Date: 20031219
Docket: T-2079-01
Citation: 2003 FC 1506
Between:
CHANTAL-ANNICK TREMBLAY
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
PINARD J.:
[1] This is a motion for summary judgment by the defendant, seeking the dismissal of the plaintiff's action for monetary compensation for the damages that she claims she suffered as the result of the allegedly unlawful decision of the director of the Canadian Security Intelligence Service (CSIS), made under the combined effect of subparagraph 8(1)(b)(i) of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, and paragraph 11(2)(g) of the Financial Administration Act, R.S.C. 1985, c. F-11, to terminate the plaintiff after her security clearance, necessary for the performance of her duties, was revoked.
[2] The defendant submits, basically, that this Court does not have jurisdiction because the plaintiff, in proceeding by way of an action, used the wrong procedure to obtain the relief sought, given the provisions of sections 18 and 18.1 of the Federal Court Act, R.S.C. (1985), c. F-7, which require that one proceed by an application for judicial review after the administrative remedies have been exhausted.
[3] The plaintiff, on the other hand, argues that she is not asking that the decision to revoke her security clearance be set aside, because she is not asking to be reinstated in her position as an information clerk. Rather, the plaintiff, through her action, is seeking damages "[Translation] resulting from her wrongful dismissal". She states that, in any event, it was unnecessary to request a security clearance, because the defendant's officials had already decided that she was unfit to resume working, for medical reasons.
[4] In order for this motion for summary judgment to succeed, the defendant must persuade the Court that there is no genuine issue for trial in the plaintiff's statement of claim (subsection 216(1) of the Federal Court Rules, 1998, SOR/98-106). But the defendant has failed in her attempt to discharge this burden, based on the following caselaw:
1. First, in Kim Lee Gilmour v. Her Majesty the Queen (November 17, 2000), T-1883-95, [2000] F.C.J. No. 1880 (QL), a case that also involved an individual employed by the CSIS, Gibson J., at paragraph 33, relying on Sweet et al. v. Canada, a judgment of the Federal Court of Appeal, held that the nature of the relief sought should determine the choice of the proper procedure to obtain it:
[33] In Sweet et al. v. Canada [(1999), 249 N.R. 17], the Federal Court of Appeal determined that where, as here, different sorts of relief are claimed, some of which require institution of proceedings as an action and others as judicial review, the proper course is to determine which relief it makes more sense to decide first, and then to determine whether the procedure taken is the proper one with respect to that relief. On the evidence before the Court and in the light of submissions of counsel, I am satisfied that the principal relief here sought is monetary compensation. . . .
2. later, in Zarzour v. Her Majesty the Queen (December 18, 2000), A-399-99, [2000] F.C.J. No. 2070 (QL), the Federal Court of Appeal, per Létourneau J.A., states at paragraphs 48 and 49, that one must adopt a utilitarian approach and favour the proceeding that can be used to eliminate or repair the harm resulting from the administrative decision that was made:
[48] It is necessary, I think, to adopt an utilitarian approach to this, and favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered. . . .
[49] It was this pragmatic approach that was rightly adopted by Prothonotary Hargrave in Shaw v. Canada (1997, 134 F.T.R.128. At paragraph 23 of his decision, he writes:
[23] I do not see that a plaintiff must, in all circumstances, first bring an application for judicial review and only then, if successful, bring an action for damages. All the more so when a declaration would serve no current purpose. Further, this is not a situation in which the procedures the plaintiff employs are alternatives leading to one end: the remedies are very different. Finally, where there are several approaches or procedures a court should impose the least intrusive remedy capable of providing a cure. In summary, I can see no utility in forcing the plaintiff to try to obtain declaratory relief, concerning something that happened over a year ago, in order to then begin a second piece of litigation by which to claim damages.
Unfortunately, there is no magic formula applicable to all situations to which there is more than one remedy. Each case is sui generis, and must be assessed on its merits in order to determine the appropriate procedure.
[5] In this case, therefore, considering the allegations in the statement of claim and the contents of the affidavits filed in evidence, I believe that the matter should go to trial for a full and fair determination of the rights of the parties, on the procedure as well as on the merits.
[6] Accordingly, the motion for summary judgment is dismissed with costs.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
December 19, 2003
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2079-01
STYLE OF CAUSE: CHANTAL-ANNICK TREMBLAY v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 15, 2003
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: December 19, 2003
APPEARANCES:
Jacques Béland FOR THE PLAINTIFF
Raymond Piché
Chantal Labonté FOR THE DEFENDANT
SOLICITORS OF RECORD:
Béland, Lacoursière FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario