Indexed as:
Henley v. Atlantic Provinces Special Education Authority
(N.S.C.A.)



Between
Douglas L. Henley, Appellant
and
Atlantic Provinces Special Education Authority, Respondent


Nova Scotia Judgments: [1986] N.S.J. No. 93

Action S.C.A. No. 01509

72 N.S.R. (2d) 399

 

 Supreme Court of Nova Scotia - Appeal Division
Halifax, Nova Scotia

Hart, Jones and MacKeigan JJ.A.

Heard: January 17, 1986
Judgment: January 22, 1986

Collective agreement -- Enforcement -- Bar to action -- Jurisdiction of court -- Collective agreement providing grievance procedure for dismissal -- Employee alleging constructive dismissal bringing action for damages -- Dispute involving interpretation of collective agreement -- Provision requiring arbitration constituting bar to action -- Application for leave to appeal decision allowing interlocutory application to strike out statement of claim and dismiss action against respondent dismissed -- Trade Union Act, S.N.S. 1972, c. 19, ss. 40 (1), (3).

This was an application for leave to appeal a decision in Chambers allowing the interlocutory application by the respondent. Atlantic Provinces Special Education Authority, to strike out the applicant's statement of claim and dismiss his action against the respondent. For the facts and decision in respect of the subject matter of this application see 86 DRS P48-148.

HELD: The application was dismissed. The collective agreement was a complete bar to the action. The decision in Chambers was in accord with a number of decisions in the Province of Nova Scotia, including the decision of the Court in Binder v. Halifax County Municipal School Board (see 78 DRS P26-966). Having regard to the provisions of the Trade Union Act and the collective agreement in this case the Chambers judge was bound to follow the Binder case and was correct in doing so. In the Binder case the Court applied the decision of the Supreme Court of Canada in Brunet v. General Motors of Canada Ltd. (see 77 DRS P48-219).

Mark H. Arnold and Paul Thomas for the Appellant.

Eric B. Durnford and Marcia Ruitenberg for the Respondent.





THE COURT:-- Application for leave to appeal dismissed per reasons for judgment by Jones J.A.; Hart and MacKeigan JJ.A. concurring.

JONES, J.A.: -- This is an application for leave to appeal by Douglas L. Henley from a decision of Mr. Justice Grant, in Chambers, allowing the interlocutory application of the Atlantic Provinces Special Education Authority, the respondent, to strike out the appellant's statement of claim and dismiss his action against the respondent. This was an appropriate application under Rule 25 to determine a preliminary question of law.

The appellant at all material times was an employee of the respondent at the Atlantic Provinces Resource Centre for the Hearing Handicapped in Amherst, Nova Scotia. This employment commenced in 1977 and concluded on April 30, 1985.

On August 14, 1985 the appellant commenced the present action for wrongful dismissal claiming that he resigned his employment effective April 30, 1985 in response to an alleged demand by the respondent that he do so, failing which he would be dismissed summarily.

On September 17, 1985 the interlocutory application by the respondent was heard in Chambers. The respondent submitted that the appellant, as a member of the union, which at all material times was a party to a collective agreement with the respondent, was barred from bringing a wrongful dismissal action at common law. The collective agreement contains provisions for the appointment and dismissal of employees. Disputes are to be settled by arbitration and in fact a grievance was filed claiming a retirement allowance.

After extensively reviewing the authorities Mr. Justice Grant held that the appellant had to resort to the agreement and therefore the Court has no jurisdiction to entertain the action. The collective agreement is a complete bar to the action. That decision was in accord with a number of decisions in this Province, including the decision of this Court in Binder v. Halifax County Municipal School Board, 24 N.S.R. (2d) 504. Sub-sections (1) and (3) of s.40 of the Trade Union Act, Stats. N.S.1972, c.19, provide as follows:




Having regard to the provisions of the Trade Union Act and the collective agreement in this case the learned trial Judge was bound to follow the Binder case and was correct in doing so. In the Binder case this Court applied the decision of the Supreme Court of Canada in Brunet v. General Motors of Canada Ltd. (1977), 13 N.R. 233. We are therefore of the opinion that the application for leave to appeal must be dismissed with costs to be taxed.

Jones J.A.

 



Concurred in:



Hart, J.A., MacKeigan J.A.