C.A. No. 02943
NOVA SCOTIA COURT OF APPEAL
Hallett, Roscoe and Pugsley, JJ.A.
Cite as: Nova Scotia (Attorney General) v. Roulston, 1994 NSCA 71
BETWEEN:
ATTORNEY GENERAL OF NOVA SCOTIA ) Alex M. Cameron
) for the Appellant
Appellant )
)
)
- and - ) M. Shaun O'Leary
) for the Respondent
)
ELIZABETH ROULSTON )
)
Respondent )
) Appeal Heard:
) March 23, 1994
)
) Judgment Delivered:
) March 23, 1994
)
)
THE COURT: Appeal dismissed with costs to the respondent in the amount of $700.00, per oral reasons for judgment of Roscoe, J.A.; Hallett and Pugsley, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
ROSCOE, J.A.:
The respondent applied for a Civil Service position as a cooking instructor at a Community College. After her interview she received a letter which she interpreted as an offer of employment which she accepted. She then quit her other job. The Civil Service Commission did not approve the position and the respondent was so advised. She brought action against the Province and the Department of Education for breach of contract and negligence.
The Province brought an application in Chambers pursuant to Civil Procedure Rule 14.25(1)(a) to strike that portion of the Statement of Claim alleging breach of contract claiming that it disclosed no reasonable cause of action. The appellant argued before the Chambers judge that if the respondent was hired for the position as she alleged, the Civil Service Collective Agreement would apply to the position and therefore bar her action for breach of contract. Hall, J. dismissed the application, saying he was not satisfied that the Collective Agreement applied because the respondent had not actually commenced the employment.
The appellant submits that the learned Chambers judge erred in law in his reasoning because the Collective Agreement would bind the respondent as soon as she accepted the employment offer, if one had in fact been made. It is submitted that Henley v. Atlantic Provinces Special Education Authority (1986), 72 N.S.R. (2d) 399 (N.S.C.A.) applies and that therefore the jurisdiction of the court is ousted.
The question on an application under Rule 14.25 is not whether there is a good defence to the action but whether the Statement of Claim discloses a cause of action. (See Curry v. Dargie (1984), 67 N.S.R. (2d) 416.) The
following comments of Freeman, J.A., in American Home Assurance Co. et al. v. Brett Pontiac Buick GMC et al. (1992), 116 N.S.R. (2d) 320 at page 322 are applicable:
The appellant faces an onerous double burden in appealing from the dismissal of an application to strike out the statement of claim, a serious matter that would result in the action being decided against the respondent plaintiffs without trial. A claim will be struck out only if, on its face, it is "absolutely unsustainable" (see Curry v. Dargie (1984), 62 N.S.R. (2d) 416; 136 A.P.R. 416 (A.D.) at p. 429) or "is certain to fail because it contains a radical defect". (See Hunt v. T & N plc et al., [1990] 2 S.C.R. 959, 43 C.P.C. (2d) 105, 4 C.C.L.T. (2d) 1; 117 N.R. 321, (sub nom. Hunt v. Carey Canada Inc.) [1990] 6 W.W.R. 385, 49 B.C.L.R. (2d) 273; 74 D.L.R. (4d) 321.) This court will not interfere with an interlocutory discretionary order unless wrong principles of law have been applied or a patent injustice would result (see Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143); 275 A.P.R. 143 (C.A.)).
. . .
And at page 327:
The appellant had applied to strike out the statement of claim under either of Civil Procedure Rule 14.25(1)(a) or Rule 25.01. The test under Rule 14.25 was summarized by Macdonald, J.A., in Vladi Private Islands Ltd. v. Hoase et al (supra) at p. 325 where he stated:
"The proper test to be applied when considering an application to strike out a statement of claim has been considered by this Court on numerous occasions. It is clear from the authorities that a judge must proceed on the assumption that the facts contained in the statement of claim are true and, assuming those facts to be true, consider whether a claim is made out. An order to strike out a statement of claim will not be granted unless on the facts as pleaded the action is 'obviously unsustainable'."
In this case, it may be that the appellant has a good defence to the Statement of Claim if the Collective Agreement applies to these facts. However, whether the agreement applies or not is not a question that should be dealt with on an application to strike. It is a question of law best determined on an application under Rule 25 based on an agreed statement of facts, or if no agreement on the facts is possible, at the trial.
The appeal is dismissed, with costs to the respondent in the amount of $700.00.
Roscoe, J.A.
Concurred in:
Hallett, J.A.
Pugsley, J.A.