Abouchar v. Ottawa-Carleton French-language School Board -- Public Sector, 1999 CanLII 661 (SCC), [1999] 3 SCR 343

Abouchar v. Ottawa-Carleton French-language School Board -- Public Sector, [1999] 3 S.C.R. 343

Alfred Abouchar Appellant

v.

Ottawa-Carleton French-language School Board -- Public Sector, Rosaire Léger, Supervisor, and Her Majesty The Queen in right of Ontario (Ministry of Municipal Affairs) Respondents

Indexed as: Abouchar v. Ottawa-Carleton French-language School Board -- Public Sector

File No.: 25899.

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 more than one year 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 appellant was a superintendent of the respondent School Board. The Board was restructured and the appellant’s position declared redundant. He was transferred to the position of a project officer. More than a year after the events that gave rise to his complaint, he commenced an action claiming contractual entitlements under s. 7(2) of Regulation 309 of the Education Act. The respondents brought a motion to have the action dismissed relying 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 the decision, concluding that the action was barred by the six-month limitation period. This case raises the same issues as are discussed in the companion case Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell, 1999 CanLII 660 (SCC), [1999] 3 S.C.R. 281.

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

Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ.: The six-month limitation under s. 7 of the Public Authorities Protection Act does not apply. The appellant’s complaint is directed to the internal implementation of the reorganization of the Board and to the selection of the appellant for redundancy. The appellant’s claim relates to duties of the Board that are incidental or subordinate to its direct performance of its public mandate and that are predominantly of a private character. The motions judge’s order, that s. 7 of the Act is inapplicable, is reinstated, permitting the appellant’s action to proceed against the respondents on its merits.

Per Major J. (dissenting): This case is indistinguishable from Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell. The Court of Appeal was correct in holding that s. 7 applied to bar the action. The pleadings of bad faith were insufficient to allow the case to proceed.

Cases Cited

By Binnie J.

Followed: Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] 3 S.C.R. 281.

By Major J. (dissenting)

Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] 3 S.C.R. 281.

Statutes and Regulations Cited

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

Municipal Affairs Act, R.S.O. 1980, c. 303, Part III.

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

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

APPEAL from a judgment of the Ontario Court of Appeal, [1997] O.J. No. 125 (QL), allowing an appeal from a decision of the Ontario Court (General Division), [1993] O.J. No. 2854 (QL), which declared that s. 7 of the Public Authorities Protection Act did not apply to bar the appellant’s 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

1Binnie J. -- This case involves a claim of wrongful dismissal by a former Superintendent of Education against the Ottawa-Carleton French-language School Board -- Public Sector. The School Board seeks to have the action against it dismissed on the strength of s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38, which in its relevant part provides that no action may be instituted against a public authority for an act done in execution of “any statutory or other public duty or authority” unless it is commenced within six months of the act complained of. This case was argued here and in the courts below together with Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] 3 S.C.R. 281, in which reasons are being released concurrently today. In light of the analysis set out in Des Champs, the ruling of the Ontario Court of Appeal in the present case also cannot stand and the decision of the motions judge rejecting the special limitation defence must be restored. The appeal will therefore be allowed.

Facts

2On September 13, 1991, at the request of the Minister of Municipal Affairs, the Ontario Municipal Board made an order under the special provisions of Part III of the Municipal Affairs Act, R.S.O. 1980, c. 303, granting the Minister broad powers over the respondent School Board’s financial situation. In the previous fiscal year, the School Board had accumulated a financial deficit of over $18 million and anticipated a further deficit of $23.1 million in the then current year, placing it among the leaders of the 72 school boards in Ontario which had failed in a major way to stay within budget. The order of the Ontario Municipal Board allowed the Minister to appoint the respondent, Rosaire Léger, as Supervisor of the School Board’s Public Sector with a mandate to restore financial order, and to exercise other powers under the Act. The subsequent restructuring of the Public Sector of the School Board, orchestrated by Mr. Léger, resulted in a 35 percent budget cut at the level of the schools and 136 employees of the School Board itself being declared redundant. This included two superintendent positions.

3The appellant was advised by letter dated April 28, 1992, that his position was one of two superintendent positions declared redundant pursuant to s. 7 of R.R.O. 1990, Reg. 309, made under the Education Act, R.S.O. 1990, c. E.2. He was advised that he would be transferred to a position with similar supervisory and administrative responsibilities. In September 1992, the appellant was assigned to the position of project officer, which he regarded as a poor substitute and contrary to his contractual entitlement to the benefit of the provisions of Regulation 309.

4The present action was commenced against the School Board, Mr. Rosaire Léger and the Ministry of Municipal Affairs on May 7, 1993, more than a year after the events giving rise to the appellant’s complaint took place. The appellant says that he was dismissed altogether from his employment effective July 28, 1993.

Judgments

5The motions judge, for the reasons he gave in Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell (1993), 1993 CanLII 5494 (ON SC), 16 O.R. (3d) 278 did not agree with the defendants that Mr. Abouchar’s action was statute-barred pursuant to s. 7 of the Public Authorities Protection Act: 1997 CanLII 14542 (ON CA), [1997] O.J. No. 2854 (QL). However, the Ontario Court of Appeal allowed the defendants’ appeal and dismissed Mr. Abouchar’s action as it had not been commenced within the six-month limitation period: [1997] O.J. No. 125 (QL). It appears that in this case, unlike Des Champs, no application was made to have the action struck out against the individual defendants.

Analysis

6In this appeal, as in Des Champs, the starting point of the appellant’s complaint lies in a reorganization of a school board carried out in the public interest. Any action directed to the reorganization itself would have to have been commenced within the six-month period. However, as in Des Champs, the appellant’s complaint is not directed to a reorganization as such, but to the internal implementation necessitated by a reorganization. More specifically, the complaint is directed to the singling out of the appellant for redundancy when, in his view, proper application of the School Board’s own rules governing seniority ought to have deflected the axe onto one of his colleagues.

7The case thus raises the same type of indoor management issues as are discussed in Des Champs. While Regulation 309 has a “public” aspect, my view is that the appellant’s claim relates to duties of the respondent Board that are incidental or subordinate to the direct performance by the respondent Board of its public mandate and are predominantly of a private character. As such, the complaint does not attract the special six-month limitation under s. 7 of the Public Authorities Protection Act.

Disposition

8The appeal is 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, is reinstated, permitting the appellant’s action to proceed against the respondents on its merits.

The following are the reasons delivered by

9Major J. (dissenting) -- This case was heard together with Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] 3 S.C.R. 281, in which reasons are being released concurrently. Since this case is indistinguishable from Des Champs, it follows that I believe the Ontario Court of Appeal ([1997] O.J. No. 125 (QL)) was correct in holding that s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38, applied to bar the appellant’s action.

10I agree with the Court of Appeal’s holding that the pleadings of bad faith were insufficient to allow the case to proceed. A plaintiff alleging bad faith must do more than merely assert the point; he must allege specific facts that, if proven, would justify a finding in the plaintiff’s favour. A bald assertion of racial discrimination is not sufficient; discrimination, like bad faith, is a legal conclusion that must have some basis in facts pleaded with particularity.

11I would dismiss the appeal with costs.