Giroux v. Canada, 2001 FCT 531

Date: 20010525

Docket: T-2004-99

Neutral Citation: 2001 FCT 531

BETWEEN:

                                                 YVON GIROUX

                                                                                                Plaintiff/Applicant

                                                         - and -

                              HER MAJESTY IN RIGHT OF CANADA

                                                                                         Defendant/Respondent

                                REASONS FOR ORDER AND ORDER

BLAISJ.

[1]                 This is a motion by the plaintiff to set aside the order made by Prothonotary Morneau on December 4, 2000, dismissing the simplified action brought by the plaintiff (the applicant).

FACTS                                                   

[2]                 On November 17, 1999, the applicant commenced a simplified action against the respondent on the grounds that the members of selection boards on two different occasions intentionally either abused their power or made defamatory remarks about the applicant. The applicant claimed exemplary damages of $50,000 for those delicts.

[3]                 The applicant is employed by the Canada Customs and Revenue Agency. He was unsuccessful in a competition held in 1995 to fill Large Case File Manager positions at the AU-4 group and level.

[4]                 However, that competition was set aside by an appeal board decision dated January 6, 1997, that allowed the appeal of Raymond Lamarche, a colleague of the applicant, who had also been unsuccessful in the competition for the same reasons as the applicant: unlike the vast majority of the 80 candidates who had participated in the competition, neither the applicant nor Mr. Lamarche had given details of their relevant work experience.

[5]                 The appeal board that allowed Mr. Lamarche's appeal found that the selection board had erred in requiring a fixed number of years to satisfy the experience criterion and that the complexity of the experience had not been properly assessed, as it was judged on the basis of a list of duties and sections of the Act, although the notice of competition did not require such a high degree of detail.

[6]                 As a result of that decision, Ms. Courchesne-Renaud, Regional Chief of the Public Service Commission (the Commission), issued corrective measures to be followed in resuming the assessment of all the candidates.

[7]                 Those measures may be summarized as follows: (1) two years' experience shall not be considered necessary; (2) the experience shall not be assessed based on a detailed description of experience, which was determined to be contrary to the requirements set out in the statement of qualifications; (3) the disparities among the various sources of information about the candidates shall be reduced; and (4) the rules established for assessing candidates shall not be changed part way through the process. The candidates' experience was also to be assessed based on the updated information as of the date of the new assessment that would have to be carried out.

[8]                 The applicant alleges that a member of the selection board, Pierre Nadeau, abused his power by intentionally and in bad faith failing to do the reassessment prescribed by the corrective measures. The applicant also alleges that Ms. Courchesne-Renaud was negligent in failing to monitor compliance with the measures that she had issued and instructed Revenue Canada to carry out.

[9]                 The applicant's allegations about the conduct of the selection board are based on certain reasons stated by the chairman of the appeal board that made the decision of January 6, 1997, and that allowed the new appeals by the applicant and Mr. Lamarche on May 28, 1997; because so much time had elapsed since the selection process had begun, the appeal board completely set aside the selection process.                                                 

[10]            With respect to the first series of delicts allegedly committed by the respondent, the applicant specifically refers to the following excerpts from the appeal board decision dated May 28, 1997:

[TRANSLATION] It can now no longer be argued that the first appeal board erred and disregarded the decision governing the parties on the same subject . . . It is therefore fundamentally unjustifiable for the selection board to have given the same score to the appellant Lamarche for the complexity of work experience, because that completely flies in the face of the decision.

In addition, having heard the statements of the board members, I do not think that they had sufficient knowledge about the candidates' recent work experience. . . That is not what was required of the board under the corrective measures prescribed by the PSC, and the measure that was taken was done in such a way as to clearly circumvent the decision . . .The change that was made was not what should have been expected after the first appeal decision: the board merely made a change in form rather than the change in substance that was obviously required in this case.                                                                 

[11]            After the first selection process was set aside following the May 1997 decision, Revenue Canada initiated a second selection process in January 1998 to fill what were, for all practical purposes, the same positions.

[12]            The applicant applied for the position and took two tests, a written examination that he passed and an interview in which he was unsuccessful. The failure to succeed at the interview resulted in him being disqualified from the competition.

[13]            The applicant then appealed the appointments proposed by the selection board.

[14]            The applicant claims that at his appeal hearing before the appeal board, the Department's representatives made a number of false or misleading statements in the two replies that they provided to the appeal board.

[15]            The applicant maintains that the members of the selection board knowingly and maliciously made a series of false and misleading statements and defamatory remarks in the two replies that they provided to the appeal board.

[16]            In summary, the applicant alleges that two series of delicts were committed. The first series allegedly occurred during the first selection process and related to the selection board's implementation of the corrective measures prescribed by the Commission. The second series allegedly occurred in the submissions made by the selection board in the second selection process.

[17]              Both selection processes were attempting to fill the same type of position. However, the members of the selection boards were not the same for the two processes and none of the public servants on the selection boards or at the Commission knew the applicant personally.

ISSUES

[18]            1.        Did the Prothonotary err in assessing the evidence relating to the respondent's negligence?

2.        Did the prothonotary err in finding that the false statements allegedly made by the selection board constituted perjured evidence within the meaning of para.18.1(4)(e) of the Federal Court Act?

3.        Did the prothonotary err in deciding to strike out part of the applicant's action?

ANALYSIS

Standard of review on appeal from a decision of a prothonotary

[19]              The powers of a prothonotary are set out in Rule 50 of the Federal Court Rules, 1998:

[20]              Rule 51 provides for an appeal from an order of a prothonotary:

[21]            The applicant submits that the prothonotary's decision relating to the first selection process was not a discretionary decision within the meaning of the decision in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 424 (C.A.). However, the applicant points out that where there has been a misapprehension of the evidence or other error of law, a judge sitting on appeal must intervene.

[22]            The applicant contends, however, that the prothonotary made a discretionary decision when he ruled that the portion of the claim relating to the false statements allegedly made by the selection board should be struck out. According to the applicant, Prothonotary Morneau made that decision when he granted the respondent's motion at trial to strike out part of the claim.

[23]            The respondent submits that the principles that apply to appeals before the Federal Court of Appeal also apply when the Trial Division hears an appeal of a decision from a decision of a prothonotary dismissing a simplified action. The respondent therefore submits that the appellate judge must accord significant deference to the assessment of the evidence at trial.

[24]              The issue of the deference to be accorded on an appeal from a decision of a prothonotary dismissing a simplified action has yet to be disposed of by this Court.

[25]              However, the issue of the deference to be accorded on an appeal from a decision of a prothonotary has been disposed of. In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), MacGuigan J.A., writing for the majority of the Federal Court of Appeal, set out the standard of review to be applied to a discretionary order of a prothonotary:

I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière, J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or                 

(b) they raise questions vital to the final issue of the case.

Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.

In Canada v. "Jala Godavari" (The) (1991), 40 C.P.R. (3d) 127 (F.C.A.), this Court in an obiter dictum stated the rule the other way around, seeking to emphasize the necessity for the exercise of the Judge's discretion de novo, in contradistinction to the view that was at that time gaining acceptance in the Trial Division that the prothonotary's discretion should be followed unless he had committed error of law. Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge where the question involved is vital to the final issue of the case. (Error of law is, of course, always a reason for intervention by a judge, and is not in any way in controversy).

[26]              In Canada v. Jala Godavari (The), [1991] F.C.J. No. 1047 (C.A.), the Federal Court of Appeal had stated:

In this latter connection we would add that, contrary to a view that has sometimes been expressed in the Trial Division [Footnote appended to judgment], a judge who hears an appeal from a prothonotary on a matter involving the exercise of discretion is called upon to exercise his own discretion and is not bound by the prothonotary's opinion. He may, of course, choose to give great weight to the views expressed by the prothonotary, but the parties are, in the final analysis, entitled to the discretion of a judge and not that of a subordinate officer. The situation is, of course, different where a referee (who may be a prothonotary) has heard witnesses and made findings of fact based on his assessment of credibility. [See Algonquin Mercantile Corp. v. Dart Industries Canada Ltd. [1988] 2 F.C. 305.]

Footnote: See for example: Hirsh Co. v. Spacemaker Ltd. et al. [1988] 14 F.T.R. 301, McNair J.; 746278 Ontario Ltd. v. Courtot et al (No. 5), (1989) 25 F.T.R. 281, Strayer J.; McAllister Towing & Salvage Inc. v. Nova Marine Ltd. et al (April 4, 1991), Court file T-2014-86 (T.D.), Martin J., unreported.

[27]              In Scott Steel Ltd. v. Alarissa (The), [1997] F.C.J. No 139 (T.D.), Mr. Justice Richard, now the Chief Justice, heard an appeal from an order of Prothonotary Hargrave setting priorities to the proceeds of sale of a ship. On the question of the standard of review to be applied on appeal, Richard J. stated:

The Supreme Court has established that, as regards determination of the facts, appellate review should be limited to those instances where it is shown that a manifest or palpable error has been made. Error of law is always a reason for intervention by a judge.

Following Canada v. Aqua-Gem Investments Ltd., it is established that a judge, on an appeal from the Prothonotary, ought to exercise his or her own discretion de novo where a discretionary order of the Prothonotary raises a question vital to the final issue of the case. That is not to say that the Prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge where the question involved is vital to the final issue of the case. In this circumstance, the parties are entitled to the discretion of a judge and not that of a Prothonotary.

Therefore, in reviewing the order of the Prothonotary, on an appeal, a judge must determine whether it is a discretionary order and, if so, whether the question involved is vital to the final issue of the case. This means vital to the result of the case. When determining whether the order appealed from is relevant to the final issue of the case, the issue to be decided should be examined before the question is answered by the Prothonotary, that is, before the result is known.

Where a discretionary order of the Prothonotary does not raise a question vital to the final issue of the case but is clearly wrong, in that the Prothonotary has fallen into an error of law, which concept includes a discretion based upon a wrong principle or upon a misapprehension of the facts, a judge ought to also exercise his or her own discretion de novo.

Although it dealt with a Prothonotary acting as a referee under Rule 506, I conclude that the scope of review formulated by Mr. Justice Létourneau is applicable to an appellate review of an order of a Prothonotary in our Court.

It is clear from the decisions of my colleague Hugessen J.A. in Canada v. "Jala Godavari" (The) and Algonquin Mercantile Corp. v. Dart Industries Canada Ltd. that a judge who reviews findings of fact based on an assessment of credibility and made by a referee who has heard witnesses is not at liberty to reverse these findings and substitute his views for those of the referee. I believe that, on an appeal from the decision of a referee under Rule 506, the reviewing judge should not interfere with findings of law and findings of fact unless, in making the former, the referee has committed some error of law and, in the latter case, the findings of fact are wrong in that they are made in a perverse or capricious manner or are the result of some palpable and overriding error. To put the matter simply, a judge who reviews a referee's findings under Rule 506 is, as to questions of law and questions of fact, in very much the same position as this Court would be on an appeal from the Trial Division.

A judge is given more latitude when it comes to reviewing the exercise of a discretionary power by a prothonotary. In such case, the decision of Canada v. Aqua-Gem Investments Ltd. stands for the proposition that the exercise of such power ought not to be disturbed unless it is clearly wrong, i.e., it is based upon a wrong principle or a misapprehension of the facts, or unless it raises questions vital to the final issue of the case. When the exercise of that discretion is reviewable, a judge ought to exercise his discretion de novo.

Although such finding was made in the procedural context when the prothonotary sits on motions, I believe the principle to be applicable as well when he sits as a referee pursuant to Rule 500. In "Jala Godavari", supra, my colleague Hugessen J.A., in stating the law applicable to the review of findings of fact made by a referee, acknowledged that the referee could be a prothonotary. Therefore, the scope of review of the prothonotary's discretion ought to be the same whether he sits as a prothonotary or as a referee. (Different considerations might apply

where the referee was a judge.) [See Reading & Bates Construction Co. v. Baker Energy Resources Corp. [1995] 1 F.C. 483 (C.A.) at pp. 492-493].

The Prothonotary considered extensive affidavit material and cross-examination thereon. In the Geffen case, Madam Justice Wilson stated that even in those cases where a finding of fact is neither inextricably linked to the credibility of the testifying witness nor based on a misapprehension of the evidence, the rule remains that appellate review should be limited to those instances where a manifest error has been made.

[Notes omitted]

[28]            Accordingly, a degree of deference is accorded to the prothonotary on an appeal from a discretionary decision. A judge hearing an appeal will only intervene where the decision is clearly wrong, that is, where the prothonotary has exercised his or her discretion based upon a wrong principle or upon a misappprehension of the facts or where the order deals with questions vital to the final issue of the case. However, where the judge hearing the appeal makes a finding that the decision was clearly wrong or where the order deals with questions vital to the final issue of the case, the judge hearing the appeal will exercise his or her discretion de novo.

[29]              In this case, Prothonotary Morneau had to decide whether the respondent had abused her power or made defamatory remarks about the applicant. Prothonotary Morneau therefore had to determine whether the applicant had established the constituent elements of liability: a fault, damage and a causal connection between the two.

[30]            Accordingly, the question to be disposed of by Prothonotary Morneau did not require the exercise of discretion but was vital to the final issue of the case.

[31]              In Scott Steel Ltd., supra, Richard J. considered the standards that apply where a decision of a prothonotary did not require the exercise of discretion but was vital to the final issue of the case:

Counsel for Scott Steel submitted that the normal appellate standard should apply. He did not suggest that the Prothonotary's order did not raise questions vital to the issue of the case, but submitted that it was not discretionary in the circumstances.

At the hearing before me, counsel for Treasury Branches agreed with counsel for Scott Steel that if the order was not discretionary, the reviewing judge should not interfere unless the Prothonotary committed some error of law or made findings of fact that are wrong in that they are the result of some palpable and overriding error. However, counsel for Treasury Branches relied on the second branch of the Aqua-Gem test, that is, where discretionary orders of prothonotaries raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. Counsel interpreted this as meaning that a trial de novo, and challenged numerous findings or conclusions reached by the Prothonotary both on evidentiary matters and questions of law.

A distinction must be made between the finding of the Prothonotary concerning the usual ranking of priorities, which in my view, clearly does not involve the exercise of any discretion, and the finding of the Prothonotary concerning the reversal of usual priorities, which involves equitable principles. With respect to the second, it is quite clear from the judgments of Hugessen J.A. in Jala Godavari and of MacGuigan J.A. in Aqua-Gem that the proceeding is an appellate review and that it is the discretion which ought to be exercised de novo in the appropriate case. Otherwise, the hearing before the Prothonotary would be nothing more than an expensive preliminary rest stop along the procedural route to a motions judge.         

I have reached the conclusion that the determination by the Prothonotary concerning the reversal of the usual priorities is discretionary because it involves the exercise of a discretion based on equitable principles to prevent an obvious injustice. I have also concluded that the question involved is vital to the final issue of the case because it finally determines the ranking of the claims, even though the amount of the claims remains to be decided.

However, I have concluded that the finding of the Prothonotary concerning the existence of a valid possessory lien, which had not been waived or which Scott Steel was not estopped from claiming, is not discretionary. With respect to this part of the Prothonotary's decision, the normal appellate standards apply as enunciated by Mr. Justice Létourneau in the Baker Energy case. The reviewing judge should not interfere with findings of law and of fact, unless in making the former, the Prothonotary has committed some error of law and in the latter, the findings of fact are wrong in that they are made in a perverse or capricious manner or are the result of some palpable and overriding error.

[Notes omitted]

[32]                  I concur with the conclusion stated by Richard J. that the normal appellate standards apply to findings of a prothonotary that are not discretionary.

[33]            The fact is that applying standards other than the normal appellate standards would result in delaying the legal process and increasing the costs associated with this kind of action. In addition, it has been recognized time and again that the judge who hears the witnesses is in a more privileged position than the judge who hears the appeal.

[34]                  In Schwartz v. Canada, [1996] 1 S.C.R. 254, the Supreme Court of Canada explained the principles underlying the deference accorded by appellate courts to a trial judge's findings of fact:

It has long been settled that appellate courts must treat a trial judge's findings of fact with great deference. The rule is principally based on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses' testimony at trial. Lord Shaw thus explained the underlying principles of the rule in Clarke v. Edinburgh and District Tramways Co., [1919] S.C. (H.L.) 35, at pp. 36 and 37:

When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.

See also, [1968] S.C.R. 288">inter alia, Dorval v. Bouvier, [1968] S.C.R. 288, at p. 293; [1984] 1 S.C.R. 2">Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2, at pp. 8-9; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at p. 794; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 358; and my comments in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at p. 426. Others have also pointed out additional judicial policy concerns to justify the rule. Unlimited intervention by appellate courts would greatly increase the number and the length of appeals generally. Substantial resources are allocated to trial courts to go through the process of assessing facts. The autonomy and integrity of the trial process must be preserved by exercising deference towards the trial courts' findings of fact; see R. D. Gibbens, "Appellate Review of Findings of Fact" (1992), 13 Adv. Q. 445, at pp. 445-448; Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 91, at p. 204. This explains why the rule applies not only when the credibility of witnesses is at issue, although in such a case it may be more strictly applied, but also to all conclusions of fact made by the trial judge; see Hodgkinson, at p. 425.

The courts have thus adopted a general rule concerning situations where an appellate court will be justified in intervening in a trial judge's findings of fact and substituting its own assessment of the evidence presented at trial. The generally accepted formulation of the applicable standard is as stated by Ritchie J. in The Ship "Kathy K", supra, where, after reviewing the relevant authorities, he wrote, at p. 808:

These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, a part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial. [Emphasis added.]

This Court has also held, in [1984] 1 S.C.R. 2">Beaudoin-Daigneault, supra, at pp. 8-9, that an appellate court will be justified in disturbing the trial judge's findings of fact only if a specific and identifiable error made by the trial judge convinces it that the conclusion of fact reached is unreasonable, and not one that constitutes a mere divergence of opinion as to the assessment of the balance of probabilities. Further, it was held that a second appellate court should only intervene in a first appellate court's decision to overturn findings of fact made at trial if it is convinced that the first appellate court's intervention was not justified. [emphasis in text]

[35]            It should be noted, however, that because the action in this case was a simplified action, much of the evidence was by way of affidavit; however, some evidence was introduced by way of testimony before the prothonotary.

[36]            Accordingly, deference will be accorded in the appeal from the conclusions of the prothonotary that are not discretionary and I will intervene only if the prothonotary committed an error of law or the findings of fact were made in a perverse or capricious manner or are the result of some palpable and overriding error.

[37]            In my view, striking out the applicant's action is not a matter that involves the discretion of the prothonotary.    Rather, the prothonotary carried out a legal analysis of the issue of whether the applicant was required to raise the issue of false allegations before the appeal board and the reviewing Court. Therefore, I will only intervene if the prothonotary committed an error in his analysis.

1.        Did the prothonotary err in his assessment of the evidence relating to the respondent's negligence?

Uncontradicted evidence

[38]            The applicant maintains that the decision of the appeal board dated May 28, 1997, is uncontradicted evidence proving that the corrective measures had not been applied.

[39]            I have carefully reviewed the evidence that was before the prothonotary and I am unable to conclude that he erred in his assessment of the evidence in the record.

[40]            The applicant seems to think that the decision of the appeal board dated May 28, 1997, which found that there had indeed been errors made in assessing the candidates, is sufficient evidence of the respondent's abuse of power and negligence.     

[41]            In order to prove abuse of power and negligence on the part of the respondent, it is not sufficient to show that there were irregularities in the way the competition was held. (See Kibale v. Canada, [1994] A.C.F. no. 161 (C.A.) which was referred to by the prothonotary.) I agree with the prothonotary that the evidence shows that the selection board attempted in good faith to follow the directives it received and that it was caught between the decision of January 6, 1997, and the corrective measures issued subsequently. It cannot be concluded from the evidence that there was any abuse of power or negligence on the part of the respondent.

Refusal of Ms.Courchesne-Renaud to testify

[42]            The applicant submits that Ms. Courchesne-Renaud was negligent in failing to ensure that the corrective measures were properly applied. Therefore, he argues, the fact that she chose not to testify to explain why the corrective measures had not been applied is sufficient for this Court to make a finding of negligence.

[43]            The respondent points out that neither party called Ms. Courchesne-Renaud to testify. Accordingly, she did not choose not to testify, as alleged by the applicant.

[44]              The applicant relies on the decision of the Tax Court of Canada in Sommers v. Minister of National Revenue, [1991] 91 D.T.C. 656. In that case, the appellant disputed the penalties assessed by the respondent for failing to include commissions in his income. Although the respondent had the burden of proving his case on a balance of probabilities, Judge Sarchuk found that the respondent had established a prima facie case, and that therefore the appellant had a certain evidentiary burden to meet. Since the appellant had not testified, Sarchuk J. drew an adverse conclusion, and found that his failure to testify led to a reasonable and justifiable inference that his evidence would have been unfavourable. Sarchuk J. stated:

The evidence adduced on behalf of the Respondent established a prima facie case and raised an evidentiary burden for the Appellant to meet. This he failed to do. In such circumstances Mr. Sommers' failure to testify and to offer any explanation leads to a reasonable and justifiable inference that he refrained from so doing because his evidence would have been unfavourable. This fact coupled with the facts established by the Minister lead me to conclude that the assessment of penalty was correct. Accordingly the appeal is dismissed.

[45]              In that case however, Judge Sarchuk considered the issue of when it was appropriate to draw an inference with respect to an appellant who has chosen not to testify. Judge Sarchuk referred to Mudrazia v. Holjevac, [1970] 1 O.R. 275 (Ont. H.C.), which involved a motor vehicle accident, in which the Court held as follows:

Secondly, I wish to comment on the failure of the defendant to testify. He was in Court. As the case developed it appeared that the defendant ignored several highway signs and finally the stop sign with its flashing light; nevertheless the defendant did not see fit to testify. Under these circumstances, the state of mind of the operator of the vehicle, his judgment, skill and ability become important matters on the issue of gross negligence. His counsel, who is very experienced in these cases, did not call Holjevac as a witness. Now failure of a defendant to testify does not constitute evidence where no case has been made out against him, but where a prima facie case has been made out the defendant's failure to testify may be the subject of an inference that his testimony if given, would not support the defence raised. It depends upon the circumstances and the evidence as it has developed up to the time of failure to call the witness in question.

[Emphasis added]

[46]            In this case, the prothonotary found that the applicant had been unable to provide any evidence to support his allegations of abuse of power and negligence on the part of the respondent. The fact that the respondent did not call Ms. Courchesne-Renaud as a witness cannot therefore be held against her, because the applicant still had to discharge his burden of proof, which he failed to do.   

[47]            As stated in Mudrazia, supra, whether an adverse inference may be drawn from the fact that a party chooses not to testify depends on the circumstances and on the evidence submitted prior to the decision to not call a witness. In this case, the evidence did not require the respondent to call Ms. Courchesne-Renaud as a witness, and I cannot infer the negligence and abuse of power alleged by the applicant from the fact that the respondent did not call her.

Contradictory testimony given by Mr. Nadeau

[48]              The applicant submits that in 1997, the selection board acknowledged that the work experience he had acquired from 1994 to 1997 was significant, and that the score he was given did not accurately reflect the worth of that experience. The board then conceded that the applicant's merits had been improperly assessed, and that he should be reassessed. The applicant relies on the following passage from the decision of the appeal board dated May 28, 1997, at pages 6 to 8:

[TRANSLATION] The appellant Giroux stated that he had been a basic files auditor in Longueuil, and that, in his opinion, the files he dealt with at that level were complex. After the reassessment, his score increased slightly (from 40 to 50/125), but that did not accurately reflect the worth of his actual experience. Mr. Nadeau had remembered some relatively old work experience that ultimately earned him 10 more points, and Mr. Nadeau had told him that if he had applied and mentioned the FAPI (which is found in the detailed list on the first grid), he would have got more points. Then, the appellant listed one by one all of the relevant work experience that he had had between October 1995 and February 1997. The selection board had failed to consider that work experience because he was working in a different location.(Note: In the end, as can be seen in the Department's replies, it conceded Mr. Giroux's appeal, recognizing that the selection board had failed to consider the candidate's recent work experience.)

[Emphasis in original.]

[49]            I must start by pointing out that the above passage, on which the applicant relied, is not part of the appeal board's analysis and findings, but rather is part of the summary of the allegations submitted to the board and a summary of the testimony given by various witnesses. The appeal board is not drawing any conclusion at that point as to whether the allegations are true.

[50]            I am therefore unable to agree with the applicant that this passage proves that [TRANSLATION] "the selection board acknowledged that the work experience he had acquired from 1994 to 1997 was significant, and that the score he was given did not accurately reflect the worth of that experience." The board then conceded that the applicant's merits had been improperly assessed and that it had to re-assess him. What I understand from this passage is that the selection board acknowledged particular work experience that the applicant had and this got him ten extra points. In addition, the Department acknowledged that the selection board had ignored the applicant's recent work experience. I do not agree that the Department acknowledged that the applicant had significant work experience.

[51]              In fact, the appeal board stated, at pages 13 and 14 of its decision:

[TRANSLATION]

. . . The selection board had sufficient knowledge about the candidates except for the appellant Giroux who is the only one who had changed offices. The board is prepared to reassess this candidate only.

[Emphasis in original.]

. . .

. . . The selection board had reasonable and sufficient information about each candidate with respect to experience, and the score that was given accurately reflected the worth of that experience except for Mr. Giroux, as indicated above.

[52]            The applicant maintains that by filing an affidavit from Pierre Nadeau, the respondent came to the hearing before the prothonotary with a new version of the facts that contradicted the admissions made in 1997. Mr. Nadeau stated in his affidavit that the selection board knew that the applicant had worked in the Longueuil office for the last two years, and that the members of the selection board could not have acknowledged, as the applicant alleges, that the work experience he had acquired was significant.

[53]              In paragraph 25 of his affidavit, Pierre Nadeau states:

[TRANSLATION]

25.          The selection board knew that the plaintiff, Yvon Giroux, had worked at the Longueuil office for the last two years in issue--between November 1994 and February 1997--and that while he was there he had not been involved in auditing complex files, that is, files in the Large File Program, because that program did not exist in Longueuil.

[54]              At paragraphs 34 to 41 of his affidavit, Mr. Nadeau states:

[TRANSLATION]

34.          In my opinion, and in the opinion of the other members of the selection board, neither Lamarche, who was a candidate, nor the plaintiff Yvon Giroux are qualified for this competition because they simply do not have the range of relevant work experience needed to qualify.

35.          What was required was experience in auditing files that generate complex fiscal and accounting problems that are generally found in files in the Large File Program.

36.          Because of the very nature of these files, this experience is only acquired very slowly, so that an additional two or three years of work is not enough to acquire significant relevant experience.

. . .

38.          The plaintiff Giroux's experience in the Longueuil office was not the type of experience that could have enabled him to obtain the 51 points that he needed in order to qualify.

39.          Incidentally, I see no reference in either the statement of claim or the affidavit of Yvon Giroux to any relevant work experience that the selection board failed to consider and that would have earned him the 41 points he was short after the second assessment.   

40.          Moreover, he never reported any such experience.

41.          Therefore I completely disagree with the statement of the plaintiff, Yvon Giroux, that he would have qualified had the selection board properly assessed his stated work experience.

[55]              The applicant claims that at the hearing before the prothonotary, Mr. Nadeau contradicted the statements in his affidavit when he acknowledged on cross-examination that he was unaware of the applicant's range of experience in auditing international transactions, reorganizations and tax avoidance schemes.

[56]              The applicant relies on the following passage from the cross-examination of Mr. Nadeau:

[TRANSLATION]

Q:             Mr. Nadeau, anywhere in this document [a page and a half document submitted by the applicant when he applied] do I talk about my experience in international transactions and my experience in tax avoidance schemes?

A.           International, you are talking about the audit of the Pratt & Whitney file; we know that it is a subsidiary of a multinational company. After that . . .

Q.             Right. After that?

A.           You said international, avoidance, and . . . ?

Q.           Corporate reorganizations.

A.           Corporate reorganizations. Well, I think that there could be all three types of those transactions in the Pratt & Whitney file.

Q.           Do I talk about that in the document?

A.           Specifically, by identifying the experience the same way as you do there?

Q.           Yes, uh-uh.

A.           No.

Q.           Do you remember giving me points for international transactions or tax avoidance that I might have encountered in Pratt & Whitney?

A.           No, I have no recollection.

Q.           Do you remember giving me points for the scientific research in Pratt & Whitney?

A.           It seems to me I did.

Q.           In fact, you gave me ten points for the scientific research, not for anything else. So, on the basis of that document, do you acknowledge that for the period ending in November 1994, in other words, for the entire initial period of the competition in which you were assessing work experience, do you acknowledge that you had no information about my experience in corporate reorganization, tax avoidance and international transactions, on the basis of that document?

A.           That's correct.

Q.           For the period November 1994 to February 1997, did you have information about the same type of experience?

A.           Not for that either.

Q.           So, you acknowledge that you had no information about those three areas of experience for my entire career, or at least for quite a long way back?

A.           Not specifically, no, not specifically.

[57]            On the basis of these inconsistencies, the applicant submits that Prothonotary Morneau misapprehended the evidence by finding that Mr. Nadeau had not acted negligently or maliciously when the reassessment was done in 1997.

[58]            I am unable to accept the applicant's interpretation of Mr. Nadeau's alleged inconsistencies. My understanding of the various passages cited above is, first, that neither Mr. Nadeau nor the selection board ever acknowledged that the applicant had acquired significant work experience.

[59]            The appeal board's decision establishes that the selection board was unaware of the applicant's recent experience. The cross-examination of Mr. Nadeau also establishes that the selection board could not have known about the applicant's experience in certain areas from the document filed by the applicant when he submitted his application, and that the selection board was not specifically aware of the applicant's experience.

[60]            However, Mr. Nadeau states in his affidavit that the selection board was aware of the type of files handled by the Longueuil office where the applicant worked. Mr. Nadeau's affidavit also establishes that the selection board knew that the applicant had worked in Longueuil during the two years in issue--between November 1994 and February 1997--and that while he was there he had not audited complex files, that is, files that were part of the Large File Program, because that program did not exist in Longueuil.

[61]              I fail to see how I can conclude from this that Mr. Nadeau contradicted himself on his cross-examination before the prothonotary. Mr. Nadeau acknowledged that the selection board was not specifically aware of the applicant's work experience. However, I note from Mr. Nadeau's affidavit that the selection board was nevertheless generally aware of the type of files dealt with at the Longueuil office, and that the selection board also knew that the Large File Program did not exist in Longueuil. In my view, this evidence is not inconsistent, and the fact that a selection board is not specifically aware of an individual's work experience does not necessarily mean that the selection board is not aware of the type of work that the individual does at a particular office. Therefore, I am unable to find for the applicant on this issue.

2.      Did the prothonotary err in finding that the false statements allegedly made by the selection board constituted perjured evidence within the meaning of para. 18.1(4)(e) of the Federal Court Act?

[62]            The applicant submits that Prothonotary Morneau erred in finding that the false statements allegedly made by the selection board constituted perjured evidence within the meaning of para. 18.1(4)(e) of the Federal Court Act.

[63]            The applicant submits that no evidence was introduced to establish that Claude Miller had testified before the appeal board under oath. Therefore, from a legal standpoint, it was impossible for the applicant to rely on para. 18.1(4)(e) in his application for judicial review.                                                                                     

[64]              Subsection 18.1(3) and para. 18.1(4)(e) of the Federal Court Act provide:

[65]              The applicant relies on the decision of Collier J. in Duquette v. Bélanger, [1973] F.C. 868, which states:

The hearing of the appeal (called in the statute an inquiry) was carried out in the usual way. The representative of the Department explained the competitions, the procedures followed and the results. Mr. Gratton described how the Rating Board had proceeded and why the plaintiff was not, in the view of the Board, qualified for promotion. The absenteeism record, shift diary, and the plaintiff's failure to telephone when he was not coming in were all brought out. Miss Henry had the right to cross-examine anyone who gave "evidence" for the Department, and she asked questions of Mr. Gratton. I put quotation marks around the word evidence because the oral statements to the Appeal Board are not under oath. Miss Henry did not produce any witnesses on behalf of the plaintiff, but made submissions to the Appeal Board.

[66]            The respondent submits that the provisions of para. 18.1(4)(e) of the Federal Court Act apply to any situation where a decision of a federal board, commission or other tribunal was based on fraud or perjured evidence.

[67]              The respondent argues that false and misleading evidence, even when not given under oath, is still false and misleading.

[68]            The respondent takes the position that the interests of justice would not be served by holding that decisions of federal boards, commissions or other tribunals that administer oaths to their witnesses may be judicially reviewed only if the decision was based on perjured evidence.

[69]            I am unable to agree with the respondent: the mere fact that evidence is not given under oath does not mean that it does not constitute evidence within the meaning of para. 18.1(4)(e), especially considering that that paragraph applies to federal boards, commissions or other tribunals, and that evidence before them is not always given under oath.

[70]            In any event, as the respondent states, such testimony at the very least constitutes fraud within the meaning of paragraph 18.1(4)(e), because it is given in bad faith with the intent to deceive.^[1]

3.        Did the prothonotary err in deciding to strike out part of the applicant's action?

[71]              The applicant submits that the doctrine of res judicata prevented Prothonotary Morneau from revisiting the issue of whether to strike out part of the applicant's action.

[72]            What the applicant suggests is that when the respondent filed the motion to strike out in December 1999, this was the opportunity to persuade the Court that the applicant's action should be struck out, given that it was open to him to apply for judicial review.   

[73]            That motion was dismissed by Pinard J. The applicant adds that if Pinard J. had believed that the part of the statement of claim dealing with the false statements allegedly made by the selection board should have been struck out, he would have struck it out.

[74]            Prothonotary Morneau's order to strike out was based on the fact that the issue of bad faith was not raised before the appeal board, and ought to have been. The applicant submits however, that Pinard J. knew that the issue of bad faith had not been argued because of the evidence that was before the appeal board.

[75]            The applicant points out that under Rule 298 of the Federal Court Rules, 1998, motions to strike out must be brought within 30 days after the statement of claim is filed. The respondent therefore could not revisit that issue at trial.

[76]            The applicant submits that it is unusual that the decision to strike out was not made prior to the trial.

[77]              The respondent submits that Pinard J. did not address the issue of whether the applicant's cause of action justified an award of damages. There could therefore be no decision here that was binding on the prothonotary based on res judicata.

[78]            I am of the view that Prothonotary Morneau did not err in finding that he was not prevented by the decision of Pinard J. from concluding that part of the action should be struck out, and that decision did not constrain the Court's assessment of the merits of the case at trial. Pinard J. heard a motion to strike out the applicant's action. His decision did not address the merits of the applicant's action. Pinard J. had to decide whether there was a sufficient case to allow the action to proceed, assuming the facts alleged by the applicant were true.

[79]            A judge hearing a motion to strike out considers only one question, whether there is a cause of action, and makes no finding as to the merits of the action. I therefore conclude that Prothonotary Morneau was correct in deciding that the decision of Pinard J. did not constitute res judicata on this issue.

[80]            In the alternative, the applicant submits that the issue of the false statements is properly before the Court in the action, despite his application for judicial review of the appeal board's decision.

[81]              The respondent argues that when a decision is still operative and its effects are continuing, it is necessary to proceed by judicial review before starting an action in delictual civil liability. The respondent relies on the decision of the Federal Court of Appeal in Zarzour v. Canada, [2000] F.C.J. No. 2070 (C.A.), in which the Court of Appeal stated:

It is necessary, I think, to adopt an utilitarian approach to this, and favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered. For example, there is no use in requiring that an inmate who has already served his 15-day segregation period seek to have the decision that forced this on him set aside by way of judicial review. However, when a decision is still operative, as is the Board decision in this case imposing a prohibition on contact as a condition of release, it is not only useful but necessary to proceed by judicial review in order to have it quashed. Otherwise, both the decision and its effects will drag on, with possible aggravation of the harm during the period in which the action in damages follows its course.

[82]            The respondent points out that in this case, both the appeal board and this Court affirmed the legality of the eligibility list established as a result of the competition in respect of which the applicant appealed.

[83]            Accordingly, the people whose names appear on the eligibility list have been appointed or will be appointed to a position in the federal public service.

[84]            The respondent submits that it would then be completely illogical for this Court to award damages to the applicant solely on the ground that the members of the selection board lied when they gave evidence before the appeal board, because awarding damages would have the effect of untenably discrediting the validity of the admissibility list and of the decisions made by the appeal board and by this Court on judicial review, as well as the legitimacy of the appointments that were made.

[85]            The respondent argues that the applicant cannot ask this Court to allow him to do indirectly what he did not want to do directly.

[86]              In Federal Court Practice 2001, Toronto, Carswell, 2000, at page 27, Sgayias reviews the difference between an application for judicial review against a federal board and an action against the Crown:

A fresh debate has arisen, this time involving section 18 and section 17. At issue is the boundary between an application for judicial review against a federal board and an action against the Crown. The boundary blurs where declaratory relief is involved: that form of relief is available under both section 18 and section 17. However, the boundary is real. Judicial review is obtained by way of an application under section 18.1 and is only exceptionally pursued by way of action (section 18.4(2)). Relief against the Crown is obtained by way of an action under section 17, in which claims for declaratory relief may be combined with claims for other relief such as damages.

An application for judicial review must be taken where the relief sought is prerogative, injunctive or declaratory and that relief is sought against the decision or actions of a body or person exercising statutory powers. However, an application for judicial review cannot include a claim for damages: De-Nobile v. Canada(A.G.) (October 22, 1999), Doc. T-2238-98 (Fed. T.D.). Nor can it include a claim against the Crown itself: M.N.R. v. Creative Shoes Ltd., [1972] F.C. 993 (C.A.). Such claims must be pursued by action. Declaratory relief can be sought in the action: Ward v. Samson Cree Nation No. 444 (1999), 247 N.R. 254 (Fed.    C.A.). Judicial review cannot be obtained in the action: Lake Babine Indian Band v. Williams (1996), 194 N.R. 44 (Fed. C.A.). The result may be a series of proceedings, one seeking judicial review of a decision, another seeking consequential damages: Sweet v. Canada (1999), 249 N.R. 17 (Fed. C.A.). The result may also be that the validity of legislation may be challenged by action, but decisions taken under the impugned legislation cannot: McKay v. Canada (Min. of Fisheries & Oceans) (1998), 160 F.T.R. 301 (T.D.).

[87]            In this case, the applicant submitted that he had suffered damage because of the false statements allegedly made by the members of the selection board before the appeal board. The applicant asserts in his statement of claim that those statements were made with a planned and deliberate intent to act maliciously in order to win the case before the appeal board at all costs. The applicant submits therefore that he suffered moral damage and damage to his career.

[88]            The applicant claims that the alleged false statements misled the appeal board and that its decision was therefore erroneous. The applicant further claims that the damage he suffered was caused by the fact that he was not properly assessed for the positions and therefore his chance of obtaining the positions he wanted was reduced.

[89]            In Zarzour, supra, the Federal Court of Appeal stated that it was necessary to "favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered".                                                                      

[90]            In my view, the procedure that could have been used to eliminate the harm suffered by the applicant was before the appeal board and certainly on judicial review, because if it had been established that false statements had been made, the selection process would probably have been set aside, and the applicant would have had an opportunity to be properly assessed.

[91]            The applicant is now claiming damages. However, if there was damage, the applicant contributed to the damage because he did not raise the issue before the appeal board or on judicial review. Therefore, I am unable to conclude that an action is the appropriate procedure where the alleged damage could have been reduced to nil had the plaintiff made the argument at the proper time. I cannot allow an applicant to be compensated for damage caused by his own "omission". Accordingly, I am of the view that the prothonotary did not err in concluding that the applicant should have made his submissions before the appeal board and on judicial review, having regard as well to para. 18.1(4)(e) of the Federal Court Act.

[92]              Moreover, Prothonotary Morneau concluded that even if the action was properly before the Court, it would not have much chance of getting very far because the appeal board had not found in making its decision that the statements made by the selection board were incorrect. The applicant submits however that the Court could reach a different conclusion than the appeal board because the evidence introduced by the applicant was not contradicted by the respondent.

[93]            On that point, the applicant's evidence did not establish that false statements were made. I cannot conclude that Prothonotary Morneau erred in concluding that the plaintiff's action could not get very far.

Page:33

[94]              Accordingly, this motion is dismissed with costs.

Pierre Blais                                          

Judge

OTTAWA, ONTARIO

May 25, 2001

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                              T-2004-99

STYLE OF CAUSE:              Yvon Giroux v. Her Majesty in Right of Canada

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                        May 15, 2001

REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS

DATED:                                                 May 25, 2001

APPEARANCES:

Yvon Giroux                                                        FOR HIMSELF

Raymond Piché                                                   FOR THE RESPONDENT/DEFENDANT

SOLICITORS OF RECORD:

Yvon Giroux                                                        FOR HIMSELF

Morris Rosenberg                                                FOR THE RESPONDENT/DEFENDANT

Deputy Attorney General of Canada