2023 FC, 2023 FC 1347

Date: 20231012 Docket: T-187-23 Citation: 2023 FC 1347 Ottawa, Ontario, October 12, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN:KENNETH STEPHEN ROWEPlaintiffandNATIONAL ARTS CENTRE CORPORATIONDefendant ORDER AND REASONS [1] Kenneth Stephen Rowe, the Plaintiff, launched on January 25, 2023, in the Federal Court, an action in damages following thetermination of his employment with the National Arts Centre Corporation.

His claim is that he was wrongfully dismissed. [2] On September 12, 2023, the Defendant, the National Arts Centre Corporation, filed a motion to strike the Statement of Claim,pursuant to Rules 221 and 369 of the Federal Courts Rules (SOR/98-106). [3] Under the Rules, the Plaintiff had 10 days to serve and file his respondent’s record. It appears that he tried to file some material withour Court, but was unsuccessful.

Indeed, Associate Judge Molgat issued a Direction on October 4 instructing the Registry to reject forfiling a motion record, the purpose of which was to seek an extension of time to respond to the motion to strike. Numerous deficiencieswere noted to explain why the motion record was refused for filing. A similar Direction was issued on October 6 by Judge Molgat. Thistime, it was a motion record in response to the motion to strike that was ruled to be deficient. Furthermore, it was found to be out of timewithout an extension of time having been sought.

As a result, the documentation did not comply with the Rules of the Federal Courts andit was out of time: it was not accepted for filing. At any rate, it seems to me to be plain and obvious that this Court lacks jurisdiction todeal with the matter raised by Mr. Rowe. [4] The motion to strike out the Statement of Claim is based on the claim that this Court does not have jurisdiction to entertain the actionlaunched by Mr. Rowe for what he considers to be his wrongful dismissal.

His Statement of Claim, which runs for one page, seeksdamages of $57,000 in view of his wrongful dismissal, having been employed from July 18, 2022 to September 1, 2022. [5] The test to apply for a motion to strike is well known and uncontroversial. Supreme Court of Canada cases have set the test as followsin R v Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 SCR 45: [17] The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r.19(24)(

a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struckif it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action:Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect ofsuccess. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, SylApps Secure Treatment Centre v.

B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General ofCanada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735.

The test has been followed ever since Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959. [6] A case has no reasonable prospect of success if it is plain and obvious that the Court does not have jurisdiction to hear the matter(Windsor (City) v Canadian Transit Co, 2016 SCC 54 , 2016 SCC 617, [2016] 2 SCR 617 [Windsor], at para 24). [7] In order to determine if this Court has jurisdiction to entertain a matter, given that our Court "“has only the jurisdiction it has beenconferred by statute”" [emphasis in original] (Windsor, para 33), it must first determine the essential nature or character of the claimbefore it.

Once that is done, the Court must apply the three-part test found in ITO-Int’l Terminal Operators v Miida Electronics, (SCC), [1986] 1 SCR 752 [ITO]. [8] The essential nature or character of a claim is determined on what the Federal Court of Appeal called "“a realistic appreciation of theparticular result sought by the claimant”" (Canada v Domtar Inc, 2009 FCA 218, at para 28). It follows that the Court will not read theStatement of Claim blindly at its face meaning, but rather it will ensure that the Statement of Claim is not an attempt to use the FederalCourt to reach a result not reachable before that Court.

That, says the Supreme Court in Windsor, must be weighed against "“whether thecourt has jurisdiction over the particular claim the claimant has chosen to bring, not a similar claim the respondent says the claimantreally ought, for one reason or another, to have brought”" (para 27). In other words, the determination of the essential nature of the claimcuts both ways: both parties are held to the same standard: "“a realistic appreciation of the practical result sought by the claimant”". [9] In the case at hand, I cannot discern any other result sought by Mr.

Rowe than the vindication of his claim that he has beenwrongfully dismissed from his job as a payroll clerk employed by the National Arts Centre Corporation for a period of approximatelyone month and one half (July 18, 2022 to September 1, 2022). As compensation for his wrongful dismissal, he seeks one year’s salary.

[10] One may read the Statement of Claim as also making general allegations about why his working relationship with his employerdeteriorated: there were issues around his time-sheets, overtime, working on holidays, working from home, the location of his office.There is also an allusion to termination of his "“employment for following the rules”". [11] There is no doubt in my view that the Plaintiff is attempting to offer reasons why his dismissal was not for just cause, in hisallegation that the termination during the probationary period constitutes wrongful dismissal.

I cannot detect in the Statement of Claimanything other than the Plaintiff seeking redress for a termination that is not justified: the employment contract between the Plaintiff andthe Defendant has suffered an impermissible breach, says the Plaintiff, such that compensation is warranted. [12] The question then becomes whether this Court has been given jurisdiction to consider and adjudicate the conflict between theparties: is an action for wrongful dismissal based on a breach of an employment contract one over which this Court has been givenjurisdiction?

The three-part test of the ITO case must therefore be applied. The Supreme Court in Windsor provides the rationale for thetest and reproduces it: [34] This Court held in ITO that a statutory grant of jurisdiction is necessary, but not alone sufficient, for the Federal Courtto have jurisdiction in a given case.

Because Parliament established the Federal Court pursuant to its competence, under s.101 of the Constitution Act, 1867, to establish “additional Courts for the better Administration of the Laws of Canada”, therole of the Federal Court is constitutionally limited to administering “the Laws of Canada”, which in this context meansfederal law (Thomas Fuller, at p. 707; Quebec North Shore, at pp. 1065-66; Consolidated Distilleries, at pp. 521-22). Thethree-part ITO test for jurisdiction is designed to ensure the Federal Court does not overstep this limited role (ITO, at p. 766,per McIntyre J.): 1.

There must be a statutory grant of jurisdiction by the federal Parliament. 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes thestatutory grant of jurisdiction. 3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act,1867. [13] The moving party, the Defendant, argues that there is no statutory grant of jurisdiction by Parliament such that the dispute betweenthe parties can be made the subject of adjudication by this Court.

The Defendant finds support in a recent decision of this Court inTuharsky v O’Chiese First Nation, [Tuharsky]. I agree that our Court "“has no jurisdiction to take on an adjudicativerole as a court of first instance to hear a contractually-based wrongful dismissal action as between subject and subject”" (para 33). [14] In Tuharsky, where the issue was whether our Court has jurisdiction to deal with a wrongful dismissal action, the only provisionwhich was suggested might be seen as providing a statutory grant of jurisdiction was s 23 of the Federal Courts Act (RSC 1985, c F-7).

Itreads: "23 Except to the extent that jurisdiction hasbeen otherwise specially assigned, theFederal Court has concurrent originaljurisdiction, between subject and subject aswell as otherwise, in all cases in which aclaim for relief is made or a remedy is soughtunder

an Act of Parliament or otherwise inrelation to any matter coming within any ofthe following classes of subjects: " "23"" Sauf attribution spéciale de cettecompétence par ailleurs, la Cour fédérale acompétence concurrente, en premièreinstance, dans tous les cas — opposantnotamment des administrés — de demandede réparation ou d’autre recours exercé sousle régime d’une loi fédérale ou d’une autrerègle de droit en matière : " "(

a) bills of exchange and promissory notes,where the Crown is a party to theproceedings; " "a)"" de lettres de change et billets à ordrelorsque la Couronne est

partie auxprocédures; ""(

b) aeronautics; and " "b)"" d’aéronautique; ""(

c) works and undertakings connecting aprovince with any other province orextending beyond the limits of a province. " "c)"" d’ouvrages reliant une province à uneautre ou s’étendant au-delà des limites d’uneprovince. " The Court in Tuharsky found that s 23 could not be the foundation for a recourse before the Federal Court for wrongful dismissal.

Iagree. [15] Suffice to say for our purpose that the jurisdiction conferred by s 23 is limited on its face to three enumerated classes of subjects: (1)bills of exchange and promissory notes; (2) aeronautics, and (3) works and undertakings connecting a province with another province orextending beyond the limits of a province. It is patently clear that the Plaintiff’s claim could not fall within any of the three classes ofsubject-matter.

As in Tuharsky, "“(t)he Plaintiff’s claim does not relate to bills of exchange and promissory notes, or aeronautics, orinterprovincial works and undertakings”" (para 36). [16] As a result, it is plain and obvious that the Federal Court does not have jurisdiction to deal with the cause of action raised by thePlaintiff. The first prong of the ITO test has not been satisfied (statutory grant of jurisdiction by Parliament). It is not necessary toconsider the other two prongs of the test.

Nevertheless, I add that there does not appear to exist "“an existing body of federal law whichis essential to the disposition of case and which nourishes the statutory grant of jurisdiction”". To put it plainly, this is not a subjectmatter that engages the federal jurisdiction. [17] The Statement of Claim must therefore be struck out.

Should the Plaintiff be allowed to amend his Statement of Claim?Unfortunately for him, it is not possible because the defect identified by the moving party is incurable: the Federal Court lacksjurisdiction to deal with an action for wrongful dismissal based on a breach of an employment contract. The lack of jurisdiction cannot

be remedied. As pointed out in Canada (Minister of Citizenship and Immigration) v Seifert, 2002 FCT 859 , [2003] 2 FC 83, if apleading might possibly succeed if it were amended, such an amendment should be allowed. Alas, such is not the case where the Courtlacks jurisdiction, as decided by the Federal Court of Appeal in Enercorp Sand Solutions Inc v Specialized Desanders Inc, 2018 FCA215: [27] It has long been the policy of the law that meritorious claims should not be defeated on the basis of inadequatepleadings.

In that spirit, when a pleading is struck, leave to amend should be granted unless it is plain and obvious that thedefect cannot be cured by an amendment: see Simon v. Canada, 2011 FCA 6 at para. 15, 410 N.R. 374. A defect may beincurable if, for example, the Court lacks jurisdiction or if there are no facts which would disclose a cause of action: seeSpatling v. Canada (Solicitor General), 2003 FCT 445 at paras 7-8, [2003] F.C.J. No. 621, Canada (Minister of Citizenshipand Immigration) v.

Seifert, 2002 FCT 859 at para.12, [2003] 2 F.C. 83. [18] The lack of jurisdiction makes it impossible to grant a leave to amend and, accordingly, there will not be leave to amend theStatement of Claim. [19] Finally, the Defendant submits that an order should be granted correcting the name of the Defendant in accordance with Rule 76. Ineffect, the Defendant notes that it is a corporation established under the National Arts Centre Act (RSC 1985, c N-3) that ought to bedesignated as the Defendant.

The Corporation is the National Arts Centre Corporation which is the legal entity and it operates andmaintains the National Arts Centre (s 9). I add for good measure that the Corporation is not an agent of the Crown (s 14), but it isdeemed to be a registered charity (s 15). Thus, the style of cause has been adjusted to refer to the Defendant as the National Arts CentreCorporation. ORDER in T-187-23 THIS COURT ORDERS: 1. The motion to strike the Statement of Claim is granted. The said Statement of Claim is struck out without leave to amend. 2. The action is dismissed. 3. There shall not be costs awarded. 4.

The style of cause is amended to replace the "“National Arts Centre”" as Defendant by the "“National Arts Centre Corporation”". "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-187-23 STYLE OF CAUSE: KENNETH STEPHEN ROWE v NATIONAL ARTS CENTRE CORPORATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO, PURSUANT TO RULE 369 OF THE FEDERAL COURTSRULES ORDER AND REASONS: ROY J. DATED: october 12, 2023 WRITTEN REPRESENTATIONS BY: George Rontiris Patrick Twagirayezu For The Defendant

SOLICITORS OF RECORD : Emond Harnden LLP Barristers and Solicitors Ottawa, Ontario For The Defendant