Korecki v. Nova Scotia (Justice), 2013 NSSC 312

SUPREME COURT OF NOVA SCOTIA Citation: Korecki v. Nova Scotia (Justice), 2013 NSSC 312 Date: 20131003 Docket: Hfx No. 412085 Registry: Halifax Between: Michael Korecki Plaintiff v. The Minister of Justice and the Attorney-General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia Defendant Decision Judge: The Honourable Justice Gerald R. P. Moir Heard: June 24, 2013 Final Written Submissions: July 3, 2013 Counsel: Myrna Gillis, for the plaintiff Dorianne Mullin, for the defendant Moir J. :

Introduction [ 1 ] Mr. Korecki worked for nearly twenty years at jails in Halifax, the old one in Lower Sackville, then the new one in Burnside. The Department of Justice terminated his employment three years ago. [ 2 ] Mr. Korecki availed himself of a dispute resolution process in place at the time for civil servants who were precluded from collective bargaining. It was supposed to involve arbitration by three high-level provincial officials, and it was supposed to progress quickly. [ 3 ] After two years, and with no hearing in sight, Mr.

Korecki sued in wrongful dismissal and other causes. [ 4 ] The province moves for a stay of the suit until after the dispute resolution process concludes. Alternatively, it seeks a direction for answers to a demand for particulars delivered in the suit. [ 5 ] Mr. Korecki moves for default judgment. Failing that, he seeks a preliminary determination of a question of law about the consequences of the province having dismissed him "immediately" in violation of a regulation that said he could only be dismissed on ten days' notice Stay of This Action [ 6 ] The Appeal Process and the Suit . Mr.

Korecki rose to the position of Captain of Corrections at the Central Nova Scotia Correctional Facility. He was fired on June 22, 2010. He provided evidence about the merits of his case, but I need notice only that he has a serious case to present against a finding of just cause. [ 7 ]

Section 27 of the Civil Service Act protects non-unionized employees in permanent positions from dismissal without cause. Regulations under the statute applicable at the time of Mr. Korecki's dismissal gave him a right of appeal. [ 8 ] Subsection 154(1) of the Regulations read: "An appeal … must be heard by a disciplinary panel not later than 10 days after the notice of appeal is received." The hearing ought to have been conducted three years ago.

It is yet to be held. [ 9 ] The appeal panel is made up of the Public Service Commissioner and two others at the deputy minister level appointed by the commissioner: 154(2). Under s. 156(1) of the regulations, the panel "must … no later than 10 days after the date the disciplinary appeal panel hears an appeal" do one of the following:

a) confirm the decision to suspend or dismiss;

b) reverse the decision to suspend or dismiss;

c) refer to matter back to the Deputy Head who made the decision to suspend or dismiss, with recommendations for further consideration to review and issue a revised decision. The decision " ... is final and binding": s. 156(4). [ 10 ] The government does not argue that the principle of exclusive arbitral jurisdiction applies in this case. It might have applied in

light of Vaughan v. Canada , 2005 SCC 11 had it not been for a representation made by the government to the affected employees. [ 11 ] When the regulations were made, the government advised the affected employees that: The decision of the Disciplinary Appeal Panel is final and binding. However, the appeal process and the decision of the Panel does [ sic ] not impact the employee's ability to access existing avenues for legal redress, such as Labour Standards Tribunal or the Supreme Court of Nova Scotia. [ 12 ] Mr. Korecki's panel was put together in the fall of 2010, months after the deadline.

The hearing was scheduled for five days in late January 2011, six months after the deadline. [ 13 ] The January 2011 hearing days were cancelled, one of the deputy minister's dropped off the panel, and another stepped in. Days at the end of June were assigned. In May, the other of the original two deputies dropped out. She was replaced later that month, but the hearing got adjourned to October, well over a year after the ten-day deadline. [ 14 ] The October 2011 hearing got adjourned without day.

The panel convened in September of 2012, over two years past the deadline, but it did none of the things required to be done by s. 156(1). [ 15 ] In the meantime, the requirement for ten days' notice of termination for cause and the appeal panel process were prospectively abolished by amendments made by Governor-in-Council to the regulations. The Public Service Commissioner, who was chair of Mr. Korecki's panel, had been involved in making submissions for abolition. Mr. Korecki alleges this created a conflict of interest. [ 16 ] Mr.

Korecki had thought that the appeal process "would be a fast, fair, and cost effective process to secure compensation and reinstatement". Frustrated by the lethargic movement of the actual appeal process, he advised the panel he would proceed with a civil action. He sued on February 8, 2013. [ 17 ] Two months later, the Public Service Commissioner recused herself from Mr. Korecki's appeal panel. Acting under s. 8 of the Civil Service Act , she appointed another deputy minister to perform her duties on the panel. [ 18 ] The statement of claim pleads that, under the statute and the employment contract, Mr.

Korecki could only be fired for cause. It pleads that there was no cause. Therefore, Mr. Korecki claims a declaration that the dismissal is void and that his employment continues. He also claims a declaration that the government failed in its duty of fairness toward Mr. Korecki. Alternatively, he claims damages for wrongful dismissal and other common law causes. [ 19 ] Mr. Korecki did not abandon the appeal process. Ms. Gillis says that Mr. Korecki cannot make a sensible decision on that subject until a defence is filed. Mr.

Korecki wants to know whether the government denies that this court, as opposed to the appeal panel, can deal with the question of reinstatement, or continuous employment. [ 20 ] The government is not prepared to answer that question at this time. Ms. Mullin explained that the government has not yet instructed her on whether the appeal panel has exclusive jurisdiction over reinstatement. [ 21 ] It is not hard to tell what those instructions will be if someday the government obtains from an appeal panel a finding of cause.

The government submits that its statement to affected employees "does not suggest that simultaneous proceedings in different forums are appropriate or permitted." It wants a temporary stay. It says,

Once the appeal process has completed, an examination will be necessary to determine whether a permanent stay or dismissal iswarranted on the basis of res judicata, issue estoppel, or other jurisdictional concerns. [22] Submissions. The government says that the duplicative proceeding in this court amounts to an abuse of process to be controlledby a temporary stay under Rule 88.02. It suggests that this Rule and the Judicature Act are "The Court's authority to stay proceedingsdue to an abuse of process ...". [23] The government referred to Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63. In thatcase, the Supreme Court of Canada refused to adopt the American non-mutual issue estoppel as a way to control re-litigation in a latercivil proceeding of a finding of guilt in a criminal proceeding. Both the majority and the minority decided that trial courts shouldcontinue to handle this problem through our "inherent and residual discretion to prevent an abuse of the court's process": para. 35. [24] The government emphasized the point made in Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.), Local 79,and many cases before it, that the focus on an abuse of process inquiry in cases of re-litigation is "on the integrity of the adjudicativeprocess" rather than the interests of the individual litigants: para. 45. [25] While the interests of the system of justice are prominent in cases involving attempted re-litigation, the discretion to controlabuse of process is available more generally to control the misuse of process in a way that "would be manifestly unfair to a party" as wellas a misuse that "would in some other way bring the administration of justice into disrepute": para. 37 quoting from Canam EnterprisesInc. v.

Coles, (ON CA), [2000] O.J. 4607 (C.A.) approved 2002 SCC 63. I, therefore, do not agree with thegovernment's submission that "the question to be considered is whether litigating in two forms simultaneously will have a negativeimpact on the adjudicative process". The exercise of discretion to control abuse has a broader focus, and involves a more flexibleapproach. [26] The government referred to Kaiser v. Dural, 2003 NSCA 122. That was about issue estoppel, not abuse of process.

The Courtof Appeal made mention of the policy underpinnings for issue estoppel "avoiding duplicity, potential inconsistent results, undue costs,inconclusive proceedings, and ensuring just results in the particular case", and the government relies on this passage: para. 43. One hasto add to the list "finality in litigation": also para. 43. [27] Neither the discretion to control abuse of process in non-mutual re-litigation cases, nor the application of issue estoppel inmutual re-litigation attempts, bear directly on Mr.

Korecki's case. [28] Next, the government referred me to Canadian Life and Health Insurance Compensation Corp. v. Blue Cross of AtlanticCanada, [1997] N.S.J. 29 (C.A.). That case applied lis alibi pendens, or "suit pending elsewhere", a doctrine usually applied in thiscountry when there are identical suits brought in separate jurisdictions. I would not apply it in this case because one of the three required"identities" is not present: Sydney Steel Corp. v. Canadian National Railway Co., [1998] N.S. J. 72 (Hood J.). [29] As in the Sydney Steel case, identity of object is missing.

According to the statement of claim, in 2011 the appeal panel ruledthat its power of reinstatement does not include a power to order back pay. This court can order that as damages. This is a significantclaim, all of Mr. Korecki's damages due to the termination and the delay if he was unjustly dismissed, that contrasts with the "additionalamount" referred to in the quotation at para. 23 of Canadian Life. [30] However, the following passage from the Supreme Court Practice adopted by the Court of Appeal in Canadian Life at para.15 equally informs the exercise of the discretion to control an abuse of process:

If there are two courts faced with substantially the same question or issue, it is desirable that the question or issue shall be determined in only one of those two courts if by that means justice can be done, and the court will if necessary stay one of the actions … . ABN AMRO Bank Canada v. Wackett , [1997] N.S.J. 322 (C.A.) at para. 35 : There are good reasons for such resolution.

Without attempting to be exhaustive, it avoids a multiplicity of court proceedings, the possibility of contradictory judgments, and insulates a defendant from the hardship and expense of defending the same case in more than one jurisdiction. Similar considerations would underlie an abuse of process analysis in response to an arbitration and a suit brought by the same party, and raising identical issues. [ 31 ] Finally, the government referred me to my own decision in Canada (Attorney General) v. Marineserve.MG Inc. , 2003 NSSC 26 .

That was a case of an action involving several parties and an arbitration involving only two of them. The decision suggests that a stay is a routine remedy for an abuse of process but that, while there is no abuse, a stay may be ordered "to achieve procedural fairness and efficiency": para. 8. However, the court must exercise caution. [ 32 ] Mr. Korecki's submission emphasized the factual distinctions between cases relied on by the government and this one. [ 33 ] Disposition .

The Civil Procedure Rules and the Judicature Act do not provide "The Court's authority to stay proceedings due to an abuse of process ...". The Judicature Act of 1886 did not create the court. It continued a court constituted long ago, and amalgamated it with those that exercised a separate equitable jurisdiction long ago. The "inherent and residual discretion to prevent an abuse of the court's process" ( Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.), Local 79 at para. 35 ) is a part of the inherent jurisdiction that predates the first Judicature Act by more than a hundred years. [ 34 ] Seeing that these powers are situate in the inherent jurisdiction brings with it an important reminder. Exercise of the powers is controlled by justice.

The stay is granted "if by that means justice can be done" ( Supreme Court Practice quoted in para. 15 of Canadian Life ). [ 35 ] All of the policies by which a finding of abuse is usual, and a stay is routine, in cases of duplicative proceedings are overshadowed by the injustice that a stay would cause in Mr. Korecki's case. The injustice has three aspects. Each is compelling on its own, but they are also related to one another, and the cumulative effect is worse. [ 36 ] I will discuss the injustice of each aspect separately.

Then, I will explain the greater injustice of their cumulative effect. [ 37 ] Firstly, the government's motion is contrary to the representation it made to those of its employees "who are excluded from collective bargaining" when the appeal panel process was first brought in. Secondly, we can have no confidence in the appeal panel's ability to provide redress for Mr. Korecki's substantive rights. Thirdly, the government treated Mr. Korecki unfairly in the process. [ 38 ] The government told its employees, including Mr.

Korecki, "the appeal process … does not impact the employee's ability to access … The Supreme Court of Nova Scotia". That does suggest that "simultaneous proceedings in different forums are … permitted". But, the government went even further. [ 39 ] The government told its employees "the decision of the Panel does not impact the employee's ability to access … the Supreme Court of Nova Scotia". I emphasize the word "decision". Now, the government seeks a temporary stay so it can attempt to get a decision

from the panel that it had just cause and use that to get a permanent stay "on the basis of res judicata, issue estoppel, or otherjurisdictional concerns." [40] Perhaps in the end the government will, as a matter of right, be permitted to go back on its word. But going back on one's wordtends to undermine one's case for a judicial discretion. In the circumstances, the injustice of it leads me to refuse the motion for a stay. [41] Secondly, there is the injustice of confining Mr. Korecki to a process that has shown itself incapable of providing, or unwillingto provide, redress.

Even when the principle of exclusive arbitral jurisdiction applies, the court has "a residual jurisdiction to ensureeffective redress": Pleau v. Canada (Attorney General), 1999 NSCA 159 at para. 92. [42] I say that the appeal panel has shown itself incapable or unwilling to provide redress for two reasons: the unlawful delay andthe ruling against back pay. [43] Mr. Korecki has a substantive right at issue. Either he has a right to continuing employment under s. 27 of the Civil Service Actin the absence of just cause, or he has rights to damages at common law for reasonable notice in the absence of just cause.

The first ishis primary claim in the action, the second alternative. In the first instance, his claims are for damages and reinstatement. [44] Apparently, the appeal panel has already decided it cannot provide redress for the damages aspect of the Civil Service Actclaim. Seeing as Mr. Korecki was dismissed three years ago, it would be unfair to delay his attempt to get redress for his substantiveright to continuing pay if the dismissal was wrongful. [45] Third is the unfair treatment of Mr. Korecki. This affects all of Mr.

Korecki's claims, including the claim to automaticreinstatement under the Civil Service Act. [46] The deadlines for hearing and decision are important. (Indeed, they are law.) They respond to the kinds of policyconsiderations discussed at paras. 93 to 95 of Wallace v. United Grain Growers Ltd., (SCC), [1997] S.C.J. 94: This unequal balance of power led the majority of the Court in Slaight Communications, supra, to describe employees as a vulnerablegroup in society: see p. 1051. The vulnerability of employees is underscored by the level of importance which our society attaches toemployment.

As Dickson C.J. noted in Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1S.C.R. 313, at p. 368: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, asimportantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worthand emotional well-being. Thus, for most people, work is one of the defining features of their lives. Accordingly, any change in a person's employment status isbound to have far-reaching repercussions.

In "Aggravated Damages and the Employment Contract", supra, Schai noted at p. 346 that, "[w]hen this change is involuntary, the extent of our 'personal dislocation' is even greater." The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need ofprotection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economicand personal) that result from dismissal.

In Machtinger, supra, it was noted that the manner in which employment can be terminated isequally important to an individual's identity as the work itself (at p. 1002). By way of expanding upon this statement, I note that the lossof one's job is always a traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, theresults can be especially devastating.

In my opinion, to ensure that employees receive adequate protection, employers ought to be held toan obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to thelength of the notice period.

[ 47 ] It may well be that the now abolished (Mr. Korecki is the last person under it) appeal panel system was ill-conceived. To expect three busy, high-level civil servants to quickly be ready for a lengthy hearing (without necessarily having adjudicative experience or the adjudicative disposition) may have been too much to expect. [ 48 ] However, the delay in the appeal panel process is unconscionable. The law calls for a hearing in ten days and a decision ten days later.

A dismissed employee who maintains there was no cause is still waiting for a hearing date three years after the hearing should have been held. [ 49 ] The facts are not complicated. The issues are not novel. The court should not exercise its discretion to stay the alternative to which Mr. Korecki has been driven. [ 50 ] There is cumulative injustice arising from these discrete injustices. The Crown, exercising subordinate legislative authority entrusted to it by the legislature, made laws that protected employees by requiring notice of termination and a speedy review.

The Crown as employer, and Crown servants who had adjudicative authority, caused an employee harm by ignoring those laws. [ 51 ] The government fired Mr. Korecki without giving him the ten days' notice the law requires. Today, it will not even tell him whether abandonment of the appeal will be used against him in the surviving suit. The government as employer is as responsible as the government as adjudicator for the illegal delay between those two moments. [ 52 ] The motion for a stay is dismissed. Particulars [ 53 ] The statement of claim provides much detail.

It is fifty-eight paragraphs long. [ 54 ] Paragraph 28 pleads that the appeal panel process became part of the employment contract. The government demands "particulars on how and where" the process became part of the contract. The government relies on Rule 38.03(2), but paragraph 28 is not about a document.

Rather the demand seeks evidence about the evolution of employment contracts between the government and some employees and it calls for argument based on the evidence. [ 55 ] Paragraphs 29 and 30 allege that the deputy minister of justice breached her statutory obligations by dismissing without cause, failing to give the ten days' notice, and delegating her authority to others. The government demands "particulars as to how and whom … the decision to terminate was delegated". The reply refers to "Sean Kelly and the Public Service Commission" but refuses to answer the "how" part of the demand.

Apparently, the allegation is that delegation is to be inferred from behaviour or communications rather than ascertained from a formal document. On that understanding, the subject is for discovery before trial and evidence at trial. [ 56 ] The government asserts that Rule 38.03(2) "requires identification of the person(

s) involved in a claim". It does not require that, as I read the Rule. Indeed, there are many situations in which it is impossible for pleadings to identify each individual involved in a claim and many more situations in which doing so would be contrary to the purpose of pleadings. [ 57 ] Paragraph 42 pleads that the Public Service Commissioner has a conflict of interest in her role as chair of Mr. Korecki's appeal panel because she participated in the effort to repeal the ten days' notice provision.

The government demands particulars of "how and by whom the reasonable apprehension of conflict exists" and "as to the circumstances that led to Mr. Korecki's reasonable expectation" that the Commissioner would not be involved in both. I am not clear on why the statement of claim pleads Mr. Korecki's subjective belief, but the question of a conflict is to be assessed in view of all of the circumstances. It is a subject for evidence.

[ 58 ] The government also demands an explanation for the meaning of a phrase in paragraph 42. The phrase seems clear enough to me: the conflict involves chairing Mr. Korecki's panel at the same time as the commissioner took instruction from the government about repeal of the regulations upon which he relies. Whether this amounts to a disqualifying conflict is for argument. [ 59 ] Paragraph 45 pleads that Mr. Korecki and the government negotiated a settlement of his case and he suffered loss because of "the Crown's failure to perfect the agreement".

The government demands particulars on the allegation that it failed to "perfect" the agreement. The allegation is unclear because the concept is novel. The government is entitled to full details about what is alleged against it, including whether it is alleged to have breached a settlement agreement and, if not, the material facts supporting whatever liability is asserted about the failure to "perfect" an agreement. [ 60 ] The government also demands particulars on this sentence in para. 45: "He reserves the right to make a preliminary motion in this respect." This is not something that belongs in a pleading.

It should simply be ignored. [ 61 ] Paragraph 47 of the statement of claim reads: Korecki was to appear before the Panel again on September 18, 2012. It is alleged that Court's ruling on August 16, 2012; the timing of the Minister of the Public Service Commission's recommended changes to Regulations 140(2) and 150-156 and the concurrent scheduling of Korecki's matter before the Panel chaired by the Public Service Commission Deputy raise triable issues respecting the Panel's independence.

The government demands particulars "as to how the court's ruling … raises a triable issue regarding the Panel's independence." [ 62 ] Despite the phrase "triable issue", the material fact here is that the Panel lacks independence. The pleading tells the government the factual underpinnings Mr. Korecki relies on to prove that fact. The demand is argumentative, and calls for an argumentative response not suitable to pleadings. [ 63 ] In paragraphs 49 of the statement of claim, Mr.

Korecki alleges that the commissioner's involvement with the appeal panel, with "the investigation into his conduct", and the repeal of the appeal panel regulations support his claim "that there was an abuse of process and a reasonable apprehension of bias". The government demands particulars of the abuse of process and the bias. Mr. Korecki responds by refusing the demand on the basis that it calls for evidence. [ 64 ] The statement of claim provides particulars of the alleged abuse and bias, including the three subjects specifically pleaded in paragraph 49.

In that sense, a demand for more detail is a demand for evidence. In the sense of a quarrel with whether these details support findings of abuse or bias, the demand pertains to submissions rather than pleadings. [ 65 ] In paragraph 50, Mr. Korecki pleads that he suffered health problems as a result of the termination. The government demands particulars of the problems and their causes. Mr. Korecki says this is a call for evidence. I agree. [ 66 ] The claim for relief includes an alternate claim for "damages for mental suffering" and aggravated damages.

The government demands "particulars as to the circumstances which it is alleged that mental suffering occurred". The particulars are found in the statement of claim as a whole.

The government also demands "particulars as to the circumstances lading [ sic ] to the aggravated damages." The claim for relief specifically pleads for "aggravated damages arising from unfounded allegations of theft associated with the cooking of a staff breakfast." [ 67 ] In addition to the Civil Procedure Rules , the government's demand relies on s. 17 of the Proceedings Against the Crown Act , which allows the government some discovery before it takes a step in a proceeding:

In proceedings against the Crown, the Crown, before taking any step in the proceedings, may require the claimant to provide the Crown with such information as the Crown may reasonably require as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned. This allows more than a party is entitled to in pleadings, so as "to provide the Crown with specific information so they may investigate a claim properly": M.A. Hanna Co. v. Nova Scotia (Premier) , [1990] N.S.J. 143 (S.

C) at para. 30 . [ 68 ] The statutory entitlement is qualified according to what is "reasonable". So, in M.A. Hanna Co. several of the government's demands were rejected at the pleadings stage because they called for evidence available through discovery: paras. 24, 25, 26, and 31. [ 69 ] What is reasonable under s. 17 of the Proceedings Against the Crown Act depends on the need to perform an investigation before taking a step. In this case, before entering a defence.

There must be many cases in which a large organization, like the provincial government, needs information about what part of the organization, and who in that part, was involved and the details of the case just to get to the bottom of it. [ 70 ] That is not the situation here. As Ms. Mullin put it in one of the government's briefs, "... the Defendant has been actively defending this claim at a statutory tribunal." I would add "for years". The investigations required for the three aborted appeal panel hearings, the dialogue over three years with Ms.

Gillis, and the information provided by the statement of claim, the affidavits, and briefs are such that the government does not need more to prepare a notice of defence. [ 71 ] In conclusion, Mr. Korecki will either withdraw paragraph 45 of his statement of claim or provide particulars as to what is meant by "perfect the agreement" and the material facts supporting whatever liability is alleged in that connection. Otherwise, Mr. Korecki need not provide further responses to the government's demand for particulars. Default Judgment [ 72 ] Mr. Korecki moves for default judgment under Rule 8.08.

The government is out of time under Rules 31.12(1) and (3), but Mr. Korecki extended courtesy, and the government is protected from automatic default in any case by s. 17(2) of the Proceedings Against the Crown Act . [ 73 ] I do not criticize the government for not filing a defence while the issue of a stay was being argued, but Mr. Korecki's complaints about delay should be taken seriously. He will have a right to take default judgment ten days after he delivers the further particulars regarding paragraph 45, unless the government files a notice of defence. Question of Law [ 74 ] The question Mr.

Korecki proposed for separation and answer reads: … was the Plaintiff's termination void ab initio for the Deputy's failure to follow the statutory requirement to provide the Plaintiff 10 days' notice of termination, not to delegate authority and terminate for cause only? Ms. Gillis explained in oral argument that Mr. Korecki is not looking for a ruling on delegation or cause, which clearly require fact- finding at a trial or hearing. So, the question is: "Was Mr. Korecki's termination void ab initio because of the deputy's failure to follow

the statutory requirement for ten days' notice?" This simplified question was addressed by both sides in written and oral submissions. [ 75 ] The employment was terminated by Deputy Minister Marian Tyson who claimed cause and wrote "your employment with the Department of Justice is terminated effective immediately." The immediate termination was against s. 140(2) of the regulations: A notice of termination for cause must be given at least 10 days before the effective date of termination started in the notice. In addition to denying that the government had any cause, Mr.

Korecki has argued all along that the termination was void because it violated s. 140(2). [ 76 ] Rule 12.02 requires me to make three findings before I can consider answering a question of law outside the trial of an action or the hearing of an application. [ 77 ] The first required finding is "the facts necessary to determine the question can be found without the trial or hearing": 12.02(a). Fichaud J.A. has provided us with an enlightening metaphor, as is his style. Scaffolding is a metaphor for facts appropriate to separating a question of law in Mahoney v.

Cumis Life Insurance Co. , 2011 NSCA 31 : 18 So the first step with Rule 12 is to identify the pure legal question to be determined. Rule 12.01(1) permits a motion for determination of "a question of law". Rule 12.03(1) permits the judge either to determine "the question of law" or appoint a time to determine that question of law. The Rule does not authorize a determination of a question of fact or mixed fact and law, excepting only those facts that scaffold the point of pure law under Rule 12.02(

a) as I have discussed. 19 The second step is to identify all the facts that are necessary to determine that question of pure law. Nothing in Rule 12 permits a judge to decide facts that are unnecessary to determine the question of pure law in the motion. A party who wishes an assessment of evidence on other matters, leading to a judgment by interlocutory ruling, should make or join a

summary judgment motion under Rule 13.04 ("Summary judgment on evidence"). 20 The third step under Rule 12 is to decide whether all those facts necessary to determine the issue of pure law in the motion "can be found without the trial or hearing". [ 78 ] "A judge under Rule 12 may not determine contested facts that might hinge on testimony at a trial": para. 21. The discussion in Mahoney that leads to this conclusion is focussed on Rule 12.02(a), but I think the conclusion is reinforced by 12.02(

c) which precludes fact-finding that might be duplicated at trial. [ 79 ] The restricted fact-finding under Rule 12 does not mean that we have reverted to a requirement for agreed facts. "The new Rule 12 does not require an agreed statement for determination of a preliminary question of law": Mahoney , para. 16 . A fact is not controverted just because a party says it is. A judge would still have to determine whether the contested fact "might hinge on testimony at trial": also para. 16. [ 80 ] Mr. Korecki's proposed question is one of pure law. The factual scaffolding is: • Mr.

Korecki was a permanent employee of the government excluded from collective bargaining. • The Deputy Minister of Justice terminated his employment.

• She claimed to do so for cause. • She gave reasons in writing to Mr. Korecki and the Public Service Commission. • She purported to terminate the employment immediately and did not give Mr. Korecki ten days' notice. Each of these facts has been proved by affidavit. They are uncontroverted. I do not need to find any other facts in order to dispose of the legal question.

None of these findings will be re-litigated when the remaining issues are tried. [ 81 ] These facts provide a sure-footed scaffolding from which a judge can work on the pure question of law they frame. [ 82 ] The second required finding is "the determination will reduce the length of the proceeding, duration of the trial or hearing, or expense of the proceeding": 12.02(b). If the termination is not void then the trial can go forward on the alternative grounds without the encumbrance of presenting them alternatively.

If the termination is void, alternative grounds can be ignored as academic. [ 83 ] Thirdly, we require a finding that "no facts to be found in order to answer the question will remain in issue after the determination": 12.02(c). This protects against the risk of conflicting findings. The scaffold facts will still be material to Mr. Korecki's causes, but they will not be "in issue", in the sense of controverted. [ 84 ] Therefore, I will order separation of the proposed question.

The question has been argued fully, and I will proceed to determine it under Rule 12.03(1). [ 85 ] In a similar context, this same question came up in a case Justice Wood heard a year ago: MacKinnon v. Nova Scotia (Department of Justice) , 2012 NSSC 302 . Ms. McKinnon was fired, at the same time as Mr. Korecki, from a position at the correctional centre. The same incident, the death of an inmate, led to the employer's investigation of both Ms. MacKinnon and Mr.

Korecki and similar reasons were given for their firing. [ 86 ] Justice Wood conducted a judicial review of the appeal panel's finding that the employer had cause. He was also asked to determine whether the firing was void because the government failed to give Ms. MacKinnon ten days' notice. [ 87 ] As discussed, s. 141(3) requires that "a notice of termination for cause" be given ten days or more before the date of termination. The appeal panel in Ms.

MacKinnon's case found that s. 141(3) was "irrelevant" because she was dismissed for unsuitability rather than cause. [ 88 ] Unsuitability is one kind of cause, and elsewhere in its decision the panel had recognized as much. Justice Wood found that the conclusion about irrelevancy was unreasonable. The panel ought to have determined whether the failure to give ten days' notice voided the termination. [ 89 ] Ms. MacKinnon was a probationary employee.

Unlike permanent employees, the government had the option to dismiss her for cause with ten days' pay instead of notice: s. 148(1). [ 90 ] Justice Wood made the following comments: 95 In this case, there was no breach of any statutory requirement which affected Ms. MacKinnon's right to procedural fairness. She

was entitled to be advised of the reasons for her termination, and she was. Section 148(1) of the Regulations permitted the deputy head toterminate her employment effective immediately, which is what happened. The failure to pay ten days salary is in no way comparable tothe notice deficiencies in the cases relied upon by the applicant. 96 What is clear from a review of the jurisprudence is that the imposition of discipline on an employee will almost always be set asidewhere it was done without complying with statutory requirements for prior notice, reasons or an opportunity to contest allegations.

Thatis not the situation with the failure to pay ten days salary to Ms. MacKinnon. 97 Whether the failure to comply with the Regulations should invalid the termination requires the application of the analysis outlinedby the Federal Court of Appeal in Society Promoting Environmental Conservation, supra.

The factors to be considered include thefollowing: 1) The importance of the provision and the overall purposes of the statutory scheme. 2) The seriousness of the alleged breach. 3) The impact of the administrative action on the rights of any individuals. 4) The seriousness of any public inconvenience and injustice which would be caused by invalidating the administrative action, includingthe frustration of the purposes of the legislation, public expense and hardship to third parties. 5) The nature of the administrative process of which the statutory provision is part.

However, Justice Wood did not decide the issue of the effect of the failure to give ten days' notice. He referred that back to the appealpanel. [91] Justice Wood presents the question in the context of the mandatory/directory dichotomy of procedural "imperatives". InSociety Promoting Environmental Conservation, the Federal Court of Appeal reviewed judicial responses to the dichotomy throughoutthe twentieth century, culminating in British Columbia (Attorney General) v.

Canada (Attorney General), (SCC), [1994]S.C.J. 35. [92] A procedural requirement, expressed in imperative language, in a statute receives pragmatic attention when we have to interpretthe statute to determine whether a failure to comply with the procedural imperative avoids the process to which it relates. Theestablished principle of statutory

interpretation applies, but interpreting an apparent procedural imperative as mandatory or merelydirectory "evokes a special concern for 'inconvenient' effects, both public and private, which will emanate from the interpretive result": Justice Iacobucci at para. 148 of the British Columbia case. [93] Put another way, we have to ask "would it be seriously inconvenient to regard the performance of some statutory direction asan imperative?": para. 147. The factors described by the Federal Court of Appeal help with the answer. [94] Mr.

Korecki relies on a number of cases to support his position that the ten days' notice requirement is mandatory and histermination is void because of the failure to comply with the notice requirement. The cases are: General Truck Drivers Union, Local938 v. Hoar Transport Co., (SCC), [1969] S.C.R. 634; Haché v. Lunenburg County District School Board, 2003 NSSC37 reversed in part on appeal, 2004 NSCA 46; Hudston v. Halifax Regional School Board, (NS SC), [1999] N.S.J.245 (S.C.); Hunter v. Inverness District School Board, [1991] N.S.J. 350 (S.C.); Mahoney v. Newcastle Board of School Trustees, [1966]

N.B.J. 11 (C.A.); Malloch v. Aberdeen Corporation, [1971] 2 All E.R. 1278 (H.L.); Lewsey v. Surrey (District), (BCSC), [1972] 1 W.W.R. 611 (B.C.S.C.); Nova Scotia and N.S.G.E.U., [2009] C.L.B. 8903 (Nova Scotia Arbitrator); Ontario PublicService Employees Union v.

Ontario (Liquor Control Board), (Ontario Arbitrator); Canada Post Corp. and C.U.P.W. (1988), (CA LA), 3 L.A.C. (4th) 190 (Federal Arbitrator), and; the dissenting opinion in Re Cambridge Towel Corp. (1985), (ON LA), 29 L.A.C. (3d) 13 (Ontario Arbitration Panel). [95] Hunter and Hudston concern provisions in the Education Act by which a probationary or a permanent teacher is suspended ordischarged. School boards are required to follow a procedure by which a teacher is given notice, and an opportunity to be heard, beforetermination or suspension.

Teachers were not given required notice and this court set aside the boards' decisions. Both cases followMelanson v. The Board of School Commissioners of the City of Halifax, [1977] N.S.J. 471 (C.A.). Both have to be read in light ofHaché, which refined Melanson, and Melanson itself is subject to reconsideration in light of British Columbia (Attorney General) v.Canada (Attorney General). [96] General Truck Drivers Union turned on a term in a collective agreement providing that steps in a grievance procedure had tobe undertaken within contracted times.

Otherwise, "the grievance shall be deemed to have been withdrawn": para. 4. The SupremeCourt of Canada gave effect to this provision when a grievance was well out of time. The time limit and the deemed withdrawal "areintegral provisions of the agreement": para. 5. In that instance, the parties expressly contracted that the deadlines were mandatory. [97] In Mahoney, New Brunswick legislation provided for notice before termination and for a channel of appeal. The Schools Actincluded "the board of school trustees shall not terminate the contract except in accordance with this act".

Failure to give notice asrequired by the legislation violated a provision that was mandatory rather than directory. As with Hunter and Hudston, this caseconcerned a provision upon which the decision to dismiss was conditional. Also, like them it has to be reconsidered in light of BritishColumbia (Attorney General) v. Canada (Attorney General). [98] Malloch also concerned a notice related to the dismissal process, rather than an appeal from a decision to dismiss. A teacherhad a statutory right to notice before termination. Lord Reid wrote one of the opinions.

He was of the view that the statutory noticeimplied a right to a hearing before the school authority decided whether to dismiss the teacher. Two members of the court agreed withhim. Two dissented. The majority held the dismissal to be a nullity. [99] Lewsey concerned the firing of a recreation director. The director sued in wrongful dismissal. He also argued that the motionby which he was dismissed require a two-thirds majority, but it was only supported by a bare majority. It was too late to raise that issue.

Had the director raised the issue of jurisdiction to dismiss much earlier in proceedings for certiorari, "he might have been successful": para. 15. This case is not helpful, it has to do with the constitution of the decision-maker, not notice. [100] In Nova Scotia and N.S.G.E.U., Arbitrator Veniot found that a notice terminating an employee "does not state the reasons for thedischarge with enough sufficiency" to satisfy an

article in a collective agreement requiring the employer to "notify the employee inwriting … stating the reason for the … discharge". He decided the dismissal was void. [101] The Ontario Public Service Employees Union case dealt with a meeting convened by a union representation and a noticeprovision in a collective agreement. The union was not given notice of the meeting and it did not provide representation, although themeeting led to discipline. In arbitral jurisprudence, such provisions are substantive, but in this case the discipline was not void becauseof employee misconduct afterward. [102] Ms.

Gillis says that the Canada Post Corp. case included a finding that "the employer's failure … to take a disciplinary actionwithin the timelines set out in the collective agreement rendered the disciplinary action invalid". "[T]he requirement of prompt actionwas not merely a procedural time-limit but was ... a substantive provision." [103] The dissent in Cambridge Towel Corp. held that a three-day notice period before implementation of discipline "is a substantiveright accorded to the employee".

[ 104 ] The question I have to decide is whether Deputy Minister Tyson's failure to give Mr. Korecki the ten days' notice required by regulation avoids the termination. [ 105 ] Let us take a close look at the decision of the Court of Appeal in Haché . [ 106 ] The "main issue" was "whether the school board's notice of the complaint … was defective and caused the entire discharge which followed it to be a nullity": para. 9. On that subject, the Court of Appeal disagreed with the review judge.

The defect did not avoid dismissal. [ 107 ] The school board gave the teacher notice of complaints of sexual misconduct made against him by five children. It relied as well on the evidence of a sixth complainant, but gave no information about him when notice was required under the Education Act . [ 108 ] "However, it does not follow automatically that defective notice must be treated as no notice": para. 32. Cromwell J.A., as he was then, left open the question of whether Melanson remained good law in light of modern cases on the mandatory/directive dichotomy, especially British Columbia (Attorney General) v.

Canada (Attorney General) : para. 37 . However, he confined Melanson to a certain kind of defect when teachers are notified of disciplinary proceedings. [ 109 ] Justice Cromwell wrote at para. 30 of Haché : In considering this point [the decision in Melanson ], I have found it helpful to distinguish three different types of arguments about notice. The first relates to the giving of notice as a condition of taking further action. The failure to give notice arguably invalidates everything that follows. The second relates to whether a failure to give proper notice deprives a party of natural justice.

The third relates to the content of the notice which must be given. Depending on the seriousness of the defect and the legislative and factual context, cases of defective notice may be treated as if no notice had been given as in the first type or analyzed solely from the perspective of natural justice as in the second. It seems to me, with respect, that a good deal of the trouble in this case could have been avoided by keeping these different types of arguments about notice distinct. [ 110 ] The failure in Mr. Korecki's case does not fall into any of the three different type of argument about notice.

That is because the notice required by the former s. 140(2) of the General Civil Service Regulations is unrelated to any process by which Mr. Korecki's rights are determined. Unlike the Education Act , the Civil Service Act and the regulations do not provide for a hearing before dismissal. I must refer again to the applicable legislation. [ 111 ]

Section 27 of the Civil Service Act permits a deputy head to dismiss an employee for cause "in accordance with the regulations or the terms of a collective agreement". Subsection 45(1) permits the Public Service Commission to make regulations on specified subjects with the approval of Governor-in-Council. Clause (1)(

h) includes "removal from employment". [ 112 ] Subsection 140(1) of the regulations provides: A Deputy Head who terminates the employment of an employee for cause must notify all of the following in writing of the termination, the reasons for the termination and the effective date of the termination: (

a) the Commission; (

b) the employee, by certified mail or personal service. Subsection 140(2) used to provide that the notice must be given "at least 10 days before the effective date of the termination stated in the notice". It was changed in 2011 to "within 10 days of the effective date of the termination".

[ 113 ] At the time of Mr. Korecki's dismissal, the regulations contained a part titled "Dispute Resolution". (It was repealed in 2011.) [ 114 ] Regulation 153(2)(

c) provided "An employee may appeal a decision made under …

Section 27 of the Act, respecting dismissal." The employee had to provide a written notice of appeal that included the reasons: s. 153(1). The notice had to be submitted to the Public Service Commissioner "not later than 30 days after the date the employee receives the Deputy Head's decision": s. 153. There was no stay of the deputy's decision. [ 115 ] Regulation 154 used to provide for appeal panels made up of three senior public servants. Subsection 154(1) required the panel to hold a hearing no later than ten days after the notice of appeal.

Subsection 154(2) dealt with the powers and procedures of the panel, which included requirements for cross-examination, rebuttal evidence, submissions, and representation by counsel. [ 116 ]

Section 155 concerned appeal panel decisions. Under s. 155(1) the panel could confirm, reverse, or vary the deputy's decision, or it could refer the subject back to the deputy with recommendations. The panel's decision had to be in writing, and it had to include reasons: s. 156(2) It had to be made "no later than 10 days after the date the disciplinary appeal panel hears an appeal": s. 156(1) and see s. 156(2).

The decision was "final and binding": s. 156(4). [ 117 ] At least so long as the appeal provisions were in place, there could be no implication of a right to be heard before termination similar to the implication in Mahoney v. Newcastle Board of School Trustees. The employee had a right to be heard by the appeal panel after termination. [ 118 ] The ten days' notice had nothing to do with the appeal panel process, the process by which the employee's recourse for unjust dismissal was to be determined. It did not even affect the running of the appeal period.

That period started on "the date the employee receives the Deputy Head's decision", not the day on which the dismissal became effective. [ 119 ] The requirement for ten days' notice of dismissal was not a condition of dismissal. It was a consequence of the decision to dismiss. It was not a condition of the recourse for unjust dismissal because the ten days had nothing to do with the appeal. [ 120 ] Turning to the second of Justice Cromwell's examples of arguments about notice, the ten days had nothing to do with natural justice. Failure to give Mr.

Korecki ten days' notice of termination had no effect on the appeal panel process, the only process in which requirements for natural justice could arise as a result of Mr. Korecki's dismissal. [ 121 ] Thirdly, there is no complaint about the content of the notice. [ 122 ] I am not saying that the three examples of the kinds of arguments that can arise about notice in the directory/mandatory context exhaust all possibilities. However, they provide a helpful way to explain why the directory/mandatory dichotomy does not apply in this case. Mr.

Korecki had a legal right to work for no less than ten days before he was dismissed, but that right was not a condition of dismissal. The dismissal was conditional on the outcome of the appeal panel process to which the ten days' requirement did not relate. [ 123 ] Mr. Korecki argues that an

interpretation of the ten days' requirement that permits its violation without avoidance of the decision to dismiss makes the requirement meaningless. I disagree. Mr. Korecki was entitled to ten days' pay and, unlike probationary and term employees, he was entitled to the dignity to remain at work while he looked for alternate employment. Both the tangible and intangible losses are compensable. [ 124 ] Respectfully, the

interpretation Mr. Korecki argues for fails to respond to the requirement for practicality in British Columbia (Attorney General) v. Canada (Attorney General) . The mere failure to provide a notice would deprive the government of the ability to dismiss even for the most serious infraction. In any case, no decision supports the proposition that a notice unconnected to any right to a hearing could be a condition of termination.

The Decision in Kasperson [ 125 ] I asked counsel for submissions on Kasperson v. Halifax (Regional Municipality) , [2012] NSCA 110. I thank counsel for their assistance, but I am now of the view that the issue I had in mind is outside those presented by the parties. To comment further would be to speculate about the binding effect of whichever determination is made first, that by the appeal panel or that by this court. Conclusion [ 126 ] The province's motion for a stay is dismissed.

Its motion to compel answers to its demand for particulars is dismissed, except for the subjects in para. 70 of this decision. [ 127 ] Mr. Korecki's motion for default judgment is allowed only if the province does not file a defence within ten days after the answer to demand for particulars is delivered. His motion to separate a question of law is allowed. However, the question: "Was Mr.

Korecki's termination void ab initio because of the deputy's failure to follow the statutory requirement for ten days' notice?", is answered in the negative. [ 128 ] Counsel may make submissions in writing on costs if they cannot sort out that issue. J.