Docket: T-1419-16
Citation:
2017 FC 1068
[ENGLISH
TRANSLATION]
Ottawa, Ontario, November 24, 2017
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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EVEDA NOSISTEL
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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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ORDER AND REASONS
[1]
This is a motion by the applicant to appeal a
decision by Prothonotary Richard Moreau dated October 11, 2017. Prothonotary Morneau
dismissed the applicant’s motion:
[TRANSLATION]
…essentially pursuant to rule 58 of the Federal
Courts Rules [the Rules] so that the Court can sanction, according to the
applicant’s views, irregularities and misconduct [irregularities, collectively]
that the respondent allegedly committed in the context of this case.
[2]
The applicant is also seeking:
- To declare the
existence of said irregularities, including the breach of rules 58, 307,
and 317, breach of section 8 of the Privacy Act, RSC 1985,
c. P-21 [the PA] and non-compliance with Public Works and Government
Services Canada’s directive on the handling of protected information [Directives]
relating to the transfer and filing of the certified tribunal record in
this case, as well as to an alleged fraudulent representation before the
Canadian Human Rights Commission [CHRC];
- To order the
withdrawal of various documents from the Court record for reasons of
confidentiality;
- To set aside the
costs of $200.00 awarded to the respondent by Prothonotary Moreau;
- To authorize the
filing of an additional affidavit that refers to the alleged
irregularities;
- In the
alternative, that this application for judicial review be heard
simultaneously with the application for judicial review in docket no. T-536-17;
and
- To extend the
deadline to serve and file this motion.
[3]
The standard of review applicable to a decision
made by a prothonotary is set out in Hospira Healthcare Corporation v The Kennedy
Institute of Rheumatology, 2016 FCA 215. A question of fact or a question
of mixed fact and law is reviewable on the palpable and overriding error
standard of review: Housen v Nikolaisen, 2002 SCC 33 at para 37.
I.
Case history
[4]
The applicant commenced this case by filing a
notice of application on August 25, 2015, regarding certain alleged
incidents in the context of her employment with Correctional Service Canada
(CSC), and other related events.
[5]
The respondent filed the first of two motions to
dismiss this application on November 10, 2016. This first motion was
dismissed by Justice Yvan Roy on January 31, 2017, who found that the
decisions in question were subject to judicial review.
[6]
This decision was followed by a second motion by
the respondent to dismiss this application, filed on March 8, 2017. The
second motion was similarly dismissed for the same reasons raised in the
context of the first attempt to expunge the application, this time by Justice
René LeBlanc, on April 11, 2017. This second decision included an award of
costs of $750.00 in favour of the applicant.
[7]
On August 25, 2017, the applicant filed the
motion that led to the decision by Prothonotary Moreau on October 11,
2017. This motion referred to several of the remedies that are the subject of
this petition. The Prothonotary found:
- That there was
no breach of rules 58, 307, or 318, or of the PA or the Directives, by
transferring the certified tribunal record in this case;
- That CSC did not
seek to mislead the CHRC;
- That in the name
of legal transparency and administration of justice in general, the
documents identified by the applicant should not be removed from the Court
record;
- That costs of
$750.00 awarded against the respondent were not payable immediately.
[8]
Prothonotary Morneau dismissed the applicant’s
motion, including the right to file an additional affidavit, with costs of
$200.00.
II.
Preliminary comment
[9]
The applicant notes that she is representing
herself and seeks the indulgence of the Court because of her uncertainty
regarding proper process. The Court is sensitive to her situation; however, the
burden of proof in this motion remains on the applicant.
III.
Issue: Extension of time
[10]
Since the requested extension is minimal, and
the respondent does not object, I allow this extension.
IV.
Issue: Irregularities
[11]
The applicant objects that the documents
disclosed under rule 318 include personal information. She submits that these
documents were already in her possession and that they are irrelevant to this
case because they relate to a harassment complaint against four CSC employees,
while the subject of the application for judicial review is to challenge the
process followed in the final investigation report.
[12]
The applicant also objects to the fact that the
CSC interfered and misled the CHRC by stating that this Court had ordered the
applicant’s grievances to be dealt with.
[13]
The Prothonotary explained why he did not see
any irregularities, and I am not satisfied that he committed a palpable and
overriding error in arriving at this conclusion.
[14]
With respect to the respondent’s manoeuvers
regarding the filing of both motions to dismiss this application, the consequences
were already addressed in the decisions made by Roy and Leblanc JJ. Roy J. decided
not to award costs, while Leblanc J. awarded costs of $750.00 to the applicant.
[15]
With respect to the respondent’s motion in docket
T‑536‑17 around May 2017, the consequences, if any, should have
been addressed in the decision on the motion.
V.
Issue: Removal of documents
[16]
As with the allegations of irregularities, the
applicant did not satisfy me that the Prothonotary committed a palpable and
overriding error by finding that the documents in question should not be
removed from the Court record. The fact that the respondent did not oppose this
removal is not determinative.
VI.
Issue: Costs
[17]
In light of the above reasons, there is no
reason to set aside the costs of $200.00 against the applicant in the context
of Prothonotary Morneau’s decision.
VII.
Issue: Additional affidavit
[18]
The applicant provided few details regarding the
content of the additional affidavit that she would like to file. It appears to
me that this affidavit would relate in part to the respondent’s actions before
this Court that allegedly occurred after applicant’s evidence had been filed
and that would have been prejudicial to her.
[19]
The Prothonotary’s finding was that the
applicant has in no way substantiated a situation that meets the conditions of rule
312 to obtain permission to file an additional affidavit. In light of the above
reasons, I find that the Prothonotary did not commit any error in this respect.
There is no reason to change his finding.
VIII.
Issue: Hearing in this file at the same time as T-536-17
[20]
Despite the applicant’s request that the hearing
in this case take place simultaneously with docket T-536-17, and despite no
objection by the respondent, unless the respondent gives explicit consent, I find
that I should not allow this request. This application is ready for the
hearing, with a requisition for hearing being filed on July 18, 2017.
However, docket T-536-17 is far from being ready for a hearing. Furthermore, I
am not satisfied that there is a significant lack of effectiveness if these two
applications take place separately.
IX.
Conclusion
[21]
This motion should be dismissed with costs of $550.00
awarded to the respondent.
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