FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-799-00
STYLE OF CAUSE: MICHELINE MONTREUIL
Plaintiff
AND
CANADIAN HUMAN RIGHTS COMMISSION
Defendant
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 16, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: January 31, 2001
APPEARANCES:
Micheline Montreuil for the plaintiff
André Giroux for the National Bank of Canada
SOLICITORS OF RECORD:
Ogilvy, Renault for the National Bank of Canada
Montréal, Quebec
Date: 20010131
Docket: T-799-00
MONTRÉAL, QUEBEC, JANUARY 31, 2001
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
MICHELINE MONTREUIL
Plaintiff
AND
CANADIAN HUMAN RIGHTS COMMISSION
Defendant
ORDER
The plaintiff's motion for directions is allowed to the extent indicated below.
The motion by the National Bank of Canada and that by the plaintiff filed on August 31, 2000 (document 26 of this Court) are dismissed.
It is hereby ordered that henceforth any proceeding or document having a style of cause in the case at bar shall have the following style of cause:
"Joseph Yves Pierre Papineau Montreuil
known as Micheline Montreuil
Plaintiff
and
National Bank of Canada
Defendant"
It is further ordered that the notice by the plaintiff of an application for judicial review and the affidavit filed in support thereof shall be read in accordance with and taking into account the change in the style of cause.
The National Bank of Canada shall serve and file its Rule 305 notice and any affidavit pursuant to Rule 307 on or before March 1, 2001.
The other provisions of the Rules shall take their normal course thereafter.
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Richard Morneau
Prothonotary
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010131
Docket: T-799-00
Between:
MICHELINE MONTREUIL
Plaintiff
AND
CANADIAN HUMAN RIGHTS COMMISSION
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has three motions before it in the case at bar. These three motions are essentially concerned with the facts that, first, the plaintiff used a name to describe herself in her application for judicial review ("the application") which is not the one shown on her birth certificate - the problem, if any, in fact involves use of the given name only - and second, she named the wrong entity as defendant in connection with her application. Once her error regarding naming of the defendant was identified, the plaintiff delayed requesting a correction in this Court.
[2] Two of the motions were made by the plaintiff and essentially seek the Court's leave to correct the error in naming the defendant. The other motion was made by the National Bank of Canada ("the Bank") and is asking the Court to strike out the application on the basis of the defects mentioned above.
[3] These reasons and the order accompanying them dispose of these three motions.
Facts
[4] In June 1999 the plaintiff filed a complaint with the Canadian Human Rights Commission ("the Commission"). In that complaint the plaintiff charged that the Bank had been guilty of discriminatory action against her on account of her sex, more precisely, her situation as a person with a sex change, or more generally because of the fact that she was a "person in transition", thereby allegedly contravening the provisions of ss. 3 and 7 of the Canadian Human Rights Act.
[5] By a letter dated April 6, 2000 the Commission informed the plaintiff that her complaint was inadmissible because it did not comply with s. 41(1)(c) of the Canadian Human Rights Act. That paragraph of the Act states that a complaint is inadmissible if it is beyond the jurisdiction of the Commission. That was all the Commission's written decision said.
[6] On May 3, 2000 the plaintiff filed her application in which she argued that the Commission had committed an excess of jurisdiction. At that time the plaintiff named the Commission as defendant to the application.
[7] By a letter dated May 19, 2000 the Commission informed the plaintiff that it could not be considered as defendant to the application.
[8] On July 28, 2000 the plaintiff served on the Court and the Bank her motions for directions in which she sought to make the necessary corrections. The day before this motion was to be submitted the Bank served its reply record to the motion and by a separate motion asked the Court to strike the plaintiff's application. Essentially, the latter motion and the reply record just mentioned were to the same effect.
Analysis
[9] One has to begin with the Bank's challenge, to the effect that the application contravenes arts. 5 and 9 of the Civil Code of Quebec and should be struck out since it must regarded as void ab initio, absolutely void. The reason for this was that the plaintiff gave Micheline Montreuil as her name rather than Pierre Montreuil, the name which is consistent with the plaintiff's birth certificate, which indicates "Joseph Yves Pierre Papineau Montreuil".
[10] According to the Bank the information contained in Vilon (Héritiers) v. Madill (1987), 11 Q.A.C. 96, and Lee v. Seagal's (Michael) Inc., [1972] 7 C.P.R. (2d) 148, and the aforesaid articles of the C.C.Q. establish that by not using her name as described in her birth certificate the plaintiff contravened a rule of public law which must be penalized by absolute nullity ab initio.
[11] Article 5 and 9 of the C.C.Q. read as follows:
| Art. 5. Every person exercises his civil rights under the name assigned to him and stated in his act of birth.
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Art. 5. Toute personne exerce ses droits civils sous le nom qui lui est attribué et qui est énoncé dans son acte de naissance.
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| Art. 9. In the exercise of civil rights, derogations may be made from those rules of this Code which supplement intention, but not from those of public order.
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Art. 9. Dans l'exercice des droits civils, il peut être dérogé aux règles du présent code qui sont supplétives de volonté; il ne peut, cependant, être dérogé à celles qui intéressent l'ordre public.
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[12] The facts in Lee, supra, are so different from the situation in the case at bar that in my opinion that case is of little relevance to the analysis with which we are concerned. In that case, which dates back to 1972, this Court held that individuals had committed contractual acts, such as those concerning intellectual property, that they had relegated themselves to being non-existent parties and that their action could therefore be seen as a complete nullity. On that basis the motion made by that party was dismissed.
[13] In Vilon, supra, an individual brought a court action against an insurance company under a pseudonym (Vilon), not his true name (Lachapelle). Lachapelle died while the action was pending.
[14] His heirs made a motion to amend, to substitute the name of Gérard Lachapelle for that of Eric Vilon. This motion was made when the prescription period had elapsed on the action. The Superior Court dismissed the motion to dismiss but allowed the motion to amend. Madill appealed. The Quebec Court of Appeal allowed the appeal and held that the original service was absolutely void because it was not made under the plaintiff's true name. Accordingly, the prescription had run, as no valid action had been brought. The heirs' motion to amend was therefore not allowed, because it would have been an attempt to revive a right extinguished by prescription.
[15] Vilon differs from the case at bar in several respects.
[16] First, although in that case the Court acknowledged that the predecessor of art. 5 C.C.Q. was of public order, the absolute nullity for non-compliance with that article was the unavoidable result of the existence of art. 14 C.C. as it then stood, which clearly provided that there would be absolute nullity in the event of an infringement.
[17] Article 14 read as follows:
| Art. 14. Prohibitive laws import nullity, although such nullity be not therein expressed.
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Art. 14. Les lois prohibitives emportent nullité, quoiqu'elle n'y soit pas prononcée.
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[18] Article 14 was not reproduced in the C.C.Q. The article which appears to have taken its place is art. 9 C.C.Q., which reads:
| Art. 9. In the exercise of civil rights, derogations may be made from those rules of this Code which supplement intention, but not from those of public order.
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Art. 9. Dans l'exercice des droits civils, il peut être dérogé aux règles du présent code qui sont supplétives de volonté; il ne peut, cependant, être dérogé à celles qui intéressent l'ordre public.
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[19] The legislator has made no provision here for the penalty of nullity.
[20] If a breach of art. 5 C.C.Q. - which may be regarded as of public order - were to result in the absolute nullity of the action containing it, can we not assume that the Quebec Court of Appeal - when it had to rule on the merits of a motion by the plaintiff herein in November 1999 - would have mentioned this nullity of its own accord? (See Montreuil v. Directeur de l'État civil, [1999] R.J.Q. 2819.) At the end of that judgment (at 2826), the Court had to consider this very art. 5, and though recalling the wording of the article, the Court made no mention of the fact that the originating procedure before it - which had apparently been filed under the name of Micheline Montreuil - should be struck out on grounds of absolute nullity. In issuing its decision, the Court simply corrected the designation of the plaintiff so that it read [TRANSLATION] "Pierre Montreuil, known as Micheline".
[21] It may also be noted in connection with Vilon that the decision in that case was made under the old Civil Code and that it involved a question of prescription and had to do with a person who had used both a family name and a given name which were not those on his birth certificate.
[22] Here, prescription is not at issue and only the plaintiff's given name may require correction.
[23] In view of the foregoing reasons, therefore, I do not intend to allow the Bank's motion and strike the plaintiff's application.
[24] It is somewhat surprising that the Bank sets itself up as a defendant of public order when it appeared that despite the many actions brought by the plaintiff under the name of Micheline Montreuil, and involving Attorneys General, none - except apparently one continuance - raised art. 5 C.C.Q. as a bar to an action by the plaintiff.
[25] However, in view of the insistence by the Bank on art. 5 C.C.Q.;
[26] As the plaintiff strongly desires to be heard on the merits of her application, quite apart from her designation for the moment;
[27] As what I propose and order below is done in the hope that the Bank will proceed on the merits of the plaintiff's application and overlook the procedure;
[28] As the Quebec Court of Appeal has acted in a similar way in Montreuil, supra;
[29] As however the plaintiff does not insist on being limited to a single given name;
[30] This Court must order, based inter alia on Rules 3, 53(1), 52(2) and 76(a) of the Federal Court Rules (1998) ("the Rules"), that the plaintiff shall be designated henceforth in all proceedings or documents having a style of cause as follows:
"Joseph Yves Pierre Papineau Montreuil, known as Micheline Montreuil".
[31] The Bank further argued in its motion that the Court should dismiss the application for leave to amend the style of cause so as to delete the Commission as defendant and add the Bank as defendant, on the ground that the application was not made in accordance with the proper provisions of the Rules.
[32] This argument by the Bank must also be dismissed.
[33] After what may be regarded as reasonable actions and research, the plaintiff - who represented herself - wrongly believed that the Commission should be shown as defendant in her application. She therefore made her application against the Commission in due time. When informed by the Commission that the Bank was the defendant who should be concerned in the application, the plaintiff applied to this Court by a motion for directions to correct the situation.
[34] In view of all the circumstances involving the plaintiff, I consider that the affidavits filed by her indicate that she reacted within a reasonable time after being notified by the Commission.
[35] In my opinion, the amendments concerned have to be looked at under Rules 3, 53 and 104(1)(b) and (2), all of which the plaintiff ultimately relied on if we combine her motion for directions and her reply record to the Bank's motion to dismiss.
[36] The Rules mentioned above read as follows:
| Sec. 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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Art. 3. Les présentes règles sont interprétées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
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| Sec. 53.(1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.
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Art. 53. (1) La Cour peut assortir toute ordonnance qu'elle rend en vertu des présentes règles des conditions et des directives qu'elle juge équitables.
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| (2) Where these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just.
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(2) La Cour peut, dans les cas où les présentes règles lui permettent de rendre une ordonnance particulière, rendre toute autre ordonnance qu'elle juge équitable.
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| 104. (1) At any time, the Court may
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(b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.
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104.(1) La Cour peut, à tout moment, ordonner:
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b) que soit constituée comme partie à l'instance toute personne qui aurait dû l'être ou dont la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne.
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| (2) An order made under subsection (1) shall contain directions as to amendment of the originating document and any other pleadings.
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(2) L'ordonnance rendue en vertu du paragraphe (1) contient des directives quant aux modifications à apporter à l'acte introductif d'instance et aux autres actes de procédure.
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[37] It seems clear that in view of these Rules and the circumstances of the case at bar this part of the Bank's motion must also fail and, as a corollary, the plaintiff's motion must be allowed. The Commission will accordingly be deleted as defendant and the Bank substituted therefor, in any proceeding or document having a style of cause in the case at bar.
[38] By the foregoing reasons I think that the corrections and rectifications which must be made to the instant record have been made, and I do not feel that the situation should be seen in terms of an extension of time pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, or Rule 8. The plaintiff's motion filed on August 31, 2000 (document 26 of this Court) will therefore simply be dismissed for this reason.
[39] No costs will be awarded on the three motions.
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Richard Morneau
Prothonotary
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MONTRÉAL, QUEBEC
January 31, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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Federal Court of Canada
Trial Division
Date: 20010131
Docket: T-799-00
Between:
MICHELINE MONTREUIL
Plaintiff
AND
CANADIAN HUMAN RIGHTS COMMISSION
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-799-00
STYLE OF CAUSE: MICHELINE MONTREUIL
Plaintiff
AND
CANADIAN HUMAN RIGHTS COMMISSION
Defendant
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 16, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: January 31, 2001
APPEARANCES:
Micheline Montreuil for the plaintiff
André Giroux for the National Bank of Canada
SOLICITORS OF RECORD:
Ogilvy, Renault for the National Bank of Canada
Montréal, Quebec
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