BETWEEN:
and
REASONS FOR ORDER
[1] The defendant moved to strike Ms. Graham’s statement of claim. Prothonotary Lafrenière granted the motion and struck the action without leave to amend. Ms. Graham appealed Prothonotary Lafrenière’s order. I dismissed the appeal. These are my reasons.
I. Background
[2] Succinctly stated, the pertinent facts are that Ms. Graham is an officer in the Canadian Forces. She wanted to become a Public Affairs Officer. In October of 2005, she was considered for such a position by the Public Affairs Board (the selection board). In November of that year, she was informed that she had been approved for the position at a ranking of six out of ten. She was allegedly not selected because there were only five available positions at the time. Following the receipt and review of information obtained through a request to the Directorate of Access to Information and Privacy (DAIP), Ms. Graham believed that the selection board had considered irrelevant and inappropriate factors in its assessment of her. While it was not clear from the statement of claim and the documentation on the motion to strike, it is now common ground that Ms. Graham did not grieve the selection board's procedure or determination.
[3] Unrelated to the selection board process, Ms. Graham also sought a transfer to Public Affairs from the naval area where she was working. Her request for transfer was not handled in a manner that was satisfactory to her. She submitted a grievance in relation to the transfer issue in January of 2006.
[4] It is evident, from the oral arguments on appeal, that these events were independent of one another. Thus, Ms. Graham's transfer request is the subject of a grievance; the selection board’s assessment of her in relation to a position as a Public Affairs Officer is not. Rather than initiate a grievance in relation to the selection board assessment, Ms. Graham commenced an action in this court on June 9, 2006.
II. The Decision
[5] The crux of Prothonotary Lafrenière’s determination is contained in the following paragraphs of his order:
Notwithstanding the Plaintiff’s attempt to characterize her cause of action as a tort of discrimination, it remains that the allegations and claims in the Statement of Claim, taken as a whole, relate to her engagement as a member of the Canadian Armed Forces. Based on the evidence before me, the Plaintiff has, or had, recourse to the National Defence Grievance process provided by section 29 of the National Defence Act, R.S.C. 1985, c. N-5 and Queen’s Regulations and Orders, chapter 7 to address her complaints. Whether she grieved the discriminatory practices or not is of no consequence. The fact is that she could have grieved the matters raised in the Statement of Claim.
This Court has consistently held that the only avenue of redress available for military personnel to challenge a decision (such as career progression and a selection process) is the grievance procedure, described as broad and exhaustive in nature (see paragraphs 16 to 26 of the Defendant’s written representations). As for the Plaintiff’s complaint regarding the ineffectiveness or inadequacy of the grievance process, an avenue of remedy is available from this Court, but only by way of judicial review of the final decisions pursuant to s. 18.1 of the Federal Courts Act.
[6] The prothonotary went on to address the requisite threshold for striking an action and determined that this matter either “constitutes an abuse of process by seeking to circumvent the exhaustive statutory scheme available under the National Defence Act, or an improper collateral attack of an administrative decision, which can only be accomplished by way of an application for judicial review”. In this respect, he referred to the Federal Court of Appeal decision in Grenier v. Canada, [2006] 2 F.C.R. 287 (F.C.A.), (Grenier).
III. Issues
[7] There are two issues that arise:
(1) Whether the “new” evidence in the form of Ms. Graham’s affidavit and the attachments exhibited to it are admissible on this appeal; and
(2) Whether the prothonotary erred in striking the statement of claim without leave to amend.
IV. Analysis
[8] Before turning to the issues, it should be stated that although Ms. Graham had been a self-represented litigant, she was represented by counsel on this motion. Her counsel readily (and appropriately) conceded that the statement of claim was “terrible” and incapable of amendment as presently framed.
A. New Evidence
[9] Prior to retaining counsel, Ms. Graham filed her motion record in which she included a fresh affidavit with several attachments exhibited thereto. In addition to noting the flagrant technical deficiencies of the affidavit (which Ms. Graham's counsel attributed to her lack of legal knowledge), the defendant strenuously objected to its admissibility on the basis that: it was not before the prothonotary; the defendant had not had an opportunity to test the evidence; and the defendant had not had an opportunity to cross-examine on it. Moreover, Ms. Graham had not established that: the evidence, with due diligence, could not have been available in the first instance; it was capable of altering the outcome; or that the interests of justice required that it be admitted. Ms. Graham’s counsel submitted that she could not “satisfy the test of ‘new’ evidence”.
[10] The general rule is that appeals from orders of prothonotaries are to be decided on the basis of the material that was before the prothonotary. In James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 126 F.T.R. 1 (F.C.T.D.), Madam Justice Reed declined to accept new evidence that had not been before the prothonotary and stated at paragraphs 31 and 32:
[31] As I understand counsel's explanation of the Associate Senior Prothonotary's decision, it is that the order requested was refused because there was no proper evidence before the Associate Senior Prothonotary demonstrating that the United States proceeding existed and was parallel to the present proceeding, nor was there evidence demonstrating that the documentation that was sought was relevant to the present proceeding. It was not argued that this decision by the Associate Senior Prothonotary was in error. Counsel for the plaintiff sought to file with the Court an affidavit to supply the missing evidence. He took the position that an appeal of a prothonotary's decision to a judge is a proceeding de novo and, therefore, I was entitled to accept this evidence and render the decision the Associate Senior Prothonotary would have made had he had that evidence before him.
[32] I do not interpret the role of a judge on an appeal of a prothonotary's order in that way. Whatever may be the difference, if any, between the Chief Justice's description on page 454 of Canada v. Aqua-Gem, supra, and that of the majority of the Court at page 463, the latter governs. It clearly contemplates that the judge will exercise his or her discretion de novo, on the material that was before the prothonotary, and not engage in a hearing de novo based on new materials.
[11] Mr. Justice Nadon, then of the Federal Court Trial Division, reached a similar conclusion in Symbol Yachts Ltd. v. Pearson, [1996] 2 F.C. 391 (T.D.). Justice Nadon held that:
[20] The present matter is an appeal from the Prothonotary's decision pursuant to subsection 336(5) of the Rules. For me to disturb the Prothonotary's order, I must be satisfied that his order was "clearly wrong" or that the order raises a question "vital to the final issue of the case". In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, Mr. Justice MacGuigan of the Federal Court of Appeal explained as follows the applicable standard of review where appeals are taken from discretionary orders of a prothonotary. At page 463, Mr. Justice MacGuigan stated that:
… discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[21] In the present instance, there is no doubt in my mind that the Prothonotary's order raises a question vital to the final issue of the case since the effect of the Prothonotary's order is to terminate the plaintiffs' action. However, I can only examine the Prothonotary's order in the light of the evidence which was before him when he made his order. Consequently, I cannot, and so advised the parties at the hearing, consider the affidavits which the plaintiffs seek to introduce into the record. I do not know why these affidavits were not filed by the plaintiffs in support of their September 22, 1995 application but, in my view, that evidence, if available, should have been placed before the Prothonotary.
[22] This is an appeal of the Prothonotary's decision and it is now too late to present evidence which should have been made earlier. In my view, the purpose of these new affidavits is to correct the shortcomings of the evidence submitted to the Prothonotary. The facts sworn to, for example in the Beesley affidavit, are facts which could have been put before the Prothonotary but were not. The affidavit covers the time period from the initiation of the litigation in 1988 to October 30, 1995.
[23] It was for these reasons that I informed the parties during the hearing that I would not allow the plaintiffs to introduce into the record supplementary affidavits.
See also: Canada v. Mid-Atlantic Minerals Inc., [2003] 1 F.C. 168 (F.C.); Canada (Minister of National Revenue – M.N.R.) v. Marrazza (2004), 256 F.T.R. 1 (F.C.); Rhéaume v. Canada, 2003 FC 1405, [2003] F.C.J. 1798; Odessa Partnership v. Canada (Department of National Revenue), 2003 FC 1420, [2003] F.C.J. 1814.
[12] Exceptionally, new evidence may be admissible in circumstances where: it could not have been made available earlier; it will serve the interests of justice; it will assist the court; and it will not seriously prejudice the other side: Mazhero v. Canada (Industrial Relations Board) (2002), 292 N.R. 187 (F.C.A.). None of the criteria have been met in this case.
[13] Having examined the evidence, its relevance to the issue to be determined is, at best, marginal. I am not persuaded that, if admitted, it could impact the outcome of the appeal. Further, no explanation beyond the fact that Ms. Graham is a lay litigant has been advanced to justify the failure to put the evidence before Prothonotary Lafrenière. While the court tries to be flexible where self-represented parties are concerned, litigants who choose to represent themselves must accept the consequences of their choice: Wagg v. Canada, [2004] 1 F.C.R. 206 (C.A.) at para. 25. It is essential that the established rules and procedures be adhered to and followed in a manner that is fair to both sides. This matter has been repeatedly adjourned to accommodate Ms. Graham’s failure to adhere to the requirements of the Federal Courts Rules. It was initially set for hearing on January 15, 2007.
[14] Ms. Graham has failed to bring herself within the exception to the general rule. Consequently, the affidavit is not admissible.
B. The Merits
[15] It is common ground that Prothonotary Lefrenière’s decision is vital to the final issue and, as a result, I must approach the matter de novo: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.); Merck & Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (C.A.).
[16] Ms. Graham’s counsel asserted that “perhaps because the claim is so convoluted”, the prothonotary decided the matter in reliance on facts “that were wrong”. The essence of this argument is that Prothonotary Lafrenière, as a result of the affidavit of Captain Dan Bell, was operating on the assumption that Ms. Graham had submitted a grievance, regarding the selection board’s assessment, when she had not. Rather, her grievance related to her request for a transfer to Public Affairs.
[17] I am far from convinced that the prothonotary erred as alleged. He did refer to a grievance filed on June 9, 2006, and expressly identified it as being in relation to the “failure by the Department of National Defence to properly consider her application for transfer or reassignment to Public Affairs in a timely and appropriate manner”. In discussing the contents of the statement of claim, the prothonotary reiterated Ms. Graham’s position that “the grievance process is not applicable to the matters” in the statement of claim because “she never brought a grievance with respect to them”. It appears to me that these statements are totally consistent with Ms. Graham's position.
[18] In any event, if there was confusion in this respect (and I am not convinced that the prothonotary was confused), it was of no consequence. The basis of Prothonotary Lafrenière’s decision was that it was not open to Ms. Graham to circumvent the grievance provisions of the National Defence Act. In my view, he was entirely correct in arriving at that determination.
[19] As a basic proposition, when Parliament creates statutory remedies and institutions designed specifically to provide redress to persons aggrieved, the court should not lightly intervene before those statutory remedies have been exhausted. Failure to pursue the available procedures does not render the remedy inadequate: Lazar v. Canada (Attorney General) (1999), 168 F.T.R. 11 (T.D.) aff’d. (2001), 271 N.R. 10 (F.C.A.).
[20] It is common ground that Ms. Graham’s complaint arises out of her engagement as a member of the Canadian Forces and specifically relates to her dissatisfaction with the decision of the selection board in not selecting her for a position.
[21] Section 29 of the National Defence Act provides:
The detailed process is set out in Chapter 7 of the Queen’s Regulations and Orders, which is entitled “Grievances”.
[22] The jurisprudence holds that the resolution mechanism existing through the grievance procedure in the National Defence Act constitutes an adequate alternative remedy that must be exhausted before an individual can turn to the court for redress: Anderson v. Canada (Canadian Armed Forces), [1997] 1 F.C. 273 (F.C.A.); Gallant v. Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Jones v. Canada (1994), 87 F.T.R. 190 (T.D.); Pilon v. Canada (1996) 119 F.T.R. 269 (T.D.); Villeneuve v. Canada (1997), 130 F.T.R. 134 (T.D.); Haswell v. Canada (Attorney General (1998), O.T.C. 143 (Gen. Div.) aff’d. (1998), 116 O.A.C. 395 (C.A.).
[23] This approach is consistent with the reasoning of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. There, the court determined that where the subject matter of a dispute is one that is covered by a statutory scheme or collective agreement, the court should, as a general rule, defer jurisdiction to the mechanisms set out in the applicable scheme (paras. 50-58 and 67). More recently, in Vaughn v. Canada, [2005] 1 S.C.R. 146, the Supreme Court emphasized that regard must be had to the facts giving rise to the dispute rather than the legal characterization of the wrong to determine whether there is an adequate alternative remedy (para.11). In all but the most unusual circumstances, the court should decline jurisdiction and defer to statutory grievance schemes (para. 2).
[24] Ms. Graham’s complaints relate directly to her career progression within the Canadian Forces. Her quarrel is with the manner in which the selection process under the National Defence Act was conducted. As such, her recourse is to grieve the selection. In short, she has an adequate alternative remedy. That remedy must be exhausted before she turns to the court.
[25] Should Ms. Graham be dissatisfied with the result of her grievance, she may then seek recourse by way of judicial review. Parliament’s intention in relation to the appropriate process to challenge an administrative decision (by way of judicial review or by an action for damages) was exhaustively examined by the Federal Court of Appeal in Grenier. The issue is discussed at paragraphs 25 through 32 of the court’s reasons and I do not intend to repeat the discussion here. Suffice it to say that, in conclusion, the court commented 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”.
[26] To summarize, Ms. Graham must exhaust the adequate alternative remedy available to her. If, at the completion of that process, she is dissatisfied with the decision, she may seek judicial review. It is not open to her to circumvent the process mandated by Parliament through initiating an action at this time. Consequently, her action has no chance of success and Prothonotary Lafrenière was quite right to strike it without leave to amend.
[27] Before concluding, I wish to address Ms. Graham’s reliance on Smith v. Canada (Attorney General) et al. (2006), 300 N.B.R. (2d) 363 (Q.B.T.D.) (Smith), which she urged me to follow. There, Madam Justice Garnett refused to dismiss an action initiated by members of the R.C.M.P. The defendants contended that the court lacked jurisdiction or should decline jurisdiction on grounds that I gather, from the reported decision, are not dissimilar to those advanced before me. For various reasons, I do not find the authority helpful.
[28] First, the nature of the action in Smith is not readily apparent on reading the decision. It seems that the allegations in the statement of claim may have been outside the ambit of the grievance process, but this is speculative on my part. Second and more importantly, it is obvious from the decision that the primary plaintiff in Smith repeatedly utilized the internal process in relation to his complaint. He additionally accessed, or attempted to use alternate dispute resolution and mediation processes. On that basis alone, the case is readily distinguishable from the one at hand. Third, there is nothing before me to indicate, let alone establish, the similarities or dissimilarities between the grievance procedure in Smith and that available to Ms. Graham. Fourth, to apply Smith, I would have to disregard the jurisprudence of the Federal Court and the Federal Court of Appeal. The latter is binding upon me. Finally, I am advised by counsel that the Smith case is scheduled for hearing before the New Brunswick Court of Appeal on February 27, 2007. Accordingly, I refrain from further comment.
[29] As I indicated to the parties on the return of the motion, the appeal must be dismissed. I issued an order to that effect on February 19, 2007.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-990-06
STYLE OF CAUSE: MELANIE GRAHAM v. HMQ
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 19, 2007
REASONS FOR ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
|
Mr. F. Kenneth Walton
|
|
|
Ms. Valerie J. Anderson Mr. Ward Bansley
|
SOLICITORS OF RECORD:
|
F. Kenneth Walton Barrister & Solicitor Victoria, BC |
|
|
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
|