Green and Riddell v. Fraser

No. 839, OF THE PROVINCE OF

R

ALBERTA (DEFENDANT)

......................

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA

The defendant board of school trustees employed plaintiff as teacher. Under the agreement of employment, either party might terminate it by giving 30 days' written notice, " provided that no such notice shall be given by the board until the teacher has been given the privilege of attending a meeting of the board (of which five clear days' notice in writing shall be given to the teacher) to hear and to discuss its reasons for proposing to terminate the agreement."

In terminating plaintiff's employment, said proviso was not observed, nor, as found by this Court on the evidence, was there any effective waiver by plaintiff of his privilege thereunder. Plaintiff sued for damages for wrongful termination.

Held (1): S. 196 of the School Act (R.S.A., 1922, c. as amended 1923, c. 35, s. 8), which provided for an appeal to the Minister by "any teacher who has been suspended or dismissed by the board," had no. application to deprive plaintiff of his right of action.

S. 196t should be read as relating to a suspension or dismissal under s. 137 (1) (o), and not to a decision to terminate an agreement under s. 199 (2). Further, moreover, s. 196 contemplated a re-hearing on the merits by the Minister of the matter on which the board's decision was given; and, whether in the case of a dismissal or suspension under s. 137 (1) (o), or in the case of termination under a provision such as that in the agreement in question (if s. 196 applied in such case), there was contemplated, before appeal to the Minister, a consideration of the matter by the board after giving the teacher a full opportunity to be heard; and where no such opportunity was given, the board's right to dismiss or suspend under s. 137 (1) (o), or to terminate under such a provision in the agreement, did not come into operation; and s. 196 did not contemplate the supersession of the ordinary jurisdiction of the courts where the sole question was whether or not the *PRESENT:-Duff, Newcombe, Rinfret, Lamont and Smith JJ. tReporter's Note:

Sec. 196 is dealt with, in this case, as it stood before the amendment of 1930, c. 39, s. 2, which brings the express wording of the section into conformity with the construction given in the present judgment.