COURT FILE NO.: 05-CV-286318PD3

DATE: 20130319

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Naseem Jamal, Plaintiff

AND:

The Crown in Right of Ontario (Ministry of Community, Family and Children's Services), Defendant

BEFORE: Carole J. Brown J.

COUNSEL: Naseem Jamal, representing herself

Susan Munn, for the Defendant

HEARD: January 23, 2013

ENDORSEMENT

[1] The moving party, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services ("HMQ"), brings this motion to dismiss the statement of claim dated August 19, 2005, on the grounds that (i) the claim is statute-barred by the Limitations Act, 2002; (ii) there is no reasonable cause of action disclosed in the statement of claim pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure; (iii) the claim is scandalous, frivolous, vexatious and/or an abuse of process pursuant to Rules 21.01(3)(d), 25.06(1) and 25.11, and (iv) the Court has no jurisdiction with respect to the subject matter of the action.

[2] The plaintiff, Naseem Jamal ("the plaintiff") raised preliminary issues which she wished to have heard prior to HMQ's motion to dismiss the statement of claim. She wished to first argue her application for a binding declaration ordering HMQ to reopen the applicant's file at the Crown Employees' Grievance Settlement Board ("GSB") and/or granting the applicant standing to reopen the applicant's file at the GSB, and also to argue her motion for summary judgment

[3] I advised the plaintiff that the only motion to be heard before me would be the defendant’s motion to dismiss the statement of claim, as based on the determination of the Court regarding that motion, the plaintiff’s motion and application would then proceed or would be rendered moot. The hearing before me proceeded on the basis of submissions regarding HMQ's motion to dismiss.

Background Facts

Procedural History

[4] The procedural history of this matter is fully set forth in the defendant’s factum.

[5] The plaintiff was a unionized, Crown employee and a member of OPSEU from June 15, 1977 to June 28, 2011. OPSEU is and was at all material times, a party to a collective agreement with the Crown, as represented by the Management Board of Cabinet, which governed the terms and conditions of the plaintiff's employment.

[6] Following grievances filed by the plaintiff on June 27, 2000 and June 25, 2001, and as pleaded in paragraph 37 to 51 of the subject statement of claim, the grievances were resolved prior to the hearing by Memorandum of Settlement signed by the parties, pursuant to which the plaintiff received $110,000, agreed to resign from her position, not to raise the subject matter of the grievances in any other forum, and to sign a full and final release in favour of the Crown.

[7] On November 5, 2003, the plaintiff filed an application with the Ontario Labour Relations Board ("OLRB") alleging that OPSEU was in breach of its duty of fair representation under section 74 of the Labour Relations Act, 1995 and seeking to have the OLRB set aside the settlement that she signed on June 28, 2011. The application related to the representation provided by OPSEU with respect to the above-noted grievances.

[8] Following dismissal of the plaintiff's application by the OLRB, the plaintiff requested that the Board reconsider its decision dismissing her complaint as against OPSEU, which the OLRB refused to do. As a result, the plaintiff applied to the Divisional Court for judicial review of the OLRB's decision. The application for judicial review was dismissed by the Divisional Court and the plaintiff's application for leave to appeal to the Ontario Court of Appeal, and subsequently to the Supreme Court of Canada, were also dismissed.

[9] On January 16, 2004, the plaintiff filed a statement of claim against the Crown alleging that the Crown had engaged in fraud related to the Settlement that she had signed on June 28, 2001 and requesting that the Court set aside the settlement.

[10] On September 21, 2004, this Court dismissed the statement of claim without prejudice to the plaintiff bringing another action against the defendant for negligence. The plaintiff appealed this decision to the Ontario Court of Appeal, which dismissed the plaintiff' s appeal on March 24, 2005.

[11] The plaintiff thereafter made application to the Ontario Superior Court of Justice (Divisional Court) for a mandamus order requiring the GSB to reopen her file and have the settlement of June 28, 2001 set aside. On December 15, 2006, the Divisional Court dismissed the plaintiff’s application. The plaintiff thereafter sought leave to appeal that decision to the Ontario Court of Appeal and to the Supreme Court of Canada, which were both dismissed.

[12] The plaintiff filed a further statement of claim on August 22, 2007, requesting that the Court set aside the settlement signed by her on June 28, 2001, and requesting damages as against OPSEU on the basis of its misconduct in its role as her representative. This Court dismissed the statement of claim on April 24, 2008. The plaintiff's applications for leave to appeal to the Ontario Court of Appeal and thereafter to the Supreme Court of Canada were both dismissed.

[13] As indicated at paragraph 1, above, the statement of claim in issue here was commenced on August 19, 2005.

The Statement of Claim

[14] In her statement of claim which is the subject of this motion, the plaintiff alleges, as against HMQ that:

(a) the defendant engaged in fraudulent misrepresentation in allegedly asserting that the OPSEU Pension Trust was the appropriate forum in which to pursue a claim regarding the plaintiff's pension;

(b) the defendant engaged in negligent misrepresentation regarding her alleged attempt to buy back her pension entitlements;

(c) the defendant breached two promises (one regarding a letter of apology and another regarding a different job within the government) made to the plaintiff in the context of her employment; and

(d) the defendant denied the plaintiff her equality rights in the workplace.

[15] HMQ submits that the allegations contained in the statement of claim, or most of them, refer to the above-noted workplace disputes, which have been challenged by the plaintiff in various legal fora since 2001, including the GSB, the OLRB, the Ontario Superior Court, the Divisional Court, with leave to appeal to the Ontario Court of Appeal and the Supreme Court of Canada denied.

Positions of the Parties

The Moving Party, HMQ

[16] It is the position of the moving party that the issues raised in the plaintiff's statement of claim have already been dealt with by various levels of court, that this Court has no jurisdiction over the subject matter of the action and that the plaintiff is, at least in part, statute-barred from proceeding with her claim because it was filed outside the limitation period set forth in the Limitations Act, 2002.

The Plaintiff, Responding Party

[17] It is the position of the plaintiff and there has never been a decision on the merits regarding her complaints. She submits that she was never informed about her rights of pension buy-back until two years after the settlement was effected due to negligence or fraud on the part of the Crown, which is not a work-related issue and which is outside the jurisdiction of the GSB. She submits that if she is not given the opportunity to be heard, justice will be denied.

The Issues

[18] The issues to be determined on this motion are:

1. Whether this action should be dismissed on the basis that:

(a) it is statute-barred pursuant to the Limitations Act, 2002;

(b) it discloses no reasonable cause of action;

(c) the claim should be dismissed in its entirety, or all or part of the statement of claim should be struck, due to its being frivolous, vexatious or otherwise an abuse of the process of the Court;

2. Whether this action is outside the jurisdiction of this Court, as exclusive jurisdiction over workplace disputes lies with the GSB.

The Limitations Act, 2002

[19] The Limitations Act, 2002 provides that where a claim based on acts or omissions that took place before January 1, 2004 is discovered before that date, then the former Limitation Act applies. Thus, in this action, the former limitation period of six years after the cause of the action arose applies, as the allegations of negligence took place in or about 2001, and therefore the former limitation period applies: Limitations Act, 2002, S.O. 2002,c. 24 Schedule B, s.24 (5) 2; Limitations Act, R. S. O. 1990 Ch L 15 s. 45 (1) (g).

[20] HMQ argues that the plaintiff was aware of the alleged negligent misrepresentation from 1991, as the plaintiff states that she learned no action had been taken to commence a buy-back of her pension and was advised that the window of opportunity to buy back her pension was closed. The defendant argues that it is clear that the plaintiff became aware that the defendant had not processed her pension buy-back sometime prior to June 28, 2001, as this was raised in the context of the settlement negotiations signed that day. HMQ argues that this action was commenced some 14 years after she learned of the alleged negligent or fraudulent misrepresentation, which is well outside the stipulated limitation period and, therefore, the action should be dismissed.

[21] Based on all of the evidence with respect to the various claims, I agree that this claim is brought significantly outside the applicable limitation period.

Whether This Action Is Statute-Barred Pursuant to the Limitations Act, 2002.

[22] In the normal course, a limitation period issue should be addressed trial, rather than on a Rule 21.01(1)(a) motion, where the issue depends on findings of fact for its resolution. It is generally not appropriate to determine before trial the legal issue of the impact of the limitation period in a case where the discoverability rule is in issue, unless the facts are clearly undisputed.

[23] In this case, it is clear that the discoverability rule is not in issue, and that the plaintiff was aware of the issues which are raised in this statement of claim, and particularly that she was aware that the alleged negligence and/or negligent or fraudulent misrepresentation took place in approximately 1991, as she states that she learned that no action had been taken to commence a buy-back of her pension and she was advised that the window of opportunity for buy back of the pension was closed. It is clear from the evidence that the plaintiff became aware that the defendant had not processed her pension buy-back sometime prior to June 28, 2001, as she raised the issue of being permitted to buy back the pension at the time of the settlement negotiations in June of 2001; thus, some 14 years prior to the subject statement of claim being issued. As a result, I find that this claim is statute-barred.

Whether There Is a Reasonable Cause of Action Set Forth in the Statement of Claim

[24] The moving party, HMQ, argues that the plaintiff has failed to set forth a reasonable cause of action, as she has not pled the facts sufficient to establish the necessary factual elements required to establish negligent misrepresentation and fraudulent misrepresentation. The allegations, as set forth in the statement of claim are bald allegations without the necessary factual elements. These arguments are set forth in the moving party's factum at paragraphs 36 to 44. Based on a review of the statement of claim, I find that the plaintiff has, indeed, failed to set forth the constituent elements required to establish negligent misrepresentation and fraudulent misrepresentation.

[25] The test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proven, it is plain and obvious that no reasonable cause of action is disclosed. It is clear that, based on the facts as pleaded, the statement of claim, as regards the allegations of fraudulent and negligent misrepresentation, discloses no reasonable cause of action and the claims for negligent and fraudulent misrepresentation would fail.

[26] On that basis, I find that these claims should be struck. Given my findings regarding the Limitations Act, as well as my findings regarding Rules 21.01(3)(d) and 25.11, as set forth herein, these claims should be struck without leave to amend.

Whether the Action Is Frivolous, Vexatious or Otherwise an Abuse of the Process of the Court

[27] Rule 21.01(3)(d) provides that the defendant may move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the Court. Rule 25.11 provides that the Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document is scandalous, frivolous or vexatious, or is in abuse of the process of the Court.

[28] There is a degree of overlap in the meaning of the terms "frivolous", "vexatious" and "abuse of process". Any action for which there is clearly no merit may justify for classification as frivolous, vexatious or an abuse of process. A common example is where the plaintiff seeks to re-litigate a cause of action which has already been disposed of by a court of competent jurisdiction. The doctrine of abuse of process is predicated on the notion that litigation ought not to be permitted to proceed where it would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. The Supreme Court of Canada held, in Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63, [2003] S.C.J. No. 64, [2003] 3 S.C.R. 77 (S.C.C.), that the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute. The doctrine of abuse of process is applied, inter alia, where the litigation before the Court is found to be, in essence, an attempt to re-litigate a claim which has already been disposed of. Such an application upholds the twin policy grounds that there should be an end to litigation and that no one should be twice vexed by the same cause.

[29] Vexatious proceedings include the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction, where it is obvious that an action cannot succeed, where grounds and issues are rolled forward into subsequent actions and repeated and supplemented.

[30] In this case, it is clear that the plaintiff has set forth, in the subject statement of claim, facts and issues that have been raised by her before the GSB, the OLRB, in statements of claim before this Court, and in applications for leave to appeal before the Ontario Court of Appeal and the Supreme Court of Canada, which were dismissed by the appellate courts.

[31] I find, based on the evidence before me and submissions by the parties, that it would be an abuse of process to re-litigate those claims that have already been disposed of, and for which leave to appeal has been denied. On this basis, I dismiss the statement of claim without leave to amend.

Jurisdiction

[32] The moving party argues that the factual matrix related to this action arises from the workplace. In the circumstances of the plaintiff's case a collective agreement is binding upon the employer, the trade union and the employees in the bargaining unit, which, at all material times, included the plaintiff. Pursuant to the Employees Collective Bargaining Act, 1993 (CECBA, 1993), and the Collective Agreement between OPSEU and the Management Board of Canada, where the dispute arises under the Collective Agreement, the labour arbitration regime prevails. HMQ submits that the essential character of the dispute is one arising under the Collective Agreement and, one which falls within the ambit of the Collective Agreement and, as such, this Court does not have jurisdiction. HMQ argues that the entire subject matter of the claim falls within the employment context, arises from specified workplace actions and, as such, falls outside the jurisdiction of the Courts.

[33] The plaintiff argues that the allegations of negligence, including negligent and fraudulent misrepresentation although they arise within the workplace, do not fall within the ambit of the Collective Agreement as they relate to pension. Further, she argues that there is no jurisdiction under the Collective Agreement to deal with issues of negligence or fraud. The plaintiff argues that this Court has jurisdiction to hear the allegations of negligence and misrepresentation as set forth in the statement of claim.

[34] Based on all of the evidence, and considering the jurisprudence cited by the moving party at paragraphs 58 to 63 of its factum, I find that the essential character of the dispute as advanced in the statement of claim involves the workplace and is governed by and falls within the ambit of the Collective Agreement. Accordingly, I find that such disputes as those raised in the plaintiff's statement of claim do not fall within the jurisdiction of this Court.

Order

[35] I order that the statement of claim in this action be dismissed, without leave to amend.

Costs

[36] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: March 19, 2013