Docket: A-205-13
Citation: 2014 FCA
8
CORAM : NOËL J.A.
GAUTHIER J.A.
MAINVILLE J.A.
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BETWEEN:
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RICHARD TIMM
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Appellant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This is an appeal from an order dated May 15,
2013, of Justice de Montigny of the Federal Court (the judge), who dismissed
the appellant’s motion to appeal an order dated April 30, 2013, of Prothonotary
Morneau (the prothonotary), who allowed the motion to strike of the respondent,
Her Majesty the Queen, struck the amended statement of claim of the appellant
in Federal Court docket T-2076-11, and dismissed with costs his action in
damages.
[2]
For the reasons that follow, I would dismiss the
appeal.
Background
[3]
In 1995, after a trial by judge and jury, the
appellant was convicted of the first degree murder of his adoptive parents. The
appeal against his conviction was first dismissed in 1998 by the Quebec Court
of Appeal and dismissed again in 1999 by the Supreme Court of Canada: R. c.
Timm, [1998] R.J.Q. 3000, 131 C.C.C. (3d) 306; R. v. Timm, [1999] 3 S.C.R.
666.
[4]
On July 25, 2001, the appellant made an
application to the Minister of Justice (the Minister) under the former
section 690 of the Criminal Code, R.S.C. 1985, c. C-46, which
section was replaced in 2002 by the review mechanism for miscarriages of
justice provided in sections 696.1 to 696.6 of the Criminal Code. In
his application, the appellant submitted, among other things, that his criminal
conviction was the result of a miscarriage of justice because the Crown
prosecutor at his trial failed to disclose certain items of evidence.
[5]
On October 22, 2009, the appellant was notified
of the preliminary dismissal of his application, which dismissal was later
confirmed in a final decision of the Minister on October 21, 2010.
[6]
While his application was being dealt with and following
its dismissal, the appellant instituted multiple judicial review proceedings
raising various alleged irregularities in the consideration of his application.
The last such judicial review proceeding is Federal Court docket T-680. In the
aforementioned judicial review proceedings, the appellant submitted, among
other things, that there was bad faith on the part of the Minister’s officials who
had dealt with his application, in particular for the following reasons:
1.
Jacques Savary refused to disclose to the
appellant the recommendations of the Honourable Jean-Marc Labrosse, citing
solicitor-client privilege;
2.
eight years elapsed before the preliminary
report by Kerry Scullion and Isabel Schurman was filed;
3.
the Criminal Conviction Review Group failed to send
the appellant a copy of the investigation summary before it was submitted to
the Minister;
4.
Mr. Scullion and Ms. Schurman failed to include
the [translation] “applicant’s
defence” in that report; and
5.
in his report, the Honourable Jean-Marc Labrosse
made allegedly erroneous and misleading written recommendations regarding the
failure to hand over photographs of a roll of tape and regarding the findings
of the appellant’s chemistry expert.
[7]
On December 21, 2011, the appellant also
instituted an action in damages against the respondent, claiming at least
$75 million in compensation. His action was largely based on the
irregularities listed above that were notably at issue in his application for
judicial review in Federal Court docket T-680-11, which had not yet been
decided at that time.
[8]
On February 1, 2012, the respondent filed a
motion to dismiss the action in damages. On February 6, 2012, the
prothonotary stayed the proceedings in that action pending final judgment in
the application for judicial review made by the appellant in docket T-680-11.
Justice Bédard upheld this order of the prothonotary on February 28,
2012, except with respect to certain aspects that are not relevant to this
appeal.
[9]
In the end, Justice Harrington dismissed the
application for judicial review in docket T‑680‑11 on
May 2, 2012, for the reasons set out in the reasons for judgment bearing
the neutral citation 2012 FC 505. The appeal from that judgment was likewise
dismissed, on November 7, 2012, for the reasons set out in the reasons for
judgment bearing the neutral citation 2012 FCA 282. The Supreme Court of Canada
dismissed the application for leave to appeal on March 14, 2013 (file No. 35101).
Impugned
decisions
[10]
On April 30, 2013, the prothonotary, relying on
paragraphs 221(1)(c) and ( f) of the Federal Courts Rules,
SOR/98-106, allowed the motion to dismiss the action in damages on the basis
that, in light of the decision of Justice Harrington regarding the application
for judicial review in docket T‑680-11, the reasons for which are
cited as 2012 FC 505, the appellant’s action was without merit, was patently
unfounded, disclosed no cause of action, was frivolous and vexatious,
constituted an abuse of process and was clearly certain to fail.
[11]
The appellant appealed that decision before a
judge of the Federal Court, primarily on the grounds that the prothonotary erred
in law in failing to consider the principles laid down in Canada (A.G.) v. TeleZone
Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 (TeleZone).
[12]
The judge dismissed that appeal, primarily on
the basis that the appellant’s action in damages [translation] “was essentially based on the same grounds as
his application for judicial review” (p. 3 of the judge’s order). Of the
five main grounds on which the appellant based his action and which are set out
above, three were explicitly addressed and dismissed by Justice Harrington
in his decision regarding the application for judicial review (p. 4 of the
judge’s order). As for the other two grounds, each of them was addressed and
dismissed by the Federal Court in the numerous other proceedings instituted by
the appellant, and particularly by Justice Gauthier in an order dated
March 30, 2011, in docket T-1526-10, and by Justice Martineau in an
order dated December 16, 2009, in docket T-809-09 (pp. 4 and 5 of the
judge’s order).
[13]
The judge therefore found as follows:
[translation]
In short, the
applicant could have pursued his action despite the dismissal of his
application for judicial review if he had raised different grounds that had not
been considered in the decision dismissing his application for judicial review.
However, as shown in the preceding paragraphs, and despite the fact the he had
the opportunity to put forward such grounds, the only arguments that the
applicant raised in support of his action in damages were all rejected by this
Court in previous proceedings. Accordingly, it would be abusive to allow the
applicant to pursue his action in these circumstances, and it would not be the
best use of limited judicial resources.
Issues before
this Court
[14]
The appellant primarily argues that the judge
and the prothonotary erred in law in their decisions, (a) in that they
incorrectly applied the doctrine of res judicata in respect of decisions
concerning applications for judicial review relating to public law, so as to
bar an action in damages based on private law; and (b) because, contrary to TeleZone,
they required, as a precondition for an action in damages, that a favourable
decision concerning an application for judicial review have been rendered.
Analysis
Relevance of TeleZone
[15]
First of all, I note that the principles laid
down in TeleZone do not apply to this case. TeleZone dealt
primarily with the issue of whether the exclusive jurisdiction of the Federal
Court in respect of the judicial review of decisions by a federal board,
commission or other tribunal prevents a litigant from bringing an action in
damages against the federal Crown until the decision of such a body on which the
action would be based is quashed on an application for judicial review under
the Federal Courts Act, R.S.C. 1985, c. F-7. The Supreme Court of Canada
held that it does not on the ground that the Federal Courts Act should
be interpreted in such a way as to promote access to justice and to avoid
unnecessary costs and delays for litigants wishing to seek remedies against the
federal government.
[16]
As Justice Binnie noted at paragraph 32 of TeleZone,
“[t]he enactment of the Federal Court Act, S.C. 1970-71-72, c. 1,
and the subsequent amendments in 1990 were designed to enhance government
accountability as well as to promote access to justice. The legislation should
be interpreted in such a way as to promote those objectives”.
[17]
In his appeal, the appellant confuses the
principles laid down in TeleZone with those applicable to abuse of
process. The judge and the prothonotary did not decide that the appellant was
barred from bringing his action in damages because he had not first had the
Minister’s decision quashed. Rather, they decided that the action was an abuse
of process, given that it raised essentially the same questions of law and of
fact as those raised in the numerous applications for judicial review made by
the appellant. TeleZone is therefore of no assistance to the appellant.
Issue estoppel
[18]
The courts have developed a number of
fundamental doctrines to ensure the finality of litigation. These doctrines are
(1) issue estoppel, (2) cause of action estoppel, (3) the rule against
collateral attack and (4) abuse of process.
[19]
This appeal raises issues that involve two of
these doctrines that have been notably dealt with by the Supreme Court of
Canada, namely, issue estoppel, discussed in Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (Danyluk), and abuse
of process, discussed in Toronto (City) v. C.U.P.E., Local 79, 2003
SCC 63, [2003] 3 S.C.R. 77 (C.U.P.E.). I will first deal with issue
estoppel and then discuss abuse of process in the following section of these
reasons.
[20]
It is helpful to distinguish between the
concepts of res judicata (or cause of action estoppel) and issue
estoppel. In Erdos v. Canada (Citizenship and Immigration), 2005 FCA 419,
345 N.R. 11 at paras. 15 and 16, Justice Pelletier distinguishes the two
concepts in the following manner:
Cause of action
estoppel prevents the relitigation of the same cause of action between the same
parties. . . . Issue estoppel precludes the relitigation of the same
issue between the same parties, even though the issue arises in the context of
a different cause of action.
[21]
According to the doctrine of issue estoppel,
once the material facts and the conclusions of law or of mixed fact and law
have been necessarily (even if not explicitly) determined in earlier legal proceedings,
this determination is conclusive: Danyluk at para. 24. That said,
as Justice Dickson noted in Angle v. Minister of National Revenue,
[1975] 2 S.C.R. 248 (Angle), “[i]t will not suffice if the question
arose collaterally or incidentally in the earlier proceedings or is one which
must be inferred by argument from the judgment”.
[22]
Three conditions must be met before issue
estoppel can apply (Angle at p. 254, Danyluk at para. 25):
(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.
[23]
However, meeting these three conditions is not
enough to trigger the application of the doctrine. Indeed, an issue estoppel
analysis is conducted in two distinct steps. The first step is to determine
whether the moving party has established that the three conditions set out
above have been met: Danyluk at para. 33. If the moving party is successful
in this, the court must then determine whether it should exercise its
discretion by allowing issue estoppel to be applied: ibid.
[24]
Therefore, even if it is found that the three
conditions for issue estoppel have been met, a court may nevertheless refuse to
apply the doctrine in order to ensure that principles of fairness are adhered
to. The court’s discretion at the second step of the analysis must be exercised
with regard to the particular circumstances of each case: see Danyluk at
para. 67.
[25]
Although the doctrine of res judicata (autorité
de la chose jugée) in Quebec civil law may be similar in scope to issue
estoppel in common law, the analytical framework based on common law principles
is not necessarily entirely applicable to civil law: Boucher v. Stelco Inc.,
2005 SCC 64, [2005] 3 S.C.R. 279 at paras. 1, 30 and 32; Nasifoglu c.
Complexe St-Ambroise inc., 2005 QCCA 559 (Nasifoglu); Hanna-Harik
v. Motor Vehicle Accident Claims Fund, 172 O.A.C. 355, 228 D.L.R. (4th) 56
(C.A.) at para. 15. Indeed, as Justice Morissette remarked in Nasifoglu
at paras. 69 and 70:
[translation]
[69] This interpretation of article 2848
C.C.Q. gives res judicata (l’exception de la chose jugée) a
scope similar to that of issue estoppel in common law. However, the doctrine of
issue estoppel has a dimension that is not found in res judicata (l’autorité
de la chose jugée) under the civil law. When an exception of this type is
raised, be it on a motion to dismiss or as a defence on the merits, a court has
the discretion to reject it, even if it is clear that the same issue has
already been the subject of a judicial decision in litigation between the same
parties. A striking illustration of this is the recent judgment of the Supreme
Court of Canada in Danyluk v. Ainsworth Technologies Inc. That judgment
contains an in-depth analysis of the conditions for applying issue estoppel and
of seven of the factors that a court may consider in exercising its discretion.
[70] If it were possible to transplant this doctrine into civil
law, I am of the opinion that, in the present case, the res judicata (chose
jugée) argument would have to be rejected. Several factors favour such
a solution, including the nature of the issue decided in this case and the
order in which the two applications were made. However, as I understand it, res
judicata (l’autorité de la chose jugée) in civil law does not
allow one to limit the analysis to these considerations and to follow a line of
reasoning such as the one set forth in Danyluk.
[26]
Indeed, in Quebec, res judicata (chose jugée) is not a principle
derived from case law, but a rule codified in article 2848 of the Civil
Code of Québec, which reads as follows:
The authority of a final judgment (res judicata) is an
absolute presumption; it applies only to the object of the judgment when the
demand is based on the same cause and is between the same parties acting in the
same qualities and the thing applied for is the same.
However, a judgment deciding a class action has the authority of a
final judgment in respect of the parties and the members of the group who have
not excluded themselves therefrom.
[27]
The above-stated conditions for the application
of res judicata (chose jugée) are
different from those that must be met for issue estoppel. Moreover, in Quebec
law, res judicata (chose jugée)
is an “absolute presumption”, as is indicated in the wording of the
relevant article of the Civil Code of Québec, unlike issue estoppel,
which at the second stage of the analysis allows a court to exercise its
discretion by refusing to apply the doctrine.
[28]
Quebec courts have nevertheless developed a principle
of implied res judicata (chose jugée)
whose scope is similar to that of issue estoppel in that res
judicata (chose jugée) bars
the reconsideration of an issue on which a decision maker has already ruled: Srougi
c. Lufthansa German Airlines, [2003] R.J.Q. 1757 (C.A.) at paras. 41 to 45; Nasifoglu at paras. 12, 13, 63, and 69 to 70.
[29]
Therefore, contrary to the appellant’s
submissions, I am not satisfied that res judicata (chose jugée) does not apply in the
present case. However, there is no need to make a definitive ruling in this
regard, given that both the prothonotary and the judge rather based their
decisions on the doctrine of abuse of process.
Abuse of process
[30]
The doctrine of abuse of process is based on the
idea that a court has an inherent discretion to terminate litigation at the
preliminary stage in order to prevent abusive proceedings that bring the
administration of justice into disrepute. It is a flexible doctrine
unencumbered by the specific requirements of concepts such as issue estoppel. One
circumstance in which abuse of process has been applied is where the litigation
before the court is found to be in essence an attempt to relitigate a claim
which the court has already determined: C.U.P.E. at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 51 O.R.
(3d) 481 (C.A.) para. 55, per Goudge J.A., dissenting, approved
2002 SCC 63, [2002] 3 S.C.R. 307; see also Syndicat de professionnelles et
professionnels du gouvernement du Québec (SPGQ) c. La Boissonnière, 2013
QCCA 237 at para. 11 (La Boissonnière).
[31]
With abuse of process, the court’s primary concern
is not the technical requirement of mutuality of parties, but the more general
issue of judicial decision making as a branch of the administration of justice.
The doctrine of abuse of process is focused on the integrity of the
adjudicative process and does not take into account the parties’ interests,
their motives or their designation as plaintiff or defendant: C.U.P.E. at
paras. 43, 45 to 49 and 51.
[32]
Indeed as Justice Arbour wrote in Ontario v. O.P.S.E.U.,
2003 SCC 64, [2003] 3 S.C.R. 149 (O.P.S.E.U.), when the Court focuses its
attention on the interests of litigants and the injustices that they may suffer
if new proceedings are instituted, issue estoppel is the most appropriate
doctrine to apply. Abuse of process, on the other hand, “transcends the
interests of litigants and focuses on the integrity of the entire system”: O.P.S.E.U.
at para. 12.
[33]
That being said, there are situations where
prohibiting relitigation through the abuse of process doctrine could lead to
injustices and undermine the administration of justice rather than upholding
it. In C.U.P.E. at paras. 52 and 53, the Supreme Court of Canada
lists a number of factors that a court should consider before exercising its
discretion: “(1) when the first proceeding is tainted by fraud or dishonesty;
(2) when fresh, new evidence, previously unavailable, conclusively impeaches
the original results; or (3) when fairness dictates that the original result
should not be binding in the new context”. Furthermore, if “the stakes in the
original proceeding were too minor to generate a full and robust response,
while the subsequent stakes were considerable, fairness would dictate that the
administration of justice would be better served by permitting the second
proceeding to go forward than by insisting that finality should prevail. An
inadequate incentive to defend, the discovery of new evidence in appropriate
circumstances, or a tainted original process may all overcome the interest in
maintaining the finality of the original decision.”
[34]
The doctrine of abuse of process is applied by
the courts in Quebec civil law. In La Boissonière, a Quebec government
employee filed six complaints against his union, alleging that the union had
breached its duty of representation. The Commission des relations de travail (labour
relations board) dismissed the complaints, and an application for judicial
review of that decision was dismissed. The employee then filed five private
penal complaints. The union brought a motion to dismiss on the grounds of res
judicata, estoppel / fin de non-recevoir, issue estoppel and abuse
of process. The motion was allowed but that outcome was subsequently reversed
on appeal before the Superior Court. In its judgment on appeal from the
decision of the Superior Court, the Quebec Court of Appeal cited the paragraphs
from C.U.P.E. setting out the principles relating to the doctrine of abuse
of process and found that the situation did indeed constitute an abuse of
process, thus explicitly recognizing that this doctrine applies in Quebec.
[35]
In the present case, it is important to note
that since 2009 the appellant has instituted at least 10 proceedings
regarding his application to the Minister: Timm v. Canada (Attorney General), 2012 FC 505 at para. 3. As Justice Arbour wrote with
regard to the doctrine of abuse of process, “[a]lthough safeguards must be put
in place for the protection of the innocent, and, more generally, to ensure the
trustworthiness of court findings, continuous re-litigation is not a guarantee
of factual accuracy”: C.U.P.E. at para. 41. In the present case, the
appellant is seeking to have the courts decide the same issues over and over.
This is a repetitive use of the judicial system to which the abuse of process
doctrine can be applied.
[36]
The circumstances of this case were therefore
such as to justify the intervention of the prothonotary and the judge so as to
put an end to the appellant’s action in damages at the preliminary stage in
order to prevent an abuse of process.
[37]
As the Quebec Court of Appeal recently noted in Procureur
général du Québec c. Hinse, 2013 QCCA 1513 at para. 144, [translation] “if the victim of a
miscarriage of justice was unable to have the Minister exercise the power
provided for in sections 696.1 et seq. [of the Criminal Code] (and
others, previously) and suffered prejudice as a result, the victim may claim
compensation, but only if the Minister’s decision was tainted by bad faith,
which the victim has the burden of proving”. However, in the judgment rendered
in docket T-680-11, Justice Harrington found that there was no bad faith on the
part of the Minister’s officials. I therefore note that the issues that the
Federal Court would have to deal with in an action in damages instituted by the
appellant would essentially be identical to those that have already been
addressed and dismissed in the appellant’s applications for judicial review.
[38]
That said, it must nonetheless be considered
whether prohibiting relitigation through application of the abuse of process
doctrine could lead to injustices and undermine the administration of justice
rather than upholding it. None of the above-mentioned factors listed by Justice
Arbour in C.U.P.E. at paras. 52 and 53 suggest that applying the
abuse of process doctrine would undermine the administration of justice in the
present case.
[39]
In these circumstances, allowing the appellant
to pursue his action in damages would be a waste of judicial resources and
would constitute an abuse of process.
Conclusion
[40]
I would therefore dismiss the appeal with costs.
“Robert M. Mainville”
“I agree.
Marc Noël, J.A.”
“I agree.
Johanne Gauthier, J.A.”
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