Court File and Parties
Court File No.: 14-60313 Date: 2017/05/16 Superior Court of Justice - Ontario
Re: Jean Paul Rheaume and Therese Charron, Plaintiffs And Her Majesty the Queen in Right of Ontario, John Barbro, Tyler Roy and Melissa Schell, Officer Doe and Officer Smith, Defendants
Before: Justice Robert N. Beaudoin
Counsel: Rita Bambers for the Defendant HMQ Ontario James McMahon for John Barbro, Defendant, Plaintiff by Crossclaim
Heard: In Writing
Endorsement
[1] The Defendant, Her Majesty the Queen in Right of Ontario (“the Crown”) seeks to stay the order of Master Champagne, dated March 6, 2017 pending an appeal of that order which is scheduled to be heard on September 7, 2017. The Master’s decision addresses the order in which motions by the Crown to strike the cross-claim of the defendant John Barbro, (“Barbro”), and Barbro’s motion compelling the Crown to file a comprehensive statement of defence, should be heard.
[2] The plaintiff in this action was an inmate at the Ottawa-Carleton Detention Centre and seeks damages for injuries he sustained when one or more of the individually named defendants, all correctional officers employed by the Crown, allegedly used excessive force against him.
[3] After the incident, employees of the Crown conducted an investigation and the Crown terminated the defendant Barbro on November 29, 2011. Barbro was a unionized employee represented by the Ontario Public Service Employees Union. The employment relationship was governed by a collective agreement. Barbro chose to challenge his dismissal from employment and all outstanding employment related issues by filing a grievance as required by the collective agreement.
[4] The grievance was settled on the eve of an arbitration hearing in February 2014. The parties signed minutes of settlement and Barbro agreed to terms in exchange for signing a full and final release in favour of the Crown.
[5] When Barbro defended the personal injury action initiated by the injured inmate, he sought to cross-claim against the Crown for wrongful dismissal, malicious prosecution, and negligent investigation into the incident by the Crown. He also seeks damages for defamation, alleging that he was portrayed in the press as having assaulted the plaintiff, based on unspecified statements from unspecified persons. The Crown maintains that the substance of Barbro’s cross-claim arises from his employment relationship with the Crown and that this court is without jurisdiction to hear the cross-claim. Moreover, Crown maintains that the cross-claim is an abuse of process given that there were minutes of settlement executed between the parties which contained a full and final release of all of Barbro’s outstanding employment- related matters.
[6] The Crown advised of its intention to bring a motion to strike the cross-claim. Barbro indicated that he intended to note the Crown in default if it did not file a defence. As a result, the Crown filed a pro forma statement of defence to the cross-claim. Barbro then advised of his intention to bring a motion to strike the Crown’s defence as failing to comply with the Rules of Civil Procedure and for summary judgment against the Crown.
[7] The parties then attended at a case conference before Master Champagne who ordered the Crown to file a comprehensive statement of defence to the cross-claim by May 12, 2017. She added that the Crown agreed to this subject to its right to appeal her order. Since Barbro would not give up his right to proceed with his motion to strike the Crown’s defence, she then set two motion dates, one for November 29, 2017 and the second for January 8, 2018.
[8] If Barbro was content with the new statement defence, the Crown’s motion to strike would proceed on November 29, 2017 and the January date would be cancelled. If Barbro was not satisfied with it, then his motion to strike the Crown’s defence would proceed on that date and the Crown’s motion would be heard on January 8, 2008.
[9] The Crown seeks to stay the Master’s order because that order, in effect, determines the defendant Barbro’s motion by requiring the Crown to first file a comprehensive statement of defence to the cross-claim by May 12, 2017 without first determining whether the court has jurisdiction over the cross-claim. The Crown seeks to appeal that order and the earliest appeal date that it could was able to obtain was September 7, 2017.
[10] Barbro has filed extensive material in reply to this motion to stay in support of his claims against the Crown. The only issue before me whether I should grant a stay of Master Champagne’s order.
The Law
[11] Section 17(a) of the Courts of Justice Act, R.S.O., c. C.43 provides for an appeal to a judge of an interlocutory order of a Master. Rule 62.01 of the Rules of Civil Procedure govern the conduct of the appeal. In this case, Master Champagne’s endorsement at the Case Conference was a timetable order.
[12] Rule 3.04 (4) provides:
Non-Compliance (4) If a party fails to comply with a timetable, a judge or case management master may, on any other party’s motion,
(a) stay the party’s proceeding;
(b) dismiss the party’s proceeding or strike out the party’s defence; or
(c) make such other order as is just. O. Reg. 438/08, s. 6.
f
[13] Notwithstanding the informality of a case conference, a Master’s order that directs a party to take step in a proceeding is nevertheless an interlocutory order. As Rule 3.04(4) makes clear, there are serious consequence if a party fails to comply with a timetable order.
[14] Rule 63.01 applies to a stay pending an appeal. Since there is no automatic stay of an order other than for payment of money and counsel for Barbro would not agree to allow the appeal to be disposed of prior to insisting on the delivery of the Crown’s statement of defence to his cross-claim, this motion to stay is necessary. This motion is brought in writing since the Crown could not obtain a hearing date prior to May 12, 2017, for either the appeal or for the motion to stay.
[15] The test on an application for a stay is the same on an application for and interlocutory injunction:
(1) is there a serious issue to be tried?
(2) would compliance with the order cause irreparable harm? and
(3) what is the balance of convenience? [1]
[16] The threshold on the first issue is a low one. I am satisfied that there is a serious issue to be tried with respect to this Court’s jurisdiction and the Master’s order.
[17] As for irreparable harm, the Crown cites the expense of defending a cross-claim over which the court may have no jurisdiction and which may constitute an abuse of process. More significantly, the Crown claims that the settlement privilege with respect to the matters before the grievance settlement board will be breached if the Crown is required to file a more comprehensive statement of defence. In my view, the expense of defending the cross-claim is a matter for costs and I am not satisfied that the Crown would be required to breach the settlement privilege to any greater degree that it proposes to do in its intended motion to strike the cross-claim. Having said that, failure to stay the order of Master Champagne would irreparably harm the Crown’s appeal by rendering it moot.
[18] I conclude that the balance of convenience favours granting the stay. Given that only Barbro’s cross-claim will be examined on the Crown’s motion to strike, anything contained the Crown’s statement of defence to the cross-claim will be irrelevant and a more comprehensive statement of defence to the cross-claim will be of no use to Barbro when the Court considers whether it has jurisdiction over Barbro’s cross-claim.
[19] Costs of this motion to stay are reserved to the hearing of the appeal.
Mr. Justice Robert N. Beaudoin Date: May 16, 2017
