Date: 20061221
Docket: T-49-03
Citation: 2006
FC 1539
BETWEEN:
HENSLEY
ORIJI
Plaintiff
- and -
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA,
Mme. MICHELINE DÉSJARDINS and
Mme. MIRELLE DIOTTE,
Defendants
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[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employment that was subsequently and wrongfully rescinded.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”
Ottawa, Ontario
December 21,
2006
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