Date: 20000517
Docket: T-1391-99
MONTREAL, QUEBEC, MAY 17, 2000
Before: RICHARD MORNEAU, PROTHONOTARY
Between:
DANIEL AUDET,
Plaintiff,
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
ORDER
The defendant's motion is allowed. The plaintiff's statement of claim is accordingly struck out and his action dismissed, without costs.
Richard Morneau
Prothonotary
Certified true translation
Martine Brunet, LL. B.
Date: 20000517
Docket: T-1391-99
Between:
DANIEL AUDET,
Plaintiff,
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The case at bar concerns a motion by the defendant for an order pursuant to Rule 221(1)(a), (c) and (f) of the Federal Court Rules (1998) dismissing the plaintiff's action on the ground that it discloses no reasonable cause of action, is frivolous and is an abuse of the process of the Court.
Facts
[2] As alleged in paragraphs 8 and 9 of the re-amended statement of claim filed on December 14, 1999 the plaintiff filed a claim for damages in this Court (T-1794-95) and a claim for unpaid salary (T-1793-95).
[3] After those actions had been filed, counsel for the parties resumed negotiations to settle the dispute between them.
[4] After negotiations and a series of exchanges between the parties represented by counsel, an out-of-court settlement was reached on October 17, 1995.
[5] As alleged in paragraph 12 of the re-amended statement of claim, the plaintiff accepted the sum of $105,000 in complete and final settlement of the dispute between himself and the defendant regarding his relationship to the RCMP or its members since 1991.
[6] In particular, this agreement signed by the plaintiff and his counsel on October 17, 1995 provided:
| · in paragraph 4, that the plaintiff [TRANSLATION] "undertakes not to sue the RCMP/its present or former members in connection with his relationship to the RCMP/its members since 1991"; |
| · in paragraph 9, that the [TRANSLATION] "RCMP undertakes to pay Audet the sum of $105,000 in complete and final release of any past, present or future claim resulting from his relations of any kind with the RCMP from 1991 to the date of signature hereof, and in particular the claims set out in T-1793-95 and T-1794-95"; |
| · in paragraph 10, that the plaintiff authorized his counsel to sign a discontinuance in T-1793-95 and T-1794-95; |
| · in paragraph 11, that [TRANSLATION] "these presents constitute a transaction within the meaning of the Civil Code of Quebec". |
[7] Accordingly, on October 17, 1995 the plaintiff and the parties' respective counsel signed a discontinuance in cases T-1793-95 and T-1794-95.
[8] However, on August 4, 1999 the plaintiff served a further claim for damages on the defendant in the case at bar which, in paragraph 42, related essentially to the same damages as those alleged in case T-1794-95, namely the action for damages.
[9] It appeared from the key paragraphs of the re-amended statement of claim at issue, namely paragraphs 17, 26, 33, 34 and 42, that the plaintiff brought the action at bar on the ground that shortly after signature of the agreement of October 17, 1995 he learned that the defendant had available, unknown to him, the evidence which would have allowed him to prove the allegations of his statement of claim in the action for damages. As the defendant had not disclosed everything to him at the time of signature of the agreement of October 17, 1995, he considered that she had lied and the plaintiff would now be justified in considering that the agreement related only to the claim for unpaid salary (case T-1793-95) and he could therefore renew his statement of claim in the action for damages.
[10] In my opinion, there are three major problems with the plaintiff's position, each in itself sufficient to lead to dismissal of the statement of claim at bar.
[11] First, at all times during the existence of the action in case T-1794-95 it must be assumed that the plaintiff - who was represented by counsel at the time - was in a position to present evidence of the allegations in that action. Otherwise it was an abuse of process at the time it was brought. Consequently, at the time the agreement of October 17, 1995 was signed it must be assumed that the plaintiff was able to assess the actual worth of his action and that he approved the said agreement on the basis of that assessment. He certainly cannot now turn around and argue that he now knows where to find the evidence he needed from the outset. I also do not feel that on October 17, 1995 the defendant should have assumed that the plaintiff did not have the evidence required and indicated that she had all or part of that evidence. In that sense, it cannot be said that the defendant lied or defrauded the plaintiff in any way.
[12] Second, the wording of the agreement is clear. Paragraphs 9 and 10 of the agreement clearly state that it is made, inter alia, with a view to complete settlement of cases T-1793-95 and T-1794-95. It certainly cannot be argued that this written agreement concluded between duly represented parties applied only to settlement of case T-1793-95, although that may have been discussed in the negotiations preceding signature of the agreement.
[13] Third, and in accordance with the first reason mentioned above, it has to be said that, by virtue of the compensation paid by the Government of Canada from the Treasury, the plaintiff has already been compensated for the harm he alleges he suffered in the action at bar.
[14] Section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, states:
| No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by any agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
|
Ni l'état ni ses préposés ne sont susceptibles de poursuites pour toute perte - notamment décès, blessures ou dommage - ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.
|
[15] In Sarvanis v. Canada, [2000] F.C.J. No. 12 (Q.L.), the Federal Court of Appeal noted that s. 9 should be broadly interpreted. On that basis, there is no question that the compensation paid on October 17, 1995 and the action at bar - which refers to case T-1794-95 - relate to the same incidents and damages.
[16] For these reasons, I consider that I should allow the defendant's motion and proceed to strike out the plaintiff's statement of claim and dismiss the latter's action, without costs as the defendant could have made the motion at bar much sooner in the proceedings.
[17] In view of my foregoing conclusion, there is no reason to rule on the other argument raised by the defendant in her motion, namely that by application of the principle that a transaction concluded between the parties forms a whole which cannot be severed, the plaintiff could not prosecute its action without first returning the sum of $105,000 he received pursuant to that transaction.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
May 17, 2000
Certified true translation
Martine Brunet, LL. B.
Between:
DANIEL AUDET,
Plaintiff,
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| STYLE OF CAUSE: DANIEL AUDET, |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 15, 2000 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATE OF REASONS FOR ORDER: May 17, 2000 |
| Daniel Audet for the plaintiff |
| Raymond Piché for the defendant |
| Morris Rosenberg for the defendant |
| Deputy Attorney General of Canada |
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