Date:
20080228
Docket:
T-2086-05
Citation:
2008 FC 261
[ENGLISH TRANSLATION]
Ottawa, Ontario, on February 28, 2008
PRESENT:
The Honourable Mr. Justice Max M. Teitelbaum
BETWEEN:
THE
HONOURABLE ALFONSO GAGLIANO
applicant
and
THE HONOURABLE JOHN H.
GOMERY, IN HIS QUALITY AS
EX-COMMISSIONER OF THE COMMISSION
OF INQUIRY INTO THE
SPONSORSHIP PROGRAM AND
ADVERTISING ACTIVITIES
and THE ATTORNEY GENERAL OF
CANADA
respondents
and
THE HOUSE OF COMMONS
intervener
REASONS FOR ORDER AND ORDER
Introduction
[1]
This
is an interlocutory application filed by the House of Commons (the House) to
strike the allegations in paragraph 2(b)(i) of the Honourable Alfonso Gagliano’s
(the applicant) application for judicial review, dated November 22, 2005.
Facts
[2]
In
the wake of the events that gave rise to the Commission of Inquiry into the
Sponsorship Program and Advertising Activities (the Commission), Charles Guité
was ordered to testify before the House of Commons Standing Committee on Public
Accounts (the House Committee).
[3]
On
November 22, 2004, Commissioner John H. Gomery upheld the objection of Mr.
Guité’s counsel to his client’s being cross-examined before the Commission on
the testimony he provided before the House Committee.
[4]
On
December 22, 2004, the applicant applied for judicial review of the
Commissioner’s decision before this Court. On April 27, 2005, Madam
Justice Tremblay-Lamer upheld Commissioner Gomery’s decision and found that the
principle of parliamentary immunity applied to Mr. Guité’s testimony before the
House Committee. (Gagliano v. Canada (Attorney General), 2005 FC 576,
[2005] 3 F.C.R. 555). The applicant appealed this decision before the Federal
Court of Appeal.
[5]
On
November 22, 2005, the applicant filed a Notice of Application for judicial
review, paragraph 2(b)(i) of which contained the following allegations:
2. The Commissioner
preferred the testimony of witness Charles Guité to that of the applicant,
whereas:
[…]
b. Unlike the other
witnesses, he had not been able to undergo full cross-examination,
notwithstanding the provisions of the Inquiries Act and rule 7 of the
Commission’s Rules of Practice:
i. Regarding the
witness’s prior sworn statements inconsistent with his testimony before the
Commission, on the grounds that these prior sworn statements were protected by
parliamentary privilege; The applicant has unsuccessfully appealed to this
Honourable Court to have the Commissioner’s decision reviewed, and has since
appealed the matter to the Federal Court of Appeal, in docket A-233-05, which
is now perfected for hearing.
[6]
On
February 27, 2006, the Federal Court of Appeal dismissed the applicant’s
appeal on the grounds that the appeal had been rendered moot since the
Commission had completed its work. (Gagliano v. Canada (Attorney General),
2006 FCA 86, [2006] FCJ No. 338). As a result, the decision of my colleague
Justice Tremblay-Lamer became final.
[7]
On
October 30, 2007, the House filed this motion to strike
paragraph 2(b)(i).
Submissions of the House
[8]
The
basis for the House’s motion to strike is that the issue of whether
Mr. Guité’s testimony is protected by parliamentary immunity has already
been decided by this Court in Madam Justice Tremblay-Lamer’s decision.
According to the House, the doctrine of issue estoppel should deter this
Court from revisiting the issue of the privileged nature of Mr. Guité’s
testimony under paragraph 2(b)(i) of the applicant’s notice. The House
argues that the criteria underlying the doctrine of issue estoppel—a
branch of res judicata—are present in this case. These criteria, listed
by the Supreme Court of Canada among others in Angle v. Canada (Minister of
National Revenue), [1975] 2 S.C.R. 248 (at page 254) and Danyluk v.
Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, (at
paragraph 25), are the following: 1) that the same question has been
decided; 2) that the judicial decision which is said to create the estoppel was
final; and, 3) that the parties to the judicial decision or their privies were
the same persons as the parties to the proceedings in which the estoppel is
raised or their privies.
[9]
The
House points out that the decision creating the estoppel is that of Madam
Justice Tremblay-Lamer, not that of the Federal Court of Appeal.
Submissions of the applicant
[10]
The
applicant alleges that the issue raised by paragraph 2(b)(i) of his Notice of
Application for judicial review is different from the issue that Madam Justice
Tremblay-Lamer ruled on. He maintains that the issue involves a violation of
the right to procedural fairness arising from Commissioner Gomery’s refusal to
allow Mr. Guité’s cross-examination of his testimony before the House
Committee. The applicant therefore argues that he would suffer a great
injustice if the motion to strike were granted, since it would then be
impossible for him to attempt to correct an error of procedural fairness
committed by Commissioner Gomery.
[11]
In
addition, the applicant alleges that the Federal Court of Appeal specifically
allowed the issue to be raised again in the light of the recent Supreme Court
decision in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1
S.C.R. 667.
Issue
[12]
Does
the principle of issue estoppel apply in this case?
Analysis
[13]
In
my opinion, the only issue raised by this motion is whether the principle of issue
estoppel applies to the question of whether Mr. Guité’s testimony is
protected by parliamentary immunity. I do not believe, despite the applicant’s
submissions, that this is a different issue, a question of a violation of the
right to procedural fairness arising from Commissioner Gomery’s refusal to
allow Mr. Guité cross-examination. Madam Justice Tremblay-Lamer has
already found that the Commissioner’s decision was correct. My colleague even
specified, in paragraphs 42 and 98 of her decision, that the applicant’s claim
based on procedural fairness was incorrect. The applicant’s argument that he
never had the opportunity to truly “test” my colleague’s decision on appeal
does not convince me that he is therefore suffering an injustice because of the
exercise of my discretion to order the striking of paragraph 2(b)(i) of
his Notice of Application.
[14]
I
agree with the House that this case meets the three criteria for issue
estoppel: 1) the privileged nature of Mr. Guité’s testimony is the
same as that ruled on by Madam Justice Tremblay-Lamer in her April 27,
2005, decision; 2) this decision was final; and 3) the parties are the same in
this proceeding as in my colleague’s case. For the sole reason that the
principle of issue estoppel applies, the House’s motion to strike must
be granted.
[15]
At
this point, my role is not to examine the issue on the merits and determine
whether, as the applicant contends, the state of the law has changed since Vaid,
which would provide him with a rationale to debate the issue again. I believe
it is appropriate to limit my analysis to the issue of whether the principle of
issue estoppel applies in this case.
Conclusion
[16]
For
these reasons, the House of Commons’ motion to strike is granted.
ORDER
THIS COURT’S JUDGMENT
is that :
1. The motion be granted.
2. Paragraph
2(b)(i) of the applicant’s Notice of Application for judicial review dated
November 22, 2005, be struck.
“Max
M. Teitelbaum”
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