Binnie J.
Binnie J. -- This case involves a claim of wrongful dismissal by a former Superintendent of Education against the Ottawa-Carleton French-language School Board -- Public Sector. The School Board seeks to have the action against it dismissed on the strength of s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38, which in its relevant part provides that no action may be instituted against a public authority for an act done in execution of “any statutory or other public duty or authority” unless it is commenced within six months of the act complained of. This case was argued here and in the courts below together with Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, [1999] 3 S.C.R. 281, in which reasons are being released concurrently today. In light of the analysis set out in Des Champs, the ruling of the Ontario Court of Appeal in the present case also cannot stand and the decision of the motions judge rejecting the special limitation defence must be restored. The appeal will therefore be allowed.
Facts
On September 13, 1991, at the request of the Minister of Municipal Affairs, the Ontario Municipal Board made an order under the special provisions of Part III of the Municipal Affairs Act, R.S.O. 1980, c. 303, granting the Minister broad powers over the respondent School Board’s financial situation. In the previous fiscal year, the School Board had accumulated a financial deficit of over $18 million and anticipated a further deficit of $23.1 million in the then current year, placing it among the leaders of the 72 school boards in Ontario which had failed in a major way to stay within budget. The order of the Ontario Municipal Board allowed the Minister to appoint the respondent, Rosaire Léger, as Supervisor of the School Board’s Public Sector with a mandate to restore financial order, and to exercise other powers under the Act. The subsequent restructuring of the Public Sector of the School Board, orchestrated by Mr. Léger, resulted in a 35 percent budget cut at the level of the schools and 136 employees of the School Board itself being declared redundant. This included two superintendent positions.
The appellant was advised by letter dated April 28, 1992, that his position was one of two superintendent positions declared redundant pursuant to s. 7 of R.R.O. 1990, Reg. 309, made under the Education Act, R.S.O. 1990, c. E.2. He was advised that he would be transferred to a position with similar supervisory and administrative responsibilities. In September 1992, the appellant was assigned to the position of project officer, which he regarded as a poor substitute and contrary to his contractual entitlement to the benefit of the provisions of Regulation 309.
The present action was commenced against the School Board, Mr. Rosaire Léger and the Ministry of Municipal Affairs on May 7, 1993, more than a year after the events giving rise to the appellant’s complaint took place. The appellant says that he was dismissed altogether from his employment effective July 28, 1993.
Judgments
The motions judge, for the reasons he gave in Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell (1993), 16 O.R. (3d) 278 did not agree with the defendants that Mr. Abouchar’s action was statute-barred pursuant to s. 7 of the Public Authorities Protection Act: [1997] O.J. No. 2854 (QL). However, the Ontario Court of Appeal allowed the defendants’ appeal and dismissed Mr. Abouchar’s action as it had not been commenced within the six-month limitation period: [1997] O.J. No. 125 (QL). It appears that in this case, unlike Des Champs, no application was made to have the action struck out against the individual defendants.
Analysis
In this appeal, as in Des Champs, the starting point of the appellant’s complaint lies in a reorganization of a school board carried out in the public interest. Any action directed to the reorganization itself would have to have been commenced within the six-month period. However, as in Des Champs, the appellant’s complaint is not directed to a reorganization as such, but to the internal implementation necessitated by a reorganization. More specifically, the complaint is directed to the singling out of the appellant for redundancy when, in his view, proper application of the School Board’s own rules governing seniority ought to have deflected the axe onto one of his colleagues.
The case thus raises the same type of indoor management issues as are discussed in Des Champs. While Regulation 309 has a “public” aspect, my view is that the appellant’s claim relates to duties of the respondent Board that are incidental or subordinate to the direct performance by the respondent Board of its public mandate and are predominantly of a private character. As such, the complaint does not attract the special six-month limitation under s. 7 of the Public Authorities Protection Act.
Disposition
The appeal is allowed with costs, the order of the Ontario Court of Appeal is set aside, and the order of the motions judge, dated November 25, 1993, is reinstated, permitting the appellant’s action to proceed against the respondents on its merits.
The following are the reasons delivered by
Major J. (dissenting)
Major J. (dissenting) -- This case was heard together with Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, [1999] 3 S.C.R. 281, in which reasons are being released concurrently. Since this case is indistinguishable from Des Champs, it follows that I believe the Ontario Court of Appeal ([1997] O.J. No. 125 (QL)) was correct in holding that s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38, applied to bar the appellant’s action.
I agree with the Court of Appeal’s holding that the pleadings of bad faith were insufficient to allow the case to proceed. A plaintiff alleging bad faith must do more than merely assert the point; he must allege specific facts that, if proven, would justify a finding in the plaintiff’s favour. A bald assertion of racial discrimination is not sufficient; discrimination, like bad faith, is a legal conclusion that must have some basis in facts pleaded with particularity.
I would dismiss the appeal with costs.