Federal Court Decisions

Date: 20041001

Docket: T-2291-03

Citation: 2004 FC 1359

Ottawa, Ontario, October 1, 2004

Present:         The Honourable Mr. Justice Blais                                 

IN THE MATTER of an action pursuant to s. 17(1) & 17(2)(d) of the Federal Courts Act, arising from a successful application, against the Commissioner of Official Languages pursuant to s. 41 of the Privacy Act R.S., 1985,

c. P-21

IN THE MATTER of an action pursuant to s. 17(1) & 17(2)(d) of the Federal Courts Act, arising from contravening s. 12(1) of thePrivacy Act by the Commissioner of Official Languages and therefore contravening s. 3(a) & 10 of the Crown Liability and Proceedings Act, S.C. 1990, c. 8, s. 21

IN THE MATTER of an action pursuant to s. 17(1) & 17(2)(d) of the Federal Courts Act, arising from the impartiality and lack of independence, by the Commissioner of Official Languages in the handling of the language complaints arising out of T-1977-94 and the handling of the access to personal information complaints arising out of T-909-97

IN THE MATTER of an action pursuant to s. 17(1) & 17(2)(d) of the Federal Courts Act and s. 24(1) of the Canadian Charter of Rights and Freedoms arising from the contravention of s. 7 of the Canadian Charter of Rights and Freedoms by the Commissioner of Official Languages & Her Majesty the Queen

IN THE MATTER of an action pursuant to s. 17(1) & 17(2)(d) of the Federal Courts Act, arising from s. 75(1) of the Official Languages Act contravening s. 24 of the Canadian Charter of Rights and Freedoms and therefore s. 75(1) being unconstitutional with no force or effect

IN THE MATTER of RELITIGATING T-1977-94 because the first procedure was tainted with fraud and dishonesty by Her Majesty the Queen and the new evidence obtained in SCC 28188 impeaches the result in T-1977-94 pursuant to s. 17(1), 17(2)(d), 18.4(2) & 48 of the Federal Courts Act

BETWEEN:

                                                            ROBERT LAVIGNE

                                                                                                                                              Plaintiff

                                                                           and

                THE OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES

                                                                                                                                        Defendant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Defendant

                                                                           and

                                         HUMAN RESOURCES DEVELOPMENT

                                (FORMERLY HEALTH AND WELFARE CANADA)

                                                                                                                                        Defendant

                                           REASONS FOR ORDER AND ORDER

BACKGROUND

[1]                This is an appeal by Mr. Robert Lavigne (plaintiff), to set aside the decision of Prothonotary Richard Morneau, dated May 28, 2004, striking out the plaintiff's action with no right to amend. Prothonotary Morneau based his decision in respect to the Queen and Human Resources Development (HRD) (defendant) pursuant to paragraph 221(1)(f) of the Federal Court Rules (1998) (Rules) and pursuant to paragraphs 221(1)(a)(c) & (f) of the Rules as concerns the Commissioner of Official Languages (COL) (co-defendant).

[2]                From August 27, 1992 to March 31, 1993, Mr. Lavigne was employed with the HRD (then known as the Department of Health and Welfare). At the end of this term, he was subject to a performance review for the purpose of rehiring in which he did not receive a passing grade, and was therefore not placed on the eligibility list. During his employment, the plaintiff lodged four complaints to the COL, alleging a denial of training and of the right to work in the English language. The COL determined that the plaintiff's claims were valid, and that a re-assessment of his failed performance review should be undertaken. Ms. Lavoie reviewed Mr. Lavigne's performance test but concluded that the plaintiff still did not meet the passing grade.

[3]                Shortly after the COL's inquiry, the plaintiff made requests to have access to his personal information contained in the Commissioner's files. The COL refused to disclose some of the information, based on paragraph 22(1)(b) of the Privacy Act. Based on the findings of the COL concerning his employment with HRD, Mr. Lavigne then filed case T-1977-94 in the Federal Court as per subsection 77(4) of the Official Languages Act (OLA), without any further requests in this case for the conveyance of his personal information contained in the COL files.

[4]                In case T-1977-94, the Federal Court found that as per the findings of the COL, the HRD did infringe the OLA (the HRD had admitted to this), and therefore the only remaining issue the Court needed to determine was a proper remedy. Mr. Lavigne was seeking amongst other things, $119,317.80, and reinstatement of his employment. The Court granted him $3,000, and instructed the HRD to issue him a letter of apology (he did not receive reinstatement). Mr. Lavigne appealed the findings of the Federal Court. The Federal Court of Appeal confirmed the findings of the Federal Court, and the Supreme Court of Canada did not grant leave to appeal.

[5]                In August 1994, Mr. Lavigne lodged a complaint with the Privacy Commissioner (T-909-97) in regards to the decision of the COL not to divulge his personal information. The Privacy Commissioner confirmed the findings of the COL, but under judicial review, the Federal Court found in favour of the plaintiff. In 2002, the case was eventually brought before the Supreme Court of Canada which confirmed the findings of the Federal Court and ordered disclosure of his personal information contained in the COL files ([2002] 2 S.C.R. 773).

[6]                Because Mr. Lavigne was successful in obtaining personal information in his COL file (consisting mainly of interview notes of Mr. Chartrand and Ms. Doyon and Dubé), Mr. Lavigne now wants to re-argue his application T-1977-94. He tried unsuccessfully to get the Supreme Court of Canada to reconsider its refusal to allow an appeal in case T-1977-94, and therefore decided to start anew with the present case.

ISSUES

[7]                In my view, there are two main issues (and several subsidiary ones) that flow from the judicial review presented before me:

1.         What is the applicable standard of review for an appeal of a discretionary decision from a prothonotary?

2.         Was the claim properly struck based on res judicata? In the affirmative, could the "new evidence" exception permit re-litigation of this case?

ANALYSIS

Standard of Review

[8]                 The correct standard of review to be applied in an appeal from a prothonotary is that set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), per MacGuigan J.A., at pages 462-63, as reformulated in Z.I. Pompey Industrie v. ECU-LINE N.V. (2003), 30 C.P.C. (5^th) 1, 224 D.L.R. (4^th) 577, 2003 SCC 27. That test is that:

[18] Discretionary orders of prothonotaries ought to be disturbed by a motions judge only where (a) they are clearly wrong, in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts, or (b) in making them, the prothonotary improperly exercised his or her discretion on a question vital to the final issue of the case.

[9]                That being the case, this Court need not examine the matter de novo unless it finds that at a minimum, Prothonotary Morneau improperly exercised his discretion in striking the originating document; a question vital to the final issue of the case.

Res Judicata and the New Evidence Exception

[10]            The public policy doctrine or res judicata is fundamental to the proper functioning of the judicial system. It rests on the premise that:

[18] "Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided." - Danyluk v. Ainsworth Technologies Inc (2001), S.C.C. 44.

[11]            Prima Facie, it does appear that the doctrine of res judicata would be applicable. In comparing this case to T-1977-94, we find that the remedies sought bear some striking similarities:

[12]            Based on the above table, it is quite evident that there are no new substantive remedies being sought by Mr. Lavigne. It is undoubtedly for that reason that the appellant is attempting to seek the admittance of new evidence as an exception to the policy of res judicata. Mr. Lavigne even himself admits this fact: "The relitigation of T-1977-94 stems from the new evidence acquired (emphasis by Mr. Lavigne)" (Paragraph 3 of the amended statement of claim of the appellant of January 19, 2004).

[13]            It is important to note however that there do exist certain exceptions to this otherwise unyielding principle:

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context." Toronto (City) v. C.U.P.E. Local 79, [2003] 3 S.C.C. 77.

[14]            The appellant claims that the applicable test in determining whether or not new evidence should be admitted, is set out in R. v. Taillefer; R v. Duguay [2003] 3 S.C.R. 307. The Respondents on the other hand, claim that the proper test is that set out in Wavel Ventures Corp. v. Constantine (1996) A.J. No. 1093, Alberta Court of Appeal, leave to the Supreme Court of Canada dismissed. The correct test to be applied in this case should be that arising from a civil law context, rather than a criminal law context:

It is not the simple acquisition of fresh evidence which permits a party to escape the consequences of the principle of res judicata. Ritchie J. in Grandview (Town) v. Doering, [1976] 2 S.C.R. 621 at p. 636 adopted the following passage from the decision of the Nova Scotia Court of Appeal in Fenerty v. Halifax (1919) 53 N.S.R. 457 at 463:

It is clear that the plaintiff must go forward in the first suit with his evidence; he will not be permitted in the event of a failure to proceed with a second suit on the ground that he has additional evidence. In order to be at liberty to proceed with a second suit he must be prepared to say: I will show you this is a fact which entirely changes the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have been ascertained by me before.

[15]            Therefore, the applicable test is that laid out in Wavel Ventures, supra, which states two pre-conditions to admitting new evidence:

1.         The new evidence must have been impossible to obtain in the past with the exercise of reasonable diligence;

2.         The evidence must be capable of altering the outcome.

[16]            Leaving aside the first part of the test, and dealing directly with the second half, the "new evidence" must be capable of altering the outcome of the first trial. Seeing as to how in case T-1977-94, HRD had admitted to being at fault, the only question left up to the Court was to determine damages. Therefore, the "new evidence" now presented by the appellant, must be capable of altering the amount of damages.

[17]            This "new evidence" consists mainly of interview notes of Mr. Lavigne's supervisors, and letters between the appellant, his supervisors and the Commissioner of Official Languages. However, as was mentioned by Justice Pinard in T-1977-94, and was re-stated by Prothonotary Morneau:

There was no causal link between the non-compliance by HRD with the Official Languages Act and the fact that the plaintiff had not been rehired by the HRD after March 31, 1993. The absence of a causal link led the Court to deny the plaintiff other remedies such as compensation for loss of salary and other benefits, as well as damages for physical and mental suffering. (See paragraph 44 of Prothonotary Morneau's Reasons for Order dated May 28, 2004).

[18]            Therefore, for the "new evidence" to affect that outcome of the first trial, it would have to establish the causal link between the plaintiff's non-rehiring, and his office's breach of the Official Languages Act. However, nothing in the new evidence presented bears directly on the negative performance evaluation he received, nor of the reevaluation which was ordered by the COL. For these reasons, the new evidence would not alter the findings of the first trial and there is no need to determine whether or not due diligence was exercised in obtaining the new evidence. The prothonotary therefore did not improperly exercise his discretion to strike the originating motion based on lack of new evidence.

Amendments to the Statement of Claim

[19]            Paragraph 221(1) of the Rules in fine gives discretion to the Prothonotary to enter judgment accordingly, based on the evidence before him. Furthermore, for the reasons entered in his judgment, the Prothonotary properly denied amendment, based on the test set out in Larden:

An amendment should be allowed where a claim might possibly succeed if the pleading were amended. To deny an amendment, there must be no scintilla of a cause of action. Larden v. Canada (1998), 145 F.T.R. 140

Section 75 (1) of the Official Langues Act

[20]            The appellant has failed to submit any evidence as to why section 75(1) of the Official Languages Act would be contrary to any of the provisions of the Charter. Prothonotary Morneau pointed out that:

[56] The Court must consider that the plaintiff's allegations in his statement of claim relating to negligence, incompetence, fraud or bias continue to be general allegations devoid of any material support. In view of Rule 181(a) [of the Federal Court Rules, 1998] and paragraph 75(1) of the Official Languages Act, the plaintiff should have provided much more support for his statement of claim... The same is true of the plaintiff's allegations regarding the application of section 7 of the Charter. (Prothonotary Morneau's Reasons for Order dated May 28, 2004).

[21]            In his representations in the appeal against the Commissioner, Mr. Lavigne submits that:

37. The Plaintiff's allegations are found at paragraph 121, which reads as follows:

121. The Plaintiff will file the pleadings regarding the constitutionality of section 75 of the OLA at the appropriate time pursuant to section 57 of the Federal Court Act.

39. [...] In any event, there is no duty to disclose legal argument to be used at trial.

[22]            If Mr. Lavigne does not wish to disclose any of his arguments in support of his submissions, then I can see no error on the part of the Prothonotary dismissing this part of his claim.

Section 12 of the Privacy Act

[23]            Prothonotary Morneau correctly dealt with section 12 of the Privacy Act as it relates to both cases, T-1977-94 and T-909-97. In relation to case T-1977-94, at paragraph 52 of his judgment, the Prothonotary states that:

[52] "The plaintiff's allegations regarding the Commissioner's bias and incompetence relate to the actions of the Commissioner's employees during the court of case T-1977-94, and those allegations therefore necessarily pertain to reopening case T-1977-94. As we saw earlier, the interview notes, that is the new evidence, do not support reopening case T-1977-94 against the Queen and HRD. I also do not consider that this new evidence taken together with the plaintiff's very general allegations regarding the Commissioner's actions suffices to permit reopening of the argument in case T-1977-94." (Prothonotary Morneau's Reasons for Order dated May 28, 2004).

[24]            Mr. Lavigne claims that section 12 should also apply in regards to case T-909-97, and that Prothonotary Morneau did not properly address the matter. In my view, Prothonotary Morneau's findings that the section 12 claim against the Commissioner should have been raised at an earlier time, and that it was now res judicata is well founded.

[53] The aspect of the plaintiff's action against the Commissioner dealing with the contravention by the latter of section 12 of the Privacy Act should have been raised by the plaintiff in his action against the Commissioner in case T-909-97. The res judicata rule applies here to the situation discussed. As mentioned in Ross v. Canada, [2003] F.C.J. No. 1168, paragraph 15:

Key is that the doctrine of res judicata, except in special circumstances, applies not only to what a court, in the initial proceedings, is required to decide, but to all points and issues which properly belong to or should have been a part of that litigation and which a reasonable diligent party might have brought forward in that earlier proceeding.

[25]            Therefore, the Prothonotary did not improperly exercise his discretion in dismissing the claim against the Commissioner based on res judicata in regards to section 12 of the Privacy Act.

CONCLUSION

[26]            There is no doubt Rule 50 of the Rules grants jurisdiction to a Prothonotary to strike out an originating document under Rule 221 (Creighton v. Franko (1998) 155 F.t.R. 303 (T.D.)). Thus, if the Prothonotary did not improperly exercise his discretion in striking out the statement of claim of the appellant, then this Court would have no basis on which to interfere with the judgment.

[27]            In his oral reply, the plaintiff suggests that basically, when Ms. Dubé refused to consent to the disclosure of her notes by the Commissioner, it was a fraud by her, and this, in and of itself, is enough to justify the relitigation of the case.

[28]            I cannot agree with that statement; raising the arguments of fraud, dishonesty and conspiracy is a very serious accusation, and this argument is not substantiated. In fact, the decision made by the Supreme Court of Canada is clear and never referred to any misconduct on the part of Ms. Dubé. Gonthier J. held at paragraph 61 (Lavigne v. Canada (Officer of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, page 25):

Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given. It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by [page 813] the Privacy Act and the Official Languages Act. The Commissioner must exercise his discretion based on the facts of each specific case. In the case of Ms. Dubé, the record as a whole does not provide a reasonable basis for concluding that disclosure of the notes of her interview could reasonably be expected to be injurious to the Commissioner's investigations.

Later, at paragraph 65, Gonthier J. states:

Parliament has made the Office of the Commissioner of Official Languages subject to the Privacy Act, and only when a government institution is able to justify the exercise of its discretion to refuse disclosure may it do so. In the case before us, the appellant has not succeeded in showing that it is reasonable to maintain confidentiality. For these reasons, I would dismiss the main appeal.

[29]            The Prothonotary correctly analysed the presented facts in view of the applicable law, and nothing in his reasons for order suggests that he improperly exercised his discretion in dismissing the statements of claim against Her Majesty the Queen, Human Resources Department, and the Office of the Commissioner of Official Languages. Although the Prothonotary stated that on numerous points, the statement of claim contained only general and unsubstantiated allegations fault as attributable to the respondents, the Prothonotary found that even if the pleadings were amended, the claim would not alter the previous decision.

[30]            This Court finds that the order of the Prothonotary is justly founded given his reasons.

                                                                     O R D E R

THIS COURT ORDERS that:

The appeal of the Prothonotary's decision dated May 28, 2003 be dismissed with costs only to the Queen as the Commissioner did not seek costs against the plaintiff.

                "Pierre Blais"                   

J.F.C.

                                                                                               ANNEX A

LEGISLATION

Sections 75 and 77 of the Official Languages Act               

75. Protection of Commissioner (1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act. (2) For the purposes of any law relating to libel or slander, (a) anything said, any information supplied or any document or thing produced in good faith in the course of an investigation by or on behalf of the Commissioner under this Act is privileged; and (b) any report made in good faith by the Commissioner under this Act and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged.		75. Immunité (1) Le commissaire -- ou toute personne qui agit en son nom ou sous son autorité -- bénéficie de l'immunité civile ou pénale pour les actes accomplis, les rapports ou comptes rendus établis et les paroles prononcées de bonne foi dans l'exercice effectif ou censé tel de ses attributions. (2) Ne peuvent donner lieu à poursuite pour diffamation verbale ou écrite ni les paroles prononcées, les renseignements fournis ou les documents ou autres pièces produits de bonne foi au cours d'une enquête menée par le commissaire ou en son nom, ni les rapports ou comptes rendus établis de bonne foi par celui-ci dans le cadre de la présente loi. Sont également protégées les relations qui sont faites de bonne foi par la presse écrite ou audio-visuelle.

77. Application for remedy (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part. (4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.		77. Recours (1) Quiconque a saisi le commissaire d'une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV ou V, ou fondée sur l'article 91 peut former un recours devant le tribunal sous le régime de la présente partie. (4) Le tribunal peut, s'il estime qu'une institution fédérale ne s'est pas conformée à la présente loi, accorder la réparation qu'il estime convenable et juste eu égard aux circonstances.

Sections 12 and 22 of the Privacy Act

12. Right of access (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to (a) any personal information about the individual contained in a personal information bank; and (b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.		12. Droit d'accès (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande : a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels; b) les autres renseignements personnels le concernant et relevant d'une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l'institution fédérale puisse les retrouver sans problèmes sérieux.

22. Law enforcement and investigation (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) . . . (b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (I) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation; or . . .		22. Enquêtes (1) Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1): ... b) soit don't la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment: (I) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée, (ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle, (iii) des renseignements obtenus ou préparés au cours d'une enquête; ...

Rules 57 and 221 of the Federal Courts Rules (1998)

Wrong originating document 57. An originating document shall not be set aside only on the ground that a different originating document should have been used.		Non-annulation de l'acte introductif d'instance 57. La Cour n'annule pas un acte introductif d'instance au seul motif que l'instance aurait dû être introduite par un autre acte introductif d'instance.

Striking out pleadings 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, . . . c) is scandalous, frivolous or vexatious, ... (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly.		Radiation d'actes de procédure 221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; ... c) qu'il est scandaleux, frivole ou vexatoire; ... f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence.

                                                             FEDERAL COURT

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                         T-2291-03

STYLE OF CAUSE:                       ROBERT LAVIGNE

                                                                                                                                              Plaintiff

and

THE OFFICE OF THE COMMISSIONER

OF OFFICIAL LANGUAGES

                                                                                                                                        Defendant

AND

HER MAJESTY THE QUEEN

Defendant

AND

HUMAN RESOURCES DEVELOPMENT

(FORMERLY HEALTH AND WELFARE CANADA)

Defendant

PLACE OF HEARING:                  Montréal, Quebec

DATE OF HEARING:                     September 27, 2004

REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BLAIS

DATED:                                            October 1, 2004

APPEARANCES:

Mr. Robert Lavigne                                                                FOR THE PLAINTIFF

Mr. Guy Lamb                                                                         FOR THE DEFENDANT

THE QUEEN

APPEARANCES:

Ms. Amélie Lavictoire                                                            FOR THE DEFENDANT

Ms Elyse Hurtibuse Loranger                                               THE OFFICE OF THE COMMISSIONER OFFICIAL LANGUAGES

SOLICITORS OF RECORD:

Mr. Robert Lavigne                                                                FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                                  FOR THE DEFENDANT

Deputy Attorney General of Canada                                    THE QUEEN

Montréal, Quebec

Commissioner of Official Languages                                  FOR THE DEFENDANT

Ottawa, Ontario