] This Court has already stated that the protection afforded by s. 74(5) “is an extraordinary form of employmentsecurity” and that “[t]he Common Law and statutory right of an employer to give reasonable notice of termination to such employees isusurped by subsection 74(5)”: Hughes v. Moncton (City), (1991), (NB CA), 118 N.B.R. (2d) 306, [1991] N.B.J. No.818 (C.A.) (QL), at para. 19.

It is abundantly clear that, in enacting s. 74(5), the Legislature was vesting in municipal councils the powerto decide when a municipal officer, to whom the

section applies, could be removed from office for cause. It could occur only when twothirds of the whole council affirmatively voted there was sufficient cause for removal. At that point, the protection afforded by s. 74(5)was lost. [17] When Sackville’s Town Council made the decision pursuant to which Mr. Mourant lost the protection of s.74(5), it was exercising a statutory power that governed Mr. Mourant’s employment relationship. As a result, a duty of fairness wasinfused into the procedure leading to his dismissal. This is made clear in this Court’s decision in Ouellette v.

Saint-André, anincorporated rural community, 2013 NBCA 21, 402 N.B.R. (2d) 228, a case with some factual similarities to the present one. [18] In Ouellette, the tenure of Ms. Ouellette’s employment was secured by s. 190.077(7) of the Municipalities Act.For present purposes, this

section is indistinguishable from s. 74(5), save for the following: (1) that Ms. Ouellette’s employer was a ruralcommunity and not a municipality; and (2) at least two thirds of the whole council is required under s. 74(5), whereas a vote of at leasttwo thirds of the members of the rural community council, who are not disqualified from voting, is required under s. 190.077(7). AfterMs.

Ouellette was dismissed from her employment as the clerk, treasurer and chief administrative officer of the rural community, sheapplied for judicial review on the grounds that her employer had not met its duty of fairness in the procedure leading to the vote thatterminated her employment. In reply, Saint-André maintained that no duty of procedural fairness was owed to Ms. Ouellette, and,alternatively, if one was owed, it had been met. This Court concluded Saint-André owed a duty of procedural fairness to Ms. Ouellette,but held that in the circumstances procedural fairness had been observed.

For the Court, Bell J.A. reviewed the relevant portions of theSupreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and concluded that the decision of the ruralcommunity council fell within one of the exceptions the Supreme Court preserved when it “concluded that, generally, the distinctionbetween public office holders and contractual employees should be abandoned” (para. 14 of Ouellette).

He explained that the exceptionin question “contemplates those circumstances in which the right to procedural fairness flows by ‘necessary implication from a statutorypower governing the employment relationship’” (para. 14). Bell J.A. concludes: “the provisions of the Act, by necessary implication,infuse a duty of fairness into the contractual relationship between Ms. Ouellette and Saint-André” (para. 15).

[ 19 ] In his detailed reasons in Ouellette , Bell J.A. explains why a duty of procedural fairness arises by necessary implication. He gives four reasons at paras. 16 to 19. In the present case, Mr. Mourant seizes on the fourth in support of his argument that he can seek reinstatement not only by judicial review, but also by court action. I disagree with his

interpretation of the passage in question. [ 20 ] In explaining why a duty of procedural fairness arises by necessary implication when a council exercises a statutory power to remove a protection such as that afforded by s. 190.077(7), Bell J.A. notes the absurdity that would occur if a municipal officer was not afforded an opportunity to respond to allegations of cause. If the power exercised in s. 190.077(7) did not afford procedural fairness, the only mechanism by which an aggrieved employee could respond to the allegations of cause might be in court, with all its attendant costs and delay.

This would be absurd “when a very simple process before Council might resolve the issues” (para. 19). The point being made is that avoiding a potentially absurd result is one of the rationales for concluding that the procedure contemplated by s. 190.077(7) impliedly must be infused with a duty of fairness.

What Ouellette did not decide, however, is the procedure by which one can seek to overturn a decision made pursuant to s. 190.077(7). [ 21 ] The question that remains unanswered, as applied to the present case, is the following: if the decision to remove the protection afforded by s. 74(5) of the Municipalities Act can be judicially reviewed pursuant to Rule 69, can it also be challenged in a court action? I come to the same answer as the motion judge: it cannot where the action seeks a remedy that is available only by judicial review.

The motion judge explained that “the request for reinstatement along with back pay and benefits takes the matter outside the common law situation of wrongful dismissal or dismissal for cause” (para. 31). I agree. He focused on the relief sought, noting that “[n]othing precluded an action for damages for wrongful dismissal but that is not what Mr. Mourant is asking” (para. 31). In my view, the judge was quite correct in focusing as he did on the true nature of the action as framed. Support for this proposition is found in Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 , [2010] 3 S.C.R. 585 . [ 22 ] TeleZone involved a challenge to the jurisdiction of the Ontario Superior Court of Justice over an action for damages brought against the Federal Crown. The Attorney General argued that the damages arose from Industry Canada’s decision not to grant TeleZone a licence, and that particular decision had to be challenged by judicial review. The exclusive jurisdiction for the judicial review of such a decision is vested in the Federal Court of Canada.

The Federal Crown argued the decision not to grant the licence had to be set aside before there could be an action against the Crown in the Ontario Superior Court. The Federal Crown lost at every level. In the Supreme Court, Binnie J., for a unanimous Court, paid particular attention to the relief sought in TeleZone’s amended Statement of Claim, noting that “TeleZone does not seek to impugn the Minister’s decision to award the licences” and that “TeleZone does not seek a licence for itself or to remove licences from the successful applicants; it simply seeks damages” (para. 14).

In his analysis, he expands on the importance of this point: If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as the Grenier court held. However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks.

Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours. [para. 19] [Emphasis added] [ 23 ] Further on, he considers the nature of judicial review and explains as follows: The Attorney General correctly points to "the substantive differences between public law and private law principles" (Factum, at para. 6). Judicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actions taken by government decision makers.

It is designed to enforce the rule of law and adherence to the Constitution. Its overall objective is good governance. These public purposes are fundamentally different from those underlying contract and tort cases or causes of action under the Civil Code of Québec , R.S.Q., c.

C-1991, and their adjunct remedies, which are primarily designed to right private wrongs with compensation or other relief. […] The focus of judicial review is to quash invalid government decisions -- or require government to act or prohibit it from acting -- by a speedy process. [paras. 24 and 26] [Emphasis added] [ 24 ] In reaching his conclusion, Binnie J. considers the statutory text that gives the Federal Court exclusive jurisdiction to judicially review federal decision-makers and issue remedies that “are traditional administrative law remedies, including the four prerogative writs -- certiorari , prohibition, mandamus and quo warranto -- and declaratory and injunctive relief in the

administrative law context”. He notes that the text “does not include an award of damages”, and that “[i]f a claimant seeks compensation,he or she cannot get it on judicial review”. He then adds that “[b]y the same token, the plaintiff in a damages action is not entitled to adda supplementary claim for a declaration or injunction to prevent the government from acting on a decision said to be tainted by illegality.

That is the domain of the Federal Court” (para. 52). [25] Some might argue, with a significant degree of persuasiveness I might add, that TeleZone can be distinguishedbecause it dealt with the jurisdiction of two different courts, and with a provision that gave exclusive jurisdiction over judicial review toone of those courts. In other words, the Superior Court of Ontario would have had no jurisdiction to grant relief that would haveeffectively invalidated the licencing decision, be it by declaration or otherwise, because that jurisdiction is vested solely in the FederalCourt.

By contrast, in New Brunswick, the Court of Queen’s Bench has jurisdiction over both the public law and private law principlesthat respectively govern judicial review and an action for damages. However, I do not view TeleZone as distinguishable on that basis. Inmy view, the remedies-oriented approach adopted in TeleZone is one that must also be adopted in the present case.

In applying thatapproach to the facts, Binnie J. emphasizes that “TeleZone is not attempting to nullify or set aside the Minister’s order”, “does not saythat the Minister’s decision should be quashed” or does not “seek to deprive the Minister’s decision of any legal effect” (para. 79). Thesame cannot be said of the relief Mr. Mourant is seeking in this case. Mr.

Mourant is asking the Court to effectively quash the decisionof the Town Council. [26] In the present case, the Legislature gave to the Town Council the exclusive authority to determine, on anaffirmative vote of at least two thirds of the whole council, whether Mr. Mourant might be dismissed for cause. With an adequate count,the Council voted he should be removed from office. For a court to order him reinstated, the Court, by necessity, must quash the decisionof the Town Council.

Yet, that kind of relief “may be obtained only on an application for judicial review made under [Rule 69]”(emphasis added): Rule 69.01. [27] There are good reasons why judicial review is the exclusive procedure to pursue such relief. Among them isthe fact that there must be some degree of finality in administrative decision-making. An administrative decision must be challengedwithin a much more stringent time frame than the traditional limitation period for advancing a claim for damages. Bell J.A. emphasizedthe importance of this in Province of New Brunswick v.

LeBlanc, Jeffery, MacMullin and Agnew, 2013 NBCA 9, 398 N.B.R. (2d) 83, byadopting the following words of MacDonald C.J.N.S. in Central Halifax Community Association v. Halifax (Regional Municipality),2007 NSCA 39, [2007] N.S.J. No. 135 (QL), leave to appeal refused, [2007] S.C.C.A. No. 279: Effective public decision-making by its very nature commands precision and clarity. Public decisions that are tentative or incompletewill lead to an unreliable public administration and a confused public. Thus to achieve the required stability, finality in the publicdecision-making process is crucial.

Both government officials and citizens alike need to know precisely when and how such decisionscan be subject to court interference. [...] [para. 25] [28] Rule 69.03 requires that an application for judicial review “shall be commenced within 3 months from the dateof the order, conviction, commitment, warrant, decision, award or refusal to act which is complained of”.

Although the Rule allows for acourt to extend the time limit for commencing such an application, this Court has held that “three months is, except in the mostexceptional circumstances, more than enough time for an aggrieved party to commence an application for judicial review”: Smith v.Human Rights Commission (N.B.) et al. (1999), (NB CA), 217 N.B.R. (2d) 336, [1999] N.B.J. No. 392 (C.A.) (QL),per Drapeau J.A. (as he then was), at para. 25. [29] The stringent test governing extensions of time in judicial review matters is a reflection of the need foreffective public decision-making.

This case perfectly illustrates the type of chaos that might occur if one were able to circumvent judicialreview as the exclusive means by which one could seek to have the decision of the Town Council set aside. Without a strict limitationperiod for having the decision set aside, how could a municipality possibly know when it could safely hire someone to replace thedismissed officer, to avoid the situation of having two individuals in the same role, both with the same security of tenure guaranteed by s.74(5)? It could not; at least not until the limitation for commencing an action also expired.

That would certainly not be what one wouldcall “effective public decision-making”, and would certainly not be a model of precision and clarity. The lack of a strict limitation periodwould lead to unreliable public administration, and to a confused public of the type MacDonald C.J.N.S. spoke in Central HalifaxCommunity Association. [30] There is simply no other way to view the relief Mr. Mourant seeks in his Statement of Claim other than as adisguised attempt to quash the decision of the Town Council. In TeleZone, Binnie J. foresaw that “artful pleading” might be used tocircumvent legislative intent.

Although he did not think it a very serious problem, he emphasized that, where a claimant pursues adamage claim and does not seek to have the decision or order set aside by judicial review, “[t]he claimant must […] be content to take itsmoney (if successful) and walk away leaving the order standing” (para. 75). Moreover, he added that there is always a residual discretionin the inherent jurisdiction of the court to stay an action for damages “because in its essential character, it is a claim for judicial reviewwith only a thin pretence to a private wrong” (para. 78).

[ 31 ] TeleZone was released with a number of companion cases: Canada (Attorney General) v. McArthur , 2010 SCC 63 , [2010] 3 S.C.R. 626 ; Parrish & Heimbecker Ltd. v. Canada (Agriculture and Agri-Food) , 2010 SCC 64 , [2010] 3 S.C.R. 639 ; Nu- Pharm Inc. v. Canada (Attorney General ), 2010 SCC 65 , [2010] 3 S.C.R. 648 ; Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada , 2010 SCC 66 , [2010] 3 S.C.R. 657 ; and, Manuge v. Canada , 2010 SCC 67 , [2010] 3 S.C.R. 672 . Each one of these cases supports a remedies-oriented approach. [ 32 ] In

summary, I conclude the motion judge was correct in determining that Mr. Mourant’s claim for relief is one that had to be sought by judicial review. However, the judge described the claim for relief as “a writ of mandamus to force the Town to rehire him” (para. 31). I disagree with that particular characterization. In my view, the claim, as framed, is more in the nature of a certiorari to have the Town Council’s decision quashed, the effect of which would be Mr. Mourant considered to have never been removed from office. The difference, however, is one without consequence.

In either case, the action seeks to obtain what is available only by judicial review under Rule 69. As a result, the motion judge was correct in concluding that “[t]he only way to proceed [for Mr. Mourant to obtain the relief sought was] by way of judicial review” (para. 31). B.

Dismissal of the action in a motion under s. 23.01(1)(a) [ 33 ] Sackville’s Notice of Motion sought an order “dismissing this action on the basis that the relief claimed in this action may be obtained only on an application for judicial review made under Rule 69 of the Rules of Court ”, and invoked “Rules 1.03(2), 23.01(1)(a), 23.02, 38.09, 69.01, 69.02 and 69.03”. [ 34 ] Of the rules invoked in the Notice of Motion, the following are those relevant to the nature of the order available to be made in a motion of this type: 1.03

Interpretation

(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 1.03 Principes d’interprétation

(2) Les présentes règles doivent recevoir une interprétation libérale afin d’assurer une solution équitable de chaque instance sur le fond, de la façon la moins coûteuse et la plus expéditive. RULE 23 DETERMINATION OF QUESTIONS BEFORE TRIAL 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, […] RÈGLE 23 DÉCISIONS PRÉJUDICIELLES 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, […]

23.02 Evidence Except with leave of the court, onapplications under Rule 23.01(1), evidenceshall not be admitted except (

a) a transcript of a relevant examination, and (

b) affidavits which are necessary to identifya document or prove its execution. 23.02 Preuve Sauf avec permission de la cour, aucunepreuve n’est admise dans des demandesprésentées en application de la règle 23.01(1),excepté

a) la transcription d’interrogatoires pertinentset

b) les affidavits nécessaires pour identifier undocument ou prouver sa passation. [35] With respect, the relief sought in Sackville’s Notice of Motion does not correspond with the rules invoked. Themotion was clearly one under Rule 23.01(1)(a). The single affidavit filed in support of the motion complied with Rule 23.02, in that itonly served to identify the pleadings. There is no question the motion judge considered the motion to be one pursuant to Rule 23.01(1)(a). The judge referred to the criteria under that Rule that allow a judge to determine a question of law before trial.

He notes that themotion can proceed “if one of the three factors as set out in Rule 23.01 [is met]; namely, the application will dispose of the action, trial tobe shortened, or a saving of costs” (para. 12). The judge found that the first and third factors were met. Yet, Rule 23.01(1)(

a) does notallow a motion judge to dismiss an action. The Rule only allows the judge to determine a question of law before trial. Therefore,Sackville erred in seeking a relief that was not authorized by the Rule. [36] The relief available under Rule 23.01(1)(

a) was specifically addressed in Lloyd’s of London v. Norris (1998), (NB CA), 205 N.B.R. (2d) 29, [1998] N.B.J. No. 351 (C.A.) (QL), leave to appeal dismissed (1999), 218 N.B.R.(2d) 400, [1998] S.C.C.A. No. 559 (QL). In that case, Lloyd’s applied for a determination pursuant to Rule 23.01 that the action wasbarred by a statutory condition contained in an insurance contract. The motion judge ruled the action was barred and struck it out. Onappeal, Drapeau J.A. (as he then was) for the Court noted that Lloyd’s had invoked Rule 23.01 without identifying which subrule itrelied on.

Condemning this practice, he nevertheless went on to determine that, by process of elimination, the motion was one under Rule23.01(1)(a). He then ruled that Rule 23.01(1)(

a) does not allow a motion judge to strike out an action. He reasoned as follows: Rule 23.01(1)(a), early determination of a question of law, is the successor to Rules 2 and 3 of Order 25 of the former Rules of Court.Rule 3 explicitly conferred on the court the power to dismiss an action where the circumstances contemplated by our present Rule23.01(1)(

a) prevailed. This explicit power to dismiss an action has not been continued in Rule 23.01(1)(a). As well, our Rule 23.01(1)(

a) is similar to Rule 21.01(1)(

a) of the Ontario Rules of Civil Procedure, except for one striking difference:the Ontario rule, unlike ours, explicitly confers on the motion judge the power to grant judgment. The silence in Rule 23.01(1)(

a) with respect to the power to dismiss can be contrasted with the express conferral of this power in Rule23.01(2). Likewise, its silence with respect to the power to grant judgment can be contrasted with the express conferral of such a powerin Rules 23.01(1)(c), judgment on admissions, and 22.04(3). The omission to continue, in Rules 23.01(1)(

a) and (b), the explicit power to dismiss an action found in Rule 3 of Order 25, as well as thedifference between on the one hand, Rule 23.01(1)(

a) and, on the other hand, Rules 23.01(2) and 22.04(3) with respect to the power todispose of an action, without trial, are significant. In my view, they foreclose the possibility of reading in Rule 23.01(1)(

a) an unstated orinherent power to strike the action. As I read Rule 23.01(1)(a), the court's function is limited to determining a point of law raised by a pleading. Its mandate is not to actuallydispose of the action, just as its mandate is not to actually shorten the trial or to actually bring about a substantial saving of costs. If thepotential for achieving any of these results exists, the court may exercise its discretion and determine the point of law.

To state itotherwise, the possibility that the determination of a question of law may dispose of the action is a condition precedent to the exercise ofdiscretion envisaged by Rule 23.01(1)(a): the actual disposal of the action is not effected under it, a companion or follow-up motionbeing required.

In this regard, it is important to bear in mind that the rules make specific provision elsewhere for the granting of judgment following thedetermination of a question of law. I refer to Rule 22.04(3). Here, the Court of Queen's Bench lacked the requisite power, inherent or otherwise, to strike the action, in effect dismissing the actionand granting judgment, where the motion before it was confined to raising the determination of a question of law under Rule 23.01(1)(a).That is not to say that a judgment can never be granted as a result of a motion under Rule 23.01(1)(a): it can be where the motion includesa motion for

summary judgment under Rule 22, or where the motion judge directs that the motion under Rule 23.01(1)(

a) be convertedinto a motion for judgment, as permitted by Rule 37.10(a). (For an example of the successful combined use of Rule 23.01(1)(

b) and Rule22, see Dubé v. Dionne, (NB CA), [1998] N.B.J. No. 241 (QL)). In the present case, Lloyd's did not apply forsummary judgment under Rule 22, nor was there a direction by [the motion judge] pursuant to Rule 37.10(a). [paras. 15-21] [37] Lloyd’s was followed in Sewell v. ING Insurance Company of Canada, 2007 NBCA 42, 314 N.B.R. (2d) 330.In Sewell, this time referring to Rule 23.01(1)(b), Drapeau C.J.N.B. emphasized that the Rule does not authorize the dismissal of theaction (para. 23).

That case involved a motion to strike the Statement of Claim on the ground it did not disclose a cause of action (Rule23.01(1)(b)). In deciding the matter, Drapeau C.J.N.B. stated that, in making the determination, the motion judge must read theStatement of Claim generously to accommodate drafting deficiencies and that “where a generous reading of its provisions fails to breathelife into a pleading, all suitable amendments should be allowed” (para. 26).

This, he says, will reflect “the Legislature’s injunction thatthe Rules be ‘liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on itsmerits’: Rule 1.03” (para. 26). [38] In the present matter, there was neither a motion for

summary judgment under Rule 22 before the motionjudge, nor a direction under Rule 37.01(

a) that the motion under Rule 23.01(1)(

a) be converted into a motion for judgment. Had eitherone of these events occurred, Mr. Mourant might have asked the motion judge for leave to amend his pleadings so as to seek analternative remedy to the reinstatement he was seeking. He might have asked to include a claim for damages for wrongful dismissal. Thejudge would then have had to rule whether the amendment would be allowed, and, barring a determination that a claim for damages wasnot available at law, would likely have allowed the amendment.

In my view, the principles in Sewell described above would have, at thatpoint, been applicable. [39] This is not a case, as in Michaud v. Robertson (1992), (NB CA), 126 N.B.R. (2d) 247,[1992] N.B.J. No. 455 (C.A.) (QL), where a Court has made a determination that the pleadings do not disclose a cause of action. In thatcase, where the pleadings were closed, this Court held the situation could not be remedied through an amendment. Of course, if thepleadings had not been closed, the situation would be different: LawPost v. New Brunswick (1999), (NB CA), 220N.B.R. (2d) 146, [1999] N.B.J.

No. 492 (C.A.) (QL) and Jones’ Masonry Ltd. v. Defence Construction

(1951) Limited, 2010 NBCA 8,353 N.B.R. (2d) 359. [40] The situation in the present case is rather one like Lloyd’s, where the judge’s determination of the question oflaw bars the remedy sought notwithstanding that the pleadings might nevertheless disclose a cause of action. In the present case, thejudge merely ruled that, as a matter of law, Mr. Mourant’s requested relief for reinstatement along with back pay and benefits had to bepursued by judicial review of the Town Council’s decision. As explained above, I agree with this conclusion. However, no one has ruledthat, as a matter of law, Mr.

Mourant could not pursue a claim for damages and have the issue of just cause determined by a court of law.A generous reading of his Statement of Claim reveals he alleges that he was dismissed without just cause: “The plaintiff states thatcause, at law, did not exist to justify his termination”. Thus, a simple amendment of the relief sought, in order to advance a claim fordamages for unjust dismissal, might suffice to allow this matter to proceed as an action for unjust dismissal.

A judge could then make anultimate determination of the case on its merits, either in a further proceeding under Rule 23.01, in a motion for

summary judgment, or attrial, as the case may be. [41] In the end, I conclude there was no authority for the judge to dismiss this action as he did. The motion was onefor the determination of a question of law raised by the pleadings, specifically whether Mr. Mourant could pursue the remedy he wasseeking by action against Sackville, or whether he should have sought judicial review of the Town Council’s decision. In the absence ofa motion for judgment or of a direction pursuant to Rule 37.10(a), the judge should have limited his ruling to determining the question oflaw that was laid before him. V.

Disposition [42] For these reasons, I would confirm the motion judge’s determination of the question of law that Mr. Mourantcannot, by action against Sackville, seek a relief he should have pursued by judicial review of the Town Council’s decision to terminatehis employment. However, I would allow the appeal and set aside the motion judge’s dismissal of the action. Since Sackville wassuccessful both in the Court of Queen’s Bench and in this Court, in regard to having the question of law resolved in its favour, I would

not interfere with the motion judge’s award of costs. However, since success was divided in this Court, I would not make any further cost award. __________________________ J.C. MARC RICHARD, J.A. WE CONCUR: _______________________________ ALEXANDRE DESCHÊNES, J.A. _______________________________ JOSEPH T. ROBERTSON, J.A.