BETWEEN:
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Mme. MICHELINE DÉSJARDINS and Mme. MIRELLE DIOTTE,
Defendants
REASONS FOR ORDER
[1] This is a motion for summary judgment. The defendants submit that this action is res judicata or an abuse of process and raises no genuine issue for trial.
[2] Mr. Oriji, a self-represented litigant, contends that this matter has not been previously determined and that the parties are not the same as those in his application for judicial review. Therefore, res judicata does not apply. He further asserts that where new evidence impeaching previous evidence exists, re-litigation should be permitted. He claims to have been prejudiced because of a power imbalance between the defendants and him and because of his membership in an historically disadvantaged group.
[3] The gravamen of Mr. Oriji’s action is his allegation that he received an offer of employment that was subsequently and wrongfully rescinded. All corollary allegations flow from the purported offer of employment. That issue was examined, analysed and conclusively determined on Mr. Oriji’s application for judicial review. This action is res judicata or, alternatively, constitutes an abuse of the court’s process and raises no genuine issue for trial. Consequently, the motion for summary judgment will be granted.
Background
[4] Mr. Oriji participated in an open competition for a CR-04 position with the Department of Public Works Canada (PWC). The position was designated “bilingual BBB/BBB”. On February 6, 2001, he attended a written examination designed to test the requisite abilities set out in the statement of qualifications regarding the position.
[5] Later in the day (February 6th), he received a telephone call from the defendant, Ms. Diotte (a PWC official), who informed him that he had obtained the highest score on the examination and was the only candidate who had passed it. The starting date for the position was stated to be April 2, 2001. The content of this telephone conversation is a matter of debate. Mr. Oriji claims that Ms. Diotte offered him a position of employment, which he accepted. Ms. Diotte denies this and maintains that she called to inform Mr. Oriji of the test results and the outstanding prerequisites for the position.
[6] On March 8, 2006, Ms. Diotte emailed the defendant, Ms. Desjardins (a PWC staffing officer), requesting that arrangements be made for Mr. Oriji’s language testing. Around the same time, the human resources department at PWC became aware that a number of employees were to be declared surplus. Once formally notified of their surplus status, these employees would become priorities for placement in available public service positions. Ms. Desjardins contacted one of these employees, Ms. Dumouchel, regarding the CR-04 position. Mr. Oriji’s language testing was put on hold.
[7] On March 26, 2001, Ms. St. Louis (a PWC official) contacted Mr. Oriji and informed him that the position was no longer available because it had been staffed by an employee (Ms. Dumouchel) who had been declared surplus.
[8] Mr. Oriji filed a complaint that PWC had improperly rescinded its verbal offer of employment. On November 23, 2001, an investigator of the Public Services Commission (PSC) dismissed the complaint. In the meantime, Mr. Oriji was offered a term contract contingent upon completion of language testing and discontinuance of his complaint. PWC later agreed to offer the position subject only to language testing. That is, PWC agreed that Mr. Oriji could continue to pursue his complaint. The PWC offer was rejected.
[9] Mr. Oriji sought judicial review of the investigator’s decision. On November 7, 2002, Mr. Justice Gibson allowed the application on the basis that the investigator had improperly interpreted section 22 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA) and had breached the rules of procedural fairness: Oriji v. Canada (Attorney General), [2003] 2 F.C. 423 (F.C.). The matter was remitted for reconsideration.
[10] On January 13, 2003, Mr. Oriji filed a statement of claim to “protect his rights” against the limitation period.
[11] The reconsideration of Mr. Oriji’s complain was heard by a different PSC investigator on January 28, February 5, March 6, and March 19, 2003. On July 17, 2003, the investigator determined that no offer of employment had been made to Mr. Oriji. Ms. Dumouchel’s appointment, while improperly characterized as a priority appointment, complied with the PSEA. Mr. Oriji sought judicial review of the determination.
[12] On May 6, 2004, Mr. Justice Mosley dismissed Mr. Oriji’s application for judicial review of the PSC investigator’s decision: Oriji v. Canada (Attorney General) (2004), 252 F.T.R. 95 (F.C.). In so doing, Justice Mosley made the following findings:
• an eligibility list is the means of appointing a person through an open competition (para. 35);
• although [Mr. Oriji] was the only person who satisfactorily passed the written test, an eligibility list had not been established because [Mr. Oriji] was not yet considered qualified due to the fact that he had not completed the second language testing, a requirement deemed necessary by the PSC to demonstrate language proficiency pursuant to section 10 of the PSEA (para. 33);
• language proficiency for a position is regarded as integral to the position itself and affects whether an applicant is in fact “qualified” for the position (para. 34);
• the Federal Court of Appeal decision in Attorney General of Canada v. Sharpe et al., [1983] 1 F.C. 292 (C.A.) is distinguishable because an eligibility list had been established in that case and the position was given to an individual not included on the list. Here, no eligibility list was created (para. 52).
• the provisions of the PSEA dealing with consideration of applications for competitions grant a degree of flexibility to the PSC as set out in subsection 16(1), in considering further material and conducting such tests and investigations as it considers necessary or desirable (para. 38);
• the evidence on record supports the finding that Ms. Diotte lacked the delegated authority to make an offer of employment (para. 40);
• even if one accepts that a reasonable interpretation of Ms. Diotte’s comments during the telephone conversation of February 6, 2001 is that she made an offer of employment to the applicant, promises of employment made in excess of delegated authority under the PSEA do not contractually bind the PSC (Panagopoulos v. Canada, .[1990] F.C.J. No. 234 (T.D.) (para. 40);
• in the course of the second investigation, [Mr. Oriji] had full access to all the materials relevant to his complaint (para. 56); and
• Ms. Dumouchel did not meet the definition of “surplus employee” or the requirements for a priority appointment set out in the Regulations, and accompanying PSC policy (para. 48);
• Ms. Dumouchel’s appointment was, however, in an acting capacity and was made in compliance with the PSEA and the Regulations (para. 49);
[13] On December 6, 2005, the Federal Court of Appeal dismissed Mr. Oriji’s appeal of Justice Mosley’s decision: Oriji v. Canada (Attorney General) (2005), 344 N.R. 229 (F.C.A.). The Court of Appeal concluded:
• Justice Mosley was correct not to have disturbed the investigator’s conclusion that no offer of employment had been made (para. 12);
• Justice Mosley correctly analysed the applicable legislation and evidence and found that Ms. Dumouchel was validly appointed to the CR-04 position. Any prior mischaracterization of Ms. Dumouchel’s appointment as “priority” did not have an impact on Mr. Oriji because Ms. Dumouchel validly received an “acting appointment” (paras. 18, 19).
[14] Although Mr. Oriji expressed an intention to seek leave to appeal to the Supreme Court of Canada, no such application was filed. The time within which to submit an application expired some months ago.
Preliminary Matter
[15] I had earlier granted Mr. Oriji leave to bring a motion to introduce new evidence. At the outset of the hearing, I heard the arguments in relation to the motion and reserved my ruling. The “new evidence” consisted of three tape recordings of telephone conversations between him and Ms. St. Louis on March 27, 2001, Ms. Diotte on April 3, 2001, and Ms. Desjardins on April 6, 2001. Mr. Oriji asserts that where new evidence exists that could impeach the evidence relied upon in a prior proceeding, a re-litigation of the matter should be allowed for the sake of justice and the integrity of the judicial system: Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.) Local 79, [2003] 3 S.C.R. 77 (C.U.P.E.).
[16] Mr. Oriji contends that the tapes confirm:
• a job offer was made, accepted and unjustly rescinded;
• the manager’s legal decision was unjustly overruled;
• the department’s staff were made aware of his “potential injuries”;
• he was promised a better position as compensation; and
• the department’s staff deliberately misled the investigator by making false and deceitful statements and affidavits.
Consequently, had the tapes been part of the judicial review record, the decisions of the
Federal Court and the Federal Court of Appeal would have been different.
[17] The defendants oppose the reception into evidence of the tapes on the basis that the factors (availability, relevance and prejudice) set out in Coté v. Canada (1996), 124 F.T.R. 251 (T.D.) (Coté) are not met.
[18] I am not convinced that the Coté test is appropriate in the circumstances of this case. That case involved the filing of supplemental affidavits on an application for judicial review. In Lavigne v. Canada (Commissioner of Official Languages) (2004), 261 F.T.R. 126 (F.C.) aff’d (2005), 339 N.R. 239 (F.C.A.) (Lavigne), Mr. Justice Blais addressed the question of the admission of new evidence in the re-litigation of an action. It seems to me that the circumstances in Lavigne (the admission of new evidence as an exception to the doctrine of res judicata) are more analogous to those at hand. At paragraphs 14 and 15 of Lavigne, Justice Blais stated:
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.
[19] Applying the test articulated in Wavel Ventures, I conclude that the motion to introduce new evidence should be dismissed. Reasonable diligence was not exercised in bringing this evidence forward. Further, as will be discussed later, the evidence, if admitted, would not affect the outcome.
[20] Mr. Oriji had the tapes in his possession during the first PSC investigation. He claims that he did not tender them at that time because the “department admitted that an offer was made” and he did not think that the tapes were necessary to his case. I reject that submission. Mr. Justice Gibson’s reasons (the first judicial review) specifically note that “the details of the factual background…are in substantial dispute”. At paragraph 4, Justice Gibson comments that “[a]t the heart of the dispute is whether he was there and then offered the position subject to a language test and verification of references, or whether the offer of the position was circumscribed by other conditions”. Mr. Oriji’s position that he need not have tendered the tapes at that time because the “department admitted that an offer was made” is not sustainable on the record.
[21] Mr. Oriji did not introduce the tapes as evidence during the second PSC investigation. He claims that, at that point, the tapes were in storage with his belongings, the storage account was in arrears, and he did not have any money to pay it. Therefore, he did not and could not access the tapes.
[22] Even if I were to accept Mr. Oriji’s explanation, it does not address the fact that the PSC investigator, by virtue of Part 5 of the PSEA and Part 2 of the Inquiries Act, R.S.C., c. I-13, was vested with a power of subpoena. When I questioned Mr. Oriji in this respect, he claimed that, as a lay litigant, he is not versed in the nuances of the law and its potential benefits. When asked if he had disclosed to the investigator the existence and importance of the tapes, he stated that his position was that “the investigator was biased and would not have told him about the subpoena powers”.
[23] Mr. Oriji’s position is totally devoid of merit. First, Justice Mosley’s reasons (the second judicial review) reveal that Mr. Oriji was well aware of the PSC investigator’s powers of subpoena for he “took issue with the investigator’s failure to subpoena the attendance at the fact-finding meetings of other candidates who wrote the examination with him in February 2001” (para. 55). Second, there is absolutely no evidentiary basis to support an allegation of bias. The allegation exists in a vacuum and is not sustainable by any stretch of the imagination. Third, there is nothing before me to suggest that Mr. Oriji made any effort to obtain possession of the tapes at the time of the second investigation.
[24] Mr. Oriji did not tender the tapes as evidence in response to the defendants’ motion for summary judgment. Rather, he lay in waiting and requested that he be granted leave to bring a motion to introduce them well after his responding record had been served and filed. Moreover, he refused production of the tapes at discovery thereby necessitating a motion for production.
[25] I find that Mr. Oriji did not exercise reasonable diligence. Accordingly, it cannot be said that the “new evidence” was impossible to obtain in the past with the exercise of reasonable diligence. This finding is sufficient to dispose of Mr. Oriji’s motion because the Wavel Ventures test is conjunctive. Both conditions must be satisfied. However, even if Mr. Oriji had transcended the first hurdle, I am not satisfied that the content of the tape recordings would alter the outcome.
[26] The tape recordings do not, as alleged, confirm that a valid job offer was made on February 6, 2001. All conversations post-date the pivotal February 6, 2001 conversation. The telephone calls and ensuing discussions were initiated by Mr. Oriji. The conversations were orchestrated and contrived to elicit admissions regarding a job offer. Mr. Oriji did the talking and used carefully crafted phrases and terminology. The individuals on the receiving end of the calls were not aware that their conversations were being recorded.
[27] Only Ms. St. Louis acknowledged that a “job offer” was made and her acknowledgement was in response to Mr. Oriji’s statement that he had received and accepted a job offer. Even then, she qualified her reply by stating that she knew nothing of his situation and was simply filling in for Ms. Desjardins who was on holidays. Ms. Diotte did not admit that a job offer was made although she did express her frustration in having to conduct a second evaluation for the surplus employees. Ms. Desjardins acknowledged that it was a “very unfortunate” situation, but disputed that an offer of employment was made. To the contrary, she insisted that the PWC “would not have been able to issue… a letter of offer”.
[28] For the foregoing reasons, Mr. Oriji’s motion to introduce new evidence, in response to the defendants’ motion for summary judgment, is dismissed.
The Main Motion
[29] I am satisfied that there is no genuine issue for trial because the issues that Mr. Oriji seeks to litigate in this action revolve around and are dependant upon an offer of employment having been made to him. That issue was investigated and addressed in the second PSC investigation. The investigator determined that there had been no offer of employment. The investigator’s determination was sustained on judicial review by both the Federal Court and the Federal Court of Appeal. Mr. Oriji is estopped from re-litigating the issues in his statement of claim on the basis of res judicata, specifically issue estoppel. Alternatively, he is estopped because this action constitutes an abuse of the court’s process.
Summary Judgment Generally
[30] The Federal Courts Rules, SOR/98-106 (the Rules), specifically Rules 213 through 218, pertain to summary judgment. The provisions relevant to this matter are reproduced here.
|
Federal Courts Rules, SOR/98-106
213. (2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
|
Règles de la Cour fédérale, DORS/98-106
213. (2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l’heure, la date et le lieu de l’instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l’existence d’une véritable question litigieuse.
216. (1) Lorsque, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
|
[31] Summary judgment provides an avenue whereby claims or defences that are without foundation will not take up the time or incur the costs of a trial: Feoso Oil Ltd. v. The Sarla, [1995] 3 F.C. 68 (C.A.). It is a valuable tool for striking sham claims and defences, but is not intended to deprive a litigant of the right to a trial unless there is a clear demonstration that there is indeed no genuine issue material to the claim or defence which the trial judge must resolve: Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.).
[32] The Federal Court of Appeal, in ITV Technologies Inc. v. WIC Television Ltd. (2001), 199 F.T.R. 319 (F.C.A.), leave to appeal dismissed, [2001] 2 S.C.R. ix., confirmed that the correct test for summary judgment is that set out in Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853 (T.D.). The principles articulated in Granville Shipping (citations omitted) are as follows:
(1) The purpose of the provisions is to allow the court to summarily dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried;
(2) There is no determinative test. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
(3) Each case should be interpreted in reference to its own contextual framework;
(4) Provincial practice rules (especially rule 20 of the Ontario Rules of Civil Procedure) can aid in interpretation;
(5) This court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the court (this is broader than rule 20 of the Ontario Rules of Civil Procedure);
(6) On the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so;
(7) In the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge. The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved.
[33] The responding party has the evidential burden of showing that there is a genuine issue for trial, but the moving party bears the legal onus of establishing the facts necessary to obtain summary judgment. Both parties must put their best foot forward to enable the motions judge to determine whether there is an issue that should go to trial: F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, Inc. (1999), 165 F.T.R. 74, 1 C.P.R. (4th) 88 (T.D.).
[34] In MacNeil Estate v. Canada (Indian and Northern Affairs Department) (2004), 316 N.R. 349 (F.C.A.) (MacNeil Estate), the Federal Court of Appeal qualified the test for summary judgment where credibility is at issue. In MacNeil Estate, the particular concern was with respect to a summary judgment motion where a genuine issue for trial was found, but the court exercised its discretion under Rule 216(3) to grant summary judgment in any event. For reasons that will become apparent, the admonition of the Federal Court of Appeal in MacNeil Estate is not relevant here.
[35] Another recent pronouncement from the Federal Court of Appeal with respect to summary judgment is found in Suntec Environmental Inc. v. Trojan Technologies Inc. (2004), 320 N.R. 322 (F.C.A.) (Suntec). In Suntec, Mr. Justice Pelletier noted jurisprudence that emphasizes the fact-finding role of a judge hearing a motion for summary judgment and in particular, Collie Woollen Mills Ltd. v. Canada (1996), 96 D.T.C. 6146 (F.C.T.D.), wherein it was held that a motion for summary judgment should only be denied where, on the whole of the evidence, the judge is unable to find the necessary facts or where it would be unjust to do so. Mr. Justice Pelletier, at paras. 15 and 16 of Suntec, also referred to the line of cases that take a more restrained view of the ambit of a motion for summary judgment. The synopsis of the noted paragraphs (citations omitted) is that the test is not whether the plaintiff cannot succeed at trial, it is whether the conclusion is that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. Claims clearly without foundation should not take up the time and incur the costs of a trial.
[36] It is against this backdrop and with the guidance of the noted jurisprudence that this motion for summary judgment must be determined.
Issue Estoppel
[37] The defendants submit that Mr. Oriji’s action is barred by operation of the doctrine of res judicata, specifically the application of issue estoppel. Relying on Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (Danyluk), the defendants refer to the three requirements for establishing issue estoppel as delineated by the Supreme Court. Those requirements are: the same question has been decided; the judicial decision which is said to create the estoppel was final; and the parties in both proceedings, or their privies, were the same. In my view, all three requirements are met in this case.
[38] Mr. Oriji asserts that the PSC investigator’s decision should not be considered when determining whether the issues at hand have been previously decided. He claims that the investigator lost jurisdiction because the investigation occurred after his action was filed and therefore the investigator had a vested interest in the outcome. The investigator required leave of the court to proceed with the investigation because of the legal maxim precluding parties from judging a case in which they have a vested interest. Citing Danyluk, Mr. Oriji argues that an administrative decision, without jurisdiction, cannot form the basis of an estoppel. Moreover, the parties to this action are not the same as those on the judicial review.
[39] According to Mr. Oriji, the investigation was not fair and unbiased. The investigator was not a legal expert and was not qualified to deal with many of the issues that arose. The proposed “new evidence” impeaches the evidence of Ms. Diotte and Ms. Desjardins and it was not considered on judicial review. He maintains that, just as the individual in Danyluk, he has not had the opportunity to be heard.
[40] Mr. Oriji advances a host of allegations that he proposes be considered in determining the motion. None constitute a stand-alone allegation. All of the allegations of impropriety either relate back to the purported offer of employment, or lack any evidentiary or factual foundation.
[41] As to the contention that the “new evidence” was not available on the judicial review, I have ruled on the admissibility of the “new evidence” and need say nothing more about it. I will come to the submissions regarding the “same parties” when I address the conditions articulated in Danyluk.
[42] Mr. Oriji’s “jurisdictional” argument can be disposed of in short order. In Grenier v. Canada (2005), 344 N.R. 102 (F.C.A.), the Federal Court of Appeal definitively ruled on the issue of whether a process is to be initiated by an application for judicial review or by an action for damages. The Court reaffirmed the conclusion in Canada v. Tremblay, [2004] 4 F.C.R. 165 (C.A.) that “a litigant who seeks to impugn a federal agency’s decision is not free to choose between a judicial review proceeding and an action in damages; he must proceed by judicial review in order to have the decision invalidated”. The underlying rationale for the conclusion is succinctly stated at paragraphs 25 through 32 of the Court of Appeal’s reasons. I do not intend to repeat that reasoning here. Suffice it to say that, in conclusion, Mr. Justice Létourneau stated that “[i]t is especially important not to allow a section 17 proceeding as a mechanism for reviewing the lawfulness of a federal agency’s decision when this indirect challenge to the decision is used to obviate the mandatory provision of subsection 18(3) of the Federal Courts Act”. Grenier provides a complete answer to Mr. Oriji’s jurisdictional argument. But for the fact that Grenier had not been decided when Mr. Oriji filed his statement of claim, he would have been obliged to proceed by way of an application for judicial review of the PSC investigator’s decision.
[43] Regarding issue estoppel, Mr. Justice Binnie, speaking for a unanimous Supreme Court, explains the rationale behind this doctrine (a branch of res judicata) in Danyluk at paragraphs 18 and 19:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry…An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice.
[44] Before turning to the requisite conditions to found issue estoppel, I should mention that there has been no suggestion that cause of action estoppel applies to this matter. Danyluk recognizes the applicability of issue estoppel to the administrative decision-making process (para. 21). In Patel v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 1134 (C.A.), the Federal Court of Appeal determined that where a judicial review proceeding has effectively disposed of the central allegation in the action for damages, it may give rise to issue estoppel.
[45] The Supreme Court of Canada, at paragraph 33 of Danyluk, identified a two-step analysis for the application of issue estoppel. First, it must be determined whether the moving party has satisfied the preconditions to the operation of the doctrine and second, the court must determine whether, as a matter of discretion, issue estoppel ought to be applied.
[46] With respect to the first condition of operation (the same question has been decided), the question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceeding. The estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings: Danyluk at para. 24. Once a material fact, such as an offer of employment is found to exist (or not to exist) by a court or administrative tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue (subject to the other prerequisites of issue estoppel) cannot be re-litigated in subsequent proceedings between the parties.
[47] The second PSC investigator determined that there was no offer of employment made to Mr. Oriji. Justice Mosley, in judicially reviewing that decision, concluded that the investigator’s decision should stand. The Federal Court of Appeal held that Justice Mosley was correct not to have disturbed the investigator’s conclusion that no offer of employment had been made. The offer of employment is the central allegation in Mr. Oriji’s action for damages and it permeates all aspects of the statement of claim. The first condition of issue estoppel is met.
[48] The second condition (the decision which is said to create the estoppel is final) is also established. Mr. Oriji was successful on his first application for judicial review and the matter was remitted for reconsideration by a different investigator. A new investigation was initiated and completed and Mr. Oriji again sought judicial review. When his application was dismissed, he unsuccessfully appealed. He did not seek leave to appeal to the Supreme Court of Canada. The decision is therefore final.
[49] Regarding the third condition (the parties in both proceedings, or their privies, were the same), Mr. Oriji notes that Ms. Diotte and Ms. Desjardins were not parties to the judicial review. Although Her Majesty, in written submissions, sought to have Ms. Diotte and Ms. Desjardins struck as defendants, that position was withdrawn at the hearing on the basis of the Federal Court of Appeal decision in Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage) (2006), 350 N.R. 113 (F.C.A.).
[50] The third condition is concerned with mutuality. The concept of mutuality is addressed in Danyluk at paragraphs 59 and 60:
59. This requirement assures mutuality. If the limitation did not exist, a stranger to the earlier proceeding could insist that a party thereto be bound in subsequent litigation by the findings in the earlier litigation even though the stranger, who became a party only to the subsequent litigation, would not be: Machin, supra; Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.), per Laskin J.A., at pp. 339-40. The mutuality requirement was subject to some critical comment by McEachern C.J.B.C. when sitting as a trial judge in Saskatoon Credit Union Ltd. v. Central Park Ent. Ltd. (1988), 22 B.C.L.R. (2d) 89 (S.C.), at p. 96, and has been substantially modified in many jurisdictions in the United States: see Holmested and Watson, supra, at 21 s. 24, and G. D. Watson, "Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality" (1990), 69 Can. Bar Rev. 623.
60. The concept of "privity" of course is somewhat elastic. The learned editors of J. Sopinka, S. N. Lederman and A. W. Bryant in The Law of Evidence in Canada (2nd ed. 1999), at p. 1088 say, somewhat pessimistically, that "[i]t is impossible to be categorical about the degree of interest which will create privity" and that determinations must be made on a case-by-case basis. In this case, the parties are identical and the outer limits of "mutuality" and of the "same parties" requirement need not be further addressed.
[51] In the circumstances of this matter, the provisions of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 are engaged. Section 3 provides that the Crown is vicariously liable in respect of a tort committed by a servant of the Crown. It is evident that Mr. Oriji regards the representations of the individual defendants as the representations of Her Majesty or Her agent (PWC). Although the individual defendants were not specifically named in the style of cause in the judicial review proceeding, the allegations against them in the statement of claim are, for all intents and purposes, identical to the allegations against them on the application for judicial review. Both Ms. Diotte and Ms. Desjardins fully participated in the investigative hearing. The PSC investigator made factual determinations, including credibility, regarding them.
[52] In short, the allegations against the individual defendants on the judicial review, which are the same allegations against them in this action, were addressed and determined by the PSC investigator, by the Federal Court on judicial review, and by the Federal Court of Appeal. It is implicit in Justice Binnie’s reasoning that the concept of “mutuality” involves some flexibility and must be determined on a case-by-case basis. In my view, no discredit to the concept of issue estoppel results from a finding that the individual defendants are the privies of their employer and I so find. The third condition in relation to issue estoppel is therefore satisfied. If I am wrong in this respect, in my view, it is open to me to derogate from the mutuality requirement by turning to the doctrine of abuse of process, which I will address later in these reasons.
[53] Having determined that the three conditions of issue estoppel are met, it follows that the “offer of employment” is not a live issue because it has been previously determined. It is barred from re-litigation by the doctrine of issue estoppel and is res judicata.
[54] Mr. Oriji urges me to exercise my discretion not to apply issue estoppel as did the Supreme Court in Danyluk. It seems to me that the circumstances confronting the Supreme Court in Danyluk are not analogous to those that are before me. In Danyluk, the Supreme Court exercised its discretion because it was faced with an administrative decision that had been rendered in a “manifestly improper and unfair manner”. There, the administrative decision-maker failed to observe procedural fairness. Moreover, the administrative decision had not been judicially reviewed. Here, while the first PSC investigation did not withstand judicial scrutiny, Mr. Oriji had the benefit of a second investigation. The result of the investigation was upheld by both the Federal Court and the Federal Court of Appeal.
[55] Unlike Danyluk, Mr. Oriji has had an opportunity to have his complaint fairly assessed. He has had access to all relevant documents and was also provided a full opportunity to make representations. In relation to “new documents”, excluding the tape recordings, only four documents emerged as a result of this action. Nothing turns on any of these documents and none is conclusive in relation to his allegations. Rather, they are inconsequential with respect to establishing his claim. Nonetheless, I am mindful of the admonition of Justice Binnie that the doctrine of issue estoppel is not to be mechanically applied. Consequently, I turn to the question of whether I ought to exercise my discretion not to apply issue estoppel.
[56] I concur with Justice Mosley that the dominant objective of the PSEA is to ensure that selection and appointment to the Public Service of Canada takes place according to merit. The purpose of an investigation conducted pursuant to section 7.1 of the PSEA is to provide a recommendation to the PSC to enable it to take any corrective action that it considers appropriate. The power to provide such recommendation is discretionary as opposed to mandatory. The authorization to conduct investigations encompasses important matters such as appointments in open competitions and disputes over priorities for appointment. The investigator is endowed with the responsibility of determining whether the candidacy of an applicant in an open competition has been dealt with in accordance with the principle of merit and other legislative requirements of the PSEA.
[57] At the same time, the purpose of the legislative scheme is to provide a relatively quick and inexpensive means for the adjudication of disputes. There is neither a right of appeal nor a privative clause. It is evident from this case that an individual who is dissatisfied with a result may initiate an application for judicial review of the investigator’s determination.
[58] With respect to the safeguards available to the parties, unlike Danyluk, Mr. Oriji was not denied natural justice. He was the recipient of two PSC investigations, applied for judicial review of both and pursued the second to the Federal Court of Appeal. While the first PSC investigative hearing was not fair, the procedural deficiencies and the substantive legal error were corrected in the second investigation.
[59] Justice Mosley noted that the investigator is to be viewed as having a good deal of expertise in coming to factual determinations on employment-related matters. Questions of mixed fact and law, in part, engage the expertise of the particular administrative decision-maker. However, in analysing the law, the court is better suited because the PSEA does not require that investigators have any legal training. Thus, unlike the litigant in Danyluk, Mr. Oriji has had the benefit of the Federal Court’s oversight regarding the interpretation of the applicable law.
[60] In relation to the circumstances giving rise to the prior administrative proceedings, Mr. Oriji was not faced with the “personal vulnerability” that was the situation in Danyluk. While the delay between the examination and the scheduling of the language testing was found to be questionable, there is no requirement or duty for PWC to schedule testing in a timely manner. Rather, the legislation grants a degree of flexibility to the PSC in considering further material and conducting such tests and investigations as it considers necessary or desirable. Mr. Oriji was able to pursue his grievance, albeit unsuccessfully, twice.
[61] Potential injustice is the most important factor. Regard should be had to the entirety of the circumstances and the court should consider whether the application of issue estoppel in the particular case would work an injustice. As I have repeatedly stated, Mr. Oriji’s various allegations of violations of his civil and constitutional rights rest on the premise that he received an offer of employment. That issue has been determined. Justice Mosley concluded that the claims of document tampering, fraud, abuse of authority and perjury were unsubstantiated. Similar allegations in this proceeding completely lack an evidentiary basis. Mr. Oriji has had an opportunity to have his complaint fairly assessed. In Vaughn v. Canada, [2005] 1 S.C.R., the Supreme Court of Canada expressly noted the importance of not jeopardizing the process set out in the legislative schemes by permitting parallel access to the courts.
[62] I also consider the public interest in the finality of litigation and the uncertainty created in not knowing when it is over to be important. The integrity and credibility of the justice system, judicial and administrative resources and costs must be factored into the equation. In my view, there is no potential injustice in applying the doctrine of issue estoppel.
Abuse of Process
[63] In AB Hassle v. Apotex Inc., [2005] 4 F.C.R. 229, aff’d (2006), 350 N.R. 219 (F.C.A.), I noted that the court’s power to prevent re-litigation extends beyond the limits of the res judicata doctrine. In C.U.P.E., Madam Justice Arbour discussed the three related doctrines of issue estoppel, abuse of process and collateral attack. At paragraphs 92 through 97 of AB Hassle, omitting reference to citations, I summarized the commentary in C.U.P.E. regarding abuse of process. Those paragraphs are reproduced here.
92. Judges have an inherent and residual discretion to prevent an abuse of the court's process. The doctrine is used in a variety of legal contexts. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. Courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
93. The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel. The policy grounds include that there will be an end to litigation and that no one should be twice vexed by the same cause as well as grounds whose aim is to preserve the courts' and litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.
94. While critics have argued that when the doctrine of abuse of process is used as proxy for issue estoppel it obscures the true question, while adding nothing but a vague sense of discretion, that is not so. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative function of courts. The focus is less on the interests of the parties and more on the integrity of judicial decision making as a branch of the administration of justice. When the focus is properly on the integrity of the adjudicative process, the motive of the party who seeks to relitigate cannot be a decisive factor.
95. From the system's point of view, relitigation causes serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. Instances where litigation will enhance, rather than impeach, the integrity of the judicial system include: (1) when the first proceeding is tainted by fraud or dishonesty; (2) where fresh new evidence, previously unavailable, conclusively impeaches the original results; and (3) when fairness dictates that the original result should not be binding in the new context.
96. The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. The bar against relitigation would create unfairness in circumstances where the stakes in the original proceeding were too minor to generate a full and robust response while the subsequent stakes were considerable. Fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision.
97. The doctrines of issue estoppel, collateral attack and abuse of process comprehensively address the concerns that arise when finality in litigation must be balanced against fairness to a particular litigant.
[64] I mentioned earlier that if I am wrong with respect to my finding that the third condition (mutuality) in relation to issue estoppel exists, it is open to me to derogate from the mutuality requirement by turning to the doctrine of abuse of process. I do that now and if issue estoppel does not apply, then I conclude that Mr. Oriji’s statement of claim constitutes an abuse of process for substantially the same reasons provided under the issue estoppel section of these reasons.
[65] Because the central allegation in Mr. Oriji’s action for damages has been determined and because it permeates all aspects of the statement of claim, there is little left to say. Most of the peripheral allegations have also been conclusively determined. Those that remain are not supported by any specific factual basis in the statement of claim or in the evidence tendered on this motion. Mr. Oriji seeks to re-litigate issues that have been addressed and dismissed by the second PSC investigation. Those determinations have been upheld on judicial review by the Federal Court and the Federal Court of Appeal. As noted in Grenier, the principle of the finality of decisions requires that in the public interest, the possibilities for indirect challenges of an administrative decision be limited and circumscribed, especially when Parliament has opted for a procedure for direct challenge of the decision within defined parameters.
[66] For the foregoing reasons, I am satisfied that there is no genuine issue for trial. The defendants are entitled to summary judgment.
[67] On the issue of costs, the parties concur that any award of costs should be in a fixed amount. Mr. Oriji, if successful, suggested that he be awarded costs in the amount of $5,000 with disbursements of $1,500. The defendants seek costs of the motion in the range of $2,000 to $3,000 and costs on the action (for pleadings and discovery) in the range of $1,000 to $2,000. The defendants’ request is well below the tariff.
[68] I see no reason to depart from the general rule that costs should follow the event. Consequently, the defendants will have costs, which will include the costs of this motion and any other motions where costs were not specifically awarded, as well as costs of the action, to include pleadings and discovery. In the exercise of my discretion, I fix those costs in the all inclusive fixed amount of $3,000 to be paid by Mr. Oriji. An order will go accordingly.
“Carolyn Layden-Stevenson”
Judge
Ottawa, Ontario
December 21, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-49-03
STYLE OF CAUSE: Hensley Oriji v. Her Majesty the Queen in right of Canada, Mme. Micheline Désjardins and
Mme Mirelle Diotte
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 5 and 6, 2006
AND ORDER: Layden-Stevenson J.
APPEARANCES:
|
Mr. Hensley Oriji
|
FOR THE PLAINTIFF ON HIS OWN BEHALF
|
|
Mr. Michael Roach
|
SOLICITORS OF RECORD:
|
No Solicitor of Record
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
Date: 20061221
Docket: T-49-03
Ottawa, Ontario, December 21, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
HENSLEY ORIJI
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Mme. MICHELINE DÉSJARDINS and Mme. MIRELLE DIOTTE,
.
Defendants
ORDER
IT IS HEREBY ORDERED THAT the motion for summary judgment is granted. The defendants will have costs of the motion and any other motions, where costs were not awarded, as well as costs of the action, to include pleadings and discovery, in the all inclusive amount of $3,000 to be paid by the plaintiff forthwith.
“Carolyn Layden-Stevenson”
Judge