Lavigne v. Office of the Commissioner of Official Languages, 2004 FC 787

Date: 20040528

Docket: T-2291-03

Citation: 2004 FC 787

IN THE MATTER of an action pursuant to s. 17(1) &

17(2)(d) of the Federal Courts Act, arising from a successful

application, against the Commissioner of Official

Languages pursuant to s. 41 of the Privacy Act,

R.S. 1985, c. P-21

IN THE MATTER of an action pursuant to

s. 17(1) & 17(2)(d) of the Federal Courts Act,

arising from contravening s. 12(1) of the

Privacy Act by the Commissioner of Official

Languages and therefore contravening s. 3(a) & 10

of the Crown Liability and Proceedings Act, S.C. 1990, c. 8, s. 21

IN THE MATTER of an action pursuant to s. 17(1) &

17(2)(d) of the Federal Courts Act, arising from

the impartiality and lack of independence, by the

Commissioner of Official Languages in the handling

of the language complaints arising out of T-1977-94

and the handling of the access to personal

information complaints arising out of T-909-97

IN THE MATTER of an action pursuant to s. 17(1) &

17(2)(d) of the Federal Courts Act and s. 24(1)

of the Canadian Charter of Rights and Freedoms

arising from the contravention of s. 7 of the

Canadian Charter of Rights and Freedomsby the

Commissioner of Official Languages

& Her Majesty the Queen

IN THE MATTER of an action pursuant to s. 17(1)

& 17(2)(d) of the Federal Courts Act,

arising from s. 75(1) of the Official Languages Act

contravening s. 24 of the Canadian Charter of Rights and Freedoms

and therefore s. 75(1) being unconstitutional with no force or effect

IN THE MATTER of RELITIGATING T-1977-94 because

the first procedure was tainted with fraud and dishonesty

by Her Majesty the Queen and the new evidence

obtained in SCC 28188 impeaches the result in T-1977-94

pursuant to s. 17(1), 17(2)(d), 18.4(2) & 48 of the Federal Courts Act

BETWEEN:

                                                            ROBERT LAVIGNE

                                                                                                                                               Plaintiff

                                                                           and

                                          THE OFFICE OF THE COMMISSIONER

OF OFFICIAL LANGUAGES

                                                                                                                                           Defendant

and

HER MAJESTY THE QUEEN

Defendant

and

HUMAN RESOURCES DEVELOPMENT

(FORMERLY HEALTH AND WELFARE CANADA)

Defendant

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

Introduction

[1]                The question in the case at bar is whether the Court should allow the plaintiff to proceed with the action at bar, the purpose of which essentially is to again hear and argue a situation which the plaintiff brought to this Court in 1994, and on which the Court made a final ruling, in case T-1977-94. By his action, therefore, the plaintiff is attempting to avoid the res judicata rule by raising an exception to that rule involving the recent obtaining by him of new evidence.

[2]                The Office of the Commissioner of Official Languages (hereinafter the Commissioner) on the one hand, and the other two defendants to the action, the Minister of Human Resources Development (HRD) and Her Majesty the Queen (the Queen) on the other, each argue by a motion to strike the plaintiff's statement of claim under Rule 221 of the Federal Court Rules, 1998 (the Rules)^[1] that the plaintiff does not meet the strict conditions laid down by the courts for benefiting from the new evidence exception.

[3]                For the following reasons, I consider that the three defendants are right and that the motions to strike which they have submitted should be allowed.

Background

[4]                From August 27, 1992 to March 31, 1993, the plaintiff held the position, classified as bilingual, of information clerk with the HRD, which was known at that time as the Department of Health and Welfare.

[5]                Towards the end of that term, the plaintiff and several of the plaintiff's colleagues were the subject of a performance review for the purpose of rehiring.

[6]                As the result of a performance appraisal by Jacqueline Dubé, the plaintiff's immediate supervisor at that time, he did not receive the passing grade and so was not placed on an eligibility list.

[7]                Concurrently, it appeared that from November 1992 to March 1993 the plaintiff filed four complaints with the Commissioner.

[8]                By these complaints, the plaintiff essentially maintained that he was denied training and work instruments in English and the right to work in that language. Consequently, the plaintiff argued that it had unfavourably affected his acquisition of knowledge, his performance and ultimately his appraisal.

[9]                The Commissioner concluded that the plaintiff's complaints were valid. He made recommendations of a general nature to improve the situation of Anglophone public servants working in Montréal and recommended that the plaintiff's performance appraisal be reviewed forthwith, taking into account the fact that he had been placed at a disadvantage in demonstrating his knowledge and abilities.

[10]            The plaintiff's performance was in fact reviewed by a Ms. Lavoie of HRD. In her report, however, she concluded that the applicant still did not meet the minimum requirements for being placed on a rehiring list.

[11]            It should also be noted that before issuing his report the Commissioner, through investigators working for him, questioned some 25 HRD employees. Included in this list were the plaintiff himself and Jacqueline Dubé, the Montréal office district manager, Normand Chartrand, and the regional official languages coordinator, France Doyon.

[12]            Although the Commissioner issued his report in June 1994, it appeared that on July 7, 1993, the plaintiff began a series of applications for access to personal information concerning him, contained in the Commissioner's files, as the result of the language complaints previously made by the plaintiff to the Commissioner.

[13]            These access applications were made pursuant to the Privacy Act, R.S.C. 1985, c. P-21, as amended, and logically could not relate to anything but the obtaining by the plaintiff of notes on interviews with various persons questioned by the Commissioner's investigators in the investigation he had conducted.

[14]            It appeared that the plaintiff was given information as a result of these access applications. However, that information did not contain the interview notes.

[15]            In this respect, the plaintiff was informed on September 10, 1993, that part of the information sought by him would not be disclosed by the Commissioner pursuant to paragraph 22(1)(b) of the Privacy Act, supra. That paragraph reads:

[16]            Shortly after that time, in August 1994, the plaintiff seems to have dealt separately with his problems with the federal government.

[17]            On August 23, 1994, following the Commissioner's report concluding that his language complaints against the HRD were valid, the plaintiff made an application in this Court against HRD - in case T-1977-94 - pursuant to subsection 77(4) of the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, as amended. Subsections 77(1), (4) and (5) of that Act read:

[18]            It should be noted that the plaintiff filed his application in case T-1977-94 without having in his possession the interview notes he was still seeking. It appeared that at no relevant time in the course of case T-1977-94 did the plaintiff seek to obtain the interview notes or to stop the progress of that case long enough to determine the fate of the said interview notes. We will return to this matter in the analysis.

[19]            In a parallel and separate proceeding, the plaintiff pursued his efforts to obtain the interview notes by a complaint to the Privacy Commissioner in September 1994. In April 1997, the latter supported the position taken by the Commissioner (of Official Languages), which led the plaintiff to file an application for judicial review against the Commissioner in this Court (case T-909-97) on May 7, 1997, in which the plaintiff was ultimately successful in the Supreme Court.

[20]            Since the plaintiff is seeking to reopen case T-1977-94, it is worth referring to the judgments of this Court and the Federal Court of Appeal in this matter to understand what the plaintiff was claiming at that time and what he was ultimately granted.

[21]            The trial judgment was rendered by Pinard J. on October 30, 1996 (Lavigne v. Canada, [1997] 1 F.C. 305). The following passages contained in pages 314 to 324 of that judgment are instructive:

[TRANSLATION]

[Pages 314 to 316:]

ISSUE

As the respondent HRD has admitted to infringements under Part V of the Act, the only remaining issue is the appropriate remedy to be granted by this Court.

ANALYSIS

Given the admission by the respondent HRD that the language of work rights of the applicant, as guaranteed under Part V of the Act, have been infringed, the applicant is seeking, pursuant to subsections 77(1) and (4) of the Act, the following remedies:

1. an order compelling HRD to provide the applicant and COL with the results of the review of the applicant's file including the reasons for the decision that was made concerning the failure in 1993, to renew the applicant's employment, as recommended by the COL in his report;

2. damages in the following amounts:

- $50,000 in exemplary damages arising from the discriminatory conduct of HRD

- $39,393.648 for loss of salary

- $4,924.152 for lost benefits (holidays/sick leave)

- $25,000 for physical and mental anguish and the loss of the "enjoyment of life", including all medical expenses

Total: $119,317.80

3. an order requiring HRD to reinstate the applicant in the federal Public Service;

4. an order declaring that the employment record of the applicant while at HRD be subject to verification and rectification where needed;

5. an unqualified letter of reference;

6. an order that HRD provide a letter of apology to the applicant to be posted throughout all HRD facilities; and

7. an order for costs.

For its part, the respondent HRD submits that the Court should declare that, in consideration of all the circumstances, the applicant has already been granted an appropriate and just remedy for the said infringements.

Thus, as the foregoing discussion indicates, the respondent HRD has already acknowledged that it infringed the Act. In addition, the respondent HRD has agreed to implement the recommendations of the COL report. I am satisfied, on the facts in this case, that the reevaluation which was recommended by the COL report and which was undertaken by HRD was reasonably and adequately performed by Mrs. Lavoie. Although the applicant would have preferred not to be compared to his Francophone colleagues, Mrs. Lavoie's evidence is that, in accordance with the recommendations in the COL report, she reviewed the applicant's performance evaluation, "taking into account the fact that the complainant was placed at a disadvantage in demonstrating his knowledge and abilities". Considering paragraphs 37 to 50 of Mrs. Lavoie's affidavit, I am satisfied that Mrs. Lavoie conducted her review pursuant to the guidelines set out in the COL report and that she assessed the applicant in a fair manner. I note, however, that while Mrs. Lavoie's reevaluation constitutes a very significant and objective measure of justice in the circumstances, this Court is not limited to any of the recommendations in the COL report. Subsection 77(4) of the Act very clearly gives this Court a broad discretion to grant any appropriate remedy. In order to determine what remedy would be appropriate in the circumstances of this case, I propose to consider each of the specific remedies requested by the applicant.

I note that, with respect to the first remedy requested by the applicant, the latter indicated during the hearing before me that the respondent has complied with his request to have the results of the review of his file communicated to him.

As to those remedies that remain in issue, I find that there is no serious evidence to support three of the orders sought by the applicant against the respondent HRD. In my view, the evidence does not support either the applicant's request for an order requiring HRD to reinstate him to the Federal Public Service, nor the applicant's request for an order declaring that his employment record while at HRD be subject to verification and rectification where needed. Furthermore, the evidence does not support the applicant's request for an unqualified letter of reference. I base my first finding on the fact that the applicant has not, to my mind, established any causal link between the non-compliance by the respondent HRD with Part V of the Act and the fact that he was not rehired when his term contract ended on March 31, 1993. On the second finding, I remark simply that the applicant has not satisfied me that his employment record needs to be rectified. Finally, the respondent HRD has already sent the applicant a letter confirming his employment at Health and Welfare Canada from August 27, 1992 to March 31, 1993. For these reasons, and taking into account the results of the applicant's performance reevaluation given by Mrs. Lavoie, all three of the above-mentioned orders sought by the applicant would be inappropriate remedies in this case.

. . . .

[Page 321:]

. . . consequently, I must deal with the applicant's claim for damages. Having determined above that the applicant has not established any causal link between the non-compliance by HRD with Part V of the Act and the fact that he was not rehired when his term contract ended on March 31, 1993, the applicant is not entitled to any compensation for loss of salary and benefits.

With respect to the applicant's claim for damages for physical and mental anguish and loss of "enjoyment of life", including all medical expenses, the causal link between HRD's infringement of the language rights of the applicant and the medical evidence, which is limited to Dr. Dalton's letter dated January 25 ,1996, and medical expenses (medication) in the amount of $139.51, is not satisfactorily established. However, HRD's infringement led the applicant to file numerous complaints with the COL. These legitimate attempts by the applicant to protect his language rights caused him significant inconvenience and loss of enjoyment of life, which must be compensated for by an award of damages in the amount of three thousand dollars ($3,000), with interest from the date of the order in this matter.

With respect to the claim for exemplary damages, the applicant has not established that HRD's conduct was of a harsh, vindictive, reprehensible or malicious nature . . .

. . . .

[Pages 323 and 324:]

In these circumstances, HRD having also agreed to follow the recommendations contained in the COL's report, I cannot find that HRD's conduct was extreme in its nature, nor that by any reasonable standard it is deserving of full condemnation and punishment. Therefore, the applicant is not entitled to any amount of money in exemplary damages arising from the discriminatory conduct of the respondent's employees.

Finally, considering that the COL concluded that the applicant's language of work complaints were founded, and considering that the respondents have admitted to infringements under Part V of the Official Languages Act, I agree with the applicant that HRD owes him a formal apology. In my view, such an apology will advance the purposes of the Act. It will tell every employee of a federal institution that, with respect to language of work and provision of services, HRD is firmly committed, in accordance with the Act, to upholding and according equal status to both official languages, as well as to ensuring that every employee has equal rights and privileges, irrespective of their preferred official language. Accordingly, it will be ordered that a formal apology be given in writing to the applicant and that it be posted throughout all HRD facilities.

Upon hearing the parties' submissions on costs, the applicant will be granted costs on a party to party basis.

[Emphasis not in original.]

[22]            As he was not satisfied with the remedies granted him, the plaintiff appealed to the Federal Court of Appeal. On May 12, 1998, the Court rendered the following judgment from the bench:

[1]            We have not been persuaded that this appeal should succeed.

[2]            While we substantially agree with the statements of Pinard J. about the wide discretion of the Trial Division, pursuant to subsection 77(4) of the Official Languages Act, to award the appropriate remedies, including damages, we are of the view that on the basis of the evidence he had before him, he properly refused to reinstate the Appellant within the Federal Public Service. There is no ground for intervention in his conclusions that the Appellant, having established no causal link between the non-compliance by Human Resources Development with Part V of Act and the fact that he was not re-hired, he was not entitled to loss of salary and benefits, and that the circumstances of the case did not justify that exemplary damages be granted. Nothing in the arguments raised by the Appellant warrants the intervention of this Court.

[3]            The appeal will be dismissed, with costs to the Respondents only.

[23]            On August 7, 1998, the plaintiff sought leave from the Supreme Court to appeal this decision. That leave was denied on December 17,1998.

[24]            As to the background of case T-909-97, dealing with the interview notes regarded by the plaintiff as personal information, on October 16, 1998, Dubé J. of this Court ruled in the plaintiff's favour (judgment reported at 157 F.T.R. 15). However, the Commissioner appealed that judgment to the Federal Court of Appeal. On September 6, 2000, in a judgment reported at 261 N.R. 19, the Federal Court of Appeal dismissed the Commissioner's appeal. The latter appealed to the Supreme Court. The appeal to that Court was held on January 17, 2002, and by a judgment issued on June 20, 2002, the Supreme Court dismissed the Commissioner's appeal (Lavigne v. Canada, [2002] 2 S.C.R. 773).

[25]            Based on his success in the Supreme Court the plaintiff was able to obtain the interview notes of Mr. Chartrand and Ms. Doyon and Dubé on August 20, 2002, and hence, by his action in the case at bar, is seeking to present and to argue once again the application, and the associated remedies, which he presented in case T-1977-94.

[26]            Before undertaking our analysis, it is worth noting that following the Supreme Court's judgment in T-909-97, and aided by the interview notes obtained at that time, the plaintiff in October 2002 attempted to get the Supreme Court to reconsider its refusal to allow an appeal from the Federal Court of Appeal's judgment in case T-1977-94. In his Supreme Court application the plaintiff raised inter alia the following grounds, the gist of which are also in his action in the case at bar.

AND FURTHER TAKE NOTICE that the said application to admit new evidence and for reconsideration of leave to appeal, shall be made on the following grounds:

6.    The main issue is, the new evidence was illegally withheld from the Applicant and the new evidence puts the credibility of the Respondents's main witness into question. If Mrs. Jacqueline Dubé cannot be believed on peripheral issues, how can the Court believe her with regards to the Applicant's performance evaluation? That the following demonstrates, the exceedingly rare circumstances that warrant the reconsideration of leave to appeal:

a)    That the new evidence has come to light via the Supreme Court decision, 28188;

b)    That this new evidence proposed to be adduced has been obtained by reasonable due diligence and the new evidence is such that if adduced, along with the rest of the evidence, it is conclusive;

c)    That in any event, due diligence is not an issue because the information was illegally withheld, a party cannot profit from its own misdeeds and that such illegal non-disclosure could not be foreseen;

d)    That pursuant to the Federal Court rules regarding Applications, a person can only be questioned on his or her Affidavit, it is not the same as discovery pursuant to an action;

e)    That pursuant to the former Federal Court Rule 319(2), the Respondents did not have to file any evidence;

f)    Once a witness decides to testify, the witnesses' prior statements, become relevant;

g)    That the new evidence existed before and independently from the witnesses statements produced under oath pursuant to former Federal Court Rule 319(2);

h)    The Court can make an adverse inference from the fact that the witness refuses to release the information found in the new evidence. This, puts the affiant's credibility into question, as it pertains to the evidence given under oath;

i)    That the new evidence is relevant because it demonstrates contradictory statements given by witnesses, when under oath and not. Therefore the new evidence, questions, the credibility of the Respondents' witnesses, as a whole;

j)    That it is not the Applicant's fault that it took so long to obtain the information, the Applicant always proceeded with due diligence;

k)    That the evidence is credible, because it was obtained by so called, independent investigators of the OCOL: the new evidence should be considered normal business records;

l)    That the new evidence was requested via a law of the Parliament of Canada;

m)    That the evidence was withheld illegally by the Intervener and the Respondent, in this case;

n)    That the Applicant and the Court were misled by the Intervener, on how to proceed to obtain the new evidence;

o)    That the Intervener has made too many mistakes in this case, whether or not the errors were deliberate, the errors would cause a miscarriage of justice, if leave to appeal is not granted;

p)    That the Courts, including this Court has admitted similar new evidence in the past;

q)    That failure to reconsider and grant leave to appeal based on the new evidence, will cause a great injustice to the Applicant;

r)    That failure to reconsider and grant leave would bring the administration of justice into disrepute, in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances of the case;

s)    That the question of a proper remedy, when information is illegally withheld, by the Respondent and by a so-called independent and impartial body, is a question of public importance that should be answered;

t)    The Court must consider that the Intervener might not be actionable for the negligence, but even if the OCOL is actionable (Nelles v. Ont. [1989] 2 S.C.R. 170), it should not leave the Respondents unscathed . . .

[27]            On July 30, 2003, and then on August 26, 2003, this application by the plaintiff was dismissed by the Supreme Court.

Analysis

[28]            In my opinion, it is clear that essentially, when compared to his action in case T-1977-94, the plaintiff's statement of claim prima facie raises the doctrine or rule of res judicata.

[29]            Realizing this conflict, however, the plaintiff argued that the interview notes he obtained at the end of his action in case T-909-97 are new evidence which enabled him to bring the action at bar^[2] to again hear and argue his application in case T-1977-94.

[30]            Although ultimately the result would appear to be little different, the exceptions to the res judicata rule in the case at bar must result from a civil law context rather than from criminal law cases, as the plaintiff appeared to suggest.

[31]            In Wavel Ventures Corp. v. Constantine, [1996] A.J. No. 1093 (Wavel), the Alberta Court of Appeal at paragraph 41 set out as follows the conditions new evidence must meet to induce a court to allow a point which has been the subject of a final judgment to be reopened:

41.            A second exception to the res judicata principle may apply on the discovery of new evidence. That exception, however, is very limited in scope. 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 [1976] 2 S.C.R. 621">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 :

The doctrine of res judicata is founded on public policy so that there may be an end of litigation, and also to prevent the hardship to the individual of being twice vexed by the same cause. The rule which I deduce from the authorities is that a judgment between the same parties is final and conclusive not only as to the matters dealt with, but also as to questions which the parties had the opportunity of raising. 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.

See also Lake Manitoba Estates Ltd. v. Communities Economic Development Fund, [1984] 3 W.W.R. 695, aff'd. [1985] 1 W.W.W. 36; Sopinka, Lederman and Bryant, The Law of Evidence in Canada, at pp. 1001-1002.

[Emphasis not in original.]

[32]            As the foregoing statement indicates, two conditions must be met for the new evidence exception to be allowed. First, it must not have been possible to obtain that evidence in the past with the exercise of reasonable diligence. Second, the evidence must be capable of altering the outcome: here, the remedies granted by Pinard J. in his judgment of October 30, 1996.

[33]            These two conditions in Wavel are similar to those accepted by the Federal Court of Appeal in Saywack, supra, footnote No. 2, at 201, which adopted, citing a passage from Dumble v. Cobourg and Peterborough R.W. Co. (1881), 29 Gr. 121 (Ch.), the rule laid down in Hoskin v. Terry (1862), 15 Moore's P.C.C. 493:

This petition is one in the nature of a bill of review on the ground of having discovered some new evidence, and the case of Hoskin v. Terry [15 Moore's P.C.C. 493, 8 Jur. N.S. 975, (1862)], seems to be a leading if not the leading case on the subject. That case was an appeal to reverse an order made by the Supreme Court of the colony of New South Wales; and Lord Kingsdown, who delivered the judgment of the Court, said: "The rule which we collect from the cases cited in the argument is this, that the party who applies for permission to file a bill of review on the ground of having discovered new evidence, must show that the matter so discovered has come to the knowledge of himself and of his agents for the first time since the period which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner; and secondly, that it is of such a character that if it had been brought forward in the suit it might probably have altered the judgment." And after commenting on the evidence in that case, his Lordship repeated the language of Lord Eldon in Young v. Keighly [16 Ves. 348], which was as follows: "The [29 Gr. Page 133] evidence, the discovery of which is supposed to form a ground for this application, is very material, and I am persuaded that by refusing this application I decide, against the plaintiff in a case in which he might perhaps with confidence have contended that upon the evidence he was entitled to the whole money: on the other hand it is most incumbent on the Court to take care that the same subject shall not be put in course of repeated litigation, and that with a view to the termination of suits, the necessity of using reasonably active diligence in the first instance should be imposed upon parties; the Court, therefore, must not be induced, by any persuasion as to the fact that the plaintiff had originally a demand which he could clearly have sustained, to break down rules established to prevent general mischief, at the expense even of particular injury.

[Emphasis in original.]

[34]            For the reasons that follow, I do not consider that in the case at bar the plaintiff meets the two conditions in Wavel.

[35]            On the first condition, that the plaintiff could not have obtained his new evidence, namely the interview notes, by reasonable diligence in the past, it should be noted at the outset that the plaintiff must have known, or at least suspected, on July 7, 1993 (or at the very least on September 10, 1993, when the Commissioner informed the plaintiff he was withholding information under paragraph 22(1)(b) of the Privacy Act) that the interview notes existed, since he had at that date filed an access application for his personal information with the Commissioner, when the latter had conducted an investigation with HRD employees as the result of language complaints filed with the Commissioner by the plaintiff.

[36]            This situation was accordingly known to the plaintiff and was unchanged on September 24, 1996, when Pinard J. began the hearing of the plaintiff's application in case T-1977-94, under section 77 of the Official Languages Act. In connection with that application, it is important to know that HRD filed the affidavits of Mr. Chartrand and Ms. Dubé, Doyon and Lavoie, and that those affidavits did not refer to the interview notes.

[37]            According to the plaintiff, the interview notes would have made it possible to challenge the credibility of the deponents, and hence of the witnesses called by HRD in connection with case T-1977-94. The plaintiff at no time sought to question these HRD deponents in connection with his application in case T-1977-94.

[38]            It is to be expected that the plaintiff would not have shared the viewpoint of the HRD deponents. The fact that the plaintiff did not seek to hold as searching an examination as possible of these deponents is surprising. Further, it cannot be ruled out that in such an examination, if it had been held, the interview notes might have been produced either voluntarily by the Commissioner or as the result of an order by this Court. At all events, if such efforts by the plaintiff in case T-1977-94 were not able to produce the said notes, the plaintiff could have asked that the proceedings in case T-1977-94 be stayed long enough to determine the final outcome of his access applications for those notes. Further, it seems to the Court that, in order to obtain the said notes by a full examination for discovery, the plaintiff might have thought of interrupting his application and bringing a full action as allowed by paragraph 77(5) of the Official Languages Act (see paragraph [17] supra for the text of paragraph 77(5)).

[39]            For all these reasons, it seems that the Court can hardly conclude that the plaintiff exercised reasonable diligence in the past, in the course of case T-1977-94, to obtain the interview notes which he knew at that time existed.

[40]            Notwithstanding our conclusion on this first condition for an exception in Wavel, it seems to the Court that the plaintiff also does not meet the second condition for the desired exception.

[41]            As indicated earlier, for the plaintiff to meet this condition he must show that the interview notes, if presented to this Court in the course of the case at bar, would be likely to change the remedies granted by Pinard J. in 1996.

[42]            In the plaintiff's submission, analysis of the interview notes shows that the testimony of the HRD deponents contains discrepancies and contradictions with what actually took place in the plaintiff's case during his stay at HRD from August 1992 to March 31, 1993.

[43]            If we understand the plaintiff's position correctly, these contradictions are such as to cast doubt on the Court's conclusions in its judgment in case T-1977-94 regarding the conclusions drawn and the remedies not granted by the Court at that time.

[44]            As indicated earlier, in October 1996 Pinard J. denied the plaintiff inter alia the right to be reinstated in the Public Service as there was no causal link between the non-compliance by HRD with the Official Languages Act and the fact that the plaintiff had not been rehired by the HRD after March 31, 1993. The absence of a causal link led the Court to deny the plaintiff other remedies such as compensation for loss of salary and other benefits, as well as damages for physical and mental suffering.

[45]            The contradictions which the plaintiff found in the interview notes do not bear directly on the negative performance evaluation and reevaluation made against him by the HRD. However, in the plaintiff's submission, if the deponents' testimony can be challenged through the interview notes in other respects, the performance evaluation made by the HRD in the past against the plaintiff is open to challenge.

[46]            The plaintiff did not persuade the Court that the contradictions he said he found were such as to permit revisiting the plaintiff's final performance appraisal, and so cast doubt on the remedies not granted by the Court in its decision of October 30, 1996, in case T-977-94.

[47]            I therefore consider it is plain and obvious that as regards the Queen and HRD the plaintiff does not meet the two conditions for the exception in Wavel. Consequently, there is no basis in the case at bar for allowing the plaintiff to again hear and argue case T-1977-94. As a result, the plaintiff's statement of claim in the case at bar must be struck out as to the Queen and HRD, with no right to amend, as constituting an abuse of the process of the Court under paragraph 221(1)(f), and the plaintiff's action dismissed accordingly.

[48]            Additionally, in his action seeking to reopen T-1977-94 the plaintiff appeared to add a direct cause of action against the Commissioner. That cause of action would result from the Commissioner's actions in cases T-1977-94 and T-909-97. At paragraph 4 of his statement of claim, the plaintiff indicated:

4.              The litigation against the Codefendant stems from its liability for contravening section 12 of the Privacy Act in case T-909-97 and its questionable actions during the proceedings of T-1977-94 leading to an apprehension of bias and demonstrated incompetence against the Plaintiff.

[49]            As the accessory follows the principal, this sole basis of approach could suffice to strike out this part of the statement of claim, with no right to amend, as well, and consequently result in dismissal of the action against the Commissioner.

[50]            However, there is more.

[51]            It should be noted at the outset that in case T-1977-94 the Commissioner intervened in the plaintiff's favour to support his action against the HRD, as the Commissioner supported the plaintiff so far as a breach of the Official Languages Act was concerned. As to case T-909-97, as noted earlier it stems from the Commissioner's refusal to reveal the interview notes contained in his files.

[52]            The plaintiff's allegations regarding the Commissioner's bias and incompetence relate to the actions of the Commissioner's employees during the course of case T-1977-94, and those allegations therefore necessarily pertain to reopening case T-1977-94. As we saw earlier, the interview notes, that is the new evidence, do not support reopening case T-1977-94 against the Queen and HRD. I also do not consider that this new evidence taken together with the plaintiff's very general allegations regarding the Commissioner's actions suffices to permit reopening of the argument in case T-1977-94.

[53]            The aspect of the plaintiff's action against the Commissioner dealing with the contravention by the latter of section 12 of the Privacy Act should have been raised by the plaintiff in his action against the Commissioner in case T-909-97. The res judicata rule applies here to the situation discussed. As mentioned in Ross v. Canada, [2003] F.C.J. No. 1168, paragraph 15:

Key is that the doctrine of res judicata, except in special circumstances, applies not only to what a court, in the initial proceedings, is required to decide, but to all points and issues which properly belong to or should have been a part of that litigation and which a reasonable diligent party might have brought forward in the earlier proceeding.

[54]            For these reasons, the plaintiff's statement of claim regarding the Commissioner must be struck out, without a right to amend, as being vexatious and an abuse of the process of the Court within the meaning of paragraphs 221(1)(c) and (f) of the Rules, and the plaintiff's action dismissed accordingly.

[55]            Additionally, the Court must consider that the plaintiff's allegations in his statement of claim relating to any negligence, incompetence, fraud or bias continue to be general allegations devoid of any material support. In view of Rule 181(a) and paragraph 75(1) of the Official Languages Act, the plaintiff should have provided much more support for his statement of claim. The preceding provisions, and Rule 174 of the Rules, read as follows:

174.    Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

174.    Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits.

181.    A pleading shall contain particulars of every allegation contained therein, including (a) particulars of any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence . . .

181.    L'acte de procédure contient des précisions sur chaque allégation, notamment : a)    des précisions sur les fausses déclarations, fraudes, abus de confiance, manquements délibérés ou influences indues reprochées . . .

75(1)    No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

75(1)    Le commissaire -- ou toute personne qui agit en son nom ou sous son autorité -- bénéficie de l'immunité civile ou pénale pour les actes accomplis, les rapports ou comptes rendus établis et les paroles prononcées de bonne foi dans l'exercice effectif ou censé tel de ses attributions.

[56]            Additionally, to avoid the application of subsection 75(1), supra, of the Official Languages Act, the plaintiff in his statement of claim maintained that he intended to challenge the unconstitutionality of this subsection and provide details regarding that challenge in due course. Such a general allegation cannot stand and the plaintiff should have provided details of the basis of his challenge in his statement of claim. The same is true of the plaintiff's allegation regarding the application of section 7 of the Charter, to the extent that such a section could even be considered applicable in the case at bar.

[57]            In view of the absence of material facts on the aspects just reviewed, the Court must conclude that the plaintiff's statement of claim should also be dismissed with respect to the Commissioner with no right to amend, in that it discloses no reasonable cause of action within the meaning of paragraph 221(1)(a) of the Rules. Consequently, the plaintiff's action must be dismissed on this basis also with respect to the Commissioner.

[58]            For all the foregoing reasons, the plaintiff's statement of claim must be struck out with no right to amend, pursuant to paragraph 221(1)(f) of the Rules with respect to the Queen and HRD and pursuant to paragraphs 221(1)(a), (c) and (f) of the Rules with respect to the Commissioner. The plaintiff's entire action will also be dismissed accordingly, with costs only to the Queen as the Commissioner did not seek costs against the plaintiff.

Richard Morneau                            Prothonotary

Montréal, Quebec

May 28, 2004

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                   T-2291-03

STYLE OF CAUSE:                        ROBERT LAVIGNE                                                   Plaintiff

and

THE OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES

and

HER MAJESTY THE QUEEN

and

HUMAN RESOURCES DEVELOPMENT (FORMERLY HEALTH AND WELFARE CANADA)                 Defendants

PLACE OF HEARING:                 Montréal, Quebec

DATE OF HEARING:                   March 15, 2004

REASONS FOR ORDER:             Richard Morneau, Prothonotary

DATE OF REASONS:                   May 28, 2004

APPEARANCES:

Robert Lavigne                                                for the plaintiff

Amélie Lavictoire                                             for the defendant, the Office of the

Pascale Giguère                                               Commissioner of Official Languages

Guy M. Lamb                                                  for the defendants, Her Majesty the Queen

Nicholas R. Banks                                           and the Minister of Human Resources Development

SOLICITORS OF RECORD:

Amélie Lavictoire                                             for the defendant, the Office of the

Pascale Giguère                                               Commissioner of Official Languages

Morris Rosenberg                                            for the defendants, Her Majesty the Queen

Deputy Attorney General of Canada       and the Minister of Human Resources Development