Focus On

CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations - Grounds - Failure to disclose a cause of action or defence - Lack of jurisdiction

Wednesday, April 26, 2017 @ 8:26 AM  

Lexis Advance® Quicklaw®
Motion by the Office of the Ombudsman to strike out the plaintiff’s Statement of Claim and for dismissal of the action against it; motion by the Legislative Assembly of Ontario (Assembly) to dismiss the action as against it for lack of jurisdiction. The plaintiff claimed declaratory relief and damages for wrongful dismissal based on his termination as the Ombudsman of Ontario. He pleaded that the Office of the Ombudsman and the Assembly were his employers. The plaintiff had not been re-appointed for a third term when his second term expired. The Court considered whether, as a matter of law, the Ombudsman, as an officer of the Legislature, was or could be employed by the Office of the Ombudsman.

HELD: Motions allowed. The Office of the Ombudsman was a position, or office, created by statute, to which a person was appointed by the Lieutenant Governor in Council on the address of the Assembly. It did not have a separate legal existence from the person appointed by the Lieutenant Governor in Council to hold the position. The plaintiff could not have had a legal relationship with either himself as the Ombudsman or with the Office of the Ombudsman, independently of himself, in relation to the claims made in the Statement of Claim. His employment-related claim against the Office of the Ombudsman could not succeed because there were not two separate legal entities and, therefore, there was no contract of employment. The Court accepted the submission of the Office of the Ombudsman that none of the alleged misrepresentations upon which the plaintiff relied were made by or could be attributed to the Office of the Ombudsman because the plaintiff could not make representations to himself and, in any event, none of the alleged representations were alleged to have been made by an employee or agent of the Office of the Ombudsman. The claim against the Office of the Ombudsman was struck as it was plain and obvious it disclosed no reasonable cause of action. The Court did not have jurisdiction to adjudicate the action against the Assembly based on the application of the doctrine of parliamentary privilege. The Assembly had met its onus in proving that the doctrine of parliamentary privilege applied in the circumstances and its motion was not premature. The action put into issue the internal process and procedures of the Assembly in relation to the appointment of a parliamentary officer, the Ombudsman of Ontario, who fulfilled part of the Assembly's role in holding the government to account. A trial of the action would require the Court to inquire into the manner in which the Assembly exercised recognized and constitutionally-guaranteed categories of parliamentary privilege that were within the exclusive jurisdiction of the Assembly.

Marin v. Ontario (Ombudsman), [2017] O.J. No. 1318, Ontario Superior Court of Justice, P.J. Cavanagh J. TLD-Apr242017007