Date: 19980121

Docket: A-448-97

CORAM:      MARCEAU J.A.

         STRAYER J.A.

         DESJARDINS J.A.

BETWEEN:

     HER MAJESTY THE QUEEN

     (Transport Canada)

     Appellant

     (Defendant)

     - and -

     THOMAS WATT

     Respondent

     (Plaintiff)

Heard at Ottawa, Ontario, on Wednesday, January 21, 1998.

Judgment delivered from the Bench on Wednesday, January 21, 1998.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

Date: 19980121

Docket: A-448-97

     (T-154-97)

CORAM:      MARCEAU J.A.

         STRAYER J.A.

         DESJARDINS J.A.

BETWEEN:

     HER MAJESTY THE QUEEN

     (Transport Canada)

     Appellant

     (Defendant)

     - and -

     THOMAS WATT

     Respondent

     (Plaintiff)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario,

     on Wednesday, January 21, 1998)

MARCEAU J.A.

[1]      In spite of the very able and well presented argument of counsel for the appellant, we have not been persuaded that this appeal could succeed. We simply do not see on what basis we could interfere with the discretionary decision of the motions judge to the effect that the action should not be prevented from proceeding.

[2]      It is clear that passages of the reasons for order given by the learned judge in support of his conclusion are subject to some criticism, at least for lack of clarity. Nevertheless, it is our opinion that he made no mistake in his analysis of the causes of action that sustain the statement of claim and in his conclusion that, at first blush, neither of them falls clearly under the exclusive grievance and arbitration provisions of the collective agreement. The alleged negligent misrepresentations and so-called abuse of public office of which the plaintiff says he was the victim would have taken place prior to the existence of the employment relationship which, in our view, was sufficient reason to refuse to accept that the provisions of the collective agreement would necessarily preclude the action.

[3]      Counsel has insisted on the Supreme Court decision of Weber v. Ontario Hydro¹ as authority for his submissions. While it is true that the action there was somewhat similar to the present one, there was a decisive difference between the two: the dispute in Weber, the cause of action, had arisen during the employment relationship.

[4]      The motions judge was also right in refusing to consider certain statute of limitation prescriptions as a basis for striking the action under the present motion brought pursuant to Rule 419(1)(a). It is now well established that the effect of a statute of limitation can be determined only after the filing of the defence either at trial or on a Rule 474 motion.

[5]      The appeal will therefore be dismissed with costs.

     "Louis Marceau"

     J.A.

     FEDERAL COURT OF APPEAL

Date: 19980121

Docket: A-448-97

BETWEEN:

     HER MAJESTY THE QUEEN

     (Transport Canada)

     Appellant

     (Defendant)

     - and -

     THOMAS WATT

     Respondent

     (Plaintiff)

    

     REASONS FOR JUDGMENT

     OF THE COURT

    

__________________

¹      [1995] 2 S.C.R. 929.