Date: 20051026
Docket: T-1070-05
Citation: 2005 FC 1455
Vancouver, British Columbia, Wednesday, the 26th day of October, 2005
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
KEVIN JAMES MILLERSHIP
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion brought by the Defendant seeking an order striking out the Plaintiff's amended statement of claim. In the alternative, the Defendant requests that the Court order an extension of time for Canada to serve and file its statement of defence.
[2] The Plaintiff, Mr. Kevin James Millership, launched a proposed class action in this Court seeking to prevent all public water fluoridation treatment programs in Canada administered at 0.8-1.0 milligrams of fluoride per litre of drinking water (0.8-1.0 mg/L). The Plaintiff submits that public water fluoridation treatment programs are unconstitutional under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The proposed class action seeks an order of mandamus requiring the Defendant to outlaw all public water fluoridation treatment programs in Canada administered at 0.8-1.0 mg/L, and an order of mandamus requiring the Defendant to amend its Guideline of Canadian Drinking Water Quality. The Plaintiff also seeks damages in an amount exceeding $50,000 for the class.
[3] The difficulty for the Plaintiff in this matter is that he recently unsuccessfully brought similar litigation forward in the B.C. Supreme Court (Millership v. Canada (Attorney General), 2003 B.C.S.C. 82). That decision was upheld by the B.C. Court of Appeal (Millership v. Canada (Attorney General) 2004 BCCA 9), and leave to appeal to the Supreme Court of Canada was denied (Millership v. Kamloops (City) [2004] S.C.C.A. No. 73). I will collectively refer to these proceedings as the B.C. Court Proceedings.
[4] In my opinion, for the reasons which follow, the Plaintiff's amended statement of claim is struck out in its entirety.
A. Issue Estoppel
[5] The Defendant submits that the Plaintiff's amended statement of claim should be struck out on its entirety on the ground of issue estoppel. Issue estoppel is a branch of res judicata that precludes the re-litigation of issues already decided in court in another proceeding. In Toronto (City) v. C.U.P.E., Local 79, [2003] S.C.R. 77 at para. 23, the Supreme Court of Canada reaffirmed its three part test that must be met in order to successfully invoke issue estoppel:
For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44">2001 SCC 44, at para. 25, per Binnie J.).
1. The issue is the same as the one decided in the prior decision
[6] The Plaintiff submits that most of the issues raised in the proposed class action were not decided in the B.C. Court Proceedings. Mr. Millership submits that the B.C. Court Proceedings held that provincial legislation authorizing fluoridation was intra vires the provincial legislation, provided that fluoridation is maintained within the range of the optimal levels recommended by the Federal-Provincial Territorial Subcommittee on Drinking Water (the "Subcommittee"), and that the optimal levels are subject to continual review.
[7] Mr. Miller submits that new evidence demonstrates that Canada can no longer justify the 0.8-1.0 mg/L optimal range for fluoridation levels. The Plaintiff also submits that new evidence reveals that Canada has failed to continually review the optimal fluoridation level as required by the B.C. Court Proceedings.
[8] Mr. Millership submits that the B.C. Court Proceedings held that Canada was not vicariously liable based on the conduct of her employees, since the evidence at that time revealed that the servants of the Crown had acted reasonably and carefully in their participation in the Subcommittee. The Plaintiff submits that the B.C. Court Proceedings made this finding because at the time that Mr. Millership's case was being heard, Canada was moving towards changing the optimal range for fluoridation levels by reducing the acceptable amount of fluoride per litre of drinking water. The Plaintiff submits that Canada has failed to review or change the optimal levels since the time of the B.C. Court Proceedings.
[9] Mr. Millership also submits that new evidence suggests that the conduct of two servants of the Crown, Ms. Giddings and Mr. Green, leads to a finding of vicarious liability against the Crown. Mr. Millership alleges, among other things, that these civil servants negligently allowed the continued administration of fluoride into Canadian water supplies even after Health Canada's 1999 Update report of the Subcommittee's 1996 fluoride guideline declared that the optimal level of 0.8-1.0 mg/L was unsafe. The Plaintiff also alleges that Ms. Giddings and Mr. Green were negligent in their failure to initiate Health Canada's Food Basket survey for fluoride, which was ordered by the Subcommittee in May 2000.
[10] Finally, Mr. Millership submits that he can now prove that the Defendant breached sections 7 and 15 of the Charter, and that Parliament has a positive duty to keep Peace, Order and Good Government in Canada, which requires it to pass legislation or otherwise act to enjoin all public water fluoridation programs in Canada.
[11] Mr. Miller therefore submits that the new evidence raises new legal issues that should be litigated.
[12] In my opinion, the Defendant correctly notes that the issues raised in Mr. Millership's proposed class action were either already decided in the B.C. Court Proceedings, or should have been raised at that time. Mr. Millership depends on new evidence in order to claim that the issues are not being re-litigated. However, as the Defendant notes, much of the Plaintiff's new evidence was available at the time the B.C. Court Proceedings were heard. For example, Mr. Millership's reliance on Health Canada's 1999 Update report of the Subcommittee's 1996 fluoride guideline comes too late. This report was available during at least part of the B.C. Court Proceedings. The Plaintiff's submission that Canada failed in its duty to follow the report's recommendations should have been made during the B.C. Court Proceedings.
[13] Mr. Millership claims that Canada has failed to continually review the optimal fluoridation levels. This submission is refuted by the Plaintiff's own evidence. The Plaintiff refers to a 1999 report submitted to the Subcommittee that reviewed the optimal fluoridation levels. This report demonstrates that the Defendant is engaged in a continual review of the optimal fluoridation levels. What Mr. Millership appears to really be contesting is the pace at which the federal power conducts its review, and that Crown servants and the government have not used the review processes to change the 0.8-1.0 mg/L range as the optimal fluoridation levels.
[14] It is understandable that the Plaintiff wishes to contest Canada's delay in these matters. It is difficult to understand why Health Canada's Food Basket survey for fluoride has not been completed if it was requested by the Subcommittee in 2000. However, the Plaintiff could have raised the matter of Canada's delays at some point in the previous litigation. The Plaintiff's case was decided at the British Columbia Supreme Court in 2003. The appeal to the B.C. Court of Appeal was heard in January 2004. The delay in completing the Food Basket survey, (as well as Canada's failure to respond to the 1999 report) would have been evident. The Plaintiff could have made efforts to raise the concern of delay in the previous litigation.
[15] Canada may have continued to delay its review of optimal fluoridation levels since the conclusion of the B.C. Court Proceedings. However, allegations of delay should only be examined as a causation element in proving negligence and vicarious liability. Since delay was not argued in the previous litigation in order to show negligence and vicarious liability, the Court should not now provide the Plaintiff with an opportunity to raise the negligence and vicarious liability claims again. Since the Plaintiff did not raise delay earlier, and did not successfully show negligence or vicarious liability when he had the opportunity to do so, the Court should not entertain alleged continuing delay as grounds to resurrect legal arguments that should have been made in the previous litigation.
[16] This is not to say that the Plaintiff is precluded from ever challenging Canada's delay in the administration of fluoridation programs. The Plaintiff may be able to launch an action seeking an order of mandamus requiring Canada to complete its Food Basket survey for fluoride by a certain date, or for Canada to complete a review of the optimal range of levels for fluoridation. But, in my view, this Court should not presently examine evidence of delay as it relates to the Plaintiff's requests for mandamus contained in the Plaintiff's amended statement of claim, as these requests relate to previous litigation.
[17] The B.C. Court Proceedings already dismissed the Plaintiff's Charter arguments. The Plaintiff's new evidence to show Charter violations should have been presented in the previous litigation.
[18] The Plaintiff already requested an injunction or mandamus to order Parliament to pass legislation or act to enjoin all public water fluoridation treatment programs in the B.C. Court Proceedings. These requests were denied. The Plaintiff's reliance on Peace, Order and Good Government in this Court is another attempt to compel the government to act. However, it should have been raised during the B.C. Court Proceedings.
[19] It is clear that the issues before this Court are the same arguments decided in the prior decision.
2. The B.C. Court Proceedings were final
[20] The Plaintiff asserts that the second part of the test for invoking issue estoppel has not been met. But the Plaintiff's arguments at this second branch of the test are that the B.C. Court Proceedings cannot be final because those cases decided different issues, and because the parties in the present action are different from the parties in the previous B.C. Court proceedings. These arguments go to the first and third branches of the test to invoke issue estoppel. They do not refute the fact that the B.C. Supreme Court decision was unsuccessfully appealed to the B.C. Court of Appeal and that the Supreme Court of Canada denied leave. The prior judicial decision was final.
3. The parties to both proceedings must be the same
[21] Finally, the Plaintiff submits that since he seeks to represent a class of members in his proposed class action, the action launched in Federal Court does not involve the same parties as the B.C. Court proceedings. Although Canada is a defendant in both proceedings, since the plaintiffs in both cases are not identical, the Plaintiff submits that the requirement of mutuality is not met.
[22] The Supreme Court noted in Toronto (City) v. C.U.P.E., Local 79, supra, at para. 23 that the requirement of mutuality has been abandoned in the United States, criticized by academics, and the subject of judicial debate. However, after reviewing the debate on mutuality, the Supreme Court refrained from removing the mutuality requirement from the issue estoppel requirements.
[23] It is clear that had this action been brought by the Plaintiff acting solely for himself, then the mutuality requirement would apply. However, since the Plaintiff brings a proposed class action, there may be multiple plaintiffs who were not a part of, and could not reasonably have been expected to be a part of the Plaintiff's previous litigation. The Plaintiff alleges that the proposed class may include people who received fluoridated municipal, military base, Indian reserve and public drinking water. It follows that the third branch of the test to successfully invoke issue estoppel is not met.
B. Abuse of process
[24] Although issue estoppel cannot be invoked in this case, Mr. Millership's claim is an abuse of process. I cite with approval Hoffmann-La Roche Ltd. v. Canada (Minister of National Health and Welfare), [1999] 158 F.T.R. 135, at para. 13 where Rothstein J. adopted the dicta of Lyon J.A. in Solomon v. Smith (1987), 45 D.L.R. (4th) 266, (Man. C.A.), at page 275:
In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defence on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources... Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or "a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.
I agree with Philp J.A. that a plea of issue estoppel is not available. However, to permit the statement of claim to proceed would be an abuse of process and that is the principle applicable. [Emphasis added by Rothstein J.].
In this case, rather than there being a "supply of unrelated defendants", there is the potential supply of plaintiffs which Mr. Millership is harnessing in order to fully litigate a case he already lost in the B.C. Court procedures.
[25] In Toronto (City) v. C.U.P.E., Local 79, supra, the Supreme Court held at para. 37 that:
Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) 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.
The Supreme Court also noted that the two policy grounds supporting issue estoppel, namely, that there be an end to litigation and that no one should be twice vexed by the same case, also support the application of abuse of process by re-litigation (Toronto (City) v. C.U.P.E., Local 79, supra, at para. 38).
[26] This matter raises both of the policy concerns. The Plaintiff is attempting to re-litigate issues he unsuccessfully litigated in the B.C. Court Proceedings. Canada is thereby being twice vexed for the same case.
ORDER
THIS COURT ORDERS that the statement of claim be struck in its entirety on the basis that the Plaintiff is seeking to re-litigate issues that he unsuccessfully previously litigated, contrary to the doctrine of abuse of process. The whole with costs.
(Sgd.) "Max M. Teitelbaum"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1070-05
STYLE OF CAUSE: KEVIN JAMES MILLERSHIP
- and -
HER MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 17, 2005
REASONS FOR ORDER AND ORDER: TEITELBAUM J.
DATED: October 26, 2005
APPEARANCES:
Kevin James Millership ON HIS OWN BEHALF
Cindy Mah FOR DEFENDANT
SOLICITORS OF RECORD:
N/A FOR PLAINTIFF
John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada
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