[1]
This is a motion by the defendant to strike the statement of claim by
the plaintiff, who is representing himself, and to dismiss his action pursuant
to paragraph 221(1)(a) of the Federal Courts Rules (the Rules) on
the ground that this Court has no jurisdiction ratione materiae to hear
the plaintiff’s action, in view of the fact that, in a now final decision of
this Court delivered by Madam Justice Gauthier on January 14, 2005 in Galarneau
v. Canada (Attorney General), 2005 FC 39, [2005] F.C.J. No. 42
(hereinafter Galarneau), the Court found — in a case similar to the one
before us, for the purposes of the present motion — that a dispute such as this
is covered by a complete code and that an array of administrative procedures for
redress is provided for by Parliament.
Background
[2]
In paragraphs 5, 6, 18 and 19 of a decision dated October 29, 2004 in
this matter (2004 FC 1524), Mr. Justice Beaudry acknowledged in the
following terms that this case and Galarneau were essentially similar:
[5] On November 12, 2002
the plaintiff filed an action against Her Majesty the Queen for damages. He
said he had been exposed to secondary cigarette smoke on his work shifts.
[6] On
December 19, 2003 Ms. Galarneau brought a class action for the same
reasons in case T‑2414‑03.
. . .
[18] I
consider that the point at issue is the same here as in docket T‑2414‑03.
This conclusion is supported by Marie Marmet's affidavit. It is also confirmed
by the order of Prothonotary Morneau on August 22, 2003:
[translation]
1.1. Can the
plaintiff, by the combined effect of section 17 of the Federal Courts Act and
subparagraph 3(a)(i) of the Crown Liability and Proceedings Act,
bring the action at bar in extra‑contractual civil liability, in view of
the fact that he has other available remedies to assert his claims, which are
exclusively concerned with his terms of employment as a corrections officer,
namely:
(a) a right to file a
grievance under section 91 of the Public Service Staff Relations Act and
his collective agreement;
(b) a right
to file a complaint under Part II of the Canada Labour Code;
( c) a right
to file a complaint under the Non-Smokers’ Health Act;
(d) the
right to file a claim for corporeal damage, including psychological damage,
pursuant to the Government Employees Compensation Act.
[19] The facts of the two cases are clearly similar.
In both cases, there was a claim for damages by corrections officers alleging
exposure to second‑hand smoke on their work shifts. In one case the
action is by an individual and the other is a class action.
[Emphasis added.]
[3]However,
since the final decision in Galarneau was not yet available to the Court
(my decision dated May 18, 2004 in the matter was appealed and eventually
settled by the decision by Gauthier J. dated January 14, 2005), Beaudry J. stayed
the plaintiff’s action until a final decision was delivered in Galarneau.
Beaudry J. crystallized this postponement by staying both the plaintiff’s
action and the defendant’s motion to strike with the following words:
[T]he
plaintiff's action and the motion to strike are stayed until a final decision
is rendered in docket T‑2414‑03; when the final decision is known
the parties may, if they see fit, ask the Judicial Administrator for a priority
date to dispose of the remaining issues . . . .
[4]When
Beaudry J. refers to obtaining a priority date from the Judicial Administrator,
it is clear that he anticipates that the final decision in Galarneau
will be favourable to the plaintiff in Galarneau and, consequently, to
the plaintiff in this case on the issue of the Court’s jurisdiction to hear the
actions.
[5]However,
the final decision in Galarneau has now been delivered and, as noted
above, consists of the decision by Gauthier J. dated January 14, 2005, as that
decision was not appealed, and the period for doing so has now expired.
[6]Thus,
the defendant in this case could renew its application to dismiss the
plaintiff’s action.
[7]In
Galarneau, the Court made the following decisive comments:
[3] In
their motion, the defendants ask that the action be dismissed, arguing that the
Court does not have jurisdiction ratione materiae to hear a dispute that
bears essentially on the steps taken by the Correctional Service of Canada
(CSC) as an employer to maintain the occupational health and safety of its
employees, including Ms. Galarneau. The subject matter, they say, is one for
which the collective agreement and the Public Service Staff Relations Act,
R.S.C. 1985, c. P‑35 (PSSRA) provide an exclusive dispute settlement
procedure that applies over and above any other administrative remedies
provided for in other federal legislation such as the Canada Labour Code,
R.S.C. 1985, c. L‑2 (Part II), the Government Employees Compensation Act,
R.S.C. 1985, c. G‑5 and the Non‑smokers' Health Act, R.S.C.
1985 (4th Supp.), c. 15, and which allow Ms. Galarneau and her colleagues
to put an end to this situation and obtain compensation for the resulting
damages.
. . .
[8] As
Prothonotary Morneau states in his decision, the plaintiff criticizes the CSC
for failing to comply with its obligations under the Non‑smokers'
Health Act because correctional officers are illegally exposed to second‑hand
smoke in the course of their employment.
[9] She
argues that this situation constitutes a breach of the CSC's duty to ensure the
health and safety of its employees under the Canada Labour Code and
violates her right to security guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 (the Charter). The
employer's conduct amounts to a civil fault giving rise to damages as well as
exemplary damages and a permanent injunction.
. . .
[70] Having
considered each and every one of the arguments raised by the plaintiff, the
Court finds that these occupational health and safety issues between the
federal Crown and the correctional officers employed by it are clearly the
subject matter of a complete code and that a significant panoply of
administrative remedies has been provided by Parliament. The existing statutory
scheme excludes the Court's jurisdiction over claims by these employees and
by Ms. Galarneau in particular.
[Emphasis
added.]
[8]
The recent decision of the Supreme Court of Canada dated March 18, 2005
in Vaughan v. Canada, 2005 SCC 11 only reinforces the latest
finding by Gauthier J.
[9]Since
it is plain and obvious that the pith and substance of the dispute in the
present case are similar to those in Galarneau, it is also plain and
obvious that the finding by Gauthier J. at paragraph 70 of her reasons applies
to our plaintiff and that, consequently, the defendant’s motion to strike the
plaintiff’s statement of claim and dismiss his action must be allowed.
[10]
The plaintiff makes much of the fact that this is the third time that
the defendant has challenged his action in order to derail it before a full
hearing on the merits is held and that, for this reason, the present motion to
strike by the defendant should be dismissed. According to the plaintiff, the
order delivered by me on August 22, 2003, following the pre-hearing conference
held in this matter means that a hearing on the merits should be held in this
case.
[11]
I believe that the plaintiff is wrong in taking this view of the matter.
[12]
It should have been clear to all from a reading of the order
dated August 22, 2003, that the Court was not accordingly rejecting the
defendant’s arguments concerning this Court’s lack of jurisdiction to hear the
plaintiff’s action on the merits. In fact, in drawing up the
issues to be determined at the hearing, the Court expressed itself in part as
follows:
[TRANSLATION]
1. The issues for determination at the hearing will be the
following:
1.1 Can the plaintiff, by the combined effect of section 17 of
the Federal Courts Act and subparagraph 3(a)(i) of the Crown
Liability and Proceedings Act, bring the action at bar in extra‑contractual
civil liability, in view of the fact that he has other available remedies to
assert his claims, which are exclusively concerned with his terms of employment
as a corrections officer, namely:
(a) a right to file a grievance under section 91 of the
Public Service Staff Relations Act and his collective agreement;
(b) a right to file a complaint under Part II of the Canada
Labour Code;
(c) a right to file a complaint under the Non-Smokers’
Health Act;
(d) the right to file a claim for corporeal damage,
including psychological damage, pursuant to the Government Employees
Compensation Act.
[13]
While my order dated February 25, 2004 dismissed the defendant’s
motion to stay (although this form of redress was granted by Beaudry J. on
October 29, 2004) and set a date for hearing the plaintiff’s action on the merits, I included the following caveat at paragraph 9:
If, in a timely
manner, before the hearing on the merits in this case, the Crown has a final
decision on its motion to strike in the Hélène Galarneau case, T‑2414‑03,
the Crown may apply for summary judgment or to have the action struck against
the plaintiff, if the circumstances and the interests of justice then so
warrant.
[14]
This caveat increased the possibility that the outcome of the present
case would depend on the outcome of Hélène Galarneau’s case. On October 29,
2004, the decision of Beaudry J. went even further in that direction.
[15]
Since a final decision by our Court now makes it clear that the Court
has no jurisdiction ratione materiae over an action such as the one
brought by the plaintiff, the interests of justice, the public and the parties
involved demand that everything now be placed on record to avoid the
possibility of a four-day trial eventually being held for no reason.
[16]
The defendant’s motion will accordingly be granted. As for costs, since
the present case was dependent on a final decision in Galarneau and the
Court did not award costs in Galarneau, it is, in my view, appropriate
here to order that the defendant’s motion be granted, without costs.
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Richard
Morneau
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Prothonotary
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Montréal, Quebec
April 19, 2005
Certified true translation
Michael Palles
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET:
STYLE OF
CAUSE:
T-1890-02
MICHEL
LALIBERTÉ
Plaintiff
and
HER MAJESTY THE
QUEEN
Defendant
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: April
4, 2005
REASONS FOR ORDER BY: Richard
Morneau, Prothonotary
DATED: April 19, 2005
APPEARANCES:
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Michel
Laliberté
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FOR THE
PLAINTIFF, REPRESENTING HIMSELF
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Marc Ribeiro
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FOR THE
DEFENDANT
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John H. Sims,
Q.C.
Deputy
Attorney General of Canada
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FOR THE
DEFENDANT
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