Date 20121102
Docket: T-918-12
Citation: 2012 FC 1286
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 2,
2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MARIE MACHE RAMEAU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
By
this motion, the applicant is asking this Court to make a show cause order
against the President of the Canadian International Development Agency (CIDA)
pursuant to section 467 of the Federal Courts Rules (Rules) on the
basis that the President is allegedly in contempt of court. An allegation of
contempt of court is criminal, or at least quasi-criminal, in character (Bhatnager
v Canada (Minister of Employment and Immigration), [1990] 2 SCR 217)
and may lead to imprisonment.
[2]
According
to the applicant, the alleged contempt of court stems from CIDA’s failure to honour
certain undertakings set out in an agreement dated November 29, 2006,
between CIDA and the applicant.
[3]
This
agreement was made an order of this Court by Justice Pinard on
May 29, 2012, under subsection 48(3) of the Canadian Human Rights
Act.
[4]
On
the basis of this agreement, CIDA paid the applicant sums of money. The
applicant was also appointed on an acting basis to a position at the PE-4 group
and level, and she was assigned to a position in the Public Service Commission
(PSC) under an assignment agreement between the PSC and CIDA. This twelve
(12)-month assignment to the PSC ran from February 15, 2007, to
February 14, 2008. During that period, CIDA covered the applicant’s wages
and benefits as provided in paragraph 5 of the agreement.
[5]
The
agreement was then renewed for another twelve (12) months, but this time the
PSC covered the applicant’s wages and benefits.
[6]
On
February 16, 2009, when the second assignment period ended, the applicant
was reinstated in her position at CIDA at the PE-3 level.
[7]
The
applicant alleges that under paragraph 6 of the agreement, she is entitled
to be reinstated in a PE-4 position, but CIDA disagrees. Paragraph 6 of
the agreement is the central issue in this case.
[8]
The
applicant therefore submits that the President of CIDA is in contempt of court
for not honouring the agreement of November 29, 2006, which has been made
an order.
Issue
[9]
The
Court must answer the following question: Should a show cause order be made
against the President of CIDA?
[10]
For
the reasons that follow, the Court is of the opinion that the question must be
answered in the negative.
Analysis
[11]
At
the beginning of the hearing, Mr. Létourneau confirmed to the Court that
he was acting in this case as agent of the solicitor of record, Yavar Hameed.
[12]
First,
it is important to note that the applicant’s motion under rule 467 seeks a
show cause order, that is, an order requiring the President of CIDA to appear
before a judge and to be prepared to hear proof of the act with which she is
charged and present any defence that she may have. The applicant’s burden of
proof at this stage is met by making a prima facie case for the alleged
contempt.
[13]
Justice
Russell has stated that a motion for a show cause order, as in the present
case, “requires proof of a Court order, proof of the respondent’s knowledge of
the order, and proof of deliberate flouting of the order” (Angus v Chipewyan
Prairie First Nation Tribal Council, 2009 FC 562, [2009] FCJ no 757
(QL)).
[14]
First
of all, it should be noted that at the hearing before this Court, there was
some question as to whether the motion for a show cause order under
section 467 of the Rules was served on the President of CIDA in accordance
with the direction of Justice Pinard dated October 9, 2012. However,
a verification of the Court record clearly shows that the applicant’s motion
was served on the President of CIDA personally.
[15]
The
Court now turns to paragraph 6 of the agreement, which is, as was
mentioned above, the central issue in this case.
[16]
The
Court notes that the parties are relying on two different interpretations of paragraph 6
of the agreement. Paragraph 6 reads as follows:
[translation]
6. If the complainant is unsuccessful in the
training during the first six months of her assignment to the Public Service
Commission, she will return to a PE-3 position at the respondent. The
respondent undertakes to offer her 18 months of training. If the complainant
receives a positive quarterly appraisal based on clear and precise objectives
and on the assessment criteria, the complainant will be appointed at the PE-4 level
through a non-advertised process at the end of the 18-month training period.
[17]
The
applicant argues that under paragraph 6, CIDA undertook to provide her
with eighteen (18) months of training and to appoint her to a PE-4 position
through a non-advertised process regardless of the date of her eventual return
to CIDA, while the respondent interprets paragraph 6, when read together
with paragraphs 4 and 5, as being limited in time and as not applying
unless the applicant returned to CIDA in the first six (6) months. Relying
on the affidavit of Mario Sabourin (Respondent’s Motion Record, Tab 1), a
witness to the agreement, counsel for the respondent argues that
paragraph 6 should be interpreted as a “Plan B” in case the applicant
was unsuccessful in her training at the PSC.
[18]
In
the present case, the evidence does not show that the applicant was
unsuccessful in her training in the first six (6) months of her assignment
to the PSC. On the contrary, she successfully completed her training, and her
assignment was renewed. Moreover, the Court notes that in an email dated
February 7, 2008, the applicant states her intention to continue her
career at the PSC (Respondent’s Motion Record, Tab C).
[19]
Having
heard the parties, the Court must observe that a difference in interpretation
was raised and that it is therefore not clear what the parties must do to comply.
In a similar scenario, the Federal Court of Appeal stated that “[i]t must be clear on the face of the order what is required for
compliance”
(Telecommunications Workers Union v Telus Mobility, 2004 FCA 59
at paragraph 4, [2004] FCJ no 273 (QL)), which is not the case here.
Moreover, Justice Hansen of this Court has noted that “the fact that the Order is
ambiguous precludes a finding of contempt . . .” and that an alleged
contemnor “is
entitled to the most favourable interpretation” (Sherman v Canada (Customs and
Revenue Agency), 2006 FC 1121 at paragraphs 29 and 14,
[2006] FCJ no 1413 (QL)).
[20]
Finally,
the facts in this case do not allow the Court to find, as the applicant argued
at the hearing, that the way the negotiations between the applicant and CIDA
were conducted under paragraph 16 of the agreement constitutes contempt.
The applicant also argued that the President of CIDA personally violated the
order at issue. The evidence does not allow the Court to agree with this
argument either.
[21]
For
all these reasons, the Court is of the opinion that, in the circumstances, the
applicant has not discharged her burden of making a prima facie case.
ORDER
THE COURT ORDERS that
1.
The applicant’s
motion be dismissed.
2. The applicant must pay the respondent a total
of $500 in costs.
“Richard Boivin”
Certified true translation
Michael Palles
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