Administrative law – Employment law – Termination of employment – Parallel action – Wrongful dismissal – Public law vs. Contract law – Judicial review application – Striking out – Compliance with legislation – Procedural requirements and fairness – Costs
Redmond v. Hamilton (City),  O.J. No. 5233, Ontario Superior Court of Justice, December 17, 2008, A. Karakatsanis J.
Three former employees of the City of Hamilton (the “City”) brought motions to consolidate two applications for judicial review (claiming they were denied natural justice and a hearing in the termination of their employment for cause) with a Superior Court action for wrongful dismissal. Alternatively, the employees sought to stay the judicial review applications pending determination of the action. The City moved to quash the applications arguing that it was plain and obvious the claim under public law could not succeed given the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick  S.C.J. No. 9.
The City’s motion to quash was granted and the consolidation motion was moot. The applications for judicial review were quashed. The employees were governed by contract law and contract law displaced public law as the more appropriate forum in which the employees were required to seek a remedy. The statutory provisions regarding their public office did not give rise to a public law right to procedural fairness in this case and the applications did not come within one of the exceptions outlined in Dunsmuir. The employees were not acting in constitutionally defined state roles nor did they hold office “at pleasure” without other remedy. The employees were not public officers without protection under contract law. Both parties conceded a contractual employment relationship in the factual foundation of these applications. None of the applicable statutory provisions gave rise to public law duty of procedural fairness. Therefore, the court found that it was plain and obvious that the applications for judicial review must fail.
In response to the City’s claim for costs, quantified at over $190,000, the court held that it was not clear that these applications would have been unsuccessful based upon the law at the time they were brought and that most of the costs arose before the decision in Dunsmuir made the application untenable in March of 2008. Therefore, the issue of costs was deferred to the conclusion of the wrongful dismissal action.
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