June 14, 2017
Vézina, Mainville, Healy
Application for leave to appeal and appeal from a judgment of the Superior Court declining jurisdiction to hear an action in damages. Allowed.
The appellant, a municipal police officer, brought a civil action in damages against his employer alleging that the rejection of his candidacy for a position and the surveillance and searches performed in his regard constituted abuse of right. The trial judge raised a doubt as to her jurisdiction to decide the first aspect of the proceeding (the promotion). She found that it was up to the grievance arbitrator to determine whether he had jurisdiction in this respect, in light of the wording of the collective agreement.
For appeal purposes, the distinction between “final judgment” and “interlocutory judgment” is obsolete. Article 30 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.) states instead that it is judgments “that terminate a proceeding” that may be appealed as of right. The judgment under appeal is covered by article 31 C.C.P. It was rendered in the course of an ongoing proceeding on the second aspect. Leave to appeal is required. It is granted because the judgment raises the issue of the Superior Court’s jurisdiction.
The trial judge should have decided the issue of her own jurisdiction. She committed an error by refusing to do so. The essence of the appellant’s claim concerns the employer’s responsibilities to the management selection process. This type of claim does not fall under the scope of application of the police officers’ collective agreement. The bargaining certificate does not include the position of commanding officer sought by the appellant. Moreover, the agreement defines the employees it governs, excluding command management. As for the [translation] “promotions” included in the agreement, they concern unionized ranks.
The appellant’s action against the employer concerning the refusal to recommend him for the commanding officer position that was allegedly in bad faith and for unlawful reasons is contractual in nature. It is not prescribed.
Text of the decision:
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