IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Dalstrom v. Organized Crime Agency of BC, |
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2008 BCSC 844 |
Date: 20080609
Docket: S062389
Registry: Vancouver
Between:
Allen Dalstrom
Plaintiff
And:
Organized
Crime Agency of British Columbia Society, David Douglas,
Kevin Begg, and Her Majesty the Queen in Right of the Province of
British Columbia
Defendants
- and -
Docket: S078497
Registry: Vancouver
Between:
Allen Dalstrom
Petitioner
And:
Organized Crime Agency of British Columbia,
The Organized Crime
Agency of British Columbia Society and The Chief Officer of
the Organized Crime Agency of British Columbia
Respondents
Before: The Honourable Madam Justice Wedge
Oral Reasons for Judgment
In Chambers
June 9, 2008
| Counsel for the Plaintiff |
M. K. Woodall |
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| Counsel
for the Defendants Organized Crime Agency of British Columbia Society
and David Douglas |
David G. Butcher |
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| Counsel
for the Defendants Her Majesty the Queen and Kevin Begg |
J. D. Eastwood Karen Horsman |
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Place of Trial/Hearing: |
Vancouver, B.C. |
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[1] THE COURT: Allen Dalstrom has initiated both an action by statement of claim and an application for judicial review by petition. The remedies he seeks in both the action and the petition arise from his termination as a designated constable of the Organized Crime Agency of British Columbia (“OCABC”).
[2] Mr. Dalstrom applies for four orders:
(1) an order amending his statement of claim;
(2) an order that the Justice Development Commission be added as a defendant in the action and the style of cause amended accordingly;
(3) an order that the petition be heard as a trial pursuant to Rule 52(11)(d); and
(4) consequent upon the previous order, an order that the two trials be heard at the same time pursuant to Rule 5(8), with the evidence in each being evidence in both
[3] The respondents OCABC and its chief officer, David Douglas, take no position with respect to the application concerning the Justice Development Commission, but oppose the orders concerning the proposed amendments to the statement of claim, the hearing of the petition by way of trial, and the joining of the two actions.
[4] The respondents Her Majesty in Right of the Province (the “Province”) and Kevin Begg agree that the Justice Development Commission ought to be added as a party defendant but also oppose the granting of the remaining orders sought.
[5] The trial of the action is scheduled to commence in September of this year. In the interests of time, given the looming trial date, I am providing oral reasons for judgment concerning these applications.
[6] By way of background, the Justice Development Commission (“JDC”) was created by the province pursuant to the Justice Administration Act, R.S.B.C. 1996, c. 243. In February of 1999, the members of the JDC applied to form a designated law enforcement agency and designated policing unit to be called the Organized Crime Agency of British Columbia. The primary responsibility of OCABC is to combat organized crime in British Columbia.
[7] The defendant Kevin Begg was the Director of Police Services for the Province and a member of the JDC at the time. On March 11, 1999, the Lieutenant Governor in Council approved the application of the JDC to form OCABC pursuant to s. 4.1(7) of the Police Act, R.S.B.C. 1996, c. 367. Section 4.1(7) states as follows:
If the Lieutenant Governor in Council approves the application, the minister must establish, on behalf of the entity and in accordance with the terms of the application,
(a) a designated policing unit, and
(b) a designated board.
[8] For purposes of this application, it suffices to say that the parties disagree as to the legal implications of the process by which OCABC was created. The legal status of OCABC is relevant because Dalstrom asserts that OCABC is merely a department or branch of government and not a separate legal entity or person. If that is the case, then the Province may be liable for damages and debts of JDC and OCABC. The Province does not acknowledge that it is liable for debts and damages payable by JDC. Its position is that the JDC is jointly and severally liable for torts committed by designated constables of OCABC.
[9] There is an issue as to whether either the JDC or OCABC has assets. According to OCABC, it has no assets and no independent budget, so would not be able to pay a significant award of damages. Thus the true nature of the relationship between the province, the JDC and OCABC is in issue in both the action and the petition.
[10] One of the responsibilities of the defendant Begg was the recruiting of police officers to join OCABC. Dalstrom was recruited to OCABC in the year 2000. Prior to that, Dalstrom was a police officer with the Vancouver Police Department (“VPD”). His employment relationship with the VPD was governed by the provisions of the Police Act, including Part 9 of the Act which deals with discipline and termination of police officers. Under the Police Act, a police officer cannot be terminated unless he or she becomes medically unfit or is dismissed in accordance with the specific and detailed provisions of Part 9.
[11] In his action, Dalstrom alleges that Begg recruited him to OCABC in August of 2000. At that time Dalstrom had been seconded to become the supervisor of OCABC’s Outlaw Motorcycle Gang Team but was still employed by the VPD. Dalstrom alleges that Begg induced him to leave the VPD by representing that he would have the same employment security of tenure that he had with the VPD pursuant to the Police Act. Some support for that assertion is found in the written application submitted by the JDC to the Lieutenant Governor in Council for the creation of OCABC in February of 1999. The application states, in part, the following:
Complaints about the conduct of members of BC municipal police departments assigned to OCABC and to designated constables will be processed in accordance with Part 9 of the Police Act.
[12] On July 31, 2000, Dalstrom resigned his position with the VPD and joined OCABC as Supervisor of Operational Teams. He was appointed as a designated constable of OCABC on August 11, 2000. His appointment was signed by the chair of the governance board of OCABC. On the face of the appointment document, Dalstrom’s appointment was made pursuant to ss. 4.1(11) and 4.2 of the Police Act. In that role, Dalstrom was involved in an investigation known as Project Phoenix whose objective was apparently to gather evidence concerning the illegal activities of certain persons involved in organized crime in British Columbia.
[13] On July 26, 2002, a regulation known as the Organized Crime Agency of British Columbia Complaints and Operations Regulation, B.C. Reg. 229/2002, came into force. The regulation stipulated that Part 9 of the Police Act (which are the disciplinary provisions of the Act), as well as the Code of Professional Conduct Regulation, B.C. Reg. 205/98 (promulgated under the Police Act), applied to officers of OCABC.
[14] During 2002 and 2003, a series of investigations into the operations of Project Phoenix were commissioned, apparently by the RCMP, but no findings of misconduct were made against Dalstrom or OCABC. However, in November 2002 Dalstrom was removed from his duties as supervisor of the Outlaw Motorcycle Gang Team and a letter of expectation was placed on his file. The letter of expectation referred to “inappropriate behaviours” and “management and leadership deficiencies” among other things. Investigations into the allegations ensued. It is alleged in the statement of claim that the investigation found no wrongdoing on the part of Dalstrom. However, OCABC did not reinstate him to his former position.
[15] The operations of OCABC came under the effective supervision and control of the RCMP in late 2003. On December 17, 2003, Dalstrom was relieved of all of his policing duties and sent home. He was placed on a type of leave known as “pager time”. By letter dated February 5, 2004, signed by Douglas, Dalstrom was advised that he was being placed on paid administrative leave due to a lack of suitable work assignments available for him. He was advised that he would remain on administrative leave while OCABC “explored other options”. Dalstrom alleges that neither Douglas nor anyone else within OCABC advised him of the basis for removing him from his policing duties. For reasons that are not clear, there is no documentary record disclosing the basis for his removal.
[16] Dalstrom’s appointment as a designated constable with OCABC was due to expire April 30, 2004. On April 21, 2004, the chair of the governance board of OCABC, Beverly Busson, signed a new appointment which, according to the document, was to run from the time of signing to the 30th of April, 2009, or “on such earlier date as the appointment is revoked.” At the time, Busson was also the commanding officer of the RCMP’s British Columbia Division and the Commissioner of the Provincial Police Force pursuant to the Police Act. Once again, the appointment signed by Busson was made pursuant to ss. 4.11 and 4.2 of the Police Act. It is not apparent from the materials filed in the petition whether this newly signed appointment is legally significant.
[17] By letter dated July 19, 2004, Douglas, as chief officer of OCABC, advised Dalstrom that:
Following careful deliberation by the board, the decision has been made to terminate your employment effective July 30, 2004.
The letter contained an offer to continue Dalstrom’s pay and benefits for a period of 12 months or until he obtained other employment, whichever occurred first.
[18] The termination letter did not contain any reasons for the termination nor did it identify the person or persons who actually made the decision to terminate.
[19] Dalstrom refused the offer of severance and was then terminated. He initiated an action by writ and statement of claim on April 11, 2006. He claimed damages for wrongful dismissal, defamation, and misfeasance of public office. In an amended statement of claim filed on October 6, 2006, Dalstrom sought reinstatement to his position with OCABC as an alternative form of relief.
[20] The statement of defence filed by OCABC alleged cause for dismissal. Particulars of the defence were filed by OCABC and Douglas on November 20, 2006. The particulars allege numerous violations of the Police Act and the Code of Professional Conduct Regulation in respect of three matters:
(1) Dalstrom’s management of Project Phoenix;
(2) his management of his relationships with two employees; and
(3) his participation in an interview with a journalist who wrote a book about motorcycle gangs.
All three grounds for dismissal contain allegations that Dalstrom failed to meet the standards of conduct set by the Police Act and the regulation.
[21] In June 2007, counsel for OCABC advised counsel for Dalstrom that, in his view, the remedy of reinstatement was not available to Dalstrom in an action for wrongful dismissal. Dalstrom’s counsel was also advised that if Dalstrom wished to pursue that remedy, he would have to do so by commencing an application for judicial review under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, (“JRPA”). Such an application must be originated by petition in accordance with our Rules of Court.
[22] Douglas was examined for discovery in November 2006. Busson was scheduled to be examined in June 2007, but that examination was cancelled unilaterally by OCABC. A rescheduled examination occurred in September 2007. Dalstrom’s counsel made numerous requests for information and documents further to the examinations for discovery, and received responses to those requests in February of this year.
[23] The petition was filed December 13, 2007. Pursuant to the petition, Dalstrom seeks, among other relief, a declaration that the decision to terminate him is a nullity firstly, because it was made without jurisdiction, and secondly, because it was made in contravention of Part 9 of the Police Act. Dalstrom seeks a declaration that he continues to be a designated constable until his employment status has been reviewed in accordance with the procedures contemplated by Part 9 of the Police Act.
[24] The petition raises the question of whether the OCABC board exceeded its jurisdiction either by taking into account irrelevant and improper considerations in terminating Dalstrom or by failing to follow the detailed process stipulated by Part 9 of the Police Act.
[25] In the action commenced by Dalstrom it is alleged that:
(1) OCABC had no substantive grounds to terminate Dalstrom under his contract of employment. Dalstrom denies committing any act contrary to the Code of Professional Conduct Regulation or the Police Act generally.
(2) OCABC and Douglas deliberately evaded the procedural protections provided to Dalstrom by Part 9 of the Police Act.
(3) Douglas and Busson caused OCABC to terminate Dalstrom’s employment for ulterior and extraneous reasons knowing that the termination was unlawful and foresaw that he would be injured by their conduct.
(4) Because police officers are holders of a civil office their employment relationship is governed not only by the law of contract, but by the principles of administrative law. For that reason, both the statutory and common law procedural regimes are part of Dalstrom’s contract of employment. That is to say, Dalstrom can be terminated only in accordance with the principles of natural justice standing on their own or as codified by Part 9 of the Police Act.
[26] If Dalstrom proves his allegations that Douglas and Busson caused his termination without cause and for ulterior purposes knowing their actions were unlawful and would injure the plaintiff, he will have established the commission of the tort of misfeasance of public office. He will also have established breaches of his contract of employment, the statutory provisions of the Police Act and the principles of natural justice. For these reasons, Dalstrom argued that the facts underlying the cause of action in contract, the cause of action in tort and the claim for relief under the petition are substantially the same.
[27] Dalstrom submitted that the petition was filed because the remedies available under the JRPA are arguably available only in an originating application commenced by petition. That, said Dalstrom, does not change the legal or factual case raised in the action or change the remedies that he seeks.
[28] OCABC and the Province argued on several bases that the petition should not be converted to a trial and heard at the same time as the trial of the action.
[29] First, petitions under the JRPA are presumptively heard summarily: Auton (Guardian Ad Litem of) v. British Columbia (Minister of Health) (1999), 87 A.C.W.S. (3d) 434 (S.C.).
[30] Second, there is a general rule against consolidating originating applications and actions: Hardy Bay Inn Ltd. v. Hughes (c.o.b. as Hughes Plumbing and Heating) (1982), 36 B.C.L.R. 317 (Co. Ct.).
[31] Third, the issue raised by the petition is whether OCABC was bound by the statutory requirements of the Police Act, and if so, whether it failed to comply with them. Those, said the defendants / respondents, are strictly legal questions resting solely on the question of whether the Police Act applies in these circumstances, and, if so, the proper interpretation of the relevant Police Act provisions.
[32] OCABC argued that a hearing of the petition would resolve, in the context of a fairly simple summary hearing, whether the decision to terminate Dalstrom was made without jurisdiction. This, it said, is a fundamental issue, the resolution of which will resolve many, although not all, of the issues in the action. Hence, submitted OCABC, the petition should be heard in a summary way on the basis of the affidavit evidence, in the same manner as the vast majority of petitions are heard, and should be dealt with in advance of the trial.
[33] I will address first the issues of whether the petition should be heard as a trial and joined with the trial of the action and then turn to the issues concerning amendments to the pleadings.
[34] The first question, then, is whether the petition should be heard as a trial. Rule 52(11)(d) provides as follows:
(11) On an application the court may
...
(d) order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application.
[35] Rule 52(11)(d) has been applied by this court in several cases to convert a petition commenced under the JRPA to a trial: Haagsman v. British Columbia (Minister of Forest), [1998] B.C.J. No. 2735 (S.C.); Mowat v. British Columbia, [1990] B.C.J. No. 752 (S.C.); Gloucester Properties Ltd. v. Her Majesty the Queen in Right of the Province of British Columbia, [1980] B.C.J. No. 153 (S.C.); and Taku River Tlingit First Nation v. British Columbia, [1999] B.C.J. No. 984 (S.C.).
[36] In Auton it was held that it was not appropriate to order a trial of proceedings commenced as a petition under the JRPA. However, the principal question in Auton was whether a class action could be certified when the principal remedy being sought was an order in the nature of mandamus to force the government to fund a program for autistic children. In reaching its decision, the court did not consider the earlier decision of Sigurdson J. in Haagsman.
[37] Other decisions since Auton have either distinguished it or declined to apply it in the particular circumstances of the case: Johnson v. British Columbia, [2007] B.C.J. No. 31 (S.C); Williams v. College Pension Board of Trustees, [2005] B.C.J. No. 1211 (S.C.); Karbalaeiali v. Canada (Deputy Solicitor General Employment Standards Branch), [2006] B.C.J. No. 295 (S.C.).
[38] It is common ground that Dalstrom was employed by OCABC under a contract of employment. In the broadest sense, the statement of claim and petition both allege that Dalstrom was dismissed without legal justification and for ulterior or improper purposes. The defendants join issue with these allegations.
[39] The contentious issue is the scope of Dalstrom’s contract of employment, and what precisely the terms of that contract are. The issue is complex because it involves the possible intersection of the Police Act, pursuant to which OCABC was created, and the status of designated constables appointed by OCABC under powers granted to it pursuant to the Police Act. Dalstrom’s appointment was made, on its face, pursuant to s. 4.1(11) of the Police Act. Under that section, the board of OCABC is a designated board which appoints persons suitable as designated constables. Subsection 12 of s. 4.1 provides as follows:
(12) A person appointed under subsection (11) is
(a) appointed for the term specified in the appointment, and
(b) subject to the terms of employment determined by the entity.
[40] Part 9 of the Police Act applies generally to the discipline of police officers in the province. It became expressly applicable to OCABC employees on July 26, 2002, by the Organized Crime Agency of British Columbia Complaints and Operations Regulation. Section 2(a) of the regulation provides that Part 9 of the Police Act applies to OCABC “as though each reference in Part 9 to municipal constable was a reference to a designated constable” of OCABC.
[41] Section 3(a) of the regulation stipulates that the Code of Professional Conduct Regulation also applies to designated constables of OCABC. However, as noted earlier, the application by the JDC under s. 4.1(7) of the Police Act for the establishment of OCABC stated that complaints about the conduct of designated constables of OCABC would be processed in accordance with Part 9 of the Police Act.
[42] Dalstrom’s letter of termination dated July 19, 2004, does not state whether he was terminated for cause. It provides no reasons for his termination. Neither Busson nor Douglas swore affidavits in response to the petition. The only affidavit filed by the respondents was one sworn by a legal assistant to counsel for OCABC. The affidavit appends several letters concerning Dalstrom’s appointment as a designated constable, including the letter of expectation issued in 2002, the letter of February 5, 2004, placing him on administrative leave, again without any reasons for doing so, and the termination letter.
[43] When Dalstrom commenced the action for wrongful dismissal in 2006, he had still not been provided with written reasons for his termination. It was not until particulars of the allegations contained in the statement of defence of OCABC were delivered in November 2006 that Dalstrom learned that he had been terminated for the reasons I have already described.
[44] In the particulars to the statement of defence, OCABC alleged that Dalstrom breached the standards of professional conduct prescribed by the regulation to the Police Act. However, in defence of the petition, OCABC takes the position that the disciplinary procedures of the Police Act do not apply to Dalstrom. While that is OCABC’s legal argument, the basis for it is not immediately apparent. Nor has any member of OCABC or the JDC has sworn an affidavit that might provide a factual basis for the argument. There is no evidence at all filed in response to the petition, much less any evidence as to the reasons for Dalstrom’s termination or the conduct OCABC says gave it cause to terminate him.
[45] Counsel for OCABC advised that one of its arguments will be that the Complaints and Operations Regulation was not passed until July 2002, while Dalstrom’s alleged misconduct occurred prior to that time. The difficulty is that there is no evidence of any misconduct on the part of Dalstrom that has been filed in response to the petition, much less evidence of conduct occurring before July 2002. Further, it is not at all clear that Part 9 of the Police Act did not apply to Dalstrom from the time of his appointment. Whether or not it did is not strictly a legal question, it is also a factual one.
[46] As noted by the Supreme Court of Canada in its recent decision of Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 113, the starting point in any analysis of this sort is the nature of the employment relationship with the public authority in question. A public employer who dismisses an employee may or may not owe a duty of fairness to that employee. Such a duty may arise expressly or by necessary implication from the statutory power governing the relationship. Whether such a statutory power governs in this case will depend on the terms of the employment contract and the employment relationship generally. In the circumstances of the present case, that inquiry is at least in part an evidentiary one.
[47] There is a multitude of administrative law powers and duties that arise from the Police Act. Some may apply to OCABC and its relationship to its employees. Even if Part 9 of the Police Act does not apply to Dalstrom, he asserts that under the common law he enjoyed substantive and procedural rights similar to those provided by the Police Act. That assertion, too, requires a factual inquiry as well as a legal one.
[48] At a minimum, there will likely be evidence as to the expectations and understandings of various parties as to the application of Part 9 of the Police Act to OCABC from its inception. As already noted, s. 4.1(12) of the Police Act, which unquestionably applies to Dalstrom, provides that a person appointed under subsection (11) is not only appointed for the term specified in the appointment, but is subject to the terms of employment with OCABC. The central factual question is, what were those terms of employment? That is a factual inquiry underlying both the action and the petition, and is one that is not possible to make in a summary hearing of the petition on the affidavit materials filed.
[49] There is also the issue of the juridical relationship between OCABC, the province and the JDC. In my view that issue cannot be determined in a summary hearing of the petition on the materials filed.
[50] As noted earlier, the statement of claim also alleges that Douglas and Busson caused OCABC to terminate Dalstrom for ulterior purposes, knowing the termination was unlawful and knowing he would be injured by their conduct. Those facts, if proven, constitute the tort of misfeasance of public office. Those alleged facts will also be relevant to the claim for wrongful dismissal as well as the claims that the defendants breached the statutory requirements of the Police Act and violated the principles of natural justice.
[51] As noted by Madam Justice Morrison in the Karbalaeiali case at para. 39:
Nothing in the Judicial Review Procedure Act removes the discretion of the court under Rule 52(11)(d) to order a trial of the issues raised in a properly brought petition if the court should find that pleadings, discovery or viva voce evidence is necessary to reach a just resolution of a dispute.
[52] In Gloucester Properties, Trainor J. converted an originating application for judicial review commenced by petition to a trial on the basis that the issues raised could not be resolved “properly and adequately” unless there was a trial in the ordinary way.
[53] I have concluded that the issues raised by the petition in this case cannot be resolved properly and adequately unless there is a trial in the ordinary way.
[54] Dalstrom has not applied to have the two proceedings consolidated. He has applied to have the matters heard at the same time, with the evidence in one proceeding treated as evidence in the other. The decision of Hardy Bay Inn, on which both the Province and OCABC rely, is distinguishable because it involved an application to consolidate a petition and an action. Further, the court in Hardy Bay Inn was clearly influenced by the fact that there was not a common question of fact or law to be decided in the two proceedings, thus consolidation would not have simplified the proceedings. Finally, it is doubtful that Hardy Bay Inn remains good law as it is inconsistent with later decisions of this court, including the decision of Sigurdson J. in Haagsman.
[55] In the present case, the facts underlying the claims in contract and tort are substantially similar to those underlying the relief sought in the petition. Accordingly, I am satisfied that the issues arising on the petition are at least in part fact-driven and are interwoven with the issues arising in the action. The petition will therefore be heard as a trial in the ordinary way and at the same time as the trial of the action. Evidence in the one trial will be treated as evidence in the other.
[56] The case management judge is in the best position to determine any further terms with respect to how these two matters will be heard.
[57] There is no prejudice to the defendants that would flow from this order. Dalstrom has sought reinstatement as an alternative remedy to damages since the filing of the amended statement of claim in October 2006. It must also be recalled that Dalstrom was not advised of the basis for his termination until OCABC provided the particulars to its statement of defence in November of 2006.
[58] It may be that certain issues are amenable to being tried first. For example, it may be possible to begin the proceedings with evidence and argument concerning the application of Part 9 of the Police Act. Again, it will be for the case management judge to determine what manner of proceeding will best serve the interests of efficiency and convenience.
[59] I turn then to the issue of the adding of JDC as a defendant and the proposed amendments to the statement of claim.
[60] Dalstrom argued that the amendments are properly made in response to information that has come to light as a result of the examinations for discovery of Douglas and Busson. He also argued that because the existing statement of claim and the proposed amendments contain claims for punitive damages, the decision of the Supreme Court of Canada in Whiten v. Pilot Insurance, [2002] S.C.J. No 19 requires the pleading of the underlying facts with some particularity.
[61] All defendants agree that the Justice Development Commission ought to be added as a party, as it was the entity responsible for creating OCABC. While the precise juridical relationship between the various defendants remains in dispute, it is obvious that the JDC ought to be a party defendant in the litigation. JDC will be added as a defendant, and the amendments concerning the JDC are allowed.
[62] The defendants resisted most of the further amendments to the statement of claim, primarily on the basis that they plead evidence and not facts. On the issue of the pleadings concerning punitive damages, the defendants say that Whiten merely requires a plaintiff seeking punitive damages to plead an independent actionable wrong. According to OCABC, the factual allegations underlying the claim of punitive damages are straightforward, and are the following:
(1) that the managing officers of OCABC failed to follow the statutory process of the Police Act;
(2) that they knew they were obliged to follow it; and
(3) that they failed to do so because they terminated Dalstrom for extraneous reasons.
[63] I have reviewed the proposed amendments paragraph by paragraph. I accept the submissions of the defendants that many of the proposed amendments plead evidence and not material facts. In order to assist the parties, I have prepared an schedule to these oral reasons, Schedule 1, which lists the paragraphs of the proposed further amended statement of claim that will not be allowed. The following paragraphs are disallowed on the basis that plead evidence rather than material facts:
14.1, 35, 35.1 to 35.8, 41.1 to 41.11, 41.13 to 41.22, 41.31 to 41.33, 42, 42.1, 43 except the first and last sentences, 43.1, 44, 44.1, 44.3 to 44.6, 44.8, 44.10 to 44.11, 44.13 to 44.22, 46.1 to 46.3, 71.1.
[64] Paragraph 77(a)(1) will be struck because it pleads relief available pursuant to the petition, which has now been converted to a trial and will be heard at the same time as the trial of the action.
[65] Any proposed amendments not specifically referred to above are allowed. In particular, I have allowed the proposed amendments at paras. 41.23 to 41.30, para. 44.7 and para. 44.9 on the basis that they give rise to the claims in tort for misfeasance of public office and the claims for punitive damages. Further, they describe the alleged nature and scope of the employment contract in issue and deny the misconduct on the part of Dalstrom that has been alleged in the particulars to the statement of defence.
[66] Any ongoing issues concerning the pleadings should be referred to the case management judge for his determination, subject to his availability.
[67] A summary of my orders is as follows:
(1) The JDC will be added as a party defendant and the style of cause amended accordingly.
(2) The amended statement of claim will be further amended by adding the proposed amendments that have not been specifically disallowed.
(3) The petition will be heard as a trial.
(4) The two trials will be heard at the same time, with the evidence in each being treated as evidence in both.
[68] Mr. WOODALL: Costs are in the cause, My Lady?
[69] THE COURT: Having heard no submissions to the contrary, costs will be in the cause.
The Honourable Madam Justice Wedge
SCHEDULE 1
[1] The following paragraphs of the proposed Further Amended Statement of Claim (see Appendix A to the Petition) will be struck on the basis that they plead evidence rather than material fact:
14.1
35; 35.1-35.8
41.1-41.11
41.13-41.22
41.31-41.33
42; 42.1
43 (except the first and last sentences); 43.1
44; 44.1
44.3-44.6
44.8
44.10-44.11
44.13-44.22
46.1-46.3
71.1
[2] Paragraph 77(a)(i) will be struck because it pleads relief available pursuant to the Petition, which has now been converted to a trial and will be heard at the same time as the trial of the action.
[3] Any proposed amendments not specifically referred to above are allowed. In particular, I have allowed the proposed amendments at paras. 41.23 to 41.30, para. 44.7 and para. 44.9 on the basis that they give rise to the claims in tort for misfeasance of public office and the claims for punitive damages. Further, they describe the alleged nature and scope of the employment contract in issue, and deny the discipline defaults that have been alleged in the particulars to the Statement of Defence.
[4] Any ongoing issues concerning the pleadings should be referred to the Case Management judge for determination, subject to his availability.