Docket:
T-997-09
Citation: 2014 FC 307
Ottawa, Ontario, April 1,
2014
PRESENT: The Honourable Madam Justice Gleason
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BETWEEN:
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R. MAXINE COLLINS
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
These are two motions for summary relief. The
plaintiff, Ms. R. Maxine Collins, seeks summary judgment pursuant to Rules 213
to 215 of the Federal Courts Rules, SOR/98-106 [the Rules]. The
defendant seeks summary trial and judgment in its favour pursuant to Rules 213
and 216 of the Rules.
[2]
For the reasons below, I am dismissing the
plaintiff’s motion for summary judgment and granting the defendant’s motion for
summary trial. I have also determined that I will grant judgment in favour of
the defendant, and this action is therefore dismissed, with costs.
BACKGROUND
[3]
Ms. Collins was an employee of the Canada
Revenue Agency [CRA] from November 2005 to November 2007, working in the
Toronto West Tax Services Office [TWTSO]. She alleges that over the first half
of 2006, her team leader, Rickaye Low, and several co-workers on her audit team
made remarks with respect to personal bankruptcy. As she had previously
undergone a personal bankruptcy, Ms. Collins interpreted these remarks to indicate
that they had unlawfully accessed her personal tax information using CRA’s
systems, contrary to s. 241 of the Income Tax Act, RSC 1985, c 1 (5th
Supp) [Income Tax Act]. She therefore made a request under the Privacy
Act, RSC 1985, c P-21 for a list of all CRA employees who had accessed her
personal tax information from January 1, 2005 to July 2006. The CRA complied
with this request and provided a report showing all accesses to her file. The
report and subsequent inquiries by the CRA disclosed that one CRA employee,
Perry Zanetti, had indeed committed an unauthorised access to Ms. Collins’
personal tax information. He was subsequently dismissed from the CRA for his
conduct.
[4]
However, Ms. Collins was not satisfied because
Mr. Zanetti was not one of the members of her audit team at TWTSO and did not
have any contact with her team. She was convinced that members of her audit
team had also accessed her information. She requested that the CRA conduct an
internal investigation into the matter. Jim Stathakos, Acting Assistant
Director of TWTSO Audit, was tasked with investigating the complaint. The
investigation determined that no TWTSO employee other than Mr. Zanetti had
accessed Ms. Collins’ personal tax information without authority.
[5]
Subsequently, Ms. Collins requested that an
investigation into these matters be conducted by the Royal Canadian Mounted
Police [RCMP], the Office of the Privacy Commissioner [OPC] and the Office of
the Public Sector Integrity Commissioner [OPSIC]. None of these requests
ultimately produced any final reports, and none revealed any additional
evidence of unauthorised accesses beyond that of Mr. Zanetti.
[6]
As a result of these investigations, Ms. Collins
alleges that she began to experience workplace harassment. She sought transfers
on multiple occasions to other branches within the CRA. She was offered a
transfer to the office in London, Ontario, but she declined. She also turned
down a position at the Toronto Centre call site. She did, however, accept a
temporary lateral transfer to the CRA Appeals Division.
[7]
Nonetheless, Ms. Collins alleges she continued
to experience workplace harassment. On September 14, 2007, she became very
upset and terminated a meeting with Anuradha Marisetti, the Director of TWTSO.
On November 6, 2007, Ms. Collins tendered her resignation from the CRA.
PROCEDURAL
HISTORY
[8]
This proceeding has a lengthy and protracted
procedural history.
[9]
On June 23, 2009, Ms. Collins, representing
herself, filed a Statement of Claim against the defendant for a proposed class
proceeding, claiming misfeasance in public office, negligence, and violations
of the Canadian Charter of Rights and Freedoms. The Court stayed the
proceeding until she was represented by a solicitor, as is required for class
proceedings under Rule 121 of the Rules. Her motion to appeal that Order was
dismissed. She was granted leave to amend the Statement of Claim to bring the
claim in her own right.
[10]
On September 14, 2009, Ms. Collins filed her
Amended Statement of Claim. The defendant subsequently brought a motion to
strike the claim, and on March 5, 2010, my colleague, Justice Heneghan, struck
the Amended Statement of Claim, finding that it disclosed no reasonable cause
of action. On appeal, the Federal Court of Appeal dismissed the appeal but clarified
Justice Heneghan’s Order to specify that Ms. Collins had leave to re-amend her
claim to plead only the tort of misfeasance in public office (see Collins v
R, 2011 FCA 140, 201 ACWS (3d) 35).
[11]
On July 7, 2011, Ms. Collins filed an Amended
Amended Statement of Claim. In it, her principal allegation is against the CRA.
She claims that employees of the CRA improperly accessed her taxpayer records
without authorisation, in violation of s. 241 of the Income Tax Act. She
alleges that the unauthorised access was unlawful, and that this information
was used by CRA employees to harass and embarrass her, constituting misfeasance
in public office.
[12]
The Amended Amended Statement of Claim also
makes allegations against members of the RCMP and employees the Department of
Justice [DOJ], whom Ms. Collins alleges unlawfully disclosed her complaint to
the RCMP to employees of the CRA, constituting a violation of “informer
privilege” amounting to targeted malice against a whistleblower. Ms. Collins
further alleges that Wayne Watson, former Deputy Commissioner of OPSIC,
committed misfeasance for refusing to open an investigation into her complaints
about the CRA.
[13]
On October 31, 2011, the defendant filed and
served its Statement of Defence to the Amended Amended Statement of Claim, in
which it denies that there has been any unlawful conduct on part of the CRA,
the RCMP, the DOJ, OPSIC, or any of their employees, and that in any case, Ms.
Collins has not suffered any damages arising from any such conduct. Ms. Collins
filed a Reply on November 3, 2011.
[14]
On December 13, 2011, Ms. Collins filed a Notice
of Motion for summary judgment. On December 20, 2011, the defendant brought a
motion for summary trial. The defendant filed a motion record in response to
Ms. Collins’ motion for summary judgment on January 11, 2012. By Order of
January 23, 2012, my colleague, Justice Rennie, adjourned Ms. Collins’ motion
for summary judgment sine die and ordered that it would be heard at the
same time as the defendant’s motion for summary trial.
[15]
On March 9, 2012, the defendant moved for the
confidential filing of an affidavit of one of its affiants on the summary
motions, namely Pierre Léveillé, Senior Investigator at the CRA, which would
have attached as an exhibit an investigative report detailing the investigation
into Ms. Collins’ complaint. The defendant requested that the report be
reviewable only by the Court and withheld from Ms. Collins because it contains
confidential information and the defendant feared Ms. Collins would disseminate
its contents to the public.
[16]
By Order dated April 5, 2012, Prothonotary Aalto
ordered that the Léveillé affidavit and the report annexed as an exhibit to it
be filed on a confidential basis, but that Ms. Collins be served with a copy of
the same after she signed a written undertaking not to make copies, publish or
disseminate its contents in any way and not to use it except for the purposes
of this action. Ms. Collins refused to sign such an undertaking. As a result,
the investigative report has not been filed by the defendant. Rather, the
defendant has filed the affidavits of Pierre Léveillé, Rob Coelho, Susan
Pattison, and Jim Stathakos, some of which append the audit trials CRA
generated as a result of Ms. Collins’ complaint, and others of which summarise
CRA’s investigation. That investigation concluded that Mr. Zanetti was the only
person who had accessed Ms. Collins’ tax information without authorisation.
[17]
At the hearing before me on September 26, 2013,
Ms. Collins requested that she be permitted to make a private recording of the
hearing. However, she indicated that her concerns with respect to obtaining a
transcript of the hearing would be resolved if the Court ordered that copies of
the official transcript be made available to both Ms. Collins and the defendant,
and I made a ruling to that effect.
[18]
Ms. Collins then raised two preliminary oral
motions, the first one seeking a ruling that the defendant could not advance
its motion for summary trial because it had made a motion to strike certain
paragraphs of the Amended Amended Statement of Claim. I found that the
defendant had in fact not brought a motion to strike any paragraphs of Ms.
Collins’ pleadings, and so dismissed the first motion.
[19]
In her second oral motion, Ms. Collins argued
that the defendant could not bring a motion for summary trial because it had
not yet filed an affidavit of documents and examinations for discovery had not
yet been conducted. I issued a second oral ruling and found that Rule 213 of
the Rules does not require that discovery take place before a motion for
summary relief can be heard. I therefore dismissed Ms. Collins second motion as
well. A transcript of the reasons given orally on these two motions is attached
as Appendix “A” to this judgment.
[20]
Ms. Collins also raised preliminary objections
to parts of the evidence tendered by the defendant. Specifically, she argued
that various portions of the affidavits of Jim Stathakos, Pierre Léveillé,
Susan Pattison, Rob Coelho, Rickaye Low, and Anuradha Marisetti were
inadmissible. I adjourned the motions for summary relief because there was
insufficient time to consider them on their merits, given the preliminary
motions raised by Ms. Collins. By my Order of October 11, 2013, I held that
certain portions of the affidavits of Pierre Léveillé, Rob Coelho, Jim
Stathakos, and Anuradha Marisetti were inadmissible and would not be considered
by me on the pending motions for summary relief.
[21]
The merits of the motions were heard before me
on November 21, 2013. Prior to arguing the merits, Ms. Collins again requested
that she be permitted to record the proceedings using her personal recording
device, notwithstanding the fact that at the hearing on September 26, 2013, I
had already agreed to provide the parties with a copy of the transcript at no
cost to them. I denied Ms. Collins’ request to make a personal recording and
directed the court reporter to provide both parties with a certified copy of
the official transcript. A transcript of my oral ruling on this request is
attached as Appendix “B” to this judgment.
ANALYSIS
The tort
of misfeasance in public office
[22]
Before discussing the issues raised by these
motions for summary relief, it is useful to review the relevant law on the tort
of misfeasance in public office.
[23]
In Odhavji Estate v Woodhouse, 2003 SCC
69, [2003] 3 S.C.R. 263 [Odhavji], Justice Iacobucci notes that the tort
has two categories: “Category A involves conduct that is specifically intended
to injure a person or class of persons [and] Category B involves a public
officer who acts with knowledge both that she or he has no power to do the act
complained of and that the act is likely to injure the plaintiff” (Odhavji
at para 22). In each instance, misfeasance in public office involves a
deliberate disregard of official duty coupled with knowledge that the
misconduct is likely to injure the plaintiff. Thus, to make out the tort the
plaintiff must prove two elements:
1.
The public officer engaged in deliberate and
unlawful conduct in his or her capacity as a public officer; and
2.
The public officer was aware both that his or
her conduct was unlawful and that it was likely to harm the plaintiff (Odhavji
at para 23).
[24]
To make out Category B misfeasance, both
elements must be proven independently. To make out Category A, “the fact that
the public officer has acted for the express purpose of harming the plaintiff
is sufficient to satisfy each ingredient of the tort, owing to the fact that a
public officer does not have the authority to exercise his or her powers for an
improper purpose” (Odhavji at para 23). The plaintiff must also prove
the requirements necessary for all torts, namely that the tortious conduct was
the legal cause of the injuries and that the injuries suffered are compensable
in tort law (Odhavji at para 32).
[25]
With this background in mind, I now turn to the
merits of Ms. Collins’ motion for summary judgment and the defendant’s motion
for summary trial.
ISSUES
[26]
The issues on these motions for summary relief
are:
1.
Has the plaintiff established that there is no
genuine issue for trial, such that summary judgment should be granted in her
favour?
2.
Has the defendant established that these
proceedings are suitable for summary trial, and if so, should the Court grant
judgment in its favour?
Motion
for summary judgment: Has the plaintiff established that there is no genuine
issue for trial such that summary judgment should be granted in her favour?
[27]
For the reasons that follow, I find that Ms.
Collins is not entitled to summary judgment. Her motion is accordingly
dismissed.
Principles applicable to motions for
summary judgment
[28]
The relevant principles are well-established and
not in dispute. Pursuant to Rule 213(1) of the Rules, a party may bring a
motion for summary judgment on all or some of the issues raised in the
pleadings at any time after the defendant has filed a defence but before the
time and place for trial have been fixed. The Court may grant a motion for
summary judgment only if it is satisfied that there is no genuine issue for
trial (see e.g. Rule 215(1) of the Rules; Nautical Data International, Inc v
C-Map USA Inc, 2012 FC 300 at para 10, 407 FTR 175 [Nautical Data]; Canada
(Attorney General) v Lamenan, 2008 SCC 14 at paras 10-11, [2008] 1 S.C.R. 372
[Lamenan]; Granville Shipping Co v Pegasus Lines Ltd SA, [1996] 2
FC 853, 111 FTR 189 (TD) at para 8 [Granville]; Premakumaran v Canada,
2006 FCA 213 at para 8, 270 DLR (4th) 440 [Premakumaran]; Society of
Composers, Authors & Music Publishers of Canada v Maple Leaf Sports &
Entertainment Ltd, 2010 FC 731 at para 16, 191 ACWS (3d) 92 [SOCAN]).
[29]
There is no determinative test to apply in
granting summary judgment, but rather, the Court should ask whether the case is
so doubtful, or so clearly without foundation, that it does not deserve
consideration at trial (see e.g. Nautical Data at para 10; Granville
at para 8; Lamenan at para 8).
[30]
The Court’s function on a motion for summary
judgment is not to resolve issues of fact over which there is genuine dispute (SOCAN
at paras 15 - 16). However, the Court may base its decision on the pleadings
and evidence and is entitled to draw inferences from undisputed facts before
the Court (Lamenan at para 11). The Court may also determine questions
of fact and law if such determinations can be made from the material before it
(Granville at para 8).
[31]
The moving party has the burden of establishing
that there is no genuine issue for trial and that it is therefore entitled to
judgment. In this regard, the moving party is not required to prove all the
facts of the case, but neither can it simply rely on bare allegations. The
moving party must “put its best foot forward” so as to enable the Court to
determine whether there is an issue that should go to trial (Lamenan at
para 11; see also Trevor Nicholas Construction Co v Canada (Minister of
Public Works), 2011 FC 70 at para 44, 328 DLR (4th) 665; Paszkowski v
Canada (Attorney General), 2006 FC 198 at para 38, 287 FTR 116). Indeed,
the Court is entitled to assume that if the case were to go to trial, no
additional evidence would be presented by the moving party (Rude Native Inc
v Tyrone T Resto Lounge, 2010 FC 1278 at para 16, 195 ACWS (3d) 1128).
Submissions of the parties
[32]
Ms. Collins argues that the defendant has not
delivered a substantive defence, by which she means an alternative version of
the facts which contradicts her own. Rather, the defendant has merely made
denials. From this she infers that the defendant must not have any credible
evidence to refute the facts she has alleged in her Amended Amended Statement
of Claim. As such, she argues that those facts should be presumed to be true
and accordingly make out the tort of misfeasance in public office.
[33]
The defendant submits that its Statement of
Defence is substantive and adequate, in that it denies all the substantive
allegations made by Ms. Collins. It argues that there is no need for the
defendant to present an alternative fact scenario, since the burden is on Ms.
Collins to prove each of the allegations she has put forth. The defendant
asserts that Ms. Collins has tendered no cogent evidence as to why she is
entitled to judgment and thus that her motion for summary judgment should fail.
Disposition
[34]
I agree with the defendant. The burden of proof
rests on Ms. Collins to prove the allegations asserted in her pleadings. The
defendant bears no burden to disprove those allegations, and there is nothing
improper with a Statement of Defence composed of denials. A defendant need only
plead alternative facts if it intends to prove those facts or if it asserts a
positive defence (see e.g. Rule 183(b) of the Rules; Sim v Canada (1996), 112 FTR 147, 63 ACWS (3d) 425 (TD)). Ms. Collins has misapprehended the burden in
a motion for summary judgment, which rests on the moving party, i.e. on Ms.
Collins.
[35]
The evidence adduced by Ms. Collins on this
motion, which ought to be considered her best foot forward, comprises only of a
brief affidavit sworn by her on December 13, 2011, with six exhibits. None of
her evidence shows that a public officer engaged in deliberate and unlawful
conduct in his or her capacity as a public officer. The defendant’s evidence
indicates that the only person who has been implicated in the unauthorised
access of Ms. Collins’ personal tax account information is Mr. Zanetti. It does
not however demonstrate that such unauthorised access was “unlawful” within the
meaning of the tort. Nor does it show that Mr. Zanetti was a “public officer”,
or if he was, that the impugned conduct was done in his capacity as a public
officer. The evidence moreover fails to show that Mr. Zanetti was aware that
his conduct would likely harm Ms. Collins. Further, there is no evidence
whatsoever regarding wrongdoing by employees of the DOJ, the RCMP, OPSIC or Mr.
Watson.
[36]
In sum, the evidence falls far short of
demonstrating that misfeasance in public office is so doubtlessly made out such
that there is no genuine issue for trial. I find therefore that Ms. Collins’
motion for summary judgment must be dismissed.
[37]
In so holding, however, I do not find that there
is a genuine issue for trial in this case, but rather only that Ms.
Collins has failed to show the absence of one such that I should grant summary
relief in her favour. The question of whether summary relief should be granted
instead in the defendant’s favour is the subject of the next section of these
reasons.
Motion
for summary trial: Has the defendant established that this case is suitable for
summary trial, and should the Court grant judgment in its favour?
[38]
For the reasons that follow, I find that the
defendant has established that this case is suitable for summary trial, and
further that it is entitled to judgment in its favour.
Principles applicable on summary trials
[39]
The provisions related to summary trial were
added to the Rules in 2009. The moving party bears the burden of demonstrating
that a summary trial is appropriate (Teva Canada Ltd v Wyeth LLC, 2011
FC 1169 at para 35, 99 CPR (4th) 398, rev’d on other grounds in 2012 FCA 141,
431 NR 342).
[40]
In deciding whether summary trial is
appropriate, the judge may consider, among other things: the amount involved;
the complexity of the matter; the cost of a conventional trial in relation to
the amount involved; the course of the proceedings; whether the litigation is
extensive; whether credibility is a crucial factor; the urgency of the matter;
whether the summary trial will involve a substantial risk of wasted time and
effort; and whether the summary trial will result in litigating in slices (see
e.g. Bosa Estate v Canada, 2013 FC 793 at para 22, 230 ACWS (3d) 425 [Bosa];
Tremblay v Orio Canada Inc, 2013 FC 109 at para 24, 230 ACWS (3d) 850 [Tremblay]).
[41]
Where the Court finds that a case is suitable
for summary trial, then the Court should hear the case on the merits in the
same motion (see e.g. Bosa; Tremblay).
Submissions of the parties
[42]
The defendant argues that summary trial is
appropriate in this case because the alleged misfeasance relates primarily to
the alleged disclosure of Ms. Collins’ personal tax information by Mr. Zanetti,
and there is ample evidence on the record in relation to that event. The
defendant moreover notes that Ms. Collins, for her part, has tendered what must
be viewed as her best evidence, which can neither support her allegation of
misfeasance nor prove compensable damages. Thus, given that the evidence of the
defendant is uncontroverted (save for Ms. Collins’ unsubstantiated
allegations), the defendant submits that the Court is in a position to resolve
this case by way of summary trial.
[43]
On the merits of the summary trial, the
defendant argues that it is clear that neither Category A nor Category B of the
tort of misfeasance can be made out. The evidence shows that Mr. Zanetti did
not disseminate Ms. Collins’ personal tax information. Even if such information
was disseminated, the evidence shows that Mr. Zanetti did not target Ms.
Collins, held no animosity towards her and was not aware that this conduct was
likely to injure her. In oral argument, the defendant focused on the argument
that Mr. Zanetti’s admittedly unauthorised access was not the legal cause of
Ms. Collins’ alleged injuries. The defendant argues that to the extent Ms.
Collins feels that her supervisors failed to adequately address the alleged
workplace harassment she ought to seek redress via the grievance procedure and
not in the courts.
[44]
As concerns Ms. Collins’ claims against the RCMP,
counsel from the DOJ and Mr. Watson of OPSIC, the defendant argues they must
fail because the Amended Amended Statement of Claim does not make out a cause
of action against these individuals, and Ms. Collins has tendered no evidence
of the alleged tortious conduct complained of in relation to them.
[45]
Ms. Collins, for her part, attacks the
admissibility of parts of the evidence submitted by the defendant. However,
these evidentiary issues were resolved by my Order of October 11, 2013, and are
therefore no longer live issues on the merits. As concerns Ms. Collins’
objections to the confidential report of Mr. Léveillé, the defendant has not
included it as part of Mr. Léveillé’s affidavit, and so the issue is moot.
[46]
Ms. Collins submits that this case is not suitable
for summary trial because there are issues of credibility and because summary
trial will cause litigation in slices since the defendant has not addressed the
alleged breach of informer privilege by the RCMP and the DOJ or the alleged
misfeasance by Mr. Watson.
[47]
In oral argument, Ms. Collins disputed that Mr.
Zanetti was the only person who accessed her account without authorisation,
arguing that the audit reports to that effect had been edited. She maintains
that the only way to prove she is telling the truth is through discovery, and
so summary trial is not appropriate.
Disposition
[48]
A review of the relevant factors indicates that
summary trial is suitable in this case. The amount involved is not a
determinative factor one way or the other here. The matter is not overly
complex because the law on misfeasance is well-established and the factual
issues relevant to whether the tort has been made out are straight-forward in
this case. In terms of the course of the proceedings and the extent of
litigation, this proceeding has dragged on for many years and has yet to be
decided on the merits; it would be in the interests of justice to resolve this
case as expeditiously as possible, and this too favours summary trial.
Credibility is not a crucial factor, as Ms. Collins has had the opportunity to
conduct written cross-examinations of the defendant’s affiants, and the answers
provided do not give rise to any credibility concerns. Finally, summary trial
would not risk wasting time and effort or result in litigation in slices, as
Ms. Collins’ motion for summary judgment was heard at the same time, so the
record contains what should be considered the best foot forward of both
parties.
[49]
Ms. Collins argues that summary trial would
deprive her of discovery and full cross-examination, through which she could
potentially prove her version of events. However, this assertion is
inconsistent with the fact that she brought a motion for summary judgment.
Further, she did conduct written cross-examinations on four of the defendant’s
nine affiants, and could have requested further cross-examinations had she
chosen to.
[50]
Therefore, summary trial is suitable in this
case.
[51]
Turning, then, to the merits of the summary
trial, itself, as already noted, to establish the tort of misfeasance in public
office, Ms. Collins must prove the following elements:
1.
A public officer engaged in deliberate and
unlawful conduct in his or her capacity as a public officer;
2.
That public officer was aware that his or her
conduct was unlawful and that it was likely to harm the plaintiff;
3.
Causation; and
4.
Damages.
Mr. Zanetti’s unauthorised access
[52]
Mr. Stathakos’ investigation involved generation
of audit trails by the Internal Affairs and Fraud Prevention Division [IAD] of
the CRA of the accesses made to Ms. Collins’ tax information [the IAD Audit
Trails], which are appendixed as Exhibit “A” to the affidavit of Susan
Pattison. This provides a record of CRA employees who accessed Ms. Collins’ tax
information over the relevant period. The evidence indicates that among the
hundreds of accesses to Ms. Collins’ tax information, the only one that was
unauthorised by someone at TWTSO was done by Mr. Zanetti (Pattison affidavit at
Exhibit “C”; Coelho affidavit at para 9; Stathakos affidavit at para 13). The
IAD Audit Trails indicate that Mr. Zanetti accessed Ms. Collins’ account on
June 12, 2005 from between 1:35 pm and 1:41 pm.
[53]
Concerning these unauthorised accesses, Mr.
Zanetti deposed that for a period of time while he was an employee of the CRA,
he would look up the tax records of colleagues and other taxpayers “as an
exercise in curiosity” (Zanetti affidavit at para 7). He testifies that he knew
this was contrary to CRA policy and that he therefore did so in secret and did
not share this information with anyone (Zanetti affidavit at para 9). With
regard to his unauthorised access to Ms. Collins’ tax information, Mr. Zanetti
states at para 10 of his affidavit that he does not remember accessing her
account in particular and does not recall any specific information he saw, such
as any information about bankruptcy. At para 15 he indicates he did not
disseminate any information about Ms. Collins to anyone. This point is
corroborated at para 15 of the affidavit of Jim Stathakos, who was responsible
for the investigation into Mr. Zanetti’s conduct. As Ms. Collins chose not to
cross-examine Mr. Zanetti on his affidavit, his evidence is unchallenged.
[54]
The evidence thus indicates that Mr. Zanetti was
for a time engaged in a process of accessing taxpayers’ records out of curiosity
(a practice for which he was dismissed), but that he did not especially target
Ms. Collins, does not even remember specifically accessing her information, did
not retain any information he may have learned about her and did not
disseminate any information about her to anyone else. I find that Mr. Zanetti
was therefore not aware that his conduct was likely to harm Ms. Collins. Thus,
as against Mr. Zanetti, the second element of the tort is not met in respect of
Category B misfeasance. Category A misfeasance is likewise not made out as the
evidence fails to demonstrate that Mr. Zanetti acted with the express purpose
of harming Ms. Collins. Rather, he was motivated by curiosity, and his
unchallenged evidence shows he had no animosity towards Ms. Collins (Zanetti
affidavit at para 11).
Other CRA employees
[55]
Ms. Collins alleges that members of her audit
team at TWTSO, including possibly Mr. Low, also made unauthorised accesses to
her personal tax information. However, this allegation is not borne out by the evidence.
Mr. Low deposes that although he and Ms. Collins had a difficult professional
relationship at times, he at no time accessed her personal tax information, did
not receive any personal information about her from other CRA employees and has
never had any contact with Mr. Zanetti (Low affidavit at paras 8, 11-12,
14-15). Nothing in his written cross-examination challenges these assertions.
There is likewise no evidence that any other member of TWTSO, including any
other members of Ms. Collins’ audit team, engaged in unauthorised access to Ms.
Collins’ personal tax information. The extent of Ms. Collins’ evidence is that
she overheard her colleagues making remarks about personal bankruptcy
generally. This falls completely short of establishing that they even knew of
Ms. Collins’ former bankruptcy and in no way indicates they improperly accessed
her tax information in violation of s. 241 of the Income Tax Act.
[56]
Ms. Collins submits that the IAD Audit Trails
were edited to protect the CRA. However, there is no evidence of this.
[57]
Ms. Collins also attacks the CRA’s investigation
into the IAD Audit Trails on the basis that the investigation was restricted in
geographical scope to Toronto-based offices and argues that unauthorised
accesses could have taken place outside those geographical limits. However, the
IAD Audit Trails do show the names of CRA employees who accessed Ms. Collins’
file from outside the Toronto area. And Ms. Collins has filed no evidence to
show that any CRA employee, other than Mr. Zanetti, accessed her file
inappropriately.
[58]
I therefore find that, in respect of CRA
employees other than Mr. Zanetti, the first element of the tort of misfeasance
in public office is not made out, as there is not a shred of evidence to
indicate any unauthorised access to Ms. Collins’ personal tax information by
anyone other than Mr. Zanetti. Ms. Collins’ hope that she might perhaps
discover such evidence were this case to proceed to discovery is an
insufficient basis for refraining from granting the defendant’s motion.
The RCMP, the DOJ, and Mr. Watson
[59]
Ms. Collins alleges that the RCMP and the DOJ
violated “informer privilege” by disclosing her complaint publicly, but there
is no evidence of this in the record. Her allegation that Mr. Watson delayed
and ultimately failed to make a decision with respect to her complaint to OPSIC
is likewise without factual foundation in the evidence. Therefore, as against
these individuals, the first element of the tort is not met.
Causation and damages
[60]
Having found that no person committed the
elements of the tort of misfeasance in public office against Ms. Collins, it is
unnecessary for me to address issues of causation and damages. That said, I
agree with the defendant that Ms. Collins has also failed to establish that Mr.
Zanetti’s conduct (or that of anyone else) was the legal cause of any injury
she claims to have suffered.
[61]
Ms. Collins contends that the cause which led to
an intolerable workplace is not limited to the one unauthorised access by Mr.
Zanetti. Rather, she claims she has also been wronged by Mr. Low, who gave her
a poor score in one aspect of her performance reviews, by her former
colleagues, whom she alleges also accessed her information and harassed her,
and by management at TWTSO, who allegedly failed to properly investigate her
complaints, put a stop to the harassment, or properly accommodate her.
Cumulatively, she argues, these events comprise the causal link leading to her
forced resignation.
[62]
However, the evidence does not bear out this
version of events. First, there is no evidence that Mr. Low’s performance
review was given in bad faith. Second, as discussed above, there is no evidence
that any of Ms. Collins’ colleagues at TWTSO (other than Mr. Zanetti) accessed
her personal information or harassed her. And third, there is no evidence that
management at TWTSO was remiss in their duties in any way. In fact, the
evidence shows that management conducted an extensive investigation into the
alleged unauthorised access of her personal information and made several
attempts to accommodate Ms. Collins’ requests for a transfer. Further, as the
defendant points out, such complaints should properly be addressed via the
appropriate grievance process, as Ms. Collins’ allegations are in the nature of
a workplace dispute.
[63]
On a related note, I also have some doubt as to
whether rank and file employees of the CRA may constitute “public officers”
within the meaning of the tort of misfeasance in public office. However, this
point was not argued before me, and I need not address it to dispose of this
motion.
[64]
Ms. Collins has thus failed to establish that
the defendant or any government servant committed the tort of misfeasance in
public office. I therefore grant judgment on summary trial in favour of the
defendant.
CONCLUSION
[65]
In light of the above, I dismiss the plaintiff’s
motion for summary judgment and grant judgment in favour of the defendant on
summary trial. The defendant seeks costs and is entitled to them, calculated in
accordance with the mid-range of Column III of Tariff B to the Rules.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The plaintiff’s motion for summary judgment is
dismissed;
2.
The defendant’s motion for summary trial is
granted;
3.
This action is dismissed; and
4.
The defendant is entitled to its costs in accordance
with the mid-range of Column III of Tariff B to the Rules.
"Mary J.L. Gleason"
Appendix
“A”
Excerpt
from transcript of hearing for Maxine Collins v Her Majesty the Queen,
T-997-09
September 26, 2013
Page 33, line
15 - Page 35, line 19
RULING:
THE
COURT: As I understand it, the plaintiff has made two oral motions that the
defendant has consented should be dealt with by me in a preliminary fashion.
The
first motion seeks a ruling that the defendant cannot advance its motion for summary
trial because it has made a motion to strike certain paragraphs of the
Statement of Claim, and the plaintiff asserts that this prevents it from
bringing its motion for summary trial and, therefore, that her summary judgment
motion must be heard in priority to the motion for summary trial. However, no
such motion to strike has been made, nor is any such motion pending.
Therefore,
for purposes of both the motion for summary judgment and the motion for summary
trial, the pleadings must be taken as filed and the entirety of the plaintiff’s
Statement of Claim is before the Court. It follows that this first motion made
by the plaintiff must be dismissed as there is no motion to strike any part of
her claim that is pending.
Insofar
as concerns the second motion, the plaintiff argues that the defendant should
be prevented from bringing a motion for summary trial because the defendant has
not filed an Affidavit of Documents and because examinations for discovery have
not been conducted.
Under
Rule 213 of the Federal Court Rules, however, it is clear that a motion for
summary trial may be brought at any time after the Statement of Defence has
been filed and before the time and place for trial have been fixed. There is,
therefore, no obligation that discoveries take place before a summary trial
motion can be made and heard.
The
case law cited by the plaintiff, namely, the decision in the Aecon case that
the plaintiff referred to in her submissions, which is a 2010 decision of the
Ontario Court of Appeal, Aecon Buildings v. Stephenson Engineering Limited,
2010 ONCA 898, is not relevant to this issue. That case deals with the
situation where an agreement was not disclosed prior to the hearing of the
summary judgment motion. That is not the situation here. The defendant’s
evidence has been in the plaintiff’s hands for months.
The
second motion will, accordingly, also be dismissed. That said, the fact that
there has been no discovery may well be a relevant factor for consideration by
me on the merits of these motions in determining whether or not it’s
appropriate that summary judgment be awarded or that a summary trial be
conducted. Therefore, the plaintiff is well able to argue this issue in her
defence to the motions on the merits.
These
two motions are hereby dismissed. As there are no other preliminary matters,
we’ll proceed now to hear the argument on the two motions.
Appendix
“B”
Excerpt
from transcript of hearing for Maxine Collins v Her Majesty the Queen,
T-997-09
November 21, 2013
Page 13, line 1 - Page 16, line 24
THE COURT: I have
considered your
request and I am not going to allow you to
tape record
this proceeding. My recollection and my
review of the
transcript of the previous day is that the
matter had
been sorted out to your satisfaction
through my
decision to have a transcript provided, at
no cost to
you, to yourself and a copy as well to
counsel for the
defendant and a copy for the Court, and in
my view,
that provides a more than adequate solution
to the need
for there to be a transcript.
The practice of the
Ontario Court is to
not typically provide a transcript to
parties, and so
in those circumstances, the allowance for
recording may
well be something that makes sense. Where,
however,
there's a transcript, I do not see the need
to have a
second recording.
If, in your
review of the transcript,
you are of the opinion that some portion of
it is
inaccurate, I would direct you to follow
what the
practice is, where counsel are dealing with
a
transcript in a proceeding, and that is to communicate
with counsel for the other side, see if you
and he can
agree as to what the transcript should say,
and then
make a joint submission to the reporter who
would make
a correction.
Reporters do do
their very best, in my
experience, to try and produce accurate
transcripts,
but it's inevitable that there may be a
word here or
there that is subject to a typo, something
that one of
us doesn't articulate as clearly as we
should, we drop
our voice at the end of sentences, et
cetera, and
that's the practice for having the
transcript
corrected.
I do have a
certified version of the
transcript that was filed with me, and if
you have not
been provided with a certified transcript,
I will
direct the reporting company to correct
that and
provide you with a certified copy, and at
this point
forward, in terms of provision of
transcripts, we
should all be receiving certified copies.
MS. COLLINS: Your
Honour, I'm not
willing to accept the copy that I received
as having
been certified by the court reporter unless
I'm given
an opportunity to review it with the court
reporter and
it's been the position of the court
reporting company
that I will not have access to this lady
directly, so
therein lies my problem that --
THE COURT: Well, what
I've directed,
Ms. Collins, is that they provide you with
a certified
copy. Whether you're willing to accept
that as being
certified or not is a matter for you in
your own
judgment to decide, but you will be
provided with a
copy that is certified by the court
reporter in
accordance with normal practice as being
accurate, and
if, after that, you have an issue, I've
directed what I
believe the proper procedure should be for
correcting
any issues with the transcript, and that is
the way
that we're going to proceed.
MS. COLLINS:
Well, the matter is
before the, or will be before the Federal
Court of
Appeal very shortly because I have filed
and I'm -- I
have served Mr. Sims with a motion record
asking the
Court for directions as to what I am to do
with a
motion of -- with a transcript that I am
not prepared
to file as evidence of what -- of the
proceeding that
took place, because it is -- it does not
accurately
reflect it. I'm not impugning the court
reporter in
any way. I don't believe that that is the
transcript
that she prepared from the hearing.
Another issue is --
that I have brought
to the attention of other court reporting
companies is
that I have in my possession a subpoena
that was issued
by the Ontario Court to the court reporter
in the case
of ASAP, that they were to come to court
and they were
to bring with them the original recording
and the
original transcript that was prepared by
them.
So any court
reporter who is willing to
put certification to a transcript that she
could end up
being subpoenaed into court to testify under
oath as to
the accuracy of it, I really think it is --
it is
deplorable for court reporting companies to
put court
reporters in that situation.
If they want to
engage in whatever
little game they're engaging in, they
should leave the
court reporters out of it, and again, Your
Honour, at
this point, I would ask, please, that you
sign the
endorsement that I provided, saying that
permission is
not granted and then let us just get on
with the
motions that we're here to hear today.
THE COURT: I am
not going to sign the
endorsement, Ms. Collins. I have given you
an oral
ruling. I will, however, reduce this
ruling to writing
in my final decision on these matters so
that there
will be a written recording of it.
MS. COLLINS: Okay.
THE COURT: You
have my ruling and –
MS. COLLINS: Okay.
THE COURT: --
let's proceed with the
next issue, please.
FEDERAL COURT
SOLICITORS OF RECORD
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