Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell, [1999] 3 S.C.R. 281

Florent Des Champs Appellant

v.

Conseil des écoles séparées catholiques de

langue française de Prescott-Russell, Suzanne

Charette, Roch Lalonde, Ronald Lalonde, R.

Serge Lalonde, Hélène Leblanc, Pierre Leblanc,

Jean Lemay, Paul Paradis, Marcel Perras,

Gilles Taillon, François Théoret and Jean-Paul Scott Respondents

Indexed as: Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell

File No.: 25898.

1998: November 10; 1999: September 17.

Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ.

on appeal from the court of appeal for ontario

Limitation of actions -- Public Authorities -- School Board -- School Board declaring superintendent’s position redundant and transferring him to non-supervisory position -- Superintendent commencing action eight months after events giving rise to cause of action -- Whether six-month limitation period in s. 7 of Public Authorities Protection Act applicable to bar action -- Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7.

The respondent School Board declared two of three superintendent positions redundant under s. 7 of Regulation 309 of the Education Act and the appellant, a superintendent, was transferred to a position as a principal of a school. He ceased to be a full-time administrator and was required to go back to the classroom to teach. Almost eight months after the events giving rise to the cause of action, he commenced an action claiming entitlements under s. 7(2) of Regulation 309. The Board brought a motion to have the action dismissed based on a six-month limitation period under s. 7 of the Public Authorities Protection Act. The motions judge dismissed the motion but the Court of Appeal set aside his decision, concluding that the action was barred by the six-month limitation period.

Held (Major J. dissenting): The appeal should be allowed.

Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ.: Section 7 of the Public Authorities Protection Act does not protect public authorities as a matter of status and not all actions by a public authority fall within the protection of s. 7. For s. 7 to apply, the right being asserted by a plaintiff must be correlative to a public duty or power imposed on the public authority. Public authorities may have duties and powers that are of a private or subordinate nature. In determining whether to apply s. 7, a court will have to consider the action at issue and its relationship with the nature of the statutory power or duty of the public authority. A statute may authorize a wide range of activities of which only some could be considered public for purposes of applying s. 7. An action in fulfilment of a statutory mandate that lacks a public aspect or that is a subordinate or incidental action or of a private interest is not protected by s. 7 of the Act.

A court considering applying s. 7 of the Act or a similarly worded limitations statute may wish to determine: whether the defendant is a public authority within the class of entities or individuals for whom limitations protection was intended; what the public authority was doing and pursuant to what duty or authority; whether the public authority’s power or duty is properly classified as entailing a public aspect or connotation or a private executive, private administrative or subordinate aspect; whether the activity of the public authority that is the subject matter of the complaint is inherently of a public nature or more of an internal or operational nature having a predominantly private aspect; and, from the plaintiff’s perspective, whether the plaintiff’s claim or alleged right correlates to the exercise by the defendant of a public authority or to the breach of a public duty or complains about an activity of a public character. If the answer to the latter question is in the affirmative, the limitation period applies.

In this case, the Board’s reorganization was a public initiative. Delivery of an educational program is a responsibility owed by the Board to all members of the public alike. The appellant’s alleged injury, however, was created by the Board’s implementation of the reorganization and raises only labour relations issues against the Board as the appellant’s employer. The Board’s action, upon which the appellant’s claim is based, was distinct, separate, subordinate and incidental to the Board’s execution of its public duty and powers. The Board should not be permitted to aggregate a number of discrete actions under a generalized appeal to the public interest in order to widen the application of s. 7 of the Act. The Board’s action was not the inevitable consequence of the downsizing. The six-month limitation period does not apply. The motions judge’s order, that s. 7 of the Act is inapplicable, is reinstated, permitting the action to proceed against the Board.

Per Major J. (dissenting): The Board’s action in this case was in direct execution of its public authority and is subject to s. 7 of the Public Authorities Protection Act. The appellant’s claim falls within the six-month limitation period and should not be allowed to proceed.

The Act must be applied to any action intended by the legislature to fall within the categories enumerated in the statute. The scope of s. 7 has been narrowed to actions performed in direct execution of a public authority’s public purpose. Determining whether an action is directly related to or is incidental to a public authority’s powers and duties requires careful line-drawing. The decision to declare the appellant’s position redundant and to transfer him was an action taken in direct execution of the Board’s public purpose. The action of downsizing can have both a public and a private aspect but the private aspect does not remove it from the protection of s. 7 of the Act. There is no basis to carve out an exception for lawsuits based on the private aspects of actions done in direct execution of public duties.

The focus is on the action about which the appellant complains. There is no meaningful distinction between the action of downsizing and “downsizing” the appellant’s position in particular. Such a distinction would allow any public action to be deconstructed into sub-actions, some of which could be described as in‑house implementations or minor functions. The fact that the Board chose the appellant instead of a colleague does not strip the action of its public nature. A public authority’s ability to rely on s. 7 of the Act does not depend on the identity of the plaintiff.

Cases Cited

By Binnie J.

Applied: Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, rev’g 1977 40 (ON CA), 75 D.L.R. (3d) 348, aff’g 1976 883 (ON SC), 71 D.L.R. (3d) 56; Bradford Corp. v. Myers, [1916] 1 A.C. 242; followed: Cloudfoam Ltd. v. Toronto Harbour Commission, 1968 346 (ON SC), [1968] 2 O.R. 497, aff’d 1969 499 (ON CA), [1969] 2 O.R. 194; Sharpington v. Fulham Guardians, [1904] 2 Ch. 449; not followed: Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 1985 2248 (ON CA), 56 O.R. (2d) 160; Lacarte v. Board of Education of Toronto, 1954 116 (ON CA), [1954] O.R. 435; Riddle v. University of Victoria (1979), 1979 2774 (BC CA), 95 D.L.R. (3d) 193; Moffatt v. Dufferin County Board of Education, 1972 666 (ON CA), [1973] 1 O.R. 351; Stewart v. Lincoln County Board of Education (1972), 1972 459 (ON SC), 8 O.R. (2d) 168; Goodwin v. Oxford County Board of Education (1980), 1980 1633 (ON SC), 30 O.R. (2d) 359; Wright v. Board of Education for the City of Hamilton (1977), 1977 1268 (ON SC), 16 O.R. (2d) 828; Cossette v. Ombudsman (1980), 1980 1769 (ON SC), 28 O.R. (2d) 92; explained: Griffiths v. Smith, [1941] A.C. 170; referred to: Tolson v. Kaye (1822), 3 Brod. & B. 217, 129 E.R. 1267; Deaville v. Boegeman (1984), 1984 1925 (ON CA), 14 D.L.R. (4th) 81; Re Colledge and Niagara Regional Police Commission (1983), 1983 1914 (ON CA), 44 O.R. (2d) 289; Clarke v. Ottawa Board of Education (1975), 1975 753 (ON SC), 54 D.L.R. (3d) 321; Re Beauchamp and Town of Espanola (1981), 1981 1640 (ON SC), 122 D.L.R. (3d) 149, aff’d (1981), 1981 3005 (ON CA), 128 D.L.R. (3d) 766; Collier v. Lake Superior Board of Education (1986), 14 C.C.E.L. 183; Molloy v. Ontario (Human Rights Commission) (1992), 41 C.C.E.L. 101; McGonegal v. Gray, 1952 6 (SCC), [1952] 2 S.C.R. 274; Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452; Government of Malaysia v. Lee Hock Ning, [1974] A.C. 76; Comstock International Ltd. v. The Queen in right of Ontario (1981), 1981 2946 (ON SCDC), 126 D.L.R. (3d) 323; Clarke v. St. Helens Borough Council (1915), 85 L.J. (K.B.) 17; Hanna v. Ontario Hydro (1982), 1982 1873 (ON SC), 37 O.R. (2d) 783; Schnurr v. Royal Ottawa Hospital (1986), 1986 2536 (ON CA), 56 O.R. (2d) 589; Compton v. Council of the County Borough of West Ham, [1939] Ch. 771; McManus v. Bowes, [1938] 1 K.B. 98.

By Major J. (dissenting)

Bradford Corp. v. Myers, [1916] 1 A.C. 242; Griffiths v. Smith, [1941] A.C. 170; Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275; Sharpington v. Fulham Guardians, [1904] 2 Ch. 449; McGonegal v. Gray, 1952 6 (SCC), [1952] 2 S.C.R. 274; Moffatt v. Dufferin County Board of Education, 1972 666 (ON CA), [1973] 1 O.R. 351; Comstock International Ltd. v. The Queen in right of Ontario (1981), 1981 2946 (ON SCDC), 126 D.L.R. (3d) 323; Clarke v. Ottawa Board of Education (1975), 1975 753 (ON SC), 54 D.L.R. (3d) 321; Lacarte v. Board of Education of Toronto, 1954 116 (ON CA), [1954] O.R. 435; Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452; Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 1985 2248 (ON CA), 56 O.R. (2d) 160.

Statutes and Regulations Cited

Education Act, R.S.O. 1990, c. E.2.

Financial Administration Act, R.S.C., 1985, c. F-11.

Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7.

Public Authorities Protection Act, 1893 (U.K.), 56 & 57 Vict., c. 61.

R.R.O. 1990, Reg. 309, s. 7.

Authors Cited

Ontario Law Reform Commission. Report of the Ontario Law Reform Commission on Limitation of Actions. Toronto: Department of the Attorney General, 1969.

APPEAL from a judgment of the Court of Appeal for Ontario, [1997] O.J. No. 125 (QL), allowing an appeal from a decision of the Ontario Court (General Division) (1993), 1993 5494 (ON SC), 16 O.R. (3d) 278, which dismissed a motion to dismiss the action. Appeal allowed, Major J. dissenting.

Denis J. Power, Q.C., and Steven Welchner, for the appellant.

Paul S. Rouleau and Bruce Hutchison, for the respondents.

The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ. was delivered by

1 Binnie J. – Many if not most public authorities in this country are shielded from litigants to some extent by special statutory limitation periods. The public policy underlying these limitations is that public authorities ought not to be unduly prejudiced by the passage of time. Timely notice will promote the timely investigation and disposition of claims in the public interest. After the expiry of a limitation period, the public authority can consider itself free of the threat of legal action, and need not preserve or seek out pertinent evidence. Its fiscal planning can proceed free of the disrupting effect of unresolved claims against the public purse. Historically, limitation statutes were referred to as “statutes of repose” or “statutes of peace” (Tolson v. Kaye (1822), 3 Brod. & B. 217, 129 E.R. 1267, at p. 1269, and Deaville v. Boegeman (1984), 1984 1925 (ON CA), 14 D.L.R. (4th) 81 (Ont. C.A.), at p. 86). The six-month limitation under s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 (the “Act”), recognizes the special nature and responsibilities of public authorities. However, here the appellant says that applying the limitation to bar his wrongful dismissal claim overshoots the purpose of the statute. He says the fact he works for a public sector employer should not truncate the limitation period from six years to six months. This type of claim, he says, does not engage the “public” aspect of the respondent Board’s powers and duties. I think his objection is well founded. The s. 7 defence was rightly rejected by the motions judge in this case and his ruling in that regard should be restored. The appeal should therefore be allowed.

I. Nature of the Claim

2 This appeal concerns an employment dispute between the appellant, Florent Des Champs, and the Roman Catholic Separate School Board of Prescott-Russell. The appellant started work for the Board as a teacher in 1971. Over the years, he progressed through the ranks until, in July 1989, he was appointed one of several superintendents of the French Language Roman Catholic Separate School Board. Three years later, as a result of a reorganization of educational services, the Board’s responsibilities were significantly reduced. This led to two of the Board’s three superintendent positions being declared redundant. The appellant was one of the superintendents selected to fill a redundancy and he claims he was downgraded to a lesser position contrary to his contractual entitlement which, he says, incorporates the provisions of R.R.O. 1990, Reg. 309, made under the Education Act, R.S.O. 1990, c. E.2. The School Board sought to have his action dismissed on the strength of s. 7 of the Act. It lost before the motions judge but succeeded before the Ontario Court of Appeal.

II. History of the Dispute

3 In 1992, under a rationalization of French language educational services, the respondent Board was relieved of certain responsibilities in relation to English language separate schools in its area. It concluded that the remaining work could be done by one of its existing three superintendents. The Board responded to this “downsizing” of its role by purporting to exercise its statutory powers under s. 7 of Regulation 309. Regulation 309 authorizes the Board to declare redundancies in the implementation “of a long range organizational plan of operation”. It is common ground that no such plan existed in Prescott-Russell at the relevant time. The validity of the Board’s procedure is an issue in the law suit. The Board’s concern for cost control, however, was certainly in the public interest.

4 The relevant reorganization was described in the Board’s resolution of April 27, 1992, as follows:

[translation]

Resolution No. 104

WHEREAS the French Language Roman Catholic Separate School Board of Prescott-Russell was required to take on three superintendents from the Prescott-Russell Board of Education on January 1, 1989 following the reorganization;

WHEREAS the superintendents of the French Language Roman Catholic Separate School Board of Prescott-Russell were required to supervise French and English language schools following the reorganization, and supervisory services for the English language Roman Catholic Section were subsequently contracted from the Carleton Roman Catholic School Board;

WHEREAS two separate school boards, a French language and an English language board, were created on December 1, 1991;

WHEREAS shortly the French Language Roman Catholic Separate School Board of Prescott-Russell will no longer have to provide services to the Prescott and Russell County Roman Catholic English Language Separate School Board; and

WHEREAS the French Language Roman Catholic Separate School Board of Prescott-Russell intends to use its available financial resources as judiciously as possible.

The Board thus resolved:

[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the educational authority of the French language Roman Catholic separate schools of Prescott-Russell declare two superintendent positions redundant.

Adopted.

5 By subsequent resolution, the Board selected the appellant and a colleague for transfer to other duties:

[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the French Language Roman Catholic Separate School Board of Prescott-Russell transfer superintendents Rhéal M. Bazinet and Florent Y. Des Champs to positions for which they are qualified with administrative and supervisory responsibilities as similar as possible to those of their previous positions.

6 On May 29, 1992, the appellant was assigned to be principal of École St-Luc in Curran, Ontario for the following school year. He reported to École St-Luc under protest, on August 24, 1992. He ceased to be a full-time administrator. He was required to go back to the classroom to teach. He considered that he had been unfairly dealt with.

7 The appellant commenced the present action against the Board, its trustees, and the Director of Education on December 22, 1992, almost eight months after the events giving rise to his cause of action.

8 The various defendants, including the Board, brought a motion to dismiss the action on the basis that, not having been commenced within six months of the date the cause of action arose, it was statute‑barred by virtue of s. 7(1) of the Act. As stated, this position was rejected by the motions judge but was accepted by the Ontario Court of Appeal. It took almost seven years for the “preliminary motion” to reach this Court.

III. Judgments

Ontario Court (General Division) (1993), 1993 5494 (ON SC), 16 O.R. (3d) 278

9 On November 25, 1993, Desmarais J. held the special six-month limitation period did not apply. Applying the decision of this Court in Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, he asked himself whether the conduct complained of was “in broad terms . . . public in nature or private in nature”, and concluded that the conduct complained of did not entail a public aspect but “more of an internal or operational nature having a predominantly private aspect” (p. 282). He therefore rejected the limitations defence. He also struck out the action against the individually named defendants, allowing the matter to proceed against the School Board only.

Ontario Court of Appeal, [1997] O.J. No. 125 (QL)

10 The appeal was allowed by the Ontario Court of Appeal on January 20, 1997. In a short endorsement, the court classified the case as one where the Board had declared the position of superintendent redundant and, pursuant to its statutory powers, transferred the appellant to the position of school principal. Relying on its own prior decision in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 1985 2248 (ON CA), 56 O.R. (2d) 160, the court gave effect to the limitations defence and dismissed the action. In its view, the “acts complained of are not subordinate acts to the public duty” (para. 2) but were directly within the sphere of public action protected by the statute.

IV. Relevant Statutory Provisions

11 Public Authorities Protection Act, R.S.O. 1990, c. P.38

7. – (1) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.

R.R.O. 1990, Reg. 309

7. -- (1) In this section, “redundant” in respect of the position of a supervisory officer means no longer required to be filled by reason of,

(a) the implementation by a board of a long range organizational plan of operation in respect of schools or of supervisory services that eliminates the position or merges it with another position;

(2) Where a board declares the position of a supervisory officer redundant, the board shall,

(a) give the supervisory officer at least three months’ notice in writing that the position has been declared redundant;

(b) transfer the supervisory officer to a position for which he or she is qualified, with supervisory and administrative responsibilities as similar as possible to those of his or her previous position; and

(c) pay the supervisory officer for at least one year following the date of the transfer with no reduction in his or her rate of salary.

V. Analysis

12 A few general observations should be stated at the outset. The wording of s. 7 of the Act indicates that the legislature did not intend to throw the protective net of s. 7 around public authorities in Ontario as a matter of status. The reference to the “intended execution of any statutory or other public duty or authority” (emphasis added) limits the protection to public duties and powers and confirms inferentially that a public authority may well have other duties and powers that are essentially of a private nature. In drawing the line between the public aspects and private aspects, the general principle is that the wording of s. 7 is to be read narrowly and against the party seeking its special protection. This produces an inevitable line drawing exercise that requires the court to examine the nature of the statutory power or duty imposed on the defendant public authority as well as the character of the particular conduct about which the plaintiff complains. The School Board, to take this case, is required to provide educational services to the public. In order to carry out its program, it has to build schools and hire teachers. If the Board were sued by an injured child for operating an unsafe school, or by parents for wrongly refusing to admit their child to classes, the claims would properly engage the public duties of the school, and be covered by the special limitation. On the other hand, a claim by a disgruntled builder under a school construction contract, or an unpaid caterer who had provided food services, would stand on a different footing. Although the subject matter of their claim clearly relates to the execution by the school of its public mandate, it is incidental thereto. The builder or caterer would be asserting private rights under private contracts. Their claims would not be within the intended scope of the disability imposed by the special limitation period.

13 For purposes of this analysis, it does not matter whether the claim arises in contract or in tort. The analysis is directed to whether the claim, whatever it is, “correlates” to a public power or duty exercised or owed by the authority.

14 These observations follow from a consideration of the decided cases, not all of which are readily reconcilable. Arnup J.A. has traced the roots of the Ontario legislation back to a 1609 English statute entitled An Acte for ease in pleading against troublesome and contencious Suites prosecuted against Justices of the Peace, Maiors, Constables and certain other his Majestie’s Officers, for the lawfull execucion of their Office, 7 Jas. 1, c. 5 (see Re Colledge and Niagara Regional Police Commission (1983), 1983 1914 (ON CA), 44 O.R. (2d) 289 (C.A.), at pp. 294 et seq., and the historical appendix starting at p. 312). As Aylesworth J.A. noted in Lacarte v. Board of Education of Toronto, 1954 116 (ON CA), [1954] O.R. 435 (C.A.), at p. 451: “Many eminent judges have given eloquent expression to the difficulty of determining precisely what acts or classes of act are excluded by the statute.”

15 At least three different views emerge from the case law about the proper scope of s. 7 of the Act:

16 (i) The first, and most expansive, view is that the limitation applies whenever the cause of action relates to the exercise or failure to exercise a statutory or prerogative power. As most public authorities are creatures of statute, this view includes within the limitation almost everything done by the public authority. The acts of a public authority, on this view, must of necessity be for a public purpose and in furtherance of a public policy (see, e.g., Henry J. in Berardinelli v. Ontario Housing Corp. (1976), 1976 883 (ON SC), 71 D.L.R. (3d) 56 (Ont. H.C.), at p. 59). Some support for variants of this view is found in the decision of the Ontario Court of Appeal, in Lacarte, supra, and in the majority decision of the British Columbia Court of Appeal in Riddle v. University of Victoria (1979), 1979 2774 (BC CA), 95 D.L.R. (3d) 193, and in their progeny.

17 (ii) A second more restrictive view is that the limitation applies only where the act complained of relates to duties owed to that “public” which the general operations of the public authority were intended to benefit (or burden), as opposed to acts which are indistinguishable in substance from transactions in the private sector (such as breach of a contract between a government ministry and its supplier). Judicial support for this more limited view is found in Clarke v. Ottawa Board of Education (1975), 1975 753 (ON SC), 54 D.L.R. (3d) 321 (Ont. Co. Ct.); Re Beauchamp and Town of Espanola (1981), 1981 1640 (ON SC), 122 D.L.R. (3d) 149 (Ont. Div. Ct.), aff’d (1981), 1981 3005 (ON CA), 128 D.L.R. (3d) 766 (Ont. C.A.), per MacKinnon A.C.J.O.; the dissenting judgment of Taggart J.A. in Riddle, supra; as well as trial level judgments in Collier v. Lake Superior Board of Education (1986), 14 C.C.E.L. 183 (Ont. Dist. Ct.); and Molloy v. Ontario (Human Rights Commission) (1992), 41 C.C.E.L. 101 (Ont. Ct. (Gen. Div.)).

18 (iii) A third and even more restrictive view holds that not only is the limitation confined to the “direct performance” of statutory powers and duties owed to the public, but it excludes acts in furtherance of that performance which are of an internal or operational nature, having a predominantly private aspect. This view has been endorsed by this Court over the years, notably in McGonegal v. Gray, 1952 6 (SCC), [1952] 2 S.C.R. 274, and especially in Berardinelli, supra, where Estey J. said, at p. 280, that s. 7 (formerly s. 11) “. . . attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated”. Estey J. went on to observe: “There is little doubt about the presence of ambiguity and uncertainty of meaning in the section”. On a policy level, Estey J. held at p. 284 that a broader interpretation in that case would have created an objectionable double standard, i.e., “different conditions of owner liability for two apparently similar housing facilities”.

19 One might have expected that in a well-ordered system of justice the third and narrowest view, having on at least two occasions been endorsed by this Court, would have prevailed. What seems to have happened, however, is that in the mid-1950s a series of wrongful dismissal "teacher cases" became detached from the main body of jurisprudence under s. 7 of the Act and related statutes. I do not share Major J.’s view that the “teacher cases” are of no consequence to the case at bar. They established a contrary line of jurisprudence which led directly to the decision in appeal: the court below, relying solely on Gallant, supra, summarily found that the acts complained of were “not subordinate acts to the public duty”. The disposition of the present appeal requires a review of the correctness of these authorities. The fork in the road seems to have been created by the decision of Aylesworth J.A. of the Ontario Court of Appeal in Lacarte, supra, a decision to which I will return shortly.

20 I propose first to take the observations listed at the outset and identify some relevant support in the case law.

1. Classification of Statutory Duties Into Those of a “Public” Character and Those of a Predominantly “Private” Character

21 Not all of the statutory authority exercised and duties performed by a “public authority” fall within the protection of the statute. The cases suggest two related approaches, namely (i) the nature of the statutory power or duty relied upon by the defendant and (ii) the nature of the correlative right being asserted by the plaintiff.

(i) Is the Statutory Power or Duty Relied Upon by the Defendant Public Authority of a Public or Private Nature?

22 The statutory powers and duties of a public authority are classified as either “public” within the meaning of s. 7, or of “a private executive or private administrative application or are subordinate in nature” (per Estey J. in Berardinelli, supra, at p. 283). In part, this classification turns on asking to whom the duty is owed, per Lord Buckmaster L.C. in Bradford Corp. v. Myers, [1916] 1 A.C. 242 (H.L.), at p. 247:

In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply. [Emphasis added.]

Public authorities, for example, exercise certain powers and are subject to specified duties of an internal government nature under the Financial Administration Act, R.S.C., 1985, c. F-11, and their provincial counterparts. These are not duties which in any meaningful sense can be said to be “owed to all the public alike”. On the other hand, there will be other powers and duties which are owed to members of the public, as was the duty to provide safe public housing in Berardinelli itself, which are nevertheless not classified as “public” within the scope of the limitation period, because they are considered “subordinate in nature” to the public authority’s public role. Estey J.’s classification of powers and duties that are of a “private executive or private administrative application or are subordinate in nature” (p. 283 (emphasis added)) must therefore be read disjunctively.

23 An example of the usual sort of case where the limitation clearly applies is Cloudfoam Ltd. v. Toronto Harbour Commission, 1968 346 (ON SC), [1968] 2 O.R. 497 (H.C.), aff’d 1969 499 (ON CA), [1969] 2 O.R. 194 (C.A.). In that case, the defendant port authority stored cargo arriving by ship at its terminal in Toronto harbour in the open air. When the shipments were picked up by the plaintiff owner, they were discovered to be soaked with rain and irretrievably damaged. The plaintiffs alleged that the defendant was negligent in storing the goods without protection from the weather. The defendant claimed the benefit of the Act. The Toronto Harbour Commissioners had been established in 1911 to operate the harbour including the provision of terminalling and cargo services. The cargo terminal was part of its mandate to serve the public and the plaintiff, a cargo owner, was a member of the “public” for whose benefit the facility had been created. The limitations defence rightly applied. For a similar case, see Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452 (P.C.).

24 An examination of the earlier English cases whose “line of distinction” was adopted by Rand J. in McGonegal, supra, at p. 289, provides insight into his ruling. (For all practical purposes, the wording of the applicable English limitation, repealed in 1954, was the same as s. 7 of the Ontario Act.)

25 Myers, supra, involved an action against a municipality whose employees had “shot” a ton of coke through the plaintiff’s shop window. The municipality pointed out that it was required to supply natural gas to its inhabitants, and that a by-product of the manufacture of natural gas was coke. Coke, once brought into existence, had to be disposed of. The preferred method of disposal was to sell it to people who could burn the coke for heat. The municipality thus reasoned that marketing coke was “an act done in pursuance or execution or intended execution of any other statute, or of any public duty or authority” (p. 251), and argued that no liability should attach to such incidental mishaps as precipitating a quantity of coke through the window of a customer’s shop. In an argument similar to the one made by the Board in this appeal, the municipality in Myers argued (at p. 243):

A public authority directed to do a particular act is directed to do everything which is incidental to the doing of that act.

If a statute directs the performance of a specific duty and leaves the mode of performance to be selected by the public authority, an act done in working out the selected mode is an act is done in the execution of the statutory duty.

26 The Lord Chancellor disagreed, concluding that the “public” duty of the municipality did not extend to disposition of a by-product in its production of natural gas. The negligent delivery of coke to the shopkeeper was too remote from the execution of the public mandate for which Parliament had intended protection. The initiative was held to be intra vires, but was held not to be in the “direct” discharge of a duty owed to “all the public alike”. It makes no difference, the Lord Chancellor said (at p. 246), whether the claim is formulated in contract or in tort. In context, I think “all the public alike” means the class of people for whose benefit or burden the public authority was conferred. It need not be everybody in the jurisdiction. A statute that laid special duties on the public authority in respect of the cargo owners in Cloudfoam, for example, was not on that account excluded from the protection of the statute.

(ii) Is the Right Being Asserted by the Plaintiff “Correlative” to a Public Duty Imposed on the Public Authority?

27 The usefulness of considering the precise nature of the plaintiff’s claim in assessing the public or private character of the defendant’s duty was signalled in an earlier English decision on which Myers relied, namely Sharpington v. Fulham Guardians, [1904] 2 Ch. 449. In that case, the defendants were a public authority constituted as guardians of the poor and they had undertaken to convert an old mansion into a receiving house for poor children. The provision of such a receiving house was within the statutory powers and duties of the defendants. The plaintiff, a builder, sued for contract extras. As stated above, the statute under which the defence of limitation was raised contained a provision almost identical to s. 7 of the Act. Clearly, the building renovations were intra vires the public authority and referable to its “public” mandate. However, the defence was rejected by Farwell J. at p. 456:

The public duty which is here cast upon the guardians is to supply a receiving house for poor children; a breach or negligent performance of that duty would be an injury to the children, or possibly to the public, who might be injured by finding the children on the highway. In order to carry out this duty they have power to build a house or alter a house, and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a member of the public in respect of the public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all is, as I have pointed out, that if it were not for the public duty any such contract would be ultra vires. But that would apply to every contract. [Emphasis added.]

This case was quoted with approval by Lord Atkinson in Myers where he stated, at p. 260:

Every word of that judgment, which, in my view, as in that of the learned Lords Justices in the Court of Appeal, is sound in principle and consistent with authority, is applicable in the present case.

28 Identification of the community for whose benefit the statutory power or duty exists may help in the classification of the statutory power or duty as public or “predominantly private”. Once the classification of the power or duty is determined to be public, any claim against the public authority “correlative” thereto attracts the protection of the special limitation period. Examples of school situations where the plaintiff came within the “public” intended to be benefited include Griffiths v. Smith, [1941] A.C. 170 (H.L.) (a parent injured attending a school exhibition of her son’s classroom work), and Moffatt v. Dufferin County Board of Education, 1972 666 (ON CA), [1973] 1 O.R. 351 (C.A.) (a child injured by an unsafe assignment by his teacher to move a piano).

29 The correlative right approach was first proposed by Lord Shaw of Dunfermline in Myers, at pp. 263-64:

If there be a duty arising from statute or the exercise of a public function, there is a correlative right similarly arising. A municipal tramway car depends for its existence and conduct on, say, a private and many public Acts, and the corporation in running it is performing a public duty. When a citizen boards such a car, in one sense he makes, by paying his fare, a contract; but the boarding of the car, the payment of the fare, and the charging of the corporation with the responsibility for safe carriage are all matter of right on the part of the passenger, a public right of carriage which he shares with all his fellow citizens, correlative to the public duty which the corporation owes to all. . . .

But where the right of the individual cannot be correlated with a statutory or public duty to the individual, the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. [Emphasis added.]

It will be noted that in Lord Shaw’s illustration there was “in one sense, . . . by paying [a] fare . . . a contract”, nevertheless the limitation applied because the contractual claim could be correlated “to the public duty which the corporation owes to all”. The “correlative right” approach usefully highlights the analysis that must be made of a plaintiff’s statement of claim in these cases, and, with respect, I do not share Major J.’s concern (at para. 94) that this approach will remove “all claims in contract from the protection of the statute” or will exclude “most tort claims as well” (para. 95). It is true, as my colleague points out at para. 99, that the Court has to look at the conduct of the public authority within this framework of public powers and duties, but that is another way of saying that the application of the statute ultimately turns on the precise characterization of the plaintiff’s claim.

30 The linkage between plaintiffs’ rights and correlative public duties developed in Sharpington and refined in Myers was not only reflected in McGonegal and Berardinelli but is emphasized in more recent English decisions such as Government of Malaysia v. Lee Hock Ning, [1974] A.C. 76 (P.C.). In that case, the Government of Malaysia had entered into contracts with the respondent contractor for the construction of classrooms at primary schools. A sum fell due for payment to the contractor under a contract. The Government pleaded that the claim was barred by the provision of s. 2 of the Public Authorities Protection Ordinance, 1948 (Malaysia), No. 19, the action not having been commenced within 12 months of the default complained of. In rejecting the defence, Lord Kilbrandon said, at p. 84:

Here the right of the contractor, as in Sharpington ... is correlated not with a statutory right or duty, which is the provision of education, but with the obligations entered into by the authority in their contract with him.

In other words, to use Lord Shaw of Dunfermline’s test, the rights of their customers were correlated with a statutory duty owed to them as members of the commercial community in whose interests the statutory functions were to be performed, and not merely with obligations in a contract entered into as an auxiliary to the carrying out of those functions, in which no one not a party to that contract could be concerned.

31 This branch of the “strict” analysis was expounded and applied in the scholarly dissent of Taggart J.A. in the British Columbia Court of Appeal in Riddle, supra. In that case, the appellant had been employed by the university as an assistant professor in the Department of English; she received salary increases for satisfactory performance evaluations. She expected that the Department would renew her contract for a further two-year term as had been done two years earlier. However, the Department applied a “publish or perish” standard of review to her limited output of academic writing and decided not to recommend the renewal of her contract. She did not commence an action until more than four years after she had been given notice of non-renewal of her contract. The University claimed that in deciding not to renew the appellant’s contract, it had made a staffing decision pursuant to the provisions of the Universities Act, S.B.C. 1963, c. 52, and pleaded a six-month limitation contained in s. 11(2) of the British Columbia Statute of Limitations in respect of acts “done in pursuance or execution, or intended execution, of any Act of the Legislature, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority”. Relying mostly on the reasons of Estey J. in Berardinelli, supra, and the English authorities already discussed, Taggart J.A. concluded, at p. 219:

I do not think it can be said that the actions of the respondent complained of by the appellant arose out of the exercise of an authority exercised impartially with regard to all the public. Rather they were exercised in relation to the appellant alone. In these circumstances I think the comments of Smith, Co. Ct. J. [with respect to the Lacarte decision], in Clarke v. Ottawa Board of Education [supra] are apt. In the case at bar, as in the Clarke case, the right of action arises out of dealings between the respondent and the appellant, a private individual who is not and was not meant to be primarily a recipient of the benefits flowing from the pursuit by the respondent of the powers conferred on it by the Universities Act. In the case at bar, as in the Clarke case, the important consideration is that the respondent, while pursuing its objects generally, was doing a private act involving a private person.

Taggart J.A. wrote in dissent. Leave to appeal the majority decision to this Court was refused, [1979] 1 S.C.R. xii (June 19, 1979), but of course refusal of leave is not to be taken to indicate any view by members of this Court of the merits of the decision. As I read his opinion, Taggart J.A. was applying a variant of Lord Shaw’s “correlative right” test. The plaintiff’s claim did not correlate to a duty owed by the University “to all the public alike” (to reiterate Lord Buckmaster L.C.’s phrase in Myers). The duty relied on by the plaintiff thus fell outside the protection of the statute. I share Taggart J.A.’s view that her claim ought to have been allowed to proceed.

32 The case of Clarke v. Ottawa Board of Education, supra, referred to by Taggart J.A., is another example of the “correlative right” approach, though not identified as such, as is evident from the comments of Smith Co. Ct. J., at p. 328:

It is accordingly my view of the law as laid down in the cases that the Public Authorities Protection Act does not apply when the board is dealing with private individuals, for instance, in the supply of materials or furnishings for school purposes or in the construction of schools, nor does the Act have application in any litigation resulting from the board’s dealings with any of its servants, whether they are teachers or other staff, and whether these dealings refer to salaries, benefits or other remuneration or other matter of private concern to such employees or servants. This I believe to be the effect of the line of cases cited starting with the Sharpington case.

33 Another illustration of the “correlative right” approach is the decision of the Ontario Divisional Court, in Comstock International Ltd. v. The Queen in right of Ontario (1981), 1981 2946 (ON SCDC), 126 D.L.R. (3d) 323, which rejected the claim of the provincial Crown to the limitation defence. The plaintiff Comstock entered into a contract with the provincial government for the construction of a sewage treatment plant, a pumping station and a well pumphouse in the Village of Hornepayne in northern Ontario. The plaintiff failed to commence its action for damages within six months. The issue before the court was “whether in an action for damages arising out of a private contract for the construction of facilities that the Ontario Ministry of the Environment had a statutory function to construct, the Queen is entitled to the protection of s. 11 [now s. 7] of the Public Authorities Protection Act”. The court held, at p. 325, that: “[t]he only duty owed by the appellants to him [the plaintiff] emerges from that contract, not from the statute. It is a duty owed to one man, not to the public”. In terms of Lord Shaw’s approach in Myers, the plaintiff’s claim did not “correlate” to a public duty owed by the public authority. The Divisional Court, relying on Government of Malaysia, supra, concluded, at p. 326:

. . . the claim by Comstock is in its personal capacity as a builder and not for any loss or damage it suffered as a member of the public affected by the operations conducted by the Ministry. Section 11 of the Public Authorities Protection Act only applies where the relationship between the parties is based on a public duty owed by the public authority to the plaintiff or other claimant as a member of the public, and not where the relationship between the two is essentially governed by a contract or some other private legal pact.

Comstock was followed in Collier, supra. I agree with Major J. that the important analysis is not who the plaintiff is, but what the public authority was doing. The point, however, is that the nature of the claim being asserted by the plaintiff is often a good indication of whether what “the public authority was doing” was of a public or private character.

34 The appellant’s argument in the present case, of course, is that the respondent Board’s public mandate is to provide an educational service for the benefit of the broader public and that its dealings with the appellant are not in “direct” performance of that public mandate, but have a “predominantly private aspect” (Berardinelli, per Estey J., at p. 284 (emphasis deleted)).

2. Is the Activity of the Public Authority Complained of by the Plaintiff “Incidental or Ancillary” to the Discharge of the Public Mandate?

35 To this point, the analysis has focussed on various approaches to characterizing the statutory powers or duties of the public authority. However, Estey J. dealt in Berardinelli, supra, with a statutory authority that he concluded provided an ambiguous answer. Section 6(2) of the Housing Development Act authorized a wide range of activities, only some of which could be considered “public” for purposes of attracting the limitation period. Accordingly, he speaks not only of the need to make a “segretation of statutory powers into public and private categories” but also to “segregate the actions which the respondent might undertake in the course of exercising the powers and duties” (p. 284 (emphasis added)).

36 In McGonegal, supra, Rand J. was also preoccupied with actions, at p. 290:

The serving of these meals in a public aspect is confined to the pupils, even though such a private concern of the teacher’s may be said to have a remote interest for school administration generally. . . . [T]he act which resulted in the injury was not one in the course of executing any direct public purpose for the children: it had not yet reached any public aspect: it was a private act, under a private authority.... If soup for some of the pupils had been put on the stove to warm, or they had shared in it, that subsequent action would be distinguishable; and if, for instance, in the course of heating it or of carrying it from the stove, a child had been scalded, then, doubtless, the contention would be much stronger that that act was in the execution of a public authority.

37 Rand J., at pp. 288‑89, also approved the reasoning of the English Court of Appeal in Clarke v. St. Helens Borough Council (1915), 85 L.J. (K.B.) 17, per Swinfen Eady L.J., at pp. 21-22. In that case, the defendant provided a chauffeured car to carry its officials around on its public business. This was considered to be in furtherance of its public mandate. In terms of the actual activities, the court thought that while officials riding in the car may have been engaged in the discharge of a public duty, the chauffeur’s job was merely “incidental” to the public duty, and the Public Authorities Protection Act, 1893 (U.K.), 56 & 57 Vict., c. 61, did not apply to limit the action of the injured plaintiff for damages arising out of the motor vehicle accident. The argument in the present case is that while teachers and school superintendents, by analogy with chauffeurs, are instrumental in delivering the educational program, their labour relations are incidental or ancillary thereto.

38 As stated above, the “strict construction” adopted in McGonegal, supra, was reiterated by this Court in Berardinelli, supra. In that case, a resident of a public housing development sued for personal injuries suffered in a fall on ice or snow in what he alleged was a negligently maintained common area. The respondent housing authority had a public mandate to provide public housing and to that end was clothed with “such powers and duties as are deemed expedient to . . . plan, construct and manage any building development or housing project . . .”. Unlike Myers, supra, therefore, Berardinelli did not involve an activity collateral to the fulfilment of a public duty, but arose directly out of a statutory mandate to provide housing. The plaintiff was one of the housing authority’s tenants, and asserted a right which was “correlative” to the statutory duty of the public authority to provide public housing. Estey J., speaking for this Court, pointed out at p. 279 that the housing authority’s powers and duties were broad enough “to include virtually the entire range of executive and administrative activities in all of their operational facets and details in the establishment and operation of a housing facility”. He concluded at p. 283 that:

. . . the reference in s. 11 [now s. 7] to “any statutory or other public duty” applies in the context of s. 6(2) of The Housing Development Act to those aspects of the statutory powers and duties there established which have a public aspect or connotation, and does not comprehend those planning, construction and managerial responsibilities (to paraphrase s. 6(2)) which have a private executive or private administrative application or are subordinate in nature.

39 Estey J. considered it useful to position the respondent housing authority’s activities along a “spectrum”. Those at one end of the spectrum he characterized as “public” within the meaning of s. 7 (formerly s. 11) of the Act, and those activities at the other end of the spectrum, he classified as “predominantly in character a ‘subordinate’ or ‘incidental’ act or ‘of a private interest’”, at p. 286:

In the spectrum of the exercise of its mandate under s. 6(2) the removal of snow by the respondent is a private and operational matter in contrast to those burdens of planning, construction and management of a housing complex which have a public character. It is something done every winter by almost every householder in Canada.

40 As stated earlier, Estey J., at p. 280, was concerned that if all actions pursuant to that mandate “however minor or minuscule”, were considered to be part of the housing authority’s public purpose, the six-month limitation period would create an objectionable double standard for tenants living in public housing who were caught by a six-month limitation and those living in private housing who would generally have six years to bring a claim. Unlike Major J., I do not read Estey J.’s comments as applicable only “where a private litigant could not anticipate that his or her rights against the public authority are different from the rights enjoyed against an indistinguishably similar private body” (para. 85 (emphasis added by Major J.)). Concerns about double limitation standards flow more, I think, from the reality that claims against public authorities in some areas of activity (labour relations for example) are virtually identical to those made against private organizations. Claimants are subjected to much shorter limitation periods for reasons that appear to have little to do with any legitimate need to give greater protection to public authorities because of the special mandate and vulnerabilities that distinguish them from the private sector. Accordingly, notwithstanding the fact that snow removal was in fulfilment of the respondent housing authority’s statutory mandate, Estey J. considered, at p. 286, that it lacked a “public aspect” and was

predominantly in character a “subordinate” or “incidental” act or “of a private interest” to refer again to the words of Rand J. in [McGonegal]. [Emphasis added.]

As sometimes happens, the ratio decidendi of the majority is, if anything, made clearer by the dissent. In Berardinelli, Martland J. dissented on precisely this proposition, at p. 296:

I find no authority which supports the proposition that the operational or mundane functions of management are excluded from the protection afforded by s. 11. If the default alleged relates to the function of management of the project, then, in my opinion, there is nothing to justify the suggestion that this is not a default in the execution of authority within the meaning of s. 11. [Emphasis added.]

41 A court that has to grapple with s. 7 of the Act will therefore have to consider both the nature of the statutory (or other lawful) power or duty of the defendant, as well as the particular activity complained of by the plaintiff, and the relationship between the two. Before proposing a test that attempts to integrate these elements, it may be useful to examine the problematic Act trail of interpretation laid down by the Ontario “teacher cases”.

3. The “Teacher Cases”

42 The origin of the difficulty in the present appeal can be traced to the “teacher” cases in Ontario, and in particular the 1954 decision of Aylesworth J.A. in Lacarte, supra. The plaintiff, a teacher by profession, was dismissed by the board because of her persistent complaints and criticisms of the board and her colleagues. Both the trial judge, and the Court of Appeal at p. 447, concluded that, “in the interests of the institution, it was manifestly impossible to retain her on the staff of Danforth Technical School and where, so far as transfer to some other school was concerned, other school principals were unwilling to accept her”. The Court of Appeal thus rejected her claim on the facts. However, Aylesworth J.A. went on in obiter to consider the limitation defence under the Act. After adverting to some of the English cases mentioned above, and quoting Myers (at p. 452) to the effect that “there are duties and authorities which are not public”, Aylesworth J.A. cited (at p. 453) the statutory provision giving the board and its Advisory Committee power to “select teachers and determine a schedule of salaries . . . and generally do all other things necessary for carrying out the objects and intent of this Part”. Aylesworth J.A. then concluded, as I read his reasons, that what was done by the board to the teacher was in “the best interests of the school” (p. 455) and thus fell within the public mandate and the protection of the statute. Lacarte, supra, was appealed to this Court. Rand J. (the author of McGonegal, supra) wrote for the majority to dismiss the appeal but did not place any reliance on the limitation defence. Only Locke J. expressed support for Aylesworth J.A.’s opinion.

43 It seems to me, with respect, that Lacarte, supra, illustrates the problematic analysis criticized by Estey J. in Berardinelli, supra. It infers from the existence of the public mandate that acts in fulfilment of the mandate were protected by the limitation period. In Berardinelli, by contrast, snow clearance was clearly recognized by this Court as furthering the mandate of the Ontario Housing Commission and it was held to be in the best interest of the public that the Ontario Housing Commission provide safe, affordable housing. At that point, I think, the Lacarte analysis stops. In Berardinelli, on the other hand, this Court takes an extra step and concludes that snow shovelling is nevertheless excluded from the protection because, as Estey J. said at p. 286, it was predominantly a “private and operational matter”.

44 Lacarte was followed by Lacourcière J.A. in Gallant, supra. Gallant was relied on in the present case by the Ontario Court of Appeal. In Gallant, Lacourcière J.A., tracking the language and concepts of Aylesworth J.A. in Lacarte, stated as follows at pp. 163-64:

[translation] Let us say, first of all, that the school board, by accepting the appellant’s resignation, by acting in good faith and in the interests of the board and of the school in question, is a legal entity acting in conformity with or in execution of a statutory or other public duty and, therefore, it has a right to the protection given to such an entity. [Emphasis added.]

I do not doubt that the actions of the board in that case were in conformity with its statutory powers. The missing step was the omission to analyse the relevant activities of the board pursuant to its statutory powers and to classify them as predominantly private or public in nature. I do not accept that what was in the “best interest” of the school could not also, and at the same time, have been “private and operational”. The Gallant analysis is, in turn, reflected in the majority decision of the British Columbia Court of Appeal in Riddle, supra.

45 Lacourcière J.A. was a member of the Ontario Court of Appeal panel that gave effect to the six‑month limitation in Berardinelli in 1977. That decision was reversed by this Court in 1979. In his later decision in Gallant, supra, in 1985, Lacourcière J.A. apparently did not take this Court’s decision in Berardinelli, supra, as having thrown doubt on his own earlier decision in Berardinelli nor on the still earlier decision of Aylesworth J.A. in Lacarte, supra. Over time, the Lacarte line of cases expanded to impressive proportions, including Moffatt, supra, and a number of trial decisions in Ontario involving the alleged wrongful dismissals of teachers, Stewart v. Lincoln County Board of Education (1972), 1972 459 (ON SC), 8 O.R. (2d) 168 (H.C.), Goodwin v. Oxford County Board of Education (1980), 1980 1633 (ON SC), 30 O.R. (2d) 359 (H.C.), and Wright v. Board of Education for the City of Hamilton (1977), 1977 1268 (ON SC), 16 O.R. (2d) 828 (H.C.), and, one involving an investigator, Cossette v. Ombudsman (1980), 1980 1769 (ON SC), 28 O.R. (2d) 92 (H.C.).

46 The Lacarte line of cases was occasionally criticized by trial judges who took note of the more nuanced approach adopted in McGonegal and, subsequently, by Estey J. in Berardinelli. In Clarke v. Ottawa Board of Education, supra, for example, Smith Co. Ct. J. surveyed the jurisprudence and concluded with respect to Lacarte, supra, at p. 327, that:

. . . the case is undoubtedly deserving of the greatest respect, but it does seem to fly in the face of the established authorities discussed earlier and it is, perhaps, the better view, at this time, to consider the question as being at large still in this Province.

47 Similar sentiments were expressed in Hanna v. Ontario Hydro (1982), 1982 1873 (ON SC), 37 O.R. (2d) 783 (H.C.), per Montgomery J., at p. 784; Collier, supra, per Wright D.C.J., at p. 189; and Molloy, supra, per Ground J., at p. 105.

48 As stated, the problem with the Lacarte and Gallant line of cases is that it does not sufficiently distinguish between the different activities of a public authority and the need to look for a “correlation” between the claim of a plaintiff and the public powers and functions of the defendant public authority. While it is true in a general sense, as suggested by Henry J. in Berardinelli, supra, at the motions court level, that all of the acts or omissions of a public authority can ultimately be related in some fashion or another to a public purpose or in furtherance of a public interest, the limitations statute clearly contemplates that some of these activities will not receive the special protection, but will be dealt with according to the ordinary law of limitations. The notion expressed in Gallant, supra, at pp. 163-64, that the actions of the school board in that case were the actions of [translation] “a legal entity acting in conformity with or in execution of a statutory or other public duty and, therefore, it has a right to the protection given to such an entity” (emphasis added), is simply too broad because it does not ask the proper questions about the nature of the power or duty, the specific activities complained of, and whether or not the plaintiff’s claim correlates to a public power or duty, as previously discussed. The test propounded in Lacarte and Gallant, as interpreted in the later “teacher cases”, virtually reduces the analysis to a simple issue of intra vires. My problem is not, as Major J. suggests in para. 114, with what Lacourcière J.A. said. My problem with Gallant, with respect, is with what Lacourcière J.A. did not say, and with the more detailed analysis that Lacourcière J.A. did not consider it necessary to perform. Arguably, on his view, even ultra vires conduct could be protected because the statute refers to “execution or intended execution of any statutory or other public duty” (emphasis added). It is true, as Major J. suggests at para. 76, that even claims against the breach of a “public duty” have a private aspect. The issue, however, is that the claim must correlate to a statutory power or duty, the exercise of which itself is classified as public as opposed to private. Only the latter fall outside the protection of the statute.

4. The Recommended Approach

49 Section 7 of the Act has been variously described as a “drastic enactment” (Rand J. in McGonegal, at p. 289) and “draconian” (by Krever J.A. in Schnurr v. Royal Ottawa Hospital (1986), 1986 2536 (ON CA), 56 O.R. (2d) 589 (C.A.), at p. 593). An assessment of the foregoing issues should be addressed on the basis that s. 7 is to be read restrictively and in favour of “the person whose right of action is being truncated” (Estey J. in Berardinelli, at p. 280).

50 A court confronted with a pleading under s. 7 of the Act or similarly worded limitations statutes may wish to proceed as follows:

(1) Is the defendant a public authority within the class of entities or individuals for whom the limitation protection was intended? While most public authorities will satisfy the requirements, Schnurr, supra, illustrates problems that may arise.

(2) What was the public authority doing, and pursuant to what duty or power was it doing it? This information will generally appear from the pleadings. In this case, the necessary information appears on the face of the Board’s resolutions.

(3) Is the power or duty relied on as part of the plaintiff’s cause of action properly classified as entailing “a public aspect or connotation” or on the other hand, is it more readily classifiable as “private executive or private administrative . . . or . . . subordinate in nature” (per Estey J. in Berardinelli, at p. 283)?

(4) Is the activity of the defendant public authority that is the subject matter of the complaint “inherently of a public nature” or is it more of “an internal or operational nature having a predominantly private aspect” (per Estey J. in Berardinelli, at p. 284 (emphasis deleted))?

(5) Looking at it from the plaintiff’s perspective, does the plaintiff’s claim or alleged right “correlate” to the exercise by the defendant public authority of a public power or duty or does it relate to the breach of a public duty or does it complain about an activity of a public character, thus classified?

51 If the answer to question five is in the affirmative, the limitation period applies.

5. Application to the Facts of This Case

52 There is no doubt that the reorganization of the Separate School Board for Prescott-Russell was an important public initiative. Delivery of an educational program efficiently and at least cost to the taxpayer is a responsibility that the Board owes to all members of the public alike and which the Board intended to further in its Resolutions of April 27, 1992. However, the appellant’s claim is not an attack on the Board’s reorganization. His alleged injury was created by the Board’s in-house implementation of its public reorganization, thereby raising only routine labour relations issues in his claim against the Board as his employer. He does not accept the Board’s argument that the downsizing inevitably involved injury to one or other of the superintendents, and that the authority to downsize was therefore authority to inflict such injury. His position is that if the Board had implemented the downsizing in accordance with its own management policies, in other words, had the Board played according to the rules, none of the superintendents would have had any legal basis to complain.

53 I do not agree, with respect, with Major J.’s comment (at para. 82) that this analysis “deconstruct[s]” a single action into “sub-actions”. On the contrary, in my view, the respondent Board should not be permitted to aggregate a number of discrete actions under the umbrella of a generalized appeal to the public interest in order to widen the application of the special limitation period.

54 The respondent Board is undeniably a public authority entitled, where applicable, to the protection of the Act. It appears from the pleadings that the nub of the complaint is that the Board singled out the appellant as one of two superintendents to be declared redundant, and shifted him to what he regards as lesser work. The appellant claims that he was not given his contractual entitlement to “supervisory and administrative responsibilities as similar as possible to those of his or her previous position” within the meaning of s. 7(2) of Regulation 309. The Board says it met its obligations to him under the contract, the Regulation and the Education Act.

55 Section 7(2) of Regulation 309 provides explicitly for the appellant’s rights and entitlements following a declaration of redundancy. It creates a statutory framework for the employment by contract of “supervisory officers”, as follows:

(2) Where a board declares the position of a supervisory officer redundant, the board shall,

(a) give the supervisory officer at least three months’ notice in writing that the position has been declared redundant;

(b) transfer the supervisory officer to a position for which he or she is qualified, with supervisory and administrative responsibilities as similar as possible to those of his or her previous position; and

(c) pay the supervisory officer for at least one year following the date of the transfer with no reduction in his or her rate of salary. [Emphasis added.]

56 I agree with Major J. that the act of downsizing will invariably have both public and private aspects, and that these private aspects cannot remove a clearly public action from the ambit of s. 7 of the Act. However, I do not share his view (at para. 77) of the appellant’s submissions in this case. The appellant, I think, is not complaining about “‘private aspects’ of actions done in execution of public duties”. On the contrary, the appellant complains of a decision on his dossier (i.e., being singled out and subsequently assigned to a position for which he was over-qualified) that is distinct, separate, subordinate and incidental to the execution of the School Board’s public duty and authority. If the Board had transferred him to a position with supervisory and administrative responsibilities as similar as possible to those of his previous position, the success of the Board’s downsizing would not have been affected. Indeed, he states, if the Board had transferred the appellant according to the Board’s own rules, no one would have had any legal basis for complaint.

57 My view is that Regulation 309 is a piece of indoor management which, to use Estey J.’s expression in Berardinelli, has predominantly a “private connotation”. It is a regulatory document that governs the private relationship between the Board and its superintendents created by an employment contract. It consists of two parts. The first part sets out a certification procedure including academic and professional qualifications and related provisions governing individuals seeking that type of employment. The second part addresses the transfer and dismissal of such supervisory officers. The contents would not be out of place in an Employment Standards Act directed to private employers, or duplicated in the human resources manual of a comparably bureaucratic private corporation. The only reason it appears in the form of a regulation is that we are dealing here with a public sector employer.

58 I acknowledge that the duties laid on the Board in favour of supervisory personnel are expressed in obligatory terms (“shall”) and that some of the earlier cases drew a distinction between mandatory conduct (which was thought to be covered by the limitation) and discretionary activity (which possibly might not be); see, e.g., Compton v. Council of the County Borough of West Ham, [1939] Ch. 771, and McManus v. Bowes, [1938] 1 K.B. 98 (C.A.). In this case, as in Berardinelli, the mandatory nature of the obligation does not save it from being “more of an internal or operational nature having a predominantly private aspect” (p. 284 (underlining added; italics deleted)). The appellant’s complaint is that his selection for reassignment was contrary to the Board’s own internal rules of seniority because it based its decision on the appellant’s seniority as a superintendent rather than on his seniority as a Board employee. Having improperly singled out the appellant, the Board then compounded its fault (the appellant says) by assigning him to a position for which he was over-qualified, and which required him to teach 30 percent of his time instead of being allowed to administer all of his time. With due respect for the contrary view, these actions by the Board were not the inevitable consequence of the decision to downsize its complement of superintendents, and the illustration of back-to-work legislation is not comparable, even supposing such legislation could give rise to litigation. The appellant’s basic point is that downsizing in the public interest could and ought to have been implemented without actionable wrong to any of the employees. I am aware that in Riddle, supra, the majority distinguished between contract problems with teachers and the “more mundane function of providing maintenance staff” (per Hinkson J.A., at p. 228), but in either case, it seems to me, the teaching of Berardinelli, supra, is to avoid subjecting such routine problems of management and mundane labour relations to a double limitation standard depending on whether they happen to arise with a private employer or a public employer.

59 I conclude, therefore, that the six-month limitation period does not apply and that the appellant’s action may proceed. In light of this conclusion, it is not necessary to address the appellant’s alternative contentions that his cause of action is of a recurring or continuing nature that brings him within the six-month bar (because he continues to occupy a position not commensurate with his talents and experience), or that his pleading of bad faith against the Board and its Trustees and Director of Education prevents the Court from determining, as a preliminary question of law, the application of the limitation period in his case. I should only add that the order of the motions judge striking out the action against the individual respondents was not the subject of an appeal to this Court.

VI. Disposition

60 The appeal is therefore allowed with costs, the order of the Ontario Court of Appeal is set aside, and the order of the motions judge dated November 25, 1993, ruling inapplicable s. 7 of the Act is reinstated permitting the action to proceed in the ordinary way against the Board.

The following are the reasons delivered by

61 Major J. (dissenting) – The appellant, Florent Des Champs, appeals from a decision of the Ontario Court of Appeal declaring his lawsuit against the respondent School Board time-barred under s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 ( the “Act”). Because I conclude that this lawsuit arises out of an action by the Board in direct execution of its public authority, I believe the Court of Appeal was correct in applying the Act. I respectfully disagree with the reasons of Binnie J. and would dismiss the appeal.

62 In July 1989, the appellant was appointed a superintendent of the Board. Three years later, his position was downsized pursuant to a reorganization of the Board’s duties. The downsizing was effected by two Board resolutions passed consecutively on April 27, 1992, which read in relevant part as follows:

RESOLUTION NO. 104:

[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the educational authority of the French language Roman Catholic separate schools of Prescott-Russell declare two superintendent positions redundant.

RESOLUTION NO. 105:

[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the French Language Roman Catholic Separate School Board of Prescott-Russell transfer superintendents Rhéal M. Bazinet and Florent Y. Des Champs to positions for which they are qualified with administrative and supervisory responsibilities as similar as possible to those of their previous positions.

63 The appellant was given a position as a school principal, a transfer that he maintains violated R.R.O. 1990, Reg. 309 (“Regulation 309"), promulgated under Ontario’s Education Act, R.S.O. 1990, c. E.2. Section 7 of Regulation 309 states:

7. -- (1) In this section, “redundant” in respect of the position of a supervisory officer means no longer required to be filled by reason of,

(a) the implementation by a board of a long range organizational plan of operation in respect of schools or of supervisory services that eliminates the position or merges it with another position;

(2) Where a board declares the position of a supervisory officer redundant, the board shall,

(a) give the supervisory officer at least three months’ notice in writing that the position has been declared redundant;

(b) transfer the supervisory officer to a position for which he or she is qualified, with supervisory and administrative responsibilities as similar as possible to those of his or her previous position; and

(c) pay the supervisory officer for at least one year following the date of the transfer with no reduction in his or her rate of salary.

64 The appellant sued the Board, its individual trustees, and the Director of Education. The defendants sought to have the appellant’s action dismissed based on s. 7(1) of the Act, which provides as follows:

No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.

The motions judge denied the motion to dismiss as to the Board, finding that the special limitations period did not apply. However, the motions judge struck out the suit against the individual defendants on other grounds: (1993), 1993 5494 (ON SC), 16 O.R. (3d) 278. The Court of Appeal allowed the Board’s appeal, holding that the Act applied. Since the appellant had not commenced his lawsuit within six months of the conduct complained of, the Court of Appeal dismissed the action: [1997] O.J. No. 125 (QL).

I. Purpose and Construction of the Act

65 Public bodies engage in numerous commercial and contractual activities in which they are frequently indistinguishable from private corporations. Government can be employers, merchants, landlords, bailees and common carriers, and their conduct in these capacities can give rise to a variety of private causes of action. In this context, it seems unnecessary, even unfair, to accord public bodies special protection from private lawsuits. Yet this is precisely the purpose of certain Canadian statutes, including s. 7(1) of Ontario’s Act.

66 The wisdom and necessity of s. 7(1)'s statute of limitations may be debatable, nonetheless, it is a statute of Ontario that must be applied to any action intended by the legislature to fall within the categories enumerated in the statute. The Province of Ontario has chosen to distinguish between a plaintiff’s rights against a public body and rights against a private body, notwithstanding that the activities engaged in and the damages caused may be the same.

67 This legislation is unpopular and may produce unfair results. Its repeal was sought by the Ontario Law Reform Commission as early as 1969. (See Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on Limitation of Actions (1969)). Their efforts have failed. As long as the legislation remains, courts are obliged to apply it. It is obvious that this legislation has produced and will continue to produce awkward and dubious distinctions. If the legislature wishes to retain some degree of protection for public authorities, it should clarify the law to prevent the strained interpretations that result under the statute in its current form.

68 The purpose of this type of limitation statute was summed up in Bradford Corp. v. Myers, [1916] 1 A.C. 242 (H.L.), per Lord Shaw of Dunfermline, at p. 260: it “allows a safer periodical budget, prevents one generation of ratepayers from being saddled with the obligations of another, and secures steadiness in municipal and local accounting”.

69 Another apparent purpose is the desire to exempt newly elected governments from lawsuits flowing from the conduct of prior administrations. Section 7(1) of the Act is the mechanism for implementing this: it allows public bodies to consider themselves free of potential lawsuits after six months, a shorter statute of limitations than the usual six years for breach of contract suits between private parties.

70 As the limitation provision of the Act restricts the rights of persons seeking redress from the actions of public bodies, courts have been careful to give it a narrow application. Despite s. 7(1)’s purported application to “any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority” (emphasis added), similar predecessor statutes have been interpreted as applying only to constituted public bodies, not private persons acting under a public mandate. See Myers, supra, at p. 247.

71 There has also been a judicial narrowing of the statute in interpreting what kinds of acts are “done in pursuance or execution or intended execution of any statutory or other public duty or authority”. On its face, this provision is broad and could plausibly encompass any action performed by a public authority, provided it was within the authority’s properly authorized powers. However, its scope has been narrowed to apply only to acts performed in direct execution of the authority’s public purpose. Acts that are “incidental” to the public purpose are held to be outside the protection of the statute and, therefore, subject to the normal statute of limitations.

72 As expected, determining which actions are “directly” related to executing a public authority’s duties and which are “incidental” requires careful line-drawing. In some incidents, the conduct complained of is so far removed from the public authority’s mandate that there is no need to delineate the distinction with any great precision. That is not the case here.

II. “Direct” or “Incidental”?

73 The narrow question for decision is whether a school board’s decision to declare a school superintendent’s position redundant was an action taken in direct execution of the school board’s public purpose.

74 The starting point is the uncontested fact that the act of downsizing itself is clearly public in nature. The appellant properly conceded this and I do not see how it could be denied. A school board’s primary duty is to provide educational services in an efficient and economic manner. The Ontario government’s decision to reorganize the Board’s duties by reducing the number of schools under its supervision and the Board’s consequent decision to downsize its supervisory personnel are clearly in direct pursuit of this objective.

75 The appellant sought to distinguish between downsizing in general and “downsizing” the appellant in particular. It was submitted that, since the appellant has no quarrel with the public decision to downsize Board superintendents, he is not attacking a public act of the School Board. He submits that the downsizing has a private aspect, and it is that aspect that affects him in his personal capacity as an employee: namely, the particular choice that he would be one person whose position was abolished.

76 I agree that the act of downsizing can have both a public and a private aspect and that the appellant’s lawsuit arises out of the private aspect. However, that is true of most suits against public authorities. In order to have standing to sue, a plaintiff must show some kind of injury against his personal interest. Lord Wright stated the matter aptly in Griffiths v. Smith, [1941] A.C. 170 (H.L.), at pp. 192-93:

Mr. Clothier [for the plaintiff] has, however, contended that ... this was not a default in the execution of a public duty or authority, but simply a breach of a private duty, owed to a private person, ... arising out of a private transaction, namely, the invitation to attend the display. But this argument would apply, if sound, to almost all, if not all cases, in which the Public Authorities Protection Act is in practice invoked. The plaintiff in such cases is a private litigant, complaining of a wrong done to him in his private capacity. But though the wrong is in this sense private, the question is whether it was committed by the defendant in the execution or intended execution of a public duty or authority. [Emphasis added.]

77 The fact that a public action has a private aspect does not remove it from the application of s. 7(1) of the Act. Section 7(1) prevents the institution after six months of any action “for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority” (emphasis added). There is no basis to carve out an exception for lawsuits based on the “private aspects” of actions done in execution of public duties. See Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, per Estey J., at p. 284:

The effect of construing [s. 7] in this manner is to segregate the actions which the respondent might undertake in the course of exercising the powers and duties under ... its parent statute into two categories, the one being those actions which entail a public aspect or are inherently of a public nature and the other being a category of activities, including managerial, which are more of an internal or operational nature having a predominantly private aspect. [Underlining added; italics in original.]

78 The reason for focusing on the public authority’s action, rather than on the aspect of the action implicated by the lawsuit, is self-evident. The statute’s purpose is to allow public authorities to plan their budgets and activities in the expectation that no lawsuits will arise more than six months after an action taken in execution of a public duty or power. If the statute only applied to the “public aspects” of such an action, a suit could always be raised years later if it was based on a private litigant’s private interests. The statute would then be a dead letter, insufficient to fulfill its obvious purpose of giving public authorities earlier repose from the threat of lawsuits arising from actions taken in direct execution of a public duty or power.

79 Binnie J. correctly identifies this analysis in paras. 35 to 39 of his reasons. Generally speaking, I have no quarrel with his summary of the test in these paragraphs. However, I respectfully disagree with his application of the test to the case at bar.

80 Binnie J. concludes that the decision to “downsize” the appellant by changing his employment was in fact a separate act from the decision to downsize a superintendent in general. While the decision to downsize in itself was in direct execution of a public duty or authority, the particular implementation of that decision is, according to Binnie J., “subordinate and incidental” to that public duty.

81 I do not agree. There is no meaningful distinction between the action of downsizing and the action of “downsizing” a particular individual. The action does not exist until the action’s object has been specified. The Board cannot downsize in the air. The Board performed the downsizing and the transfers of the superintendents to their new positions at a single Board meeting on April 27, 1992. Resolution 104 declared two unspecified positions redundant, and Resolution 105 operated to transfer the appellant and a colleague to different positions. Resolution 104, as worded, could not have had any effect without Resolution 105, which identified the particular individuals whose positions were declared redundant. The two resolutions effectively performed the single action attacked by the appellant: his transference from his abolished position to a new, allegedly unsatisfactory position.

82 The distinction advanced by Binnie J. would, in my opinion, allow any action, however clearly public, to be deconstructed into a series of sub-actions, with the portion of the activity affecting the plaintiff being described as an “in-house implementation” or a “minor or minuscule” function. For instance, in Griffiths, supra, a parent was injured while attending an exhibition of her child’s schoolwork when the schoolhouse floor gave way. Viscount Maugham of the House of Lords held, at p. 187, that such an exhibition was part of the function of running a school, and consequently “a thing done in direct discharge of a public duty, namely, that of carrying on the school to the best advantage”. Under the analysis proposed by Binnie J., one could distinguish between the general act of holding an exhibition, which is public, and the specific action of holding it on the structurally unsound upper floor of the building, which can be labeled a mere private implementation, a matter of logistics and administration of property.

83 The notion that a specific implementation of a public act should be considered a separate “private” act exempt from the shorter limitation period was, in my view, answered by Lord Porter’s reasons in Griffiths, supra, at p. 207:

But, say the appellants, . . . the managers [of the school] were under no duty to carry out their work in the way they chose – there was no need to hold a display or invite parents to attend it. Again, I think this immaterial. As Scrutton L.J. said in Edwards v. Metropolitan Water Board [[1922] 1 K.B. 291, at p. 306]: “Nor does it matter that the duty could have been carried out in another way”. . . . If the argument were sound the Public Authorities Protection Act would be of little use, since, I imagine, in most cases there are at least two ways of performing a duty and it might be said that the alternative to that actually chosen could have been adopted.

Consequently, Binnie J.’s observation that the appellant’s misfortune was not the “inevitable consequence of the decision to downsize” (at para. 58) is irrelevant. The fact that the Board could have acted such that “no one would have had any legal basis for complaint” (para. 56), does not change the fact that the action was in the direct execution of a public authority. Consequently I do not think the fact that the School Board chose the appellant, rather than a colleague, strips the downsizing action of its public nature.

84 I also disagree with Binnie J.’s suggestion (at paras. 52 and 58) that “routine problems” of management and “mundane” labour relations are categorically of a “private” nature. Berardinelli, supra, is certainly no authority for this proposition; that case involved a lawsuit by a pedestrian who slipped on ice or snow on the premises of a public housing development. It is a large step from snow removal to “management and labour relations”, which can include a wide array of governmental actions. In particular, if a downsizing can be called a “routine” matter, it is hard to see why labour strikes are not equally “routine”, since most private and public employers must confront them. Can the ending of a government employees’ strike through the passage of back-to-work legislation really be called “private”? If it can, not much remains of the limitation provision.

85 Finally, I do not think the concern regarding a “double limitation standard” arises in this case. Estey J.’s judgment in Berardinelli, supra, at p. 280, points out that a problematic double standard arises only in a very specific context:

The imposition of this limitation period for this special class would have the direct result of producing two categories of housing units in the community; the one operated by persons having a statutory mandate to which a six month limitation period would extend; and the other operated by a person without statutory authority to which the general limitation period would apply. Of course both housing projects would appear identical in fact to the attending public whose rights are directly affected by the distinction. [Emphasis added.]

The problem of the double limitation standard arises where a private litigant could not anticipate that his or her rights against the public authority are different from the rights enjoyed against an indistinguishably similar private body. Estey J. re-emphasized the factor of similarity at p. 284, where he stated that applying the shorter limitations period would “create different conditions of owner liability for two apparently similar housing facilities” (emphasis added).

86 In contrast, there is no risk here that a public school employee might unwittingly assume that his employment-related rights were the same as that of a private school employee. Employment in the public educational system implies a comprehensive regulatory scheme that is widely different from employment in private education. The difference between working in public education and private education is much broader than the difference between slipping on snow in front of a public building and a private one. Hence this is not a case where applying the statute would “create different conditions” of employer liability for “apparently similar” employment situations.

87 Binnie J. justifies parsimonious application of the statute because it applies “for reasons that appear to have little to do with any legitimate need to give greater protection to public authorities because of the special mandate and vulnerabilities that distinguish them from the private sector” (para. 40). With respect, disagreement with the policies underlying the statute is not grounds for interpreting it more narrowly than its wording and the case law allow. In my view, there is no basis in jurisprudence for labeling the complicated and politically-charged set of “labour relations” activities together as “subordinate and incidental” to a public authority’s powers. If this is truly the intent of the Ontario legislature, it is free to amend or repeal the statute.

III. Are Other Queries Appropriate?

88 As stated above, I am in general agreement with Binnie J.’s statement of the test in paras. 35 to 39 of his reasons, which finds expression in the fourth step of his “recommended approach” (para. 50). However, he propounds two further criteria that warrant brief comment.

89 Binnie J. first asks whether the “statutory power or duty relied upon” by the public authority is public or private. This inquiry is explained in paras. 22 to 26 of his reasons and corresponds to the third step of the recommended approach. This criterion is explained by reference (at para. 22) to Lord Chancellor Buckmaster’s statement in Myers, supra, that not all intra vires actions by a public authority are protected by the statute, and the distinction made by Estey J. in Berardinelli, supra, between activities that have a “public aspect or connotation” and those that have a “private executive or private administrative application or are subordinate in nature” (p. 283).

90 I am at a loss to conceive how this inquiry differs from the “incidental or ancillary” inquiry Binnie J. discusses in paras. 35 to 39. If the public body’s power or duty, which is nothing other than the source of authority for the act complained of, falls on the “public” end of the spectrum, then the activity will be directly related to the public authority’s public role. If the public authority’s power is somehow more “private” in nature, such as the gas company’s power to dispose of coke by-products in Myers, supra, then the activity resulting from that power will a fortiori be “incidental or ancillary” to the public authority’s duties. Similarly, in Berardinelli, supra, Estey J.’s discussion of “operational and more mundane functions of management” (p. 285) does not treat the public authority’s power to perform those functions differently from their actual performance in the act complained of. Consequently, I do not think that the third step of Binnie J.’s recommended approach adds anything to the fourth step.

91 The second and more nuanced point is expressed in paras. 27 to 34 and the fifth step of the “recommended approach” in Binnie J.’s reasons. It is held that, for the limitation provision to apply, the plaintiff’s claim must assert that the public authority violated a duty to the plaintiff that can be called “public”. Under this view, the limitations provision does not apply unless the claim rests upon a duty that the public authority owes to the public at large, instead of to the plaintiff as an individual.

92 It is important at this stage to distinguish two uses of the word “duty”. A public authority’s duty, as used in the statute’s phrase “an act done in pursuance or execution or intended execution of any statutory or other public duty or authority” (emphasis added) is synonymous with its mandate, the things the public authority can or must do to carry out its function. It is, for purposes of the limitation provision, related to a public authority’s “power”: it provides the motivation and justification for the public authority’s performance of particular actions. When used in this sense, the public authority’s “duty” must be of a public nature in order for the limitation provision to apply. As stated above, this is the same as saying that the public authority’s action (taken pursuant to that public power or duty) must be in direct pursuit of its mandate.

93 The second meaning of “duty”, however, concerns the duty owed by the public authority to a plaintiff. When suing a public authority, a plaintiff alleges that the authority has violated some duty and caused the plaintiff some cognizable harm. If I understand correctly, Binnie J. holds that this duty must also be “public” in nature; put another way, the claim raised by the plaintiff cannot rest on a “private” relationship that does not exist between the public authority and the public at large.

94 I do not believe this claim-based criterion accords with earlier statements of law. To begin with, it removes all claims in contract from the protection of the statute. A plaintiff asserting a contract-based claim necessarily asserts a breach of a duty owed to that plaintiff alone, not to the public as a whole. Contract rights are always based in a private bargain, no matter how “directly” the bargain relates to the public authority’s direct execution of its mandate. I cannot imagine any lawsuit for breach of contract that could pass the test propounded by Binnie J. Yet, as Binnie J. acknowledges, categorical exclusion of contractual claims from the protection of the statute has long been rejected. See reasons of Binnie J. at para. 13; Myers, supra, at p. 246 (per Lord Buckmaster L.C.), p. 264 (per Lord Shaw of Dunfermline).

95 Binnie J.’s claim-based test excludes most tort claims as well. A suit alleging physical harm or damage to property is generally based on the duty not to behave negligently toward all foreseeable plaintiffs or, in rare cases, on a duty not to inflict intentional harm. These are not “public” duties; they apply to all persons, public and private. They are not particular to constituted public authorities and do not emanate from their public mandates. Yet prior cases have applied the limitation provision of the Act to tort claims alleging negligence causing physical injury. I cannot imagine how, in Griffiths, supra, the school’s duty not to injure invitees through negligence could be called “public”.

96 Similarly, although this Court did not apply the limitation provision in Berardinelli, supra, it nowhere suggested that a private plaintiff would be spared from the statute if his claim was not based on a duty owed to all the public. If this were a correct statement of the law, Berardinelli could have been resolved on this simpler ground and avoided discussion of the “incidental and ancillary” character of the conduct sued upon.

97 There is a significant difference between Binnie J.’s notion that the claim itself must allege a breach of a public duty and the notion, expressed in both Canadian and English cases, that the claim must be based on an act that “correlates” with a public power or duty. The latter concept, which I believe is correct, is simply a different way of saying that, for the limitation period to apply, the act complained of must have been undertaken in direct execution of a public authority or mandate, and not as an action incidental thereto.

98 All of the English cases interpreting the analogous statute in the United Kingdom, the Public Authorities Protection Act, 1893 (U.K.), 56 & 57 Vict., c. 61, focus exclusively on the question of whether the act complained of was done in direct execution of a statutory duty or power. The holding in Sharpington v. Fulham Guardians, [1904] 2 Ch. 449, which involved a lawsuit against a public authority based on a construction contract, was that the act complained of was of a private character. The limitation provision did not apply because the lawsuit was based on an action (failing to pay an amount of money) that was merely incidental to the Fulham Guardians’ public function of caring for poor children.

99 That this is the correct interpretation of Sharpington is clear from the cases that follow it. Myers focused specifically on whether “the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority” (p. 247, per Lord Buckmaster L.C.). Lord Shaw of Dunfermline’s discussion of the “correlation” of rights and duties is only a vehicle for determining whether the conduct at issue resulted from a public power or duty, or from a private bargain. Lord Shaw’s final question in Myers (at p. 264) is

[W]hat was the kind of duty in which the corporation was engaged: was it a public duty or a private duty owing to some individual, and that exactly in the sense already explained? If the former, the Act applies; if the latter, it does not. [Emphasis added.]

His question is directed to the public authority’s duty as mandated, the function that the public authority was fulfilling in performing the conduct sued upon. If indeed Lord Shaw meant to impose a more restrictive claim-based criterion, the notion was not accepted by his colleagues. The other judgments in Myers clearly focused on the nature of the authority’s action, not that of the plaintiff’s claim. See Myers, supra, at p. 247 (per Lord Buckmaster L.C., Lord Dunedin concurring); at p. 252 (per Viscount Haldane); at p. 260 (per Lord Atkinson).

100 Consequently, where s. 7(1) of the Act is at issue, the only proper inquiry is Estey J.’s question in Berardinelli: did the act sued upon have a public character or was it incidental or subordinate to the public mandate? Further queries about the public nature of the statutory power or the correlation of the plaintiff’s claim are, in my opinion, unjustified and unnecessary.

IV. The Plaintiff’s Status

101 The appellant submitted that, for the shorter limitation period to apply, a plaintiff must be a “member of the community” served by the public authority in question. The Act does not limit its application to lawsuits instigated by persons who are part of the “public” served by the public authority. In my opinion, the idea that a public authority’s ability to rely on the limitation defence should depend on the identity of the plaintiff is impractical and not supported by precedent.

102 The effect of the requirement advanced by the appellant would be that, in cases where a public authority acts in direct execution of its public mandate, s. 7(1) of the Act would protect the public authority provided that the plaintiff is a member of its constituency. Otherwise, a longer statute of limitations would apply.

103 This framework is liable to produce strange results. For instance, if a municipal water authority expropriates land owned by someone who lives within the municipality and who was served by water from the authority, the landowner would have only six months to commence an action, since he would be a member of the relevant “public” or in the public authority’s “constituency”. However, his neighbour who lives outside the municipality and who does not benefit from the authority’s endeavours would have a significantly longer time to sue.

104 This distinction is not borne out by the case law. In Sharpington, supra, Farwell J. pointed out (at p. 456) that a public duty was owed “to the children, or possibly to the public, who might be injured by finding the children on the highway” (emphasis added). He then stated that the builder’s action was not barred because it was “not a complaint by a number of children or by a member of the public in respect of the public duty” (emphasis added). Quite obviously, Mr. Sharpington was a member of the public and would have been subject to the limitations period had his lawsuit arisen from an action taken in direct execution of the Fulham Guardians’ public authority.

105 Likewise, in Griffiths, supra, it was concluded (at p. 178) that the only questions to be decided in determining the applicability of the limitation provision were:

First, are the [school’s] managers a public authority? Second, was the neglect or default proved against them neglect or default in the execution of their statutory duty or authority?

It was not considered relevant whether a parent attending a school exhibition was a member of the public for whose benefit the school was instituted. Since a school’s public function is aimed at the benefit of its students, the plaintiff in Griffiths did not meet this criterion. Yet the House of Lords found that the limitations provision applied.

106 The Canadian cases that follow these English precedents make no reference to the plaintiff’s status as a member of the relevant “public”. Rand J.’s reasons in McGonegal v. Gray, 1952 6 (SCC), [1952] 2 S.C.R. 274, focus exclusively on “the act which resulted in the injury” (p. 290). In McGonegal, a pupil was injured when a teacher asked him to light a stove to make soup. This Court split four to three on the factual issue of whether the teacher was preparing the soup for herself or for the students. This fact was deemed relevant because it went to the character of the teacher’s action: a teacher who is performing tasks that are not for the students’ benefit is performing “a private act, under a private authority” (p. 290). Since the majority of that Court concluded that the teacher intended to make soup for herself, not for the students, they held that she was not acting in the execution of a public authority. There was unanimity in McGonegal that, if the teacher had been making soup primarily for the students rather than herself, her action would have been pursuant to a public authority and subject to the shorter limitation period. See McGonegal, at pp. 284 (per Kerwin J.), 290 (per Rand J.), 295 (per Estey J.), and 298 (per Locke J.).

107 There is nothing in McGonegal to suggest that the plaintiff’s identity affected the application of the limitation period. If the teacher had been preparing soup for the pupils, the act would have been a public one and the limitation period would have applied; it would not have mattered whether the person commissioned to light the stove was a pupil, a maintenance worker, another teacher, or a stranger off the street. As mentioned above, it would be a strange result if a suit by a pupil suffering damage from his teacher’s negligence were time-barred and a suit by a stranger were not.

108 Similarly, in Berardinelli, supra, Estey J. never mentioned the plaintiff’s membership in the group of people for whose benefit the Ontario Housing Corporation was founded. Although the Ontario Court of Appeal had commented that “[t]he appellant was one of the members of the public for whose benefit the statutory authority in question was to be exercised”, the point was not considered by this Court. Likewise, in Moffatt v. Dufferin County Board of Education, 1972 666 (ON CA), [1973] 1 O.R. 351 (C.A.), the fact that the plaintiff was a student at the school was not mentioned at all in the context of the analysis of the Act.

109 I recognize that certain decisions in Canada have interpreted Sharpington and its progeny differently, to prescribe a strict rule that a plaintiff is automatically relieved of the limitation period if he falls outside “that public which the public authority was intended to benefit” (see Comstock International Ltd. v. The Queen in right of Ontario (1981), 1981 2946 (ON SCDC), 126 D.L.R. (3d) 323 (Ont. Div. Ct.), at p. 326). This view was first developed in Clarke v. Ottawa Board of Education (1975), 1975 753 (ON SC), 54 D.L.R. (3d) 321 (Ont. Co. Ct.), where Smith Co. Ct. J. noted that both Sharpington and the Clarke case involved a suit by “a private individual who is not and was not meant to be a primary recipient of the benefits flowing from the pursuit by the board of its objects” (p. 327). As I noted above, I question whether this is factually correct, since Mr. Sharpington clearly was a member of the public who, in Farwell J.’s words, “might be injured by finding the children on the highway” (p. 456). Even assuming the contrary, however, I do not see how this amounts to anything more than an interesting factual similarity between the two cases; it was certainly not essential to the holding in Sharpington.

110 I do not read Binnie J.’s reasons as accepting the appellant’s argument that a plaintiff must be a member of the relevant public in order for the limitation period to apply. Although Binnie J. points out when certain plaintiffs in other cases met the criterion (paras. 23, 26 and 28), the criterion finds no place in his final “recommended approach”. Consequently, this Court is unanimous in rejecting it.

V. The “Teacher Cases”

111 I do not share Binnie J.’s conclusions regarding the decisions referred to as the “teacher cases”, which hold employment-related actions by school boards to be “public” acts subject to s. 7(1)'s shorter limitation period. It is claimed that these cases represent a departure from the McGonegal-Berardinelli analysis because they hold that any action taken intra vires the public authority is automatically covered by s. 7(1).

112 In Lacarte v. Board of Education of Toronto, 1954 116 (ON CA), [1954] O.R. 435 (C.A.), Aylesworth J.A. considered (at p. 452) the English precedents on point, notably Myers and Griffiths, and specifically quoted language (from Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452 (P.C.), at pp. 464-65) indicating that not all actions of a public authority are necessarily covered by the limitations provision:

It is essential to the protection afforded by the statute that the act or default in question should be in the discharge of a public duty or the exercise of a public authority. This assumes that there are duties and authorities which are not public. (See per Lord Buckmaster in the Bradford Corporation case, [1916] 1 A.C. 242, 247.). . . .

Their Lordships consider that the following passage from Griffiths’ case, in the speech of Viscount Maugham (which speech was expressly approved by Viscount Simon), affords them most assistance in the determination of the present case: he there says: “It is sufficient to establish that the act was in substance done in the course of exercising for the benefit of the public an authority or a power conferred on the public authority not being a mere incidental power, such as a power to carry on a trade.” The word “incidental” is here used in the sense of “subsidiary.” [Emphasis in original.]

In his holding, Aylesworth J.A. states (at p. 454) that “the respondent in its termination of appellant’s employment was not only acting in the performance of a public authority conferred upon it but was actually acting in the performance of its public duty”. This conclusion is consonant with McGonegal and Berardinelli.

113 Similarly, the decision in Re Gallant et Conseil des écoles séparées catholiques romaines du district de Sudbury (1985), 1985 2235 (ON CA), 56 O.R. (2d) 151 (C.A.) (English translation reported at p. 160), relies on a finding that the acceptance of a teacher’s resignation was an act done in conformity with or in execution of a statutory or other public duty. I disagree that Lacourcière J.A. “virtually reduce[d] the analysis to a simple issue of intra vires” (see Binnie J. at para. 48). Lacourcière J.A. clearly determined (at pp. 163-64) that it was the public authority’s action, not the mere fact of it being a public authority, which triggered the limitations provision:

[translation] Let us say, first of all, that the school board, by accepting the appellant’s resignation, by acting in good faith and in the interests of the board and of the school in question, is a legal entity acting in conformity with or in execution of a statutory or other public duty and, therefore, it has a right to the protection given to such an entity. [Emphasis added.]

Although Lacourcière J.A.’s reasoning on the point is abbreviated, his application of the limitation provision is clearly predicated on a finding concerning the public authority’s particular action, not merely a finding that the public authority acted intra vires.

114 Binnie J. takes issue (at para. 48) with the “notion expressed in Gallant” that the limitation period applies because the school board acted [translation] “in conformity with or in execution of a statutory or other public duty”. This “notion”, however, is a direct quotation of a French translation of the statute in this Court’s decision in Berardinelli (per Estey J., at p. 278) which reads: “Aucune action, poursuite ou autre procédure n’est recevable ou ne peut être intentée contre une personne pour un acte fait en conformité ou en exécution d’un devoir ou pouvoir conféré par la loi . . .” (emphasis added). It is clear from the French translation that Lacourcière J.A. was not seeking to make a novel interpretation of the law as Binnie J.’s reasons suggest, but was merely upholding the trial judge’s finding of fact that the conduct complained of fell within the purview of the statute.

115 This interpretation is consistent with the decision of the Court of Appeal panel in Berardinelli, of which Lacourcière J.A. was a member, summarized as follows by Estey J. (at p. 279):

In [the Court of Appeal] it was determined unanimously that even if the respondent is in law a Crown agency some of its duties and authorities are of such a nature that in respect of their exercise or discharge the Corporation is not entitled to invoke [the limitations provision]. Hence the Court of Appeal proceeded to what was said to be a second issue, namely “whether the alleged neglect or default of the Corporation was in the exercise of any statutory or other public duty”.

This summary indicates that the Court of Appeal in Berardinelli asked the right question. Indeed, this Court’s majority reasons in that case express no disapproval of the analysis followed by the Court of Appeal. The disagreement in this Court was one of application, of drawing the line between a public authority’s public and private activities.

116 The Ontario Court of Appeal has not maintained that a public authority acting intra vires invariably enjoys the protection of the Act. Instead, its decisions have focused on whether the particular act complained of, though intra vires, might nonetheless not have been undertaken in direct execution of a public authority or duty. The lower court cases cited by Binnie J. (at para. 45) are in agreement.

117 It is not necessary to rely on the “teacher cases” to conclude that the Board’s “downsizing” of the appellant in this case was a public act subject to the shorter limitation provision. In my opinion, the facts in this case are more compelling than a decision to fire a teacher, since the “downsizing” occurred after a significant School Board reorganization and was authorized by a specific regulation. I express no opinion on the correctness of the dispositions in the “teacher cases”. I note only that they are not deviations from precedent and that their persuasive authority should not be dismissed lightly.

VI. Further Issues

118 My rejection of the appellant’s interpretation of s. 7(1) of the Act requires addressing two further submissions. First, the appellant argues that the respondent cannot rely on the statute of limitations because it acted in bad faith in selecting him for redundancy and in transferring him to his new position. Second, he claims that his transfer, which he alleges violates Regulation 309, constitutes an ongoing “continuing injury” such that the statute of limitations has not yet expired.

119 Regarding the allegations of bad faith, I agree with the disposition of the trial judge and the Court of Appeal: the bald assertion of bad faith and the allegation of irrelevant facts are inadequate to sustain such a plea. The facts alleged either concern matters other than the downsizing at issue or show only that the Board violated its duty under Regulation 309. A violation of a regulation alone is not enough to warrant a finding of bad faith.

120 I also reject the appellant’s argument that the transfer to a new position is a “continuing injury” that allows him to sue at any point until he is given an appropriate job under Regulation 309. The injury complained of arises from the action of abolishing his position as a superintendent and transferring him to a new position. That action occurred at a fixed point in time, that is, when the Board passed its resolutions on April 27, 1992. The action’s latest arguable consequence was on May 29, 1992, when the appellant received notice of the transfer. Even taking this date as the starting point of the limitation period, the appellant’s claim (filed December 22, 1992) does not fall within the shorter six-month limitation period.

VII. Disposition

121 I would dismiss the appeal with costs.

Appeal allowed with costs, Major J. dissenting.

Solicitors for the appellant: Nelligan Power, Ottawa.

Solicitors for the respondents: Genest Murray DesBrisay Lamek, Toronto.