Date: 19990127
Docket: A-154-96
CORAM: THE CHIEF JUSTICE
LINDEN J.A.
SEXTON J.A.
BETWEEN:
| DONNA McMILLAN |
Plaintiff
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
Defendant
Heard at Edmonton, Alberta, on Wednesday, January 27, 1999
Reason for Judgment of the Court delivered from the Bench at Edmonton, Alberta, Wednesday,January 27, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 19990127
Docket: A-154-96
CORAM: THE CHIEF JUSTICE
LINDEN, J.A.
SEXTON, J.A.
BETWEEN:
| DONNA McMILLAN |
Plaintiff
| - and - |
| HER MAJESTY THE QUEEN |
| IN RIGHT OF CANADA |
Defendant
REASONS FOR JUDGMENT
(Reasons for Judgment of the Court delivered from the Bench at Edmonton, Alberta
on Wednesday, January 27, 1999)
SEXTON, J.A.:
[1] These appeals arise from an Order of Jerome, A.C.J. in which he
| (1) dismissed the Crown's application for summary judgment based on the Crown's argument that the plaintiff's claim was barred by the Limitation Act; |
| (2) struck out the part of the plaintiff's statement of claim based on alleged infringement of the plaintiff's Charter rights; |
| (3) dismissed the Crown's application to strike out the balance of the statement of claim based on the Crown's argument that no cause of action lies for breach of contract because service in the RCMP does not involve a contract of employment; |
| (4) dismissed the Crown's appeal from the Order of the Prothonotary relating to the provision of particulars. |
| A. With respect to the Crown's argument that the plaintiff's claim was statute-barred by reason of the lapse of more than two years, it is not clear as to when the plaintiff's cause of action arose and the parties differ on this question. There may well be facts in dispute and we feel this issue should be left to the trial Judge. |
| B. With respect to the Motion Judge's Order that the part of the plaintiff's statement of claim relating to the Charter of Rights should be struck out, we are of the view that the learned Judge erred. The Court will only strike out statements of claim if it is clear that the claim cannot possibly succeed. It is not clear to us that the plaintiff's claim on this level must fail on the ground cited by the Motions Judge to the effect that the Royal Canadian Mounted Police Act makes sexual harassment an offence. This matter should be left to the trial Judge. |
| C. With respect to the Crown's claim that no cause of action in contract can arise out of employment with the R.C.M.P., we agree with the Motions Judge in which he said the issue is not clear. This issue should be left to the trial Judge. |
| D. With respect to the Crown's appeal for further particulars, we feel that this was a matter in which the Motions Judge properly exercised his discretion. |
[2] The appeal should be dismissed and the cross-appeal should be allowed. Costs of the proceedings both here and below shall be in the cause.
"J. EDGAR SEXTON"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-154-96
STYLE OF CAUSE: Donna McMillan
v. Her Majesty the Queen
in Right of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 27th, 1999
REASONS FOR JUDGMENT: Sexton, J.A.
APPEARANCES:
Lorne E. Goddard for the Appellant
Red Deer, Alberta (Plaintiff)
Kirk N. Lambrecht
Department of Justice
Edmonton, Alberta for the Respondent
(Defendant)
SOLICITORS OF RECORD:
Chapman Riebeek
Red Deer, Alberta for the Appellant
(Plaintiff)
Morris A. Rosenberg
Deputy Attorney General of Canada for the Respondent
(Defendant)