Date: 20060824
Docket: T-2293-05
Citation: 2006
FC 1006
Ottawa, Ontario, the 24th day of August
2006
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
PIERRE
GAUDREAULT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
A
different version of facts already known to the claimant, mere afterthoughts or
the sudden realization of the consequences of acts done in the past are not
“new facts”. “New facts”, for the purpose of the reconsideration of
a decision of an umpire sought pursuant to section 86 of the Act, are facts
that either happened after the decision was rendered or had happened prior to
the decision but could not have been discovered by a claimant acting diligently
and in both cases the facts alleged must have been decisive of the issue put to
the umpire.
(Canada (Attorney General) v. Chan,
[1994] F.C.J. No. 1916 (QL), rendered on December 13, 1994, Barry
Strayer, Robert Décary and Francis McDonald JJ.A. per Décary J.A.)
Res judicata and issue estoppel apply not only to the cause
of action specifically pleaded in the prior proceeding, but to the rights,
questions or facts distinctly put in issue and directly determined by the
tribunal, though for a different cause of action. Where estoppel applies, it
forecloses any attempt to reopen the argument on the cause of action, the right
or the question decided, even if based on facts, arguments or points of law
that were not raised or might properly have been raised in the previous
proceeding (see Danyluk, supra; Procter and Gamble
Pharmaceuticals Canada Inc. v. Canada, [2004] 2 F.C. 85 (FCA); Maynard
v. Maynard, [1951] S.C.R. 346).
(As
determined by Prothonotary Mireille Tabib in Bernath v. Canada, 2005 FC
1232, [2005] F.C.J. No. 1496 (QL), at paragraph 20.)
The principles underlying the notion of abuse of
process are the same ones that gave rise to the principles of res judicata and
issue estoppel: the need to ensure the finality of litigation and avoid
repetitive proceedings, potentially inconsistent results and inconclusive
proceedings. Mr. Justice Binnie, referring to the foundations of the
estoppel rule in Danyluk, had the following to say (supra, at
paragraph 18):
The law rightly seeks a finality to litigation. To
advance that objective, it requires litigants to put their best foot forward to
establish the truth of their allegations when first called upon to do so. A
litigant, to use the vernacular, is only entitled to one bite at the cherry.
The appellant chose the ESA as her forum. She lost. An issue, once decided,
should not generally be re-litigated to the benefit of the losing party and the
harassment of the winner. A person should only be vexed once in the same cause.
Duplicative litigation, potential inconsistent results, undue costs, and
inconclusive proceedings are to be avoided.
(As determined by Prothonotary Tabib in Bernath, supra,
at paragraph 53.)
NATURE OF JUDICIAL PROCEEDING
[2]
The
proceeding at bar is an application for judicial review pursuant to section
18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, from a decision by
the Canadian Human Rights Commission (the Commission) on December 6, 2005, in
which the Commission found that it could deal with a complaint by the
complainant (the respondent) but it would not do so at that time since the
complainant had not exhausted the other remedies open to him.
FACTS
[3]
The
respondent Pierre Gaudreault, who represented himself, did not appear (despite all
the efforts made and even a telephone call from the Court): he joined the
Canadian Forces in 1990.
[4]
On January
6, 2003, Mr. Gaudreault filed an initial complaint with the Commission in which
he alleged he had been the subject of unlawful discrimination in his employment
on account of his disability, namely post-traumatic shock syndrome, contrary to
the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
[5]
Mr.
Gaudreault was notified in March 2003, while the Commission’s
investigation was under way, that he would be discharged from the Canadian
Forces. He was discharged on May 12, 2004.
[6]
On July
18, 2004, the Commission investigator filed his investigation report and
recommended that the Commission dismiss Mr. Gaudreault’s complaint on the
ground that the evidence did not support his allegations.
[7]
On November 2, 2004, the Commission dismissed Mr.
Gaudreault’s initial complaint because the evidence did not support his
allegation that he had been the subject of different treatment on account of
his disability.
[8]
On December
2, 2004, as appears from docket T-2157-04 of this Court, Mr. Gaudreault filed
an application for judicial review of that decision.
[9]
On January 20, 2005, the Attorney General of
Canada filed in opposition to Mr. Gaudreault’s application for judicial review
a motion to dismiss and to vary the name of the respondent, which was allowed
by a decision by Prothonotary Richard Morneau on March 1, 2005.
[10]
On March 9, 2005, Mr. Gaudreault filed a
motion appealing the decision of Prothonotary Morneau, and then discontinued it
completely on April 4, 2005.
[11]
On June 26, 2005, Mr. Gaudreault filed a
second complaint with the Commission.
[12]
On July
28, 2005, the Attorney General of Canada, in a letter signed by
Lt. Col. Mary L. Romanow on behalf of Col. C.M. Fletcher,
sent the Commission its arguments to the effect that this second complaint
should be dismissed as it raised no facts which had not been drawn or could not
have been drawn to the Commission’s attention at the time of the investigation
into the first complaint, and the matter was thus res judicata.
[13]
Without
responding to this preliminary argument, the Commission rendered the decision
which is the subject of the application for judicial review at bar.
[14]
By letter
dated May 4, 2006, the Commission notified the Canadian Forces that the matter
had been referred to the Québec regional office and that Louise Charbonneau had
been designated to investigate Mr. Gaudreault’s second complaint. Shortly
afterwards, the Commission notified the parties that it was suspending its investigation
until this Court made a decision on the application for judicial review.
[15]
On the
other hand, in a letter dated June
20, 2006, the
Commission informed the Attorney General of Canada that Mr. Gaudreault’s second
complaint would be handled by the Alberta
regional office and that Pascale Lagacé had been designated as investigator in
the matter.
[16]
On July
14, 2006, the Attorney General of Canada filed a motion in this Court to stay
the proceeding before the Commission until this Court had ruled on the
application for judicial review. This motion was allowed by Luc Martineau J. on
August 9, 2006. (Mr. Gaudreault was also not
present at this stage of the proceeding.)
IMPUGNED DECISION
[17]
The
Commission found that it could deal with Mr. Gaudreault’s complaint since under
subsection 41(1) of the Act he had contacted the Commission before the deadline
specified in the Act expired.
[18]
At the
same time, it also decided it could not deal with the complaint at that time
since under the same Act Mr. Gaudreault had not exhausted the other grievance or
review procedures available to him. The Commission reserved the right to deal
with the complaint at a later date when these proceedings were concluded or
when they were no longer available to Mr. Gaudreault.
ISSUE
[19]
There is
only one issue in the application for judicial review at bar:
1. Did the Commission err in
agreeing to rule on the second complaint filed by Mr. Gaudreault when it
had dismissed the initial complaint dealing with the same facts for lack of
evidence, which means that the res judicata rule applies to the second
complaint?
ANALYSIS
Legislative background
[20]
Subsection
3(1) of the Act sets out the grounds of unlawful discrimination, which include
disability:
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3. (1) For all purposes
of this Act, the prohibited grounds of discrimination are race, national or
ethnic origin, colour, religion, age, sex, sexual orientation, marital
status, family status, disability and conviction for which a pardon has been
granted.
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3. (1) Pour l’application
de la présente loi, les motifs de distinction illicite sont ceux qui sont
fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion,
l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de
famille, l’état de personne graciée ou la déficience.
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[21]
Under section
7 of the Act, refusing to employ or continue to employ an individual or
differentiating adversely in relation to an employee constitutes discrimination
when it is based on a ground prohibited in subsection 3(1) of the Act:
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7. It is a discriminatory
practice, directly or indirectly,
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7. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
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(a) to refuse to employ or
continue to employ any individual, or
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a) de refuser d’employer ou de continuer
d’employer un individu;
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(b) in the course of employment,
to differentiate adversely in relation to an employee,
on
a prohibited ground of discrimination.
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b) de le défavoriser en cours d’emploi.
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[22]
Subsection
40(1) of the Act explains who may file a complaint with the Commission:
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40. (1) Subject to
subsections (5) and (7), any individual or group of individuals having
reasonable grounds for believing that a person is engaging or has engaged in
a discriminatory practice may file with the Commission a complaint in a form
acceptable to the Commission.
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40. (1) Sous réserve des
paragraphes (5) et (7), un individu ou un groupe d’individus ayant des
motifs raisonnables de croire qu’une personne a commis un acte
discriminatoire peut déposer une plainte devant la Commission en la forme
acceptable pour cette dernière.
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[23]
Subsection
41(1) of the Act explains the grounds on which a complaint is inadmissible,
including the grounds for which the Commission must refuse to deal with a
complaint. Paragraph 41(1)(a) discusses grievance or review
procedures which must be exhausted before a complaint is filed with the
Commission, while paragraph 41(1)(e) deals with the one-year deadline
after the last of the acts on which the complaint is based occurred:
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41. (1) Subject to
section 40, the Commission shall deal with any complaint filed with it
unless in respect of that complaint it appears to the Commission that
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41. (1) Sous réserve de
l’article 40, la Commission statue sur toute plainte dont elle est
saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs
suivants :
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(a) the alleged victim of the
discriminatory practice to which the complaint relates ought to exhaust grievance
or review procedures otherwise reasonably available;
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a) la victime présumée de l’acte
discriminatoire devrait épuiser d’abord les recours internes ou les
procédures d’appel ou de règlement des griefs qui lui sont normalement
ouverts;
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(b) the complaint is one that
could more appropriately be dealt with, initially or completely, according to
a procedure provided for under an Act of Parliament other than this Act;
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b) la plainte pourrait avantageusement
être instruite, dans un premier temps ou à toutes les étapes, selon des
procédures prévues par une autre loi fédérale;
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(c) the complaint is beyond the
jurisdiction of the Commission;
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c) la plainte n’est pas de sa
compétence;
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(d) the complaint is trivial,
frivolous, vexatious or made in bad faith; or
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d) la plainte est frivole, vexatoire ou
entachée de mauvaise foi;
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(e) the complaint is based on
acts or omissions the last of which occurred more than one year, or such
longer period of time as the Commission considers appropriate in the circumstances,
before receipt of the complaint.
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e) la plainte a été déposée après
l’expiration d’un délai après le dernier des faits sur lesquels elle est
fondée, ou de tout délai supérieur que la Commission estime indiqué dans les
circonstances.
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[24]
Under subsection
42(1) of the Act, the Commission must give reasons for its decision in writing
when it decides that a complaint is inadmissible on the grounds mentioned in
subsection 41(1):
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42. (1) Subject to
subsection (2), when the Commission decides not to deal with a
complaint, it shall send a written notice of its decision to the complainant
setting out the reason for its decision.
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42. (1) Sous réserve du
paragraphe (2), la Commission motive par écrit sa décision auprès du
plaignant dans les cas où elle décide que la plainte est irrecevable.
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(2) Before deciding that a complaint
will not be dealt with because a procedure referred to in paragraph 41(a)
has not been exhausted, the Commission shall satisfy itself that the failure
to exhaust the procedure was attributable to the complainant and not to
another.
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(2) Avant de décider qu’une plainte est
irrecevable pour le motif que les recours ou procédures mentionnés à
l’alinéa 41 a) n’ont pas été épuisées, la Commission s’assure que
le défaut est exclusivement imputable au plaignant.
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[25]
Subsection
43(1) of the Act authorizes the Commission to designate a person to investigate
a complaint:
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43. (1) The Commission may
designate a person, in this Part referred to as an “investigator”, to
investigate a complaint.
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43. (1) La Commission peut charger
une personne, appelée, dans la présente loi, « l’enquêteur »,
d’enquêter sur une plainte.
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[26]
Section 44
of the Act sets out the options available to the Commission when the
investigator files his or her investigation report once it is complete:
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44. (1) An investigator
shall, as soon as possible after the conclusion of an investigation, submit
to the Commission a report of the findings of the investigation.
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44. (1) L’enquêteur
présente son rapport à la Commission le plus tôt possible après la fin de
l’enquête.
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(2) If, on receipt of a report referred
to in subsection (1), the Commission is satisfied
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(2) La Commission renvoie le plaignant
à l’autorité compétente dans les cas où, sur réception du rapport, elle est
convaincue, selon le cas :
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(a) that the complainant ought
to exhaust grievance or review procedures otherwise reasonably available, or
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a) que le plaignant devrait épuiser les
recours internes ou les procédures d’appel ou de règlement des griefs qui lui
sont normalement ouverts;
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(b) that the complaint could
more appropriately be dealt with, initially or completely, by means of a
procedure provided for under an Act of Parliament other than this Act,
it
shall refer the complainant to the appropriate authority.
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b) que la plainte pourrait
avantageusement être instruite, dans un premier temps ou à toutes les étapes,
selon des procédures prévues par une autre loi fédérale.
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(3) On receipt of a report referred to
in subsection 9(1), the Commission
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(3) Sur réception du rapport d’enquête
prévu au paragraphe (1), la Commission :
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(a) may request the Chairperson
of the Tribunal to institute an inquiry under section 49 into the
complaint to which the report relates if the Commission is satisfied
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a) peut demander au président du
Tribunal de désigner, en application de l’article 49, un membre pour
instruire la plainte visée par le rapport, si elle est convaincue :
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(i)
that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is warranted, and
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(i)
d’une
part, que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci est justifié,
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(ii)
that the
complaint to which the report relates should not be referred pursuant to
subsection (2) or dismissed on any ground mentioned in paragraphs 41(c)
to (e); or
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(ii)
d’autre
part, qu’il n’y a pas lieu de renvoyer la plainte en application du
paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
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(b) shall dismiss the complaint
to which the report relates if it is satisfied
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b) rejette la plainte, si elle est
convaincue :
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(i)
that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is not warranted, or
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(i)
soit
que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci n’est pas justifié,
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(ii)
that the
complaint should be dismissed on any ground mentioned in paragraphs 41(c)
to (e).
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(ii)
soit que
la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c)
à e).
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(4) After receipt of a report referred
to in subsection (1), the Commission
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(4) Après réception du
rapport, la Commission :
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(a) shall notify in writing the
complainant and the person against whom the complaint was made of its action
under subsection (2) or (3); and
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a) informe par écrit les parties à la
plainte de la décision qu’elle a prise en vertu des paragraphes (2) ou
(3);
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(b) may, in such manner as it
sees fit, notify any other person whom it considers necessary to notify of
its action under subsection (2) or (3).
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b) peut informer toute autre personne,
de la manière qu’elle juge indiquée, de la décision qu’elle a prise en vertu
des paragraphes (2) ou (3).
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[27]
Section 64
of the Act states the following:
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64. For the purposes of
this Part and Parts I and II, members of the Canadian Forces and the
Royal Canadian Mounted Police are deemed to be employed by the Crown.
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64. Pour l’application de
la présente partie et des parties I et II, les personnels des Forces
canadiennes et de la Gendarmerie royale du Canada sont réputés être employés
par la Couronne.
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Standard of review
[28]
The issue
in the case at bar is one of law. The Court must determine whether the
Commission had jurisdiction over the complaint in question, since if the res
judicata rule applies to the second complaint the Commission did not in
fact have jurisdiction to deal with the complaint and erred in agreeing to do
so. Accordingly, the applicable standard of review is that of correctness (Pushpanathan
v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] F.C.J. No. 46
(QL), at paragraph 28; Haji v. Canada (Minister of Citizenship and Immigration),
2003 FCTD 528, [2003] F.C.J.
No. 682 (QL), at paragraph 7).
Preliminary comments: limitation
period applicable to second complaint
[29]
Paragraph
41(1)(e) of the Act provides that the Commission may not deal with a
complaint when it is based on acts or omissions the last of which occurred more
than one year, or such longer period of time as the Commission considers
appropriate in the circumstances, before receipt of the complaint.
[30]
The
Commission indicated that the second complaint was filed on May 3, 2005, but amended
and filed on June
26, 2005. The
last act relied on by Mr. Gaudreault was his discharge from the Canadian Forces
on May 12, 2004. Accordingly, there was over a year before the complete
complaint was filed. Nevertheless, the Commission agreed to deal with the
complaint since Mr. Gaudreault had contacted it before the deadline set in
the Act expired.
[31]
The
Attorney General of Canada argued that mere contact with the Commission does
not meet the requirements of paragraph 41(1)(e) of the Act and the
Commission accordingly agreed to hear a complaint barred by limitation.
[32]
However,
not only did Mr. Gaudreault contact the Commission before the deadline expired
but he first filed his second complaint on May 3, 2005, which is before the deadline
expired. He then made alterations to his complaint and filed the completed
complaint after the deadline expired.
[33]
It is
clear that the Commission considered this deadline to be reasonable and
acceptable in the circumstances and agreed to hear the complaint despite the
delay, though it had not allowed any official extension for filing the
complaint. This is not contrary to the wording of paragraph 41(1)(e)
of the Act.
Res
judicata
rule
[34]
The acts
relied on in the complaint dated May 3, 2005, and filed on June 26, 2005, are
not new facts or facts which could not have been brought to the Commission’s
attention in the investigation into the initial complaint.
[35]
As appears
from Mr. Gaudreault’s complaints, the acts involved in the first complaint
occurred between March 2002 and June 6, 2003, the date of the complaint. On
that date Mr. Gaudreault had already been notified that he would shortly be
discharged from the Canadian Forces. However, his complaint did not relate
directly to his discharge, although he said he disagreed with his discharge
from the Canadian Forces.
[36]
The
investigator’s report was filed on July 18, 2004, at which date Mr. Gaudreault
had already been discharged from the Canadian Forces.
[37]
As appears
from the Commission’s file, Mr. Gaudreault, who at that time was represented by
counsel, filed no further application for an investigation or application to
amend his complaint.
[38]
On
November 2, 2004, the Commission dismissed this initial complaint for lack of
evidence.
[39]
On June
26, 2005, Mr. Gaudreault filed a second complaint dated May 3, 2005, for acts
which, according to the wording of his complaint, occurred between 2003 and the
date of the second complaint, although he was discharged on May 12, 2004.
[40]
None of
the acts alleged in this second complaint is a new fact or even a fact that was
unknown to Mr. Gaudreault at the time of the investigation into his initial
complaint. For facts to be described as new they must have occurred after the
decision was rendered or before if they could not have been discovered by a
claimant acting diligently, and in both cases the new facts must have been
decisive of the issue.
[41]
Res
judicata
applies not only to decisions of the courts but also to decisions of
administrative bodies and tribunals (Danyluk v. Ainsworth Technologies Inc.,
[2001] 2 S.C.R. 460, 2001 SCC 44, [2001] S.C.J. No. 46
(QL), at paragraph 36; Bernath, supra, at paragraph 19; Canada
(Canadian Human Rights Commission) v. Canada Post Corporation (F.C.), 2004 FC
81, [2004] 2 F.C.R. 581, [2004] F.C.J. No. 439 (QL), at paragraph 37).
[42]
As
determined by Prothonotary Mireille Tabib in Bernath, supra, at
paragraph 20:
A different version of facts already known to the
claimant, mere afterthoughts or the sudden realization of the consequences of
acts done in the past are not “new facts”. “New facts”, for the
purpose of the reconsideration of a decision of an umpire sought pursuant to
section 86 of the Act, are facts that either happened after the decision was
rendered or had happened prior to the decision but could not have been
discovered by a claimant acting diligently and in both cases the facts alleged
must have been decisive of the issue put to the umpire. (see Danyluk, supra;
Procter and Gamble Pharmaceuticals Canada Inc. v. Canada, [2004] 2 F.C.
85 (FCA); Maynard v. Maynard, [1951] S.C.R. 346).
[43]
Thus,
after deciding that Mr. Gaudreault’s complaint was without foundation, the
Commission could not agree to hear his second complaint based on facts which
occurred even before its decision on the initial complaint.
[44]
Following
receipt of the Commission’s first decision dated November 2, 2004, dismissing
Mr. Gaudreault’s complaint, Mr. Gaudreault’s former counsel, in a letter dated July 29, 2004, asked the Commission for
leave to file additional documents and tape recordings, which were allegedly in
Mr. Gaudreault’s possession at the time of the investigation.
[45]
A party
may not by the filing of a second complaint seek to complete evidence or to
correct deficiencies identified in the first decision: this would certainly
constitute an abuse of process. In the case at bar, Mr. Gaudreault tried to put
before the Commission tape recordings which were apparently in his possession
at the time of the investigation into his initial complaint but which, for
reasons known only to himself, he did not see fit to file.
[46]
As Prothonotary
Tabib ruled in Bernath, supra, at paragraph 53:
The principles underlying the notion of abuse of
process are the same ones that gave rise to the principles of res judicata and
issue estoppel: the need to ensure the finality of litigation and avoid
repetitive proceedings, potentially inconsistent results and inconclusive
proceedings. Mr. Justice Binnie, referring to the foundations of the
estoppel rule in Danyluk, had the following to say (supra, at
paragraph 18):
The law rightly seeks a finality to litigation. To
advance that objective, it requires litigants to put their best foot forward to
establish the truth of their allegations when first called upon to do so. A
litigant, to use the vernacular, is only entitled to one bite at the cherry.
The appellant chose the ESA as her forum. She lost. An issue, once decided,
should not generally be re-litigated to the benefit of the losing party and the
harassment of the winner. A person should only be vexed once in the same cause.
Duplicative litigation, potential inconsistent results, undue costs, and
inconclusive proceedings are to be avoided.
[47]
A party
cannot make the same claim ad infinitum as this would be a wrongful use
of the courts (Canada (Attorney General) v. Canada (Canadian Human Rights
Commission), [1991] F.C.J. No. 334 (QL); Kaloti v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1281 (QL), at
paragraph 12, aff. by the Federal Court of Appeal in Kaloti v. Canada (Minister
of Citizenship and Immigration), [2000] 3 F.C. 390 (C.A.), [2000] F.C.J.
No. 365 (QL); O’Brien v. Canada (Attorney General), [1993] F.C.J. No.
333 (F.C.A.) (QL)).
CONCLUSION
[48]
By hearing
a complaint which it had initially dismissed, the Commission was sanctioning an
abuse of process. By hearing a complaint with which it had already dealt, the
Commission acted without jurisdiction and rendered a decision that was wrong in
law.
[49]
By his
letters of July 28 and November
9, 2005, Col.
C.M. Fletcher raised a preliminary objection and, citing the res judicata
rule, asked that Mr. Gaudreault’s second complaint be dismissed.
[50]
The
Commission never ruled on this preliminary objection whether on an
interlocutory basis or at the conclusion of its decision of December 6, 2005,
simply rendering the decision which is the subject of the application for
judicial review at bar.
[51]
By failing
to dispose of the preliminary objection made by the Attorney General of Canada,
the Commission acted without jurisdiction or refused to exercise its
jurisdiction, which is a ground for judicial review as such under subsection
18.1(4) of the Federal Courts Act.
[52]
This
application for judicial review is allowed. The Commission’s decision is
quashed based on the authority of res judicata.
JUDGMENT
THE COURT ORDERS that
(1) The application for judicial review is allowed;
(2) The
Commission’s decision dated December
6, 2005 is
quashed based on the authority of res judicata;
(3) Without costs.
“Michel M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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