DATE: 20030630

DOCKET: C39086

COURT OF APPEAL FOR ONTARIO

ABELLA and CRONK JJ.A. and JURIANSZ J. (ad hoc)

B E T W E E N:

ERIC SCHEUNEMAN

Eric Scheuneman, in person Appellant

• and -

ATTORNEY GENERAL OF CANADA

Marie Crowley, for the respondent Respondent

Appeal in Writing: June 23, 2003

On appeal from the order of Justice Kenneth Pedlar of the Superior Court of Justice dated October 18, 2002.

CRONK J.A.:

[1] This is an appeal from the order of Pedlar J. of the Superior Court of Justice dated October 18, 2002 striking out the appellant’s statement of claim on the basis that the court lacks jurisdiction to deal with the issues sought to be raised by the appellant in his pleading. The appellant raises four grounds of appeal from that order, each of which is addressed in the reasons that follow.

1. Jurisdiction

[2] The claims sought to be advanced by the appellant have been heard and decided by a labour adjudicator under the dispute resolution mechanisms provided in the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the “Act”) and the collective agreement by which the appellant was bound at the time of the events in issue. Based on this court’s decision in Jadwani v. Canada (Attorney General) (2001), 2001 24157 (ON CA), 52 O.R. (3d) 660 and the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, the appellant was obliged to pursue the grievance and adjudication process established by the Act and the collective agreement. He did so. Accordingly, he has had the opportunity to litigate the matters forming the basis of the allegations that he seeks to advance in his proposed statement of claim.

[3] The essential character of the appellant’s proposed action, in my view, falls within the scope of the grievance and adjudication process under the Act and the collective agreement. Further, the adjudication thereunder was based on substantially the same facts alleged by the appellant in his statement of claim.

[4] The motions judge concluded, in those circumstances, that the court is without jurisdiction to hear and decide the claims sought to be advanced by the appellant. I agree.

[5] Moreover, in my view, even if the court has jurisdiction to entertain the appellant’s proposed claims, this is an appropriate case in which to decline such jurisdiction. Although the appellant relies upon the decision of this court in Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601 to argue that there is no impediment to his action proceeding notwithstanding the prior adjudication under the Act and the collective agreement, the decision in Guenette does not assist the appellant. That case concerned disputes that were not referable to adjudication. That is not this case.

2. Other Grounds of Appeal

[6] I would also reject the appellant’s remaining grounds of appeal.

[7] First, contrary to the appellant’s submissions, the motions judge did not deny him a hearing in writing or fail to consider the appellant’s written materials. To the contrary, the order of the motions judge indicates that the motion records and the factums filed by the parties were considered by the motions judge and that, although the appellant was properly served with the respondent’s notice of motion, he failed to appear before the motions judge. The transcript of the proceedings indicates that the respondent’s counsel informed the motions judge of the appellant’s request that the motion be determined on the basis of the written materials filed by the parties, and of the respondent’s consent thereto, and the motions judge proceeded on that basis. Accordingly, I would reject the appellant’s submissions that he was denied the benefit of a written hearing concerning the motion to strike and that his written materials were not considered by the motions judge.

[8] Second, the appellant argues that the costs award made against him by the motions judge offended his rights under the Charter of Rights and Freedoms. The appellant led no evidence before the motions judge establishing that he could not afford to pay costs. As well, he filed no affidavit materials in response to the respondent’s motion to strike his pleading or concerning the issue of costs. As argued by the respondent on this appeal, Charter challenges cannot be determined in a factual void and in the absence of an evidentiary context. Accordingly, the appellant’s Charter challenge concerning costs fails.

[9] Third, there is no basis for the appellant’s assertion that the motions judge exhibited institutional or personal bias. Simply stated, there is no evidence to ground that claim. In the absence of any evidence to support the appellant’s allegation that he could not afford to pay costs, the motions judge’s award of costs against the appellant does not demonstrate a reasonable apprehension of bias. Similarly, given the history of litigation by the appellant concerning this matter, there was no impropriety or bias demonstrated by the order of the motions judge that the appellant be precluded from initiating further proceedings between the parties until the costs awarded against him, in the amount of $1,000.00, were paid in full.

[10] Finally, I have also considered that the claims sought to be advanced by the appellant in his statement of claim include an allegation of conspiracy. The appellant, however, failed to plead the requisite material facts to support an alleged conspiracy. Accordingly, even if such a cause of action could survive the adjudication which has already taken place under the collective agreement and the Act, it was not properly pleaded by the appellant.

3. Disposition

[11] For the reasons given, I would dismiss the appeal. The respondent is entitled to his costs of the appeal, if requested, on a partial indemnity basis fixed in the amount of $1,000.00, inclusive of disbursements and Goods and Services Tax.

RELEASED:

“JUN 30 2003” “E. A. Cronk J.A.”

“RSA” “I agree R. S. Abella J.A.”

“I agree R. G. Juriansz ad hoc”