Date: 20070222
Docket: T-990-06
Citation: 2007 FC 210
BETWEEN:
MELANIE
GRAHAM
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR
ORDER
LAYDEN-STEVENSON J.
[1]
The
defendant moved to strike Ms. Graham’s statement of
claim. Prothonotary Lafrenière granted the motion and struck the action without
leave to amend. Ms. Graham appealed Prothonotary Lafrenière’s order. I
dismissed the appeal. These are my reasons.
I. Background
[2]
Succinctly stated, the pertinent facts are that
Ms. Graham is an officer in the Canadian Forces. She wanted to become a Public
Affairs Officer. In October of 2005, she was considered for such a position by
the Public Affairs Board (the selection board). In November of that year, she
was informed that she had been approved for the position at a ranking of six
out of ten. She was allegedly not selected because there were only five
available positions at the time. Following the receipt and review of
information obtained through a request to the Directorate of Access to
Information and Privacy (DAIP), Ms. Graham believed that the selection board
had considered irrelevant and inappropriate factors in its assessment of her.
While it was not clear from the statement of claim and the documentation on the
motion to strike, it is now common ground that Ms. Graham did not grieve the selection
board's procedure or determination.
[3]
Unrelated to the selection board process, Ms.
Graham also sought a transfer to Public Affairs from the naval area where she
was working. Her request for transfer was not handled in a manner that was
satisfactory to her. She submitted a grievance in relation to the transfer
issue in January of 2006.
[4]
It is evident, from the oral arguments on
appeal, that these events were independent of one another. Thus, Ms. Graham's transfer
request is the subject of a grievance; the selection board’s assessment of her
in relation to a position as a Public Affairs Officer is not. Rather than
initiate a grievance in relation to the selection board assessment, Ms. Graham
commenced an action in this court on June 9, 2006.
II. The
Decision
[5]
The crux of Prothonotary Lafrenière’s
determination is contained in the following paragraphs of his order:
Notwithstanding
the Plaintiff’s attempt to characterize her cause of action as a tort of
discrimination, it remains that the allegations and claims in the Statement of
Claim, taken as a whole, relate to her engagement as a member of the Canadian
Armed Forces. Based on the evidence before me, the Plaintiff has, or had,
recourse to the National Defence Grievance process provided by section 29 of
the National Defence Act, R.S.C. 1985, c. N-5 and Queen’s Regulations
and Orders, chapter 7 to address her complaints. Whether she grieved the
discriminatory practices or not is of no consequence. The fact is that she
could have grieved the matters raised in the Statement of Claim.
This Court has
consistently held that the only avenue of redress available for military
personnel to challenge a decision (such as career progression and a selection
process) is the grievance procedure, described as broad and exhaustive in
nature (see paragraphs 16 to 26 of the Defendant’s written representations). As
for the Plaintiff’s complaint regarding the ineffectiveness or inadequacy of
the grievance process, an avenue of remedy is available from this Court, but
only by way of judicial review of the final decisions pursuant to s. 18.1 of
the Federal Courts Act.
[6]
The prothonotary went on to address the requisite
threshold for striking an action and determined that this matter either
“constitutes an abuse of process by seeking to circumvent the exhaustive
statutory scheme available under the National Defence Act, or an
improper collateral attack of an administrative decision, which can only be
accomplished by way of an application for judicial review”. In this respect, he
referred to the Federal Court of Appeal decision in Grenier v. Canada,
[2006] 2 F.C.R. 287 (F.C.A.), (Grenier).
III. Issues
[7]
There are two issues that arise:
(1)
Whether the “new” evidence in the form of Ms.
Graham’s affidavit and the attachments exhibited to it are admissible on this
appeal; and
(2)
Whether the prothonotary erred in striking the
statement of claim without leave to amend.
IV. Analysis
[8]
Before turning to the issues, it should be
stated that although Ms. Graham had been a self-represented litigant, she was
represented by counsel on this motion. Her counsel readily (and appropriately)
conceded that the statement of claim was “terrible” and incapable of amendment
as presently framed.
A. New
Evidence
[9]
Prior to retaining counsel, Ms. Graham filed her
motion record in which she included a fresh affidavit with several attachments
exhibited thereto. In addition to noting the flagrant technical deficiencies of
the affidavit (which Ms. Graham's counsel attributed to her lack of legal
knowledge), the defendant strenuously objected to its admissibility on the
basis that: it was not before the prothonotary; the defendant had not had an
opportunity to test the evidence; and the defendant had not had an opportunity
to cross-examine on it. Moreover, Ms. Graham had not established that: the
evidence, with due diligence, could not have been available in the first
instance; it was capable of altering the outcome; or that the interests of
justice required that it be admitted. Ms. Graham’s counsel submitted that she
could not “satisfy the test of ‘new’ evidence”.
[10]
The general rule is that appeals from orders of
prothonotaries are to be decided on the basis of the material that was before
the prothonotary. In James River Corp. of Virginia v. Hallmark Cards,
Inc. (1997), 126 F.T.R. 1 (F.C.T.D.), Madam Justice Reed declined to accept
new evidence that had not been before the prothonotary and stated at paragraphs
31 and 32:
[31] As I understand
counsel's explanation of the Associate Senior Prothonotary's decision, it is
that the order requested was refused because there was no proper evidence
before the Associate Senior Prothonotary demonstrating that the United States
proceeding existed and was parallel to the present proceeding, nor was there
evidence demonstrating that the documentation that was sought was relevant to
the present proceeding. It was not argued that this decision by the Associate
Senior Prothonotary was in error. Counsel for the plaintiff sought to file with
the Court an affidavit to supply the missing evidence. He took the position
that an appeal of a prothonotary's decision to a judge is a proceeding de
novo and, therefore, I was entitled to accept this evidence and render the
decision the Associate Senior Prothonotary would have made had he had that
evidence before him.
[32] I do not interpret the
role of a judge on an appeal of a prothonotary's order in that way. Whatever
may be the difference, if any, between the Chief Justice's description on page
454 of Canada v. Aqua-Gem, supra, and that of the majority of the
Court at page 463, the latter governs. It clearly contemplates that the judge
will exercise his or her discretion de novo, on the material that was
before the prothonotary, and not engage in a hearing de novo based on
new materials.
[11]
Mr. Justice Nadon, then of the Federal Court
Trial Division, reached a similar conclusion in Symbol Yachts Ltd. v. Pearson,
[1996] 2 F.C. 391 (T.D.). Justice Nadon held that:
[20] The present
matter is an appeal from the Prothonotary's decision pursuant to subsection
336(5) of the Rules. For me to disturb the Prothonotary's order, I must be
satisfied that his order was "clearly wrong" or that the order raises
a question "vital to the final issue of the case". In Canada v.
Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, Mr. Justice MacGuigan of the
Federal Court of Appeal explained as follows the applicable standard of review
where appeals are taken from discretionary orders of a prothonotary. At page
463, Mr. Justice MacGuigan stated that:
… 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.
[21] In the present instance, there is no
doubt in my mind that the Prothonotary's order raises a question vital to the
final issue of the case since the effect of the Prothonotary's order is to
terminate the plaintiffs' action. However, I can only examine the
Prothonotary's order in the light of the evidence which was before him when he
made his order. Consequently, I cannot, and so advised the parties at the
hearing, consider the affidavits which the plaintiffs seek to introduce into
the record. I do not know why these affidavits were not filed by the plaintiffs
in support of their September 22, 1995 application but, in my view, that
evidence, if available, should have been placed before the Prothonotary.
[22] This is an appeal of the Prothonotary's
decision and it is now too late to present evidence which should have been made
earlier. In my view, the purpose of these new affidavits is to correct the
shortcomings of the evidence submitted to the Prothonotary. The facts sworn to,
for example in the Beesley affidavit, are facts which could have been put
before the Prothonotary but were not. The affidavit covers the time period from
the initiation of the litigation in 1988 to October 30, 1995.
[23] It was for these reasons that I
informed the parties during the hearing that I would not allow the plaintiffs
to introduce into the record supplementary affidavits.
See also: Canada
v. Mid-Atlantic Minerals Inc., [2003] 1 F.C. 168 (F.C.); Canada (Minister of National Revenue
– M.N.R.) v. Marrazza (2004), 256 F.T.R. 1 (F.C.); Rhéaume
v. Canada, 2003 FC 1405, [2003] F.C.J. 1798; Odessa Partnership
v. Canada
(Department of National Revenue), 2003 FC 1420, [2003]
F.C.J. 1814.
[12]
Exceptionally, new evidence may be admissible in
circumstances where: it could not have been made available earlier; it will
serve the interests of justice; it will assist the court; and it will not
seriously prejudice the other side: Mazhero v. Canada (Industrial Relations Board) (2002), 292 N.R. 187 (F.C.A.). None of the
criteria have been met in this case.
[13]
Having examined the evidence, its relevance to
the issue to be determined is, at best, marginal. I am not persuaded that, if
admitted, it could impact the outcome of the appeal. Further, no explanation
beyond the fact that Ms. Graham is a lay litigant has been advanced to justify
the failure to put the evidence before Prothonotary Lafrenière. While the court
tries to be flexible where self-represented parties are concerned, litigants
who choose to represent themselves must accept the consequences of their
choice: Wagg v. Canada, [2004] 1 F.C.R. 206 (C.A.) at para. 25. It is essential that the established rules and
procedures be adhered to and followed in a manner that is fair to both sides.
This matter has been repeatedly adjourned to accommodate Ms. Graham’s failure
to adhere to the requirements of the Federal Courts Rules. It was
initially set for hearing on January 15, 2007.
[14]
Ms. Graham has failed to bring herself within
the exception to the general rule. Consequently, the affidavit is not
admissible.
B. The Merits
[15]
It is common ground that Prothonotary
Lefrenière’s decision is vital to the final issue and, as a result, I must
approach the matter de novo: Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (C.A.); Merck & Co., Inc. v. Apotex Inc., [2004] 2
F.C.R. 459 (C.A.).
[16]
Ms. Graham’s counsel asserted that “perhaps because
the claim is so convoluted”, the prothonotary decided the matter in reliance on
facts “that were wrong”. The essence of this argument is that Prothonotary
Lafrenière, as a result of the affidavit of Captain Dan Bell, was operating on
the assumption that Ms. Graham had submitted a grievance, regarding the
selection board’s assessment, when she had not. Rather, her grievance related
to her request for a transfer to Public Affairs.
[17]
I am far from convinced that the prothonotary
erred as alleged. He did refer to a grievance filed on June 9, 2006, and
expressly identified it as being in relation to the “failure by the Department
of National Defence to properly consider her application for transfer or
reassignment to Public Affairs in a timely and appropriate manner”. In
discussing the contents of the statement of claim, the prothonotary reiterated
Ms. Graham’s position that “the grievance process is not applicable to the
matters” in the statement of claim because “she never brought a grievance with
respect to them”. It appears to me that these statements are totally consistent
with Ms. Graham's position.
[18]
In any event, if there was confusion in this
respect (and I am not convinced that the prothonotary was confused), it was of
no consequence. The basis of Prothonotary Lafrenière’s decision was that it was
not open to Ms. Graham to circumvent the grievance provisions of the National
Defence Act. In my view, he was entirely correct in arriving at that
determination.
[19]
As a basic proposition, when Parliament creates
statutory remedies and institutions designed specifically to provide redress to
persons aggrieved, the court should not lightly intervene before those
statutory remedies have been exhausted. Failure to pursue the available
procedures does not render the remedy inadequate: Lazar v. Canada (Attorney General) (1999),
168 F.T.R. 11 (T.D.) aff’d. (2001), 271 N.R. 10 (F.C.A.).
[20]
It is common ground that Ms. Graham’s complaint
arises out of her engagement as a member of the Canadian Forces and
specifically relates to her dissatisfaction with the decision of the selection
board in not selecting her for a position.
[21]
Section 29 of the National Defence Act
provides:
|
29. (1)
An officer or non-commissioned member who has been aggrieved by any decision,
act or omission in the administration of the affairs of the Canadian Forces
for which no other process for redress is provided under this Act is entitled
to submit a grievance.
(2) There is
no right to grieve in respect of
(a) a
decision of a court martial or the Court Martial Appeal Court;
(b) a
decision of a board, commission, court or tribunal established other than
under this Act; or
(c) a matter
or case prescribed by the Governor in Council in regulations.
(3) A
grievance must be submitted in the manner and in accordance with the
conditions prescribed in regulations made by the Governor in Council.
(4) An
officer or non-commissioned member may not be penalized for exercising the
right to submit a grievance.
(5) Notwithstanding
subsection (4), any error discovered as a result of an investigation of a
grievance may be corrected, even if correction of the error would have an
adverse effect on the officer or non-commissioned member.
|
29. (1) Tout
officier ou militaire du rang qui s’estime lésé par une décision, un acte ou
une omission dans les affaires des Forces canadiennes a le droit de déposer
un grief dans le cas où aucun autre recours de réparation ne lui est ouvert
sous le régime de la présente loi.
(2) Ne
peuvent toutefois faire l’objet d’un grief :
a) les
décisions d’une cour martiale ou de la Cour d’appel de la cour martiale;
b) les
décisions d’un tribunal, office ou organisme créé en vertu d’une autre loi;
c) les
questions ou les cas exclus par règlement du gouverneur en conseil.
(3) Les
griefs sont déposés selon les modalités et conditions fixées par règlement du
gouverneur en conseil.
(4) Le
dépôt d’un grief ne doit entraîner aucune sanction contre le plaignant.
(5) Par
dérogation au paragraphe (4), toute erreur qui est découverte à la suite
d’une enquête sur un grief peut être corrigée, même si la mesure corrective
peut avoir un effet défavorable sur le plaignant.
|
The detailed
process is set out in Chapter 7 of the Queen’s Regulations and Orders,
which is entitled “Grievances”.
[22]
The jurisprudence holds that the resolution
mechanism existing through the grievance procedure in the National Defence
Act constitutes an adequate alternative remedy that must be exhausted
before an individual can turn to the court for redress: Anderson v. Canada (Canadian
Armed Forces), [1997] 1 F.C. 273 (F.C.A.); Gallant v. Canada (1978),
91 D.L.R. (3d) 695 (F.C.T.D.); Jones v. Canada (1994), 87 F.T.R. 190
(T.D.); Pilon v. Canada (1996) 119 F.T.R. 269 (T.D.); Villeneuve v.
Canada (1997), 130 F.T.R. 134 (T.D.); Haswell v. Canada (Attorney
General (1998), O.T.C. 143 (Gen. Div.) aff’d. (1998), 116 O.A.C. 395 (C.A.).
[23]
This approach is consistent with the reasoning
of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2
S.C.R. 929. There, the court determined that where the subject matter of a
dispute is one that is covered by a statutory scheme or collective agreement,
the court should, as a general rule, defer jurisdiction to the mechanisms set
out in the applicable scheme (paras. 50-58 and 67). More recently, in Vaughn
v. Canada, [2005] 1 S.C.R. 146, the Supreme Court emphasized that regard
must be had to the facts giving rise to the dispute rather than the legal
characterization of the wrong to determine whether there is an adequate
alternative remedy (para.11). In all but the most unusual circumstances, the
court should decline jurisdiction and defer to statutory grievance schemes
(para. 2).
[24]
Ms. Graham’s complaints relate directly to her
career progression within the Canadian Forces. Her quarrel is with the manner
in which the selection process under the National Defence Act was conducted.
As such, her recourse is to grieve the selection. In short, she has an adequate
alternative remedy. That remedy must be exhausted before she turns to the
court.
[25]
Should Ms. Graham be dissatisfied with the
result of her grievance, she may then seek recourse by way of judicial review.
Parliament’s intention in relation to the appropriate process to challenge an
administrative decision (by way of judicial review or by an action for damages)
was exhaustively examined by the Federal Court of Appeal in Grenier. The
issue is discussed at paragraphs 25 through 32 of the court’s reasons and I do
not intend to repeat the discussion here. Suffice it to say that, in
conclusion, the court commented that “[i]t is especially important not to allow
a section 17 proceeding as a mechanism for reviewing the lawfulness of a
federal agency’s decision when this indirect challenge to the decision is used
to obviate the mandatory provision of subsection 18(3) of the Federal Courts
Act”.
[26]
To summarize, Ms. Graham must exhaust the
adequate alternative remedy available to her. If, at the completion of that
process, she is dissatisfied with the decision, she may seek judicial review.
It is not open to her to circumvent the process mandated by Parliament through initiating
an action at this time. Consequently, her action has no chance of success and
Prothonotary Lafrenière was quite right to strike it without leave to amend.
[27]
Before concluding, I wish to address Ms.
Graham’s reliance on Smith v. Canada (Attorney General) et al. (2006),
300 N.B.R. (2d) 363 (Q.B.T.D.) (Smith), which she urged me to follow.
There, Madam Justice Garnett refused to dismiss an action initiated by members
of the R.C.M.P. The defendants contended that the court lacked jurisdiction or
should decline jurisdiction on grounds that I gather, from the reported
decision, are not dissimilar to those advanced before me. For various reasons,
I do not find the authority helpful.
[28]
First, the nature of the action in Smith
is not readily apparent on reading the decision. It seems that the allegations
in the statement of claim may have been outside the ambit of the grievance
process, but this is speculative on my part. Second and more importantly, it is
obvious from the decision that the primary plaintiff in Smith repeatedly
utilized the internal process in relation to his complaint. He additionally
accessed, or attempted to use alternate dispute resolution and mediation
processes. On that basis alone, the case is readily distinguishable from the
one at hand. Third, there is nothing before me to indicate, let alone
establish, the similarities or dissimilarities between the grievance procedure
in Smith and that available to Ms. Graham. Fourth, to apply Smith,
I would have to disregard the jurisprudence of the Federal Court and the
Federal Court of Appeal. The latter is binding upon me. Finally, I am advised
by counsel that the Smith case is scheduled for hearing before the New
Brunswick Court of Appeal on February 27, 2007. Accordingly, I refrain from
further comment.
[29]
As I indicated to the parties on the return of
the motion, the appeal must be dismissed. I issued an order to that effect on
February 19, 2007.
"Carolyn
Layden-Stevenson"
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