Date: 20020625
Docket: T-195-01
Neutral citation: 2002 FCT 707
Ottawa, Ontario, this 25th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
DR. NOËL AYANGMA
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
1 The Court has before it three motions, two of which for summary judgment pursuant to Rule 216 of the Federal Court Rules, 1998 (the "Rules"), SOR/98-106.
2 The first motion, filed by the plaintiff on July 4, 2001, seeks an order for summary judgment and/or for the determination of a question of law pursuant to Rule 220 of the Rules.
3 The second motion, filed by the defendant on February 28, 2002, seeks an order for summary judgment dismissing the plaintiff's amended statement of claim with costs.
4 A third motion, also by the defendant, is before the Court. The motion filed on April 4, 2002, seeks an order pursuant to Rule 70(4) of the Rules for an award of costs against the plaintiff for filing a memorandum of fact and law longer than thirty (30) pages.
Facts
5 The plaintiff, Dr. Noël Ayangma, a self-represented litigant, commenced an action against Her Majesty the Queen seeking damages in the amount of $2,000,000.00 alleging harm from wrongful process followed by Health Canada and the Public Service Commission which prevented his appointment to a position within Health Canada for which he had applied in response to an advertised public competition.
6 The competition was initiated on March 24, 2000, and in his April 18, 2000, application the plaintiff indicated that he was a member of a visible minority and that his primary language was French.
7 The selection panel for the competition consisted of three members. One from the Public Service Commission, one from Health Canada and a third, a consultant. Two of these members were of aboriginal ancestry and only one was capable of conducting the plaintiff's interview in French. The plaintiff states that none of the members were of a visible minority.
8 A total of five candidates including the plaintiff were interviewed for the position and the plaintiff was advised on June 26, 2000, that he was not successful. The successful candidate was Ms. Monique Charron. Ms. Charron had been acting in this position since 1997, following an acting competition in which she was the successful candidate. Her acting status was extended three times until her full-time designation following the impugned competition.
9 The plaintiff appealed the appointment of Ms. Charron to the Public Service Appeal Board alleging bias in the process, breach of the Public Service Employment Act (the "PSEA"), R.S.C. 1985, c. P-33 , the Canadian Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982, (U.K.) 1982, c. 11, (the "Charter") and non-compliance with the National Capital Alliance on Race Relations v. Canada (Health and Welfare) decision, [1997] C.H.R.D. No. 3, (the "NCARR decision").
10 The NCARR decision was rendered on March 19, 1997, by the Canadian Human Rights Tribunal in which an order issued (hereinafter referred to as the "NCARR Order") requiring Health Canada to address a number of problems within its staffing process and prescribed a series of corrective measures and monitoring procedures. These measures and procedures were designed to enable members of visible minorities to have promotional opportunities within Health Canada in a manner consistent with s. 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
11 The plaintiff was not a party to the NCARR proceeding and was not employed with Health Canada and the Public Service at the time the NCARR Order was registered. The plaintiff became an employee in January 1999.
12 The Public Service Appeal Board, through its chairperson, Mr. Pierre Baille, by decision dated October 31, 2000, allowed the plaintiff's appeal on the grounds that the selection board members did not have sufficient knowledge of French to communicate with the plaintiff during his interview contrary to subsection 16(2) of the PSEA. Notwithstanding this finding, the Chairperson also found that the elimination of the plaintiff from the competition was fair and equitable in that the plaintiff did not demonstrate that he had the experience required for the position.
13 Following the Appeal Board's decision, the Public Service Commission proposed corrective measures to which the plaintiff objected since these measures, in the plaintiff's view, only called for reassessment of Ms. Charron and were aimed at further favouring her.
14 Following the plaintiff's written objections to the proposed corrective measures, the Public Service Commission revised the corrective measures and cancelled the entire process and proposed to conduct a new competition with new assessment tools and a new selection board.
15 An application for judicial review of the Appeal Board's decision commenced on November 29, 2000, by the plaintiff was discontinued on February 1, 2001, allegedly because of certain representations made to the plaintiff by the defendant.
16 Despite being offered to be re-interviewed for the position in the official language of his choice, the plaintiff expressly refused to be re-evaluated and re-interviewed for the position or apply for other competitions.
17 The plaintiff refused to participate in the new process arguing that it was unfair so long as Ms. Charron's appointment was not revoked. The plaintiff's position was that by leaving Ms. Charron in the position until the new process is completed gave her an unfair advantage even though her appointment would be revoked should she not be the successful candidate. The plaintiff's submission is that Ms. Charron's appointment was illegal in any event and that the entire process was illegal since there was no vacancy to fill since Ms. Charron was occupying the position at the time the competition issued.
18 The new competition went ahead and was completed as scheduled and Ms. Charron was eventually selected for the position.
19 In his amended statement of claim, the plaintiff alleges that the defendant breached the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the "OLA"), the PSEA, and s. 15 of the Charter by not hiring him pursuant to a job competition within the Public Service. The plaintiff further alleges that Her Majesty the Queen and certain individuals are in breach of the NCARR Order.
20 A contempt proceeding was brought by the plaintiff on July 13, 2001, requiring that Her Majesty and certain named and unnamed individuals should be required to show cause why they should not be cited for contempt for allegedly breaching the NCARR Order. Mr. Justice MacKay, of this Court, dismissed the plaintiff's motion on January 25, 2002, finding that any breach of the NCARR Order was remedied by the procedures established pursuant to the PSEA. The order dismissing the contempt proceeding has been appealed to the Federal Court of Appeal.
21 Issues
(i) Does the defendant have a genuine issue for trial with respect to Her defence?
(ii) Does the plaintiff have a genuine issue for trial with respect to his claim?
Analysis
22 The plaintiff seeks an order pursuant to Rule 220(1)(b) of the Federal Court Rules, 1998 to admit as evidence transcripts from two prior proceedings. The first, a proceeding before the Public Service Commission of Canada Appeal Board (the "Appeal Board") of October 3, 2000. The parties in this proceeding were the same as in the present proceeding. The second, a hearing before the Canadian Human Rights Tribunal which was heard from December 1995 to May 1996, and which proceeding led to the NCARR decision and order. The parties to that proceeding were the National Capital Alliance on Race Relations (NCARR) as complainant and Welfare Canada, the Public Service Commission and the Treasury Board as respondents. The plaintiff was not a party to those proceedings, nor did he personally give evidence.
23 The admissibility of the findings of the Appeal Board or the Human Rights Tribunal in the NCARR decision is not in dispute. However, the admissibility of the transcripts of evidence given during either hearing is opposed by the defendant.
24 The Supreme Court of Canada in Re v. Hawkins, [1996] 3 S.C.R. 1043 at page 1029, confirmed that the relevant authority on the admissibility of such testimony in civil proceedings to be Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352.
...In Erdman, the plaintiff commenced an action against the town, and an examination de bene esse was held prior to trial. Erdman, however, subsequently died, and his wife pursued a distinct action against the town. Even in the absence of any statutory rule, the court held that the record of the examination was admissible, as the town had the opportunity to cross-examine Erdman (which it in fact exercised), and the same issues were raised in both actions.
25 The Supreme Court has therefore established the three requirements to be met before prior testimony can be admitted in subsequent proceedings:
(1) The current opposing party must have had the opportunity to cross-examine the witnesses at the first proceeding, and did;
(2) The material issues to which the evidence relates must be substantially the same in both proceedings; and
(3) The two proceedings must be between the same parties.
26 The defendant has not had the opportunity to cross-examine on this evidence. It would therefore be prejudicial to the defence to allow such evidence as part of the proceeding without a proper opportunity for the defence to test its veracity.
27 With respect to the transcript from the Public Service Commission of Canada proceeding of October 3, 2000, the material facts in that and the present proceeding are different. In the former proceeding, no evidence of discrimination was led and the procedure did not afford the opportunity for the defendant to cross-examine the plaintiff.
28 With respect to the transcript of the NCARR decision, the plaintiff was not a party to those proceedings, the specific facts of the current motion were not at issue in that hearing. Further, the very competition which led to the plaintiff's complaint in the within proceeding had not yet occurred.
29 I am of the view that the plaintiff has failed to establish the requirements set out by the Supreme Court of Canada for the admissibility of the transcripts in the above noted proceedings.
30 I am also of the view that the two transcripts from previous proceedings may be characterized as hearsay evidence, assuming that the plaintiff seeks to introduce them for the truth of their contents.
31 I am also of the view that application of the flexible approach to hearsay evidence adopted by the Supreme Court of Canada in R. v. Kham, [1990] 2 S.C.R. 531, will not assist the plaintiff in this instance.
32 There is no necessity compelling the use of these transcripts as the plaintiff is available to give evidence personally. There is also no evidence attesting to the unavailability of other material witnesses.
33 I am satisfied, on the evidence before me, that denying the admission of these transcripts would not prevent the plaintiff from presenting all relevant evidence to the Court. Allowing the transcripts would, however, deny the Court the benefit of first hand testimony and their use would be unduly prejudicial to the defendant.
34 For the above reasons, the transcripts in question will not be admissible in the present proceeding.
35 The plaintiff contends that there is no issue to be tried with respect to the defendant's defence to his claim. The plaintiff relies on the decision of the Public Service Appeal Board in the matter of his successful appeal and on the NCARR decision to support his contention that his claim as pleaded in his amended statement of claim has already been decided in his favour and that the issues raised in the defence are res judicata because of earlier determinations resulting from the Public Service Appeal Board and the NCARR decisions.
36 I am of the view that the plaintiff's argument does not help his case. The plaintiff's own submission is that his claim has already been decided in his favour by earlier determinations. There is no issue that these earlier determinations were made by tribunals competent to determine the issues before them and decide on the appropriate remedies or corrective measures. The matter has been decided and is therefore res judicata. The plaintiff cannot seek an alternative remedy to that already prescribed.
37 The defendant submits that there is no serious issue to be tried between the plaintiff and the defendant as the matter is res judicata. The defendant contends that the issues raised in the claim have already been raised before the Public Service Appeal Board and before the Federal Court in an application for judicial review, which the plaintiff discontinued on February 1, 2001. The defendant submits that the plaintiff seeks through this action an alternative remedy to that already prescribed by the Public Service Commission and to which he refused to avail himself. The defendant argues that to bring such an action simply because the plaintiff did not like the remedy granted by the Public Service Commission is an abuse of the Court's process.
38 At the hearing of this matter the defendant argued that the only issue in the claim that would not be subject to the doctrine of res judicata is whether the hiring practices of Health Canada and the Public Service Commission infringed s. 15 of the Charter.
Test on Motion for Summary Judgment
39 It is useful to reproduce Rule 216 of the Rules which provides for summary judgment.
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est :
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153;
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
(4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.
(4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale.
40 The Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 27, set out the appropriate test to be applied for a motion for summary judgment:
The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court.
41 The jurisprudence has also settled that a party responding to a motion for summary judgment must put its best foot forward at the time the motion is heard by filing an affidavit or by submitting other evidence demonstrating that there is a genuine issue for trial. [See Baron v. R (February 29, 2000), Doc. T-1905-96 (Fed. T.D.); affirmed (Feb. 21, 2001), Doc. A-147-00, 2001 FCA 38 (Fed. C.A.)].
42 The need for a responding party of establishing an evidentiary foundation is also provided for in the Rules. Rule 215 provides:
215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l'existence d'une véritable question litigieuse.
43 A motion for summary judgment must be supported by specific, credible evidence and must disclose a serious reason to send the matter to trial. Parties cannot simply rely on their pleadings. [See White v. Canada (1998), 152 F.T.R. 39 (T.D.); affirmed (1999), 252 N.R. 388 (Fed. C.A.)].
44 The defendant argues that there is no evidence before the Court that the defendant has breached the Charter, the OLA or the PSEA, and therefore, the Court should grant summary judgment for the defendant.
45 In support of his motion, the plaintiff attempts to introduce the following documentary evidence:
i) the plaintiff's affidavit;
ii) the NCARR decision of March 19, 1997;
iii) the transcript of the NCARR hearing;
iv) the Public Service Commission Appeal Board's decision dated October 31, 2000;
v) the transcript of the Appeal Board hearing of October 3, 2000;
vi) the documents referred to in the Appeal Board's decision;
vii) Madame Diane Claing's affidavit;
viii) the documents and order referred to in the present proceedings; and
ix) various relevant authorities.
46 Earlier in these reasons, I have ruled on the non-admissibility of the transcripts of the Appeal Board and NCARR hearings.
47 The NCARR and Appeal Board decisions are part of the public record but are not by themselves, in the context of this case, sufficient to establish an evidentiary bases to justify a genuine issue for trial.
48 The plaintiff also relies on the affidavit of Diane Claing submitted as part of the defendant's motion record for summary judgment. Ms. Claing was the Human Resources person responsible for the impugned competition. Ms. Claing's evidence in this affidavit provides a detailed chronology of events and facts that are essentially not in dispute but do little to assist the plaintiff in establishing a genuine issue for trial.
49 I have also carefully reviewed the plaintiff's affidavit, much of which deals with the NCARR decision, the Appeal Board decision, and relates facts largely undisputed surrounding the impugned competition. The chronology of events and correspondence between the parties are also set out in detail. However, I can find no direct evidence in the affidavit that would support the plaintiff's claim as alleged in his statement of claim, namely that the defendant breached the OLA, the PSEA, s. 15 of the Charter, and the NCARR Order. I am also of the view that certain allegations are made in the plaintiff's affidavit that can only be described as self-serving. The Supreme Court of Canada in Guarantee Co., supra, at p. 437, held that such allegations are insufficient to create a triable issue in the absence of detailed facts and supporting evidence. The plaintiff, in his affidavit, expresses opinions supported by other documents in his motion record. These documents do not provide facts known to the plaintiff but hearsay offered in support of his opinions.
50 I will, in turn, deal with each of the allegations in the plaintiff's amended statement of claim.
Breach of the NCARR Order
51 The plaintiff, in his amended statement of claim, makes a number of assertions alleging that the defendant breached the NCARR Order, notably:
i) by not having a member of a visible minority on the selection board for the competition.
ii) by permitting illegal acting appointments in contravention of the NCARR Order that required the appointment of visible minorities to four months acting positions.
52 There is no evidence to support the plaintiff's allegation that the acting appointments are "illegal" nor is there any evidence of non-compliance with the NCARR Order as it pertains to acting appointments. The fact that the plaintiff was not appointed is not proof that the order was breached.
53 Further, the NCARR Order does not stipulate, as the plaintiff would suggests, that a visible minority member must be on every selection panel. The permanent corrective measures in the order provide:
¶ 192(2) ...Where possible H.C. (Health Canada) should use selection boards that are diverse in its competition." (Paranthese added)
As pointed out by the defendant, the selection board was diverse in that it was composed of one Caucasian female and two Aboriginal males.
54 I am satisfied that the plaintiff has not, on the evidence before me, established the factual basis for his argument that the defendant could have been found to have breached the NCARR Order.
55 The defendant contends that even if such a breach were established, the plaintiff cannot seek enforcement of the NCARR Order since he was not a party to the order nor was he even an employee of the defendant at the time the order was registered. Even if the defendant's argument has merit, I need not, for the purpose of this motion, determine the issue, given my finding that the plaintiff has failed to establish a breach of the NCARR Order on any of the grounds submitted by him.
Res Judicata/Issue Estoppel
56 The plaintiff successfully appealed the job competition at issue under s. 21 of the PSEA. The plaintiff refused the corrective measures prescribed by the Public Service Commission flowing from the Appeal Board's decision, pursuant to subsection 21(3) of the PSEA. I am in agreement with the defendant's submission that the issue of the appropriate remedy is therefore res judicata as the remedy remains within the sole jurisdiction of the Public Service Commission.
57 The plaintiff commenced and later abandoned an application for judicial review of the Appeal Board's decision. The correspondence upon which the plaintiff relies to support his contention that he was led to discontinue his application by a letter from the defendant simply does not support that conclusion. I am of the view that this aspect of the plaintiff's claim is a matter within the redress procedures under the PSEA. The plaintiff has failed to exhaust his remedies under the PSEA. I conclude that this Court does not have jurisdiction to entertain an action in respect of allegations relating to the hiring practices in the public service.
58 The plaintiff also alleges in his amended statement of claim that the defendant breached his language rights pursuant to subsection 16(2) of the PSEA. Subsection 16(2) of the PSEA provides as follows:
Languages in which examination to be conducted
16(2) An examination, test or interview under this section, when conducted for the purpose of determining the education, knowledge and experience of the candidate or any other matter referred to in section 12, except language, shall be conducted in the English or French language or both, at the option of the candidate.
59 This issue was addressed by the Appeal Board and was resolved in the plaintiff's favour. As a result, the Public Service Commission prescribed corrective measures pursuant to subsection 21(3) of the PSEA. The corrective measures were refused by the plaintiff and the judicial review he commenced on December 4, 2000, of the Appeal Board's decision was discontinued on February 1, 2001. I am of the view that this remedy, which also has been addressed by the Appeal Board, is res judicata, leaving the Court without jurisdiction to deal with it.
Official Languages Act
60 The plaintiff, in his amended statement of claim, asserts that the staffing process used in the impugned competition was discriminatory and breached his language rights under sections 21, 22, 28 and 39 of the OLA as amended.
61 It is useful to reproduce these provisions of the Act:
21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.
21. Le public a, au Canada, le droit de communiquer avec les institutions fédérales et d'en recevoir les services conformément à la présente partie.
22. Every federal institution has the duty to ensure that any member of the public can communicate with an obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
22. Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l'une ou l'autre des langues officielles. Cette obligation vaut également pour leurs bureaux -- auxquels sont assimilés, pour l'application de la présente partie, tous autres lieux où ces institutions offrent des services -- situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l'étranger, l'emploi de cette langue fait l'objet d'une demande importante.
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with an services from that office or facility in that language.
28. Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language.
28. Lorsqu'elles sont tenues, sous le régime de la présente partie, de veiller à ce que le public puisse communiquer avec leurs bureaux ou recevoir les services de ceux-ci ou de tiers pour leur compte, dans l'une ou l'autre langue officielle, il incombe aux institutions fédérales de veiller également à ce que les mesures voulues soient prises pour informer le public, notamment par entrée en communication avec lui ou encore par signalisation, avis ou documentation sur les services, que ceux-ci lui sont offerts dans l'une ou l'autre langue officielle, au choix.
39.(1) The Government of Canada is committed to ensuring that
39. (1) Le gouvernement fédéral s'engage à veiller à ce que_:
(a) English-speaking Canadians and French-speaking Canadians, without regard to their ethnic origin or first language learned, have equal opportunities to obtain employment and advancement in federal institutions; and
a) les Canadiens d'expression française et d'expression anglaise, sans distinction d'origine ethnique ni égard à la première langue apprise, aient des chances égales d'emploi et d'avancement dans les institutions fédérales;
(b) the composition of the work-force of federal institutions tends to reflect the presence of both the official language communities of Canada, taking into account the characteristics of individual institutions, including their mandates, the public they serve and their location.
b) les effectifs des institutions fédérales tendent à refléter la présence au Canada des deux collectivités de langue officielle, compte tenu de la nature de chacune d'elles et notamment de leur mandat, de leur public et de l'emplacement de leurs bureaux.
(2) In carrying out the commitment of the Government of Canada under subsection (1), federal institutions shall ensure that employment opportunities are open to both English-speaking Canadians and French-speaking Canadians, taking due account of the purposes and provisions of Parts IV and V in relation to the appointment and advancement of officers and employees by those institutions and the determination of the terms and conditions of their employment.
(2) Les institutions fédérales veillent, au titre de cet engagement, à ce que l'emploi soit ouvert à tous les Canadiens, tant d'expression française que d'expression anglaise, compte tenu des objets et des dispositions des parties IV et V relatives à l'emploi.
(3) Nothing in this section shall be construed as abrogating or derogating from the principle of selection of personnel according to merit.
(3) Le présent article n'a pas pour effet de porter atteinte au mode de sélection fondé sur le mérite.
62 Three of the four sections pleaded by the plaintiff, namely sections 21, 22 and 28 of the OLA are found within Part IV of the Act. Part IV relates to the public's access to federal "services". I am of the view that sections 21, 22 and 28 of the OLA are inapplicable to this case. There is no basis for an inference that an internal employment competition would be considered such a "service" as envisioned by the legislation.
63 Section 39 of the OLA, however, addresses language rights while pursuing employment or advancement with federal institutions. Section 39 does not, however, establish rights or corresponding duties, it is a statement of commitment by the Government of Canada. Section 39 has been excluded from subsection 77(4) of the OLA, the remedy provision.
64 Section 77 provides as follows:
77.(1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.
77. (1) Quiconque a saisi le commissaire d'une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV ou V, ou fondée sur l'article 91 peut former un recours devant le tribunal sous le régime de la présente partie.
(2) An application may be made under subsection (1) within sixty days after
(2) Sauf délai supérieur accordé par le tribunal sur demande présentée ou non avant l'expiration du délai normal, le recours est formé dans les soixante jours qui suivent la communication au plaignant des conclusions de l'enquête, des recommandations visées au paragraphe 64(2) ou de l'avis de refus d'ouverture ou de poursuite d'une enquête donné au titre du paragraphe 58(5).
(a) the results of an investigation of the complaint by the Commissioner are reported to the complainant under subsection 64(1),
(b) the complainant is informed of the recommendations of the Commissioner under subsection 64(2), or
(c) the complainant is informed of the Commissioner's decision to refuse or cease to investigate the complaint under subsection 58(5),
or within such further time as the Court may, either before or after the expiration of those sixty days, fix or allow.
(3) Where a complaint is made to the Commissioner under this Act but the complainant is not informed of the results of the investigation of the complaint under subsection 64(1), of the recommendations of the Commissioner under subsection 64(2) or of a decision under subsection 58(5) within six months after the complaint is made, the complainant may make an application under subsection (1) at any time thereafter.
(3) Si, dans les six mois suivant le dépôt d'une plainte, il n'est pas avisé des conclusions de l'enquête, des recommandations visées au paragraphe 64(2) ou du refus opposé au titre du paragraphe 58(5), le plaignant peut former le recours à l'expiration de ces six mois.
(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
(4) Le tribunal peut, s'il estime qu'une institution fédérale ne s'est pas conformée à la présente loi, accorder la réparation qu'il estime convenable et juste eu égard aux circonstances.
(5) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section.
(5) Le présent article ne porte atteinte à aucun autre droit d'action.
65 This Court has held that the list of provisions in subsection 77(1) is an exhaustive list. [See Canada (Commissioner of Official Languages) v. Canada (Department of Justice), [2001] F.C.J. No. 431 (F.C.T.D.)]. I therefore conclude that even if a section 39 breach were established, this Court would not have jurisdiction to remedy such a breach under the authority of section 77 of the OLA.
66 The plaintiff had the option under section 58 of the OLA to file a complaint with the Commissioner of Official Languages. The evidence shows that such a complaint was initiated by the plaintiff and subsequently discontinued.
67 I conclude that the plaintiff's claim under the OLA cannot succeed. The plaintiff has already received a remedy from the Public Service Commission for the same breach on the same facts as alleged under the OLA. I am of the view that the claim is barred on the grounds of res judicata.
68 The plaintiff, in his amended statement of claim, asserts that the staffing process used by the defendant to fill the Director's position competed for by the plaintiff breached the PSEA and the OLA, and was also discriminatory. In my view, these allegations are without merit.
69 Firstly, the Supreme Court of Canada has ruled that the breach of a statutory provision is not conclusive of liability. [See [1983] 1 S.C.R. 205">Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 (S.C.C.), and Gklashe v. O'Donnel, [1994] 1 S.C.R. 670 (S.C.C.)]. A breach of a statutory provision may provide support for a finding of negligence in the appropriate case. In this instance, the plaintiff did not assert allegations of negligence in his amended statement of claim.
70 Secondly, the common law does not recognize discrimination as giving rise to a cause of action. The plaintiff might have pursued his claim for discrimination in relation to his employment with the Canadian Human Rights Commission (the "CHRC"). This is the avenue intended by Parliament for such claims.
Charter Breach
71 The plaintiff also asserts in his amended statement of claim that the process used by the defendant under the PSEA to staff the position of Director, Program Policy and Planning (EX-1) with Health Canada in March 2000 was directly, adversely, and systemically discriminatory, and thereby infringed section 15 of the Canadian Charter of Rights and Freedoms.
72 Subsection 15(1) of the Charter provides as follows:
... every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, sex, age, or mental or physical disability.
73 In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143,, MacIntyre J. of the Supreme Court of Canada, at pages 174-75, defined discrimination as follows:
...discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Emphasis added)
74 This interpretation was subsequently confirmed by Iacobucci J. in Law v. Canada (Minister of Employment and Immigration), [1999] 1 R.C.S. 497. In that case, the learned judge also stated at p. 524, para. 39, that a Court that is called upon to determine a discrimination claim under subsection 15(1) should make the following three broad inquiries:
...First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).
75 The jurisprudence has clearly established that a Charter claimant bears the onus of establishing an infringement of his or her rights before the onus shifts to the State to justify the infringement. The jurisprudence has also established that discrimination must be substantively established beyond mere proof of a distinction on enumerated or analogous grounds. Further, the discrimination must be shown to violate the human dignity or freedom of the claimant.
76 In this case, the plaintiff has not provided any factual basis to found a claim of discrimination. It is therefore not necessary to conduct a comprehensive assessment of the three broad inquiries set out in Law, supra. The plaintiff did not establish a differential treatment in the impugned staffing process that discriminated against him in a substantive sense. The plaintiff did not obtain the position he applied for because he did not have the necessary qualifications, not because he was a member of a visible minority. The Public Service Appeal Board rejected his claim of discrimination and the plaintiff's application for judicial review of the Appeal Board decision was discontinued. It is no longer open to the plaintiff to allege discrimination. I can find no evidence on the record before me and no factual basis for his claim of discrimination.
Conclusion
77 I am satisfied on the record before me, and for the above reasons, that there is no genuine issue for trial raised by the plaintiff's amended statement of claim, and accordingly I will grant the defendant's motion for summary judgment.
78 I will now deal with the defendant's motion for costs against the plaintiff pursuant to Rule 70(4) of the Federal Court Rules, 1998, for failure to seek leave from the Court on two occasions, August 14, 2001 and March 19, 2002, when filing two memoranda of fact of law, both containing more than 30 pages.
79 On August 14, 2001, as part of his amended motion record, the plaintiff filed a 77 page memorandum of fact and law.
80 In response to the defendant's application for summary judgment dated March19, 2002, the plaintiff filed, as part of his motion record, a 136 page memorandum of fact and law.
81 The plaintiff has clearly violated Rule 70(4) of the Federal Court Rules, 1998, and at the hearing of this matter offered no reasonable explanation to the Court for having done so. Accordingly, I will grant the defendant's motion and award costs against the plaintiff at the maximum tariff authorized under Column V Part II of Tariff B of the Federal Court Rules, 1998 with respect to tariff items 19 (memorandum of fact and law) and 21(a) (counsel fee on motion).
ORDER
THIS COURT ORDERS that:
1. The plaintiff's motion for summary judgment is dismissed.
2. The defendant's motion is granted and the defendant shall have summary judgment, and the plaintiff's action is dismissed with respect to all of its claims. The defendant will have its costs in regard to its motion for summary judgment.
3. Costs are also awarded against the plaintiff on the motion by the defendant pursuant to Rule 70(4) of the Federal Court Rules, 1998, at the maximum tariff authorized under Column V Part II of Tariff B of the Federal Court Rules, 1998 with respect to tariff items 19 (memorandum of fact and law) and 21(a) (counsel fee on motion).
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-195-01
STYLE OF CAUSE: Dr. Noël Ayangma v. Her Majesty the Queen
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 24, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 25, 2002
APPEARANCES:
Dr. Noël Ayangma FOR PLAINTIFF / APPLICANT
James Gunvaldsen Klassen FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Dr. Noël Ayangma FOR PLAINTIFF/APPLICANT
25 England Circle
Charlottetown, PE C1E 1W6
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia B3J 1P3
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