T-1636-96
OTTAWA, ONTARIO, Tuesday, the 21st day of October, 1997
PRESENT: The Honourable Mr. Justice Lutfy
BETWEEN:
ODETTE VIAU,
Plaintiff
- and -
HER MAJESTY THE QUEEN,
Defendant
JUDGMENT
The action is dismissed.
Certified true translation
Christiane Delon
T-1636-96
BETWEEN:
ODETTE VIAU,
Plaintiff
- and -
HER MAJESTY THE QUEEN,
Defendant
REASONS FOR JUDGMENT
LUTFY J.
The plaintiff worked as a secretary for Denis Lapointe, a notary, at various periods between 1987 and 1993. She performed her duties primarily from the residence she shares with Mr. Lapointe, her common-law spouse since 1977.
On February 19, 1993, the plaintiff was laid off for want of work. She submitted an application for unemployment insurance benefits. Following this application, the question arose as to whether her employment was insurable within the meaning of section 3 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1. Those responsible at the Canada Employment and Immigration Commission (the Commission) and the federal Department of Revenue (the Department) then proceeded to determine whether her employment was insurable.
During the review of the insurability of the plaintiff"s employment for the period from September 7, 1992 to February 19, 1993, a question likewise arose as to the insurability of her employment from March 4, 1991 to October 11, 1991. The officials then conducted a review of the plaintiff"s file from 1987 on.1 It was concluded that her employment was not insurable for the two aforesaid periods and the Commission claimed an overpayment of $27,510 for benefits that the plaintiff had received in 1990 and 1991.
As an employer, Mr. Lapointe appealed these administrative decisions that the plaintiff did not have insurable employment. On November 23, 1995, the Tax Court of Canada upheld the appeal. In short, the plaintiff and Mr. Lapointe prevailed. The Commission abandoned its overpayment claim and, in February 1996, it paid the plaintiff some benefits in the amount of approximately $14,000, all of which was as a result of the lay-off of February 19, 1993.
In July 1996, the plaintiff brought this action in damages against the defendant. She alleges that the Commission and the Department exercised their discretionary power arbitrarily and in bad faith.
The plaintiff is claiming: (a) interest ($4,297.16) on the ground that she received benefits totalling about $14,000 in 1996 instead of 1993; (b) the extra amount ($700) she had to pay in taxes since the $14,000 in benefits was taxable in 1996 instead of 1993, an issue she is still fighting before the appropriate bodies; (c) her lawyer"s fees ($436.77) as a result of consultations she had in 1993 concerning the insurability of her employment; and (d) pecuniary and non-pecuniary damages ($6,500), the latter head of damages including the reduction of $1,319.30 in her family benefits as a result of the increase in her family income in 1996.
The plaintiff relies to a large degree on paragraph 4.04.9 of the judgment of the Tax Court of Canada, 1995 A.C.I. no. 1551 (QL):
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Concerning the period commencing January 1, 1993, the date on which the appellant and Ms. Odette Viau became related persons, the Minister did not exercise his discretionary authority. |
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He should have done so, however. By overlooking this duty, he violated a principle of law. He thereby acted arbitrarily. |
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This Court is therefore justified in intervening to review the file, in accordance with the judgment rendered in Tignish Auto Parts Inc.7 |
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In view of the record, however, the Court is of the opinion that having regard to all the circumstances, a somewhat similar contract of employment would have been entered into between the appellant and Ms. Odette Viau had she not had this non-arm"s length relationship. |
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7 Tignish Auto Parts Inc., A-555-93, F.C.A. July 25, 1994. |
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She also draws attention to the handwritten notes of an official in the Department which suggest that for at least one of the two periods of insurability of employment that were discussed in the reasons of the Tax Court of Canada, the Department changed its mind before making its final determination. Finally, she criticizes the officials for limiting their investigation to telephone conversations with her and Mr. Lapointe, without inquiring more fully into the functioning of a notary"s office. The plaintiff did not call any witnesses to flesh out her case against the Department"s officials.
The defendant"s evidence consisted of the testimony of two persons: a representative of the Commission and a representative of the Department. The testimony of the representative of the Commission consisted of a brief overview of what was done with the file. It should be mentioned that this representative was not in any case personally involved in the handling of the plaintiff"s file. As to the Department"s representative, he was involved only indirectly at the appeal level when Mr. Lapointe"s file was being reviewed. However, his testimony, like the previous testimony, dealt only with the processing of the file within his Department. The cross-examination of these witnesses by the plaintiff was limited.
In the proceedings before the Tax Court of Canada, five officials testified, including the Department"s insurance officer, whom the plaintiff appears to hold primarily responsible for the difficulties its unfavourable decisions have caused her. However, at no point in its judgment does the Tax Court of Canada criticize any of these five officials, including the insurance officer in question. Concerning this officer, the Tax Court confines itself to the comment:
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[Translation] While [the insurance officer] found that Ms. Viau"s work (typing contracts, etc.] was "more or less integrated" in the taxpayer"s business, the Court has no hesitation in saying that this was work that could not be more integrated, considering only the registration of contracts aspect. These contracts could not be registered at the registration office. A contract must be typed in order to be registered. |
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Needless to say, the evidence before the Tax Court of Canada cannot serve as evidence in this Court. That evidence must, if it is thought useful, be submitted again in order to support this action in damages. The plaintiff did not do this. None of the officials involved directly in her file came to testify at the hearing. The extracts from the decision of the Tax Court of Canada, no matter how interesting they may be, do not constitute evidence in the context of this action.
In any event, if the Tax Court of Canada drew negative conclusions in regard to these officials, it refrained from so indicating in its judgment.
In a civil action against the federal Crown referring to acts committed by federal officials in the performance of their duties in Quebec, the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 refers us to the civil law of Quebec.
If there is one fundamental principle in the realm of liability, it is that the plaintiff must establish that a fault has been committed and that she has suffered damages as a result of that fault. On this issue, the defendant submits that the plaintiff had to prove that an aggravated fault or gross fault had been committed by the officials when they were carrying out some administrative acts. Since I have come to the conclusion that the evidence presented by the plaintiff does not demonstrate that any fault, no matter how rudimentary, was committed by the officials, it is unnecessary to deal with the issue of the characterization of the fault.
The evidence adduced by the plaintiff fails to persuade me that the officials of the Department, or of the Commission, committed any fault whatsoever in the processing of the plaintiff"s file. The alterations made to the handwritten notes of the Department official and the duration of the telephone communications with the representatives of the Department and the Commission do not themselves constitute proof of fault. None of the officials personally involved in the review of the plaintiff"s file, at any stage whatsoever, came to testify in this Court. It would be simply pure speculation to claim that the officials committed any fault in the performance of their duties.
For these reasons, the action is dismissed. As to costs, the parties may apply to the Court, if necessary.
Ottawa, Ontario
October 21, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: ODETTE VIAU v. HER MAJESTY THE QUEEN |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 2, 1997 |
REASONS FOR JUDGMENT OF LUTFY J.
APPEARANCES:
| ODETTE VIAU FOR THE PLAINTIFF |
| HÉLÈNE BEAUMONT FOR THE DEFENDANT |
SOLICITORS OF RECORD:
ODETTE VIAU
| MONTRÉAL, QUEBEC FOR THE PLAINTIFF |
DEPUTY ATTORNEY GENERAL
OF CANADA
| OTTAWA, ONTARIO FOR THE DEFENDANT |
__________________
1 It appears from the record that the claimant had worked for her common-law spouse from 1987 to 1990. On March 30, 1990, she was laid off and received unemployment insurance benefits until March 1991. She then worked until October 1991, when she was again laid off. She received benefits from October 1991 to March 1992. Between March and September 1992, she was on maternity leave. She then worked from September 7, 1992 to February 19, 1993. She was ultimately laid off for a third time on February 19, 1993.
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