Court File and Parties

COURT FILE NO.: CV-16-553147 DATE: 20170315

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDRÉ MARIN Plaintiff (Responding Party) – and – THE OFFICE OF THE OMBUDSMAN OF ONTARIO, THE LEGISLATIVE ASSEMBLY OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants (Moving Parties)

Counsel: Michael D. Wright and Elichai Shaffir, for the Plaintiff Catherine Beagan Flood and Iris Antonios for the Legislative Assembly of Ontario Robert W. Little for the Office of the Ombudsman of Ontario

HEARD: December 13, 2016

REASONS FOR DECISION Mr. Justice P. J. Cavanagh

Nature of Motions

[1] The Plaintiff formerly held the office of the Ombudsman of Ontario. He held this office pursuant to the provisions of the Ombudsman Act, R.S.O. 1990, c. O.6 (the “Act”).

[2] The Plaintiff commenced this action seeking declaratory relief, damages for wrongful dismissal based upon the alleged breach of an indefinite employment contract, reimbursement of office expenses, damages for negligent misrepresentation, aggravated damages and punitive damages, together with interest and costs.

[3] The Defendant named as The Office of the Ombudsman of Ontario moves to strike out the Plaintiff’s Statement of Claim and for dismissal of the action as against The Office of the Ombudsman of Ontario on the grounds that it discloses no reasonable cause of action and that to allow the action to proceed would amount to an abuse of the court’s process.

[4] In his submissions, counsel representing the Defendant named as The Office of the Ombudsman of Ontario (the “Office of the Ombudsman”) clarified that his client is the person who now holds the Office of the Ombudsman. My references to the Office of the Ombudsman in these reasons are made having regard to this submission.

[5] The Defendant the Legislative Assembly of Ontario (the “Assembly”) moves to dismiss or, alternatively, stay this action as against it for lack of jurisdiction.

[6] The action as against The Queen in Right of Ontario was discontinued by a Notice of Discontinuance dated October 21, 2016.

[7] The motions by the Office of the Ombudsman of Ontario and by the Assembly were heard together. The materials before me consisted of (i) the Statement of Claim; (ii) the affidavit of Deborah Deller, the Clerk of the Assembly, and the exhibits thereto; and (iii) the affidavit of the Plaintiff and the exhibits thereto.

[8] The motion by the Office of the Ombudsman is brought under r. 21.01(1)(b) to strike out the Statement of Claim on the ground that it discloses no reasonable cause of action and under r. 21.01(3)(d) to dismiss the action on the ground that it is frivolous or vexatious and to allow this action to proceed would amount to an abuse of the court’s process. On its motion, the Office of the Ombudsman does not rely upon affidavit evidence but only on the Statement of Claim.

[9] The motion by the Assembly is brought under s. 106 of the Courts of Justice Act and rr. 21.01(3)(a) and (d) and 21.01(1) of the Rules of Civil Procedure.

Motion by Office of the Ombudsman under Rule 21.01(1)(b)

[10] I will first address the motion by the Office of the Ombudsman under r. 21.01(1)(b) to strike out the Statement of Claim on the ground that it discloses no reasonable cause of action.

The Plaintiff’s Claim

[11] In the Overview section of the Statement of Claim, the Plaintiff pleads that:

a. The Assembly and the Office of the Ombudsman were at all material times his employers. b. The Office of the Ombudsman is the office surrounding and supporting the Ombudsman of Ontario and that, together, the Assembly and the Office of the Ombudsman determined those terms and conditions of his employment and compensation not outlined in the Act. c. His employment was terminated without notice, and without cause, on September 14, 2015 and that he was not provided reasonable compensation in place of notice. d. The Assembly and the Office of the Ombudsman violated their duty of good faith and fair dealing with respect to the Plaintiff in the period leading up to and following the Plaintiff’s wrongful dismissal. e. The Assembly and the Office of the Ombudsman and their representatives made a series of assertions and representations, that together or separately, constitute a concerted effort to mislead the Plaintiff. f. As a result of his reliance on these misleading assertions and representations, he failed to secure other employment, made personal investments he would not have made otherwise, and suffered public humiliation at the hands of the Defendants, or their representatives.

The Plaintiff pleaded additional, and more particular, statements in the remaining paragraphs of the Statement of Claim.

Legal Principles that Apply to a Motion under Rule 21.01(1)(b)

[12] On a motion to strike out a pleading on the ground that it discloses no reasonable cause of action, the test to be applied is whether, assuming that the facts stated in the statement of claim can be proved, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.

[13] In R. v. Imperial Tobacco, 2011 SCC 42 the Supreme Court of Canada addressed the purpose of a motion to strike out a pleading on the ground that it discloses no reasonable cause of action. The Supreme Court of Canada observed, at para. 19, that the power to strike out such claims “is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” The Supreme Court of Canada cautioned, however, that “the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed.” The Supreme Court of Canada held that the “approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial”.

[14] On a motion to strike out a pleading for failure to disclose a reasonable cause of action, the facts pleaded must be taken as true unless they are manifestly incapable of being proven. No evidence is admissible on such a motion. It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim: R. v. Imperial Tobacco, at para. 22. Documents specifically referred to and relied on in a statement of claim are incorporated into the claim and can be considered on a motion to strike: Web Offset Publications Limited v. Vickery, 1999 4462 (ON CA), [1999] O.J. No. 2760 (C.A.) at paras. 2-3; leave to appeal dismissed, [1999] S.C.C.A. No. 460.

Relevant Provisions of the Act

[15] The Act provides, in sections 2, 3, 4, and 5, as follows:

2. There shall be appointed, as an officer of the Legislature, an Ombudsman to exercise the powers and perform the duties prescribed by this Act.
3. The Ombudsman shall be appointed by the Lieutenant Governor in Council on the address of the Assembly.
4. (1) The Ombudsman shall hold office for a term of five years and may be reappointed for a further term or terms, but is removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly.
5. (1) The Ombudsman shall devote himself or herself exclusively to the duties of the Ombudsman’s office and shall not hold any other office under the Crown or engage in any other employment.

The Act also provides, in section 6, for the salary to be paid to the Ombudsman and for expenses to be paid to the Ombudsman in the exercise of his or her functions under the Act.

[16] The Act also provides, in sections 7 and 8, for a temporary Ombudsman, and for employment of employees by the Ombudsman. The Act also provides, in section 9, that the Ombudsman may lease such premises and acquire such equipment and supplies as are necessary for the efficient operation of his or her office. The function of the Ombudsman and powers conferred on the Ombudsman are provided for in ss. 14(1) and (2) of the Act. The Act provides that the Assembly may make general rules for the guidance of the Ombudsman in the exercise of his or her functions under this Act and, subject to the Act and any rules made under section 15 thereof, the Ombudsman may determine his or her procedures.

Positions of the Parties

[17] The Office of the Ombudsman submits that this office is the position to which the Ombudsman is appointed by the Lieutenant Governor in Council on the address of the Legislative Assembly in accordance with the Act, and that the Ombudsman of Ontario (the “Ombudsman”) does not, and cannot, appoint himself or herself to the office or otherwise enter into an employment relationship with the office which she or he is holding or previously held. The Office of the Ombudsman submits that, accordingly, while the Plaintiff was Ombudsman, he did not and could not have a contractual or other manner of employment relationship with himself.

[18] The Office of the Ombudsman also submits that the Act does not allow for an indefinite appointment of an Ombudsman and that the Plaintiff’s appointment expired at the end of its term. The Office of the Ombudsman submits, therefore, that the Plaintiff was not wrongfully dismissed or otherwise improperly removed from office and, as a result, he is not entitled to the relief claimed in the Statement of Claim.

[19] The Plaintiff submits that it is not plain and obvious that the Plaintiff could not have a legal, contractual or employment relationship between himself as Ombudsman and the Office of the Ombudsman. Counsel points to jurisprudence which recognizes that an employee may have more than one employer in law.

[20] The Plaintiff also submits that the fact that, under the Act, the Ombudsman is not appointed by the Office of the Ombudsman is not determinative of the status of the Office of the Ombudsman as employer of the Plaintiff. The Plaintiff refers to Potter v. New Brunswick (Legal Aid Services Commission) 2015 SCC 10 in support of this submission because, in that case, even though the Executive Director of Legal Aid was appointed by the Lieutenant Governor in Council, the New Brunswick Legal Aid Services Commission, which controlled other aspects of the employment relationship, was found to be a common employer and a proper party to a constructive dismissal action.

[21] The Plaintiff submits that facts pleaded must be assumed to be true on a motion under r. 21.01(1)(b). The Plaintiff submits that he pleaded that the Office of the Ombudsman was one of his employers and that, together with the Assembly, the Office of the Ombudsman determined those terms and conditions of the Plaintiff’s employment and compensation not outlined in the Act.

[22] The Plaintiff submits that the Office of the Ombudsman has failed to satisfy the high threshold of demonstrating that the Plaintiff’s claim has no chance of success.

Analysis

[23] In my view, the outcome of the motion by the Office of the Ombudsman turns on whether, as a matter of law, the Ombudsman, an officer of the Legislature, is or can be employed by the Office of the Ombudsman.

[24] The Plaintiff relies upon jurisprudence which recognizes that an employee can have more than one employer in law, and submits that the Office of the Ombudsman was his employer together with the Assembly. He cites, in particular, the decision of the Supreme Court of Canada in Potter in support of this submission.

[25] In Potter, the Supreme Court of Canada noted that the power of appointment was fettered by a statutory obligation to appoint the person nominated by the Board of Directors of the New Brunswick Legal Aid Services Commission. Also, under the applicable statute, the Board had established the terms and conditions of Mr. Potter’s employment and the Board was statutorily empowered to impose powers and duties on the Executive Director. In Potter, the New Brunswick Legal Aid Services Commission was, without question, a legal entity separate from the person holding the position of Executive Director of Legal Aid. This authority does not, in my view, address the question raised on this motion.

[26] The Plaintiff’s pleading that he was employed by the Office of the Ombudsman is not a pleading of a material fact that must be assumed to be true for the purposes of this motion. In my view, this is a pleading of a legal conclusion. If, as the Office of the Ombudsman submits, the Office of the Ombudsman was not a legal entity that was able to enter into an employment contract with the Plaintiff as a matter of law, then the pleaded assertion that the Plaintiff was employed by the Office of the Ombudsman is incapable of proof.

[27] In my view, the Act makes it clear beyond question that the Office of the Ombudsman is a position, or office, to which a person shall be appointed by the Lieutenant Governor in Council on the address of the Assembly. Upon his or her appointment, the person who holds or occupies this position, or office, is, under the Act, an officer of the Legislature. Such an officer is entitled to employ persons as employees, lease premises and acquire equipment, and exercise the powers conferred upon the officeholder under the Act. The duties of the Ombudsman’s office, as referenced in s. 5(1) of the Act, are statutory duties assigned to this office to which the Ombudsman, as the officeholder, shall devote himself or herself. However, there are no provisions in the Act which confer upon the Ombudsman’s office itself, separate from the officeholder, legal rights or powers, or that subject the Ombudsman’s office itself to duties to which the officeholder is not subject.

[28] Therefore, because the Office of the Ombudsman is a position, or office, created by statute, it does not have a separate legal existence from the person appointed by the Lieutenant Governor in Council on the address of the Assembly to hold this position or occupy this office. Neither the Ombudsman’s office nor the Ombudsman has authority under the Act to appoint or reappoint the person to occupy the office. The Plaintiff did not, and could not, have a legal relationship with either himself as the Ombudsman, or with the Office of the Ombudsman, independently of himself, in relation to the claims made in the Statement of Claim.

[29] I accept the submission of the Office of the Ombudsman that the employment related claim that the Plaintiff makes against the Office of the Ombudsman cannot succeed because there are not two separate legal entities and, therefore, there is no contract of employment. I also accept the submission of the Office of the Ombudsman that none of the alleged misrepresentations upon which the Plaintiff relies were made by or can be attributed to the Office of the Ombudsman because the Plaintiff could not make representations to himself and, in any event, none of the alleged representations are alleged to have been made by an employee or agent of the Office of the Ombudsman.

[30] I conclude that the Plaintiff’s Statement of Claim as against the Office of the Ombudsman of Ontario should be struck out on the basis that it is plain and obvious that it discloses no reasonable cause of action.

[31] Because of this conclusion, I do not find it necessary to decide the motion brought by the Office of the Ombudsman under r. 21.01(3)(d).

Motion by Assembly to Dismiss or Stay Action for Lack of Jurisdiction

[32] The motion by the Assembly for an order dismissing or, in the alternative, staying the action as against it for lack of jurisdiction is brought pursuant to section 106 of the Courts of Justice Act and rr. 21.01(1) and 21.01(3)(a) and (d) of the Rules of Civil Procedure.

Positions of the Parties

[33] The Assembly’s motion is founded upon the constitutional doctrine of parliamentary privilege. The Assembly submits that this doctrine protects the exclusive jurisdiction of the Assembly with respect to certain spheres of activity, including with respect to (i) its own proceedings, such as the development and content of an address of the Assembly; and (ii) the appointment of, management of, and decision not to reappoint parliamentary officers who assist the Assembly in fulfilling its functions.

[34] The Assembly submits that this action puts in issue the internal process and procedures of the Assembly in relation to the appointment of a parliamentary officer, the Ombudsman of Ontario, who fulfils part of the Assembly’s role in holding the government to account. The Assembly submits that the hiring, management and firing of officers or employees who are connected with the Assembly’s fulfilment of its functions as a legislative and deliberative body, including the Assembly’s work in holding the government to account, is covered by constitutionally protected parliamentary privilege, and therefore this Court does not have jurisdiction to adjudicate this action against the Assembly.

[35] The Assembly submits that a trial of the action on the merits would require this Court to inquire into the manner in which the Assembly exercised a constitutionally-guaranteed category of parliamentary privilege that has been previously recognized by our courts, including by the Supreme Court of Canada, and by courts in the United Kingdom. The Assembly submits that such an inquiry is beyond this Court’s jurisdiction.

[36] The Plaintiff submits that on a motion to dismiss an action for lack of jurisdiction under r. 21.01(3)(a) there is a high burden on the moving party, and that dismissing a claim on a summary basis should only be granted cautiously and only where it is clear, or plain and obvious, that a trial is unnecessary. The Plaintiff submits that the Assembly has failed to satisfy its onus of proving that parliamentary privilege is applicable or necessary in this case.

[37] Further, the Plaintiff submits that it is uncertain whether the scope of parliamentary privilege extends to the actions of the Assembly in this case, and that a more complete factual context must be established through a proper evidentiary record. The Plaintiff submits that it is premature to decide the issue of parliamentary privilege in this case at the pleadings stage.

Factual Background

[38] As described above, the Act provides that there shall be appointed, as an officer of the Legislature, an Ombudsman to exercise the powers and perform the duties prescribed by the Act. The Ombudsman is appointed by the Lieutenant Governor in Council on the address of the Assembly.

[39] Under the Act, the function of the Ombudsman is to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a public sector body and affecting any person or body of persons in his, her or its personal capacity. The Ombudsman may make any such investigation on a complaint made to him or her by any person affected or by a member of the Assembly to whom a complaint is made by any person affected, or of the Ombudsman’s own motion.

[40] The powers conferred on the Ombudsman by the Act may be exercised despite any provision in any act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect thereof, or that no proceeding or decision of the person or body whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called into question.

[41] In support of this motion, the Assembly filed the affidavit of Deborah Deller, the Clerk of the Assembly, a position she has held since March 31, 2007. Ms. Deller is the chief permanent officer of the Assembly, with the rank and status of Deputy Minister. The clerk is appointed by the Lieutenant Governor in Council at the request of the Speaker of the Assembly acting on the recommendation of an all-party panel of Members of the Legislative Assembly.

[42] In her affidavit, Ms. Deller provided evidence of, among other things, the statutory framework under which the Ombudsman is appointed, the composition of the selection panel that is formed to select the person to be chosen to become the Ombudsman, the process followed by the selection panel, the Assembly’s general rules for the guidance of the Ombudsman in the exercise of his or her functions, the appointment and reappointment of the Plaintiff as Ombudsman, the decision by the Assembly not to reappoint the Plaintiff for a third term, and the payments made to the Plaintiff when he was not reappointed for a third term.

[43] In his affidavit, the Plaintiff provided evidence of his initial appointment, his reappointment, the documents provided to him relating to the terms of his employment, job advertisements for the position of Ombudsman in 2015 and a letter dated October 1, 2015 from a human resources officer on the letterhead of Ombudsman Ontario sending the Plaintiff’s Record of Employment and amended Record of Employment.

Jurisdiction to Stay or Dismiss this Action

[44] This court has inherent jurisdiction to stay any proceeding on such terms as it considers just, as codified in section 106 of the Courts of Justice Act.

[45] Pursuant to r. 21.01(3)(a), this court may order that an action be stayed or dismissed where the court has no jurisdiction over the subject matter of the action and, pursuant to r. 21.03(d), the court may order the dismissal of an action that is frivolous or vexatious or is otherwise an abuse of the process of the court.

[46] The court’s jurisdiction to stay a proceeding on such terms as are considered just includes where there is no jurisdiction in the court to grant a remedy. An action may be vexatious if the court has no power to grant the relief sought: Foy v. Foy (No. 2), 1979 1631 (ON CA), [1979] O.J. No. 4386 (C.A.) at para. 21.

No Jurisdiction to Inquire Into the Exercise of a Category of Parliamentary Privilege

[47] The doctrine of parliamentary privilege was addressed by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319. In New Brunswick Broadcasting, McLachlin J., as she then was, writing for the majority, quoted, at para. 21, from Joseph Maingot, Parliamentary Privilege in Canada (Toronto: Butterworths, 1982) where the author provided the following general definition of the doctrine of parliamentary privilege:

Parliamentary privilege is the necessary immunity that the law provides for members of Parliament, and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authority and power of each House of Parliament and of each legislature to enforce that immunity.

McLachlin J. also explained the historical tradition of parliamentary privileges, at para. 117:

I turn first to the historical tradition of parliamentary privileges. “Privilege” in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

[48] In New Brunswick Broadcasting, McLachlin J. explained the importance of proper deference of each branch of government to the other, at paras. 141-142:

I add this. Our democratic government consists of several branches: the Crown, as represented by the Governor General, and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

Traditionally, each branch of government has enjoyed autonomy in how it conducts its affairs.

[49] Because parliamentary privileges enjoy constitutional status and one part of the Constitution cannot abrogate another part of the Constitution, the exercise of parliamentary privilege is not subject to the Charter of Rights and Freedoms, as are ordinary laws: New Brunswick Broadcasting, and paragraphs 144 and 153; Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, at para. 69.

[50] The role of the courts is to determine the existence and scope of categories or spheres of parliamentary privilege. However, after the courts have recognized a category of matters as privileged, they have no jurisdiction to deal with claims relating to conduct falling within that privilege category. In Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, Binnie J., writing for the Court, held, at para. 4: “The purpose of privilege is to recognize parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity” (emphasis in original).

[51] The court must determine whether the existence and scope of a category of privilege has been proven. In making this determination, the court must apply the test of necessity. This test was described by McLachlin J. in New Brunswick Broadcasting, at para. 123:

The test of necessity is not applied as a standard for judging the content of a claim to privilege, but for the purpose of determining the necessary sphere of exclusive or absolute “parliamentary” or “legislative” jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

Whether a matter falls within a category or sphere of matters without which the “dignity and efficiency” of the House cannot be upheld is for the court to decide.

[52] In Vaid, Binnie J. explained how the test of necessity is applied, at para. 29(9):

Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not be shown to be necessary” (New Brunswick Broadcasting, at p. 343 (emphasis added [by Binnie J.])).

[53] In Vaid, Binnie J. summarized his review of sources describing the test of necessity in relation to parliamentary privilege, at para. 46:

All of these sources point in the direction of a similar conclusion. In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

Binnie J. confirmed that the party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence: Vaid, at para. 29 (8).

Whether the Plaintiff’s Claims Relate to Privileged Spheres of Activity

[54] The Assembly submits that the Plaintiff’s claims go to the heart of the Assembly’s autonomy. It submits that these claims fall within two categories of parliamentary privilege:

a. The Assembly’s ability to control its own internal proceedings, including its development (in part through its all-party selection panel chaired by the Speaker) and delivery of an address of the Assembly (that address being a proceeding of the Assembly); and b. The Assembly’s hiring of, management of, and decision not to reappoint a parliamentary officer or employee whose role relates directly to its work in holding the government to account for the conduct of the province’s business.

[55] In support of this submission, the Assembly cites the following passage from the decision of the Supreme Court of Canada in Vaid, at para. 20:

It is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent importance of the House of Comments as “the grand inquest of the nation”. Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a member of the House of Comments who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.

The Assembly submits that similar concerns arise in relation to the action brought by the Plaintiff, and that the delay, disruption, uncertainty and cost of holding up the province’s business so that the Speaker, Government House Leader, Opposition House Leader and MPPs on the selection panel can be drawn into litigation about their development of the address to appoint another person as Ombudsman for the current term would be unacceptable under our Constitution.

[56] The decisions of the Supreme Court of Canada in New Brunswick Broadcasting at paras. 127-129 and of the Ontario Court of Appeal in Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), 2001 8549 (ON CA), [2001] O.J. No. 2180 (C.A.) at para. 26 have held that the Assembly’s ability to control its own internal proceedings is a necessary category of conduct that receives the constitutionally-entrenched protection of parliamentary privilege.

[57] The Assembly submits that the fact that all of its conduct at issue relates to the hiring of, management of, and decision not to re-appoint a parliamentary officer who reports directly to the Assembly on matters of governmental accountability also engages the second category of privilege described by the Assembly. The Assembly acknowledges that parliamentary privilege does not extend to parliamentary employees who play no role in the discharge of the Assembly’s constitutional functions, such as the chauffeur who was the plaintiff in Vaid.

[58] The Assembly submits that the Ombudsman is directly connected to the core of the Assembly’s legislative and deliberative functions, and its role in holding government to account and, therefore, the Ombudsman falls into that category of individuals whose relationship with the Assembly is covered by parliamentary privilege. On this basis, the Assembly submits that its decision not to reappoint the Ombudsman is beyond the jurisdiction of this court’s review.

[59] In response, the Plaintiff makes two main submissions:

a. It is premature to decide whether the court lacks jurisdiction over the Plaintiff’s action because of the application of parliamentary privilege because: i. The factual context surrounding the Plaintiff’s employment as Ombudsman, including the underlying statutory scheme and his employment contracts, is relevant and necessary to the determination of whether parliamentary privilege exists in this case to deprive the court of jurisdiction. ii. Other courts that have considered the application of parliamentary privilege in an employment law context have been reluctant to decide whether such privilege applies at a preliminary stage of the proceedings. iii. No case has considered whether the Ombudsman of Ontario falls within the scope of a recognized category of parliamentary privilege. b. When tested against the doctrine of necessity, the Assembly has not demonstrated that the sphere of activity for which privilege is claimed – which includes the circumstances surrounding the termination of the plaintiff’s employment and the alleged failure to provide him with common law and statutory notice – falls within the scope of a recognized category of parliamentary privilege.

[60] In relation to the Plaintiff’s first submission, he accepts that privilege attaches to the Assembly’s relations with some of its employees. However, the Plaintiff submits that it is uncertain whether the scope of the applicable privilege extends to the actions of the Assembly in this case.

[61] The Plaintiff relies upon the decision of the Supreme Court of Canada in Vaid, and decisions of other courts involving persons making claims arising from employment relationships.

[62] In Vaid, the plaintiff was the chauffeur to the Speaker of the House of Commons who made a complaint to the Canadian Human Rights Commission following notification that his former position would be made surplus. The Speaker and the House of Commons challenged the jurisdiction of the tribunal, claiming that the Speaker’s power to hire, manage and dismiss employees was privileged and therefore immune to external review. Binnie J. addressed whether the privilege claimed is supported as a matter of principle under the necessity test. He observed that a broad range of services were provided by employees of the House of Commons, and posed the question of whether the management of all employees is so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly or, in other words, whether immunity from outside scrutiny in the management of all service employees is such that without it, the House and its members could not discharge their functions.

[63] In addressing this question Binnie J. wrote:

I have no doubt that privilege attaches to the House’s relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all. We are required to make a pragmatic assessment but we have been given no evidence on which a privilege of more modest scope could be delineated.

Binnie J. concluded that the Speaker and the House of Comments had failed to establish the privilege in the broad and all-inclusive terms asserted.

[64] The Plaintiff also relies upon Thompson v. McLean, [1988] O.J. No. 2070 (Gen. Div.). In that case, the plaintiff was employed as special assistant to the former Speaker of the Assembly and brought an action for damages for wrongful dismissal and respecting her former employer’s response to allegations of sexual harassment. The Assembly moved to strike out the statement of claim under rule 21.01 on the ground that the court lacked jurisdiction because of parliamentary privilege. The motion judge held that one major issue which can only be determined at trial after hearing evidence is whether the plaintiff was hired privately through unorthodox procedures that did not involve the Assembly’s office of human resources, or whether her employment was governed by the provisions of the Legislative Assembly Act or by a separate protocol established in the office of the Speaker. In Thompson, unlike this case, no evidence was filed.

[65] The motion judge in Thompson concluded, at paras. 24-25, that although there may be cases where the functional test of necessity can be applied based on the pleadings, in this case there were too many factual possibilities to determine whether the case engages matters within the protected core of parliamentary privilege. Nevertheless, the motion judge did strike out parts of the claim alleging that the Office of the Legislative Assembly was liable because it had failed to insist that the former Speaker not continue as Speaker during the investigation of the sexual harassment complaint, writing at para. 69:

That allegation strikes directly into the protected core of parliamentary and political privilege. The election of a Speaker to his office and the decision to jettison a Speaker are not administrative or personnel decisions of the Office. They are political decisions made by members of the Legislative Assembly. It is not for the Court to inquire into the political decision, whether a Speaker should continue in office.

This decision in Thompson reflects a recognition that decisions involving appointment of parliamentary officers fall within a privileged sphere.

[66] I do not agree that it is premature to decide whether the Assembly has satisfied its onus to prove that the doctrine of parliamentary privilege applies in this case. The statutory scheme is known, and evidence has been tendered by both the Assembly and the Plaintiff concerning the circumstances surrounding the decision not to reappoint the Plaintiff to the office of Ombudsman. In my view, it is unnecessary for the parties to proceed through the discovery process and to trial in order to establish a more complete factual context for the court to decide whether parliamentary privilege applies in this case to deprive the court of jurisdiction. The facts in evidence on this motion are fully sufficient for the court to make this decision. To require the parties to proceed through discovery and trial would, in my view, undermine the fundamental purpose behind provisions such as r. 21.01 which is to remove from the court system at the earliest opportunity those cases that, for any of the stipulated defects, ought not to be permitted to proceed: Martin v. Ontario, [2004] O.J. No. 2247 at paras. 44-45.

[67] I also observe that in other cases, the court has decided at a preliminary stage whether it has jurisdiction over the subject matter of an action because of parliamentary privilege: Martin; Zundel v. Liberal Party of Canada, 1999 14889 (ON SC), [1999] O.J. No. 74, aff’d 1999 2190 (ON CA), [1999] O.J. No. 4244 (C.A.); Guergis v. Novak, 2012 ONSC 4579.

[68] I conclude that the evidentiary record on this motion is sufficient for me to decide whether the Assembly has met its onus in this case, and this motion is not premature.

[69] The Plaintiff’s expressed his second main submission at para. 79 of his factum:

Moreover, when tested against the doctrine of necessity, the Assembly has not demonstrated that the sphere of activity for which privilege is claimed - which includes the circumstances surrounding the termination of the Plaintiff’s employment and the Defendants’ failure to provide him with common law and statutory notice - “is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.” [Citing Vaid, at para. 46]

[70] In my view, in making this submission, the Plaintiff has taken the wrong approach. The question is not whether the process leading to the decision not to reappoint the Plaintiff to the office of Ombudsman - which would involve consideration of the circumstances described by the Plaintiff - is necessary. This question relates to the exercise by the Assembly of a particular category of privilege. The necessity test involves asking a different question, whether the categories of parliamentary privilege - the Assembly’s exclusive control over its own proceedings and its decision making in respect of appointment or reappointment of a parliamentary officer whose role relates to the Assembly’s work in holding government to account - are necessary because without such privilege, the dignity and efficiency of the Assembly cannot be upheld. Answering this question does not require consideration of the circumstances described by the Plaintiff: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 2001 8549 (ON CA), 54 O.R. (3d) 595 (C.A.) at paras. 22-26.

[71] The Plaintiff submits that because he is not seeking a right of reinstatement, a successful claim would not impair the work of the Assembly or any of its members. The Plaintiff submits that, if he is successful, his only entitlement would be to damages and the Assembly’s concerns will not materialize. I disagree. An adjudication of the Plaintiff’s claim would require the court to hear evidence concerning the conduct of the Assembly in relation to its motives and its internal process leading to the decision not to reappoint the Plaintiff to the office of Ombudsman. The Plaintiff’s claim for damages, if it were to proceed to adjudication, would still require the Assembly to be subject to an external review by the court of a matter within its exclusive jurisdiction.

[72] I conclude that this action puts into issue the internal process and procedures of the Assembly in relation to the appointment of a parliamentary officer, the Ombudsman of Ontario, who fulfills part of the Assembly’s role in holding the government to account. I agree with the Assembly that a trial of this action would require the court to inquire into the manner in which the Assembly exercised recognized and constitutionally-guaranteed categories of parliamentary privilege that are within the exclusive jurisdiction of the Assembly. These categories are with respect to (i) the Assembly’s own internal proceedings, including development and delivery of an address of the Assembly, and (ii) the Assembly’s hiring of, management of and decision not to reappoint a parliamentary officer whose role relates to the Assembly’s work in holding government to account for the conduct of the province’s business.

[73] Therefore, this court does not have jurisdiction to adjudicate this action against the Assembly.

Disposition

[74] The motion brought by the Office of the Ombudsman to strike out the Statement of Claim on the ground that it discloses no reasonable cause of action is granted. The Plaintiff’s Statement of Claim is struck out.

[75] The motion by the Assembly to dismiss the action as against it on the ground that the court has no jurisdiction over the subject matter of the action is granted. The Plaintiff’s action as against the Assembly is dismissed for lack of jurisdiction.

[76] If the parties are unable to agree on costs, the Office of the Ombudsman and the Assembly are directed to make written submissions with respect to costs within thirty days, limited to five pages excluding the costs outlines. The Plaintiff has fifteen days thereafter to make written submissions in response, limited to five pages for his response to each of the Office of the Ombudsman and the Assembly (no more than ten pages in total).

The Office of the Ombudsman and the Assembly may make reply submissions, if so advised, within five days thereafter, limited to two pages.

Mr. Justice P.J. Cavanagh Released: March 15, 2017