Date: 20080317
Docket: T-702-07
Citation: 2008 FC 356
Toronto, Ontario, March 17,
2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MOHAMMAD
ASLAM CHAUDHRY
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Mohammad Aslam Chaudhry (the “Plaintiff”) appeals from the Order of
Prothonotary Aalto. In the Order dated July 11, 2007, the Prothonotary
dismissed the Plaintiff’s motion for the entry of default judgment against Her
Majesty the Queen (the “Defendant”), as well as the Plaintiff’s action in its
entirety.
[2]
The
Plaintiff was employed with Correctional Service Canada (“CSC”) as a
probationary employee, beginning on February 17, 2003. He began his
employment at Bath Institution and was later transferred to Millhaven
Institution. Following a Performance Evaluation Report, a recommendation was
made on February 6, 2004 that his continued employment on probation be rejected
for cause on or before February 16, 2004. That recommendation was made by Ms. Susan
Sly, Acting Chief of Administrative Services.
[3]
By
Memorandum dated February 6, 2004, Mr. Jim Marshall, Warden of Millhaven
Institution, advised the Plaintiff that he would be rejected as a probationary
employee for cause, effective February 6, 2004.
[4]
The
Plaintiff subsequently filed a grievance pursuant to the Public Service Staff Relations Act, R.S.C.
1985 (the “PSSRA”), c. P-35, as rep. by Public Service Modernization Act,
S.C. 2003, c. 22, s. 285, and the matter was referred to adjudication.
A hearing was held in June 2005 and a written decision was delivered by the
Adjudicator on July 13, 2005. In that decision, Adjudicator Ian Mackenzie
reviewed the allegations made by the Plaintiff, the evidence submitted and the
arguments as presented by both the Plaintiff and his employer. The Adjudicator
concluded that he lacked jurisdiction to entertain the complaints and grievance
because the Plaintiff had failed to prove his burden that his rejection on
probation was “a sham, a camouflage or in bad faith.”
[5]
The
Plaintiff sought judicial review of the decision of the Adjudicator cause number
T-374-06. In a decision dated April 13, 2007, Justice Simpson dismissed the
application for judicial review.
[6]
On
April 26, 2007, the Plaintiff issued a Statement of Claim, alleging that he had
been the victim of tortious acts by Ms. Susan Sly, Mr. Jim Stevenson and Mr.
Jim Marshall during the period of his probationary employment with CSC. Ms.
Sly was the Acting Chief of Administrative Services at Millhaven Institution,
Mr. Stevenson was the Assistant Warden, Management Services at Millhaven and
Mr. Marshall was the Warden at Millhaven.
[7]
According
to the Motion Record filed by the Defendant on July 3, 2007, service of the
Statement of Claim upon the Defendant was admitted on April 27, 2007.
[8]
By
letter dated May 31, 2007, Counsel for the Defendant advised the Plaintiff that
his Statement of Claim raised the same issue that was raised in his grievance
and complaint under the PSSRA, and that the Defendant, relying on the decision
of the Supreme Court of Canada in Vaughan v. Canada, [2005] 1 S.C.R.
146, took the position that the Courts have no jurisdiction to deal with the
type of action commenced here. Further, Counsel advised that if the
Plaintiff voluntarily discontinued his action
at this stage, the Defendant would not seek costs against him. If he failed to
discontinue his action, the Defendant would move to strike the action.
[9]
The
Plaintiff did not discontinue his action. Rather, on June 20, 2007, he
submitted a Notice of Motion seeking the entry of default judgment pursuant to
the Federal Courts Rules, SOR/98-106 (the “Rules”). The Prothonotary
dismissed this motion, on the grounds that the Statement of Claim disclosed no
reasonable cause of action.
[10]
The
Plaintiff filed a Notice of Motion on September 5, 2007, appealing from the
Order of Prothonotary Aalto. He sought an extension of time within which to
appeal and further, an order reversing the Order of July 11, 2007. He argues
that the Rules had been breached because the Order of July 11, 2007 was not
mailed to him until August 21, 2007, more than 40 days after it was issued,
contrary to Rule 395.
[11]
The
Plaintiff also submits that the Prothonotary had erred by accepting the Written
Representations and the Motion Record of the Defendant after the pleadings were
closed, contrary to Rule 202(a).
[12]
He
argues that the Prothonotary should not have considered the affidavit of Ms.
Heather Graham that was filed as part of the Defendant’s Motion Record. He
submits that this was contrary to Rule 82 which prohibits the use of a
solicitor’s affidavit.
[13]
The
standard of review upon this appeal from a decision of a Prothonotary was
discussed by the Federal Court of Appeal in Merck & Co. v. Apotex Inc.
(2004), 30 C.P.R. (4th) 40 (F.C.A.) where the Court said the
following at para. 19:
...
Discretionary orders of prothonotaries
ought not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are
vital to the final issue of the case, or
b) the orders 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.
[14]
In
this case, as noted by the Plaintiff, the Prothonotary made two orders: he
dismissed the motion for default judgment and he dismissed the action in its
entirety.
[15]
Rule
210 provides for the entry of default judgment. Rule 210(4) describes the
power of the Court upon a motion for default judgment as follows:
|
(4) On a
motion under subsection (1), the Court may:
(a) grant
judgment;
(b) dismiss
the action; or
(c) order that
the action proceed to trial and that the plaintiff prove its case in such a
manner as the Court may direct.
|
(4)
Sur réception de la requête visée au paragraphe (1), la Cour peut :
a)
accorder le jugement demandé;
b)
rejeter l’action;
c)
ordonner que l’action soit instruite et que le demandeur présente sa preuve
comme elle l’indique.
|
[16]
A
motion for default judgment must be supported by evidence. I refer in this
regard to the decision in Ragdoll Productions (UK) Ltd. v. Jane Doe,
[2003] 2 F.C. 120. The evidence must support the plaintiff’s claim. In the
absence of such evidence, the Prothonotary is authorized to dispose of the
motion in accordance with Rule 210(4) by either granting the motion, dismissing
the action or ordering the matter to proceed to trial.
[17]
A
motion for default judgment involves the exercise of discretion and is limited
to what is claimed in the Statement of Claim; see Island Tug & Barge
Ltd. v. Haedong Co. (2002), 217 F.T.R. 318.
[18]
I
see no error in the manner in which the Prothonotary exercised his discretion
here. He dismissed the motion for default judgment and proceeded to examine
the basis of the Plaintiff’s claim.
[19]
Similarly,
I see no error in the manner in which the Prothonotary accepted the evidence
and the Motion Record submitted by the Defendant. Contrary to the submissions
of the Plaintiff, a motion received is not a “pleading” as defined in the Rules
and the Defendant was entitled to respond to the Plaintiff’s Motion Record by
filing his own. “Pleading” is defined in Rule 2 as follows:
|
“pleading" means a document in a
proceeding in which a claim is initiated, defined, defended or answered.
|
“acte de procédure” Acte par lequel une
instance est introduite, les prétentions des parties sont énoncées ou une
réponse est donnée.
|
[20]
The
affidavit of Ms. Graham, which was submitted by the Defendant as part of her
Motion Record, is indeed a solicitor’s affidavit. However, Rule 82 is not an
absolute bar to the use of such an affidavit. Rule 82 provides as follows:
|
82.
Except with leave of the Court, a solicitor shall not both depose to an
affidavit and present argument to the Court based on that affidavit.
|
82.
Sauf avec l’autorisation de la Cour, un avocat ne peut à la fois être
l’auteur d’un affidavit et présenter à la Cour des arguments fondés sur cet
affidavit.
|
[21]
The Prothonotary did not make a specific
ruling with respect to the use of the affidavit from Ms. Graham but in any
event, she was not the lawyer who argued before the Prothonotary. Furthermore,
her affidavit set forth facts concerning prior proceedings undertaken by the
Plaintiff relative to the termination of the Plaintiff’s employment. There was
nothing improper about its presentation to the Court.
[22]
The
most important aspect of this matter is the Prothonotary’s Order dismissing the
Plaintiff’s action. Since this Order has effectively ended the action, the
decision will be reviewed upon the de novo standard. In other words,
this Court will consider whether the Plaintiff’s action is well-founded.
[23]
In Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959, the Supreme Court of Canada said
that the test in Canada to strike out pleadings is whether it is plain and
obvious that the Claim discloses no reasonable cause of action.
[24]
The
present Statement of Claim relates to the termination of the Plaintiff’s
employment with CSC while he was a probationary employee. In the context of
public service employment, the Defendant has the right to establish conditions
of employment, including the category of probationary employees. The rights
and remedies of complaints and adjudication of grievances at the time of the
Plaintiff’s employment were governed by the PSSRA. The Plaintiff sought
access to the grievance and adjudication process and after a hearing, his
grievance was rejected on jurisdictional grounds. As noted above, that
decision was upheld following the Plaintiff’s application for judicial review.
[25]
The
Plaintiff, as a former employee of the Defendant, has no absolute right to
commence litigation relative to his employment. That position was clearly
stated by the Supreme Court of Canada in Vaughan, where the Court said the following at
para. 2:
I agree with the appellant that the
statutory language and context of the PSSRA do not amount to the sort of
explicit ouster of the jurisdiction of the courts as was the case in Weber v.
Ontario Hydro, [1995] 2 S.C.R. 929. Nevertheless, while the courts retain a
residual jurisdiction to deal with workplace-related issues falling under s. 91
of the PSSRA, but not arbitrable under s. 92, the courts should generally in my
view, as a matter of discretion, decline to get involved except on the limited
basis of judicial review. The facts of this case, insofar as we can ascertain
them, afford a good illustration of why judicial restraint in this area is
desirable. I would dismiss the appeal.
[26]
As
in Vaughan, the Plaintiff here is
trying to “dress-up” his claim as a claim in tort, to avoid the jurisdictional
question that will arise if he simply based his claim on the termination of his
employment while on probation. Again, I refer to the decision in Vaughan where Justice Binnie
said the following at para. 11:
On January 29, 1999, the appellant
started an action in negligence against the respondent alleging that it
"knew, or ought to have known, that a reasonable job offer had not been
provided to the [appellant] and that the [appellant] was eligible for ERI"
(statement of claim, at paras. 31-32). It is the negligence action that the
respondent employer is attempting to have struck out. The appellant presumably
felt obliged to frame his action, with a degree of artificiality, in the tort
of negligence to circumnavigate the PSSRA. However, as our present Chief
Justice wrote in Weber, at para. 49: One must look not to the legal
characterization of the wrong, but to the facts giving rise to the
dispute." Here the facts quite clearly arise out of the employer-employee
relationship.
[27]
Accordingly,
I conclude that the Plaintiff’s action has no reasonable prospect of success, which
is the test set out by the Supreme Court of Canada in Hunt. The
Prothonotary did not err when he dismissed the Plaintiff’s action.
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