Date: 20041029
Docket: T-1890-02
Citation: 2004 FC 1524
Ottawa, Ontario, the 29th day of October 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MICHEL LALIBERTÉ,
CORRECTIONS OFFICER
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN
Applicant
(Defendant)
REASONS FOR ORDER AND ORDER
[1] This is a motion by the defendant asking the Court to strike the plaintiff's statement of claim, or alternatively to stay the proceeding until all the appeals have been exhausted in the case of Ms. Galarneau (T-2414-03).
POINT AT ISSUE
[2] Should the Court allow the motion to strike or the motion to stay the proceeding?
[3] For the following reasons, I feel it would be better to stay the motion to strike and allow the motion to stay the proceeding.
FACTUAL BACKGROUND
[4] The plaintiff is a corrections officer who has worked in a medium security institution located at Drummond since 1995. That institution is operated by the Correctional Service of Canada: Corrections and Conditional Release Act, S.C. 1992, c. 20.
[5] On November 12, 2002 the plaintiff filed an action against Her Majesty the Queen for damages. He said he had been exposed to secondary cigarette smoke on his work shifts.
[6] On December 19, 2003 Ms. Galarneau brought a class action for the same reasons in case T-2414-03.
[7] On January 26, 2004 the Attorney General of Canada and the Correctional Service of Canada, defendants in case T-2414-03, filed a motion to dismiss the action on the grounds that the Federal Court did not have the necessary jurisdiction and the plaintiff had not exhausted her remedies.
[8] On February 25, 2004 Prothonotary Morneau dismissed a motion in the case at bar in which the defendant sought a stay until a final decision was made on the motion to strike filed in case T-2414-03.
[9] The reasons of Prothonotary Morneau are the following:
This is motion by the defendant for a stay of proceedings pending a final decision on the Attorney General of Canada's motion to strike the statement of claim in Galarneau v. Attorney General of Canada and Correctional Service of Canada, docket T-2414-03. Without costs.
. . . . .
For the following reasons, the defendant's motion to stay the proceedings is dismissed, with costs in the cause.
It appears that the stay being sought has been proposed at this time only because of a motion to strike that the Crown is seeking to introduce in a recently opened file, i.e. a class action planned by Hélène Galarneau, docket T-2414-03. The date for the motion to strike in Hélène Galarneau's case has not yet been set and the final outcome of this motion is even less certain. On the other hand, the hearing on the merits in the present case is ready to be scheduled and, indeed, is hereby scheduled for October 25, 2004, for four days, in French, before this Court at 30 McGill Street, in Montréal. The stay now being sought by the Crown must be regarded as an intermediate step, with the view, ultimately, to having the claim struck in the case at bar. If, in a timely manner, before the hearing on the merits in this case, the Crown has a final decision on its motion to strike in the Hélène Galarneau case, T-2414-03, the Crown may apply for summary judgment or to have the action struck against the plaintiff, if the circumstances and the interests of justice then so warrant.
[10] On May 18, 2004 the prothonotary allowed the motion to strike the statement of claim in the plaintiff's action in docket T-2414-03. However, Ms. Galarneau is now appealing to this Court.
[11] On July 7, 2004, the defendant filed the motion at bar.
[12] So far, docket T-2414-03 has been under advisement.
ANALYSIS
[13] Paragraph 221(1)(a) of the Federal Court Rules (1998) states:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
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221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
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| (a) discloses no reasonable cause of action or defence, as the case may be . . .
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a) qu'il ne révèle aucune cause d'action ou de défense valable . . .
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[14] On the motion to strike, I consider that this motion ought not to be dealt with at this stage. A motion to strike has already been filed in a very similar case, docket T-2414-03. The order to strike granted by Prothonotary Morneau has been appealed and the Federal Court's judgment on this matter has not yet been rendered. Consequently, it would be better for the parties if the instant motion to strike were stayed in order to avoid additional costs and the hardships of an appeal. This also has the benefit of avoiding the possibility of contradictory decisions.
[15] In light of the foregoing, it only remains for the Court to consider whether the motion to stay the proceeding should be granted. The motion to stay filed in Galarneau (T-2414-03) challenges the Federal Court's jurisdiction. In this regard, section 50 of the Federal Courts Act (FCA) provides that:
| 50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
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50. (1) La Cour d'appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
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| (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
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a) au motif que la demande est en instance devant un autre tribunal;
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| (b) where for any other reason it is in the interest of justice that the proceedings be stayed.
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b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
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[16] Dealing with this point in WIC Premium Television Ltd. v. General Instrument Corp., [1999] F.C.J. No. 862 (T.D.) (QL), paragraph 12, the Federal Court interpreted this section and the following criteria were adopted: "risk of inconsistent finding, excessive costs in duplication of effort".
[17] A stay of proceedings should only be granted in the most obvious cases (Compulife Software Inc. v. Compuoffice Software Inc., [1997] F.C.J. 1772 (T.D.) (QL), paragraphs 15 and 16):
It is well established that a stay of proceedings should not be granted unless it can be shown that (1) the continuation of the action would cause prejudice or injustice, not merely inconvenience or additional expense, to the defendant, and (2) that the stay would not be unjust to the plaintiff. The onus is on the party requesting the stay to prove that these conditions exist: Discreet Logic Inc. v. Canada (Registrar of Copyrights) (1993), 51 C.P.R. (3d) 191 (F.C.T.D.) at 191 . . .
The Court will exercise its discretion to grant a stay, under s. 50(1) of the Federal Court Act, only in the clearest of cases. In consideration of whether granting a stay would be unjust to the plaintiff or applicant, this Court will be reluctant to interfere with any right of access, unless there is a risk of imminent adjudication in two different forums: Canadian Olympic Association v. Olympic Life Publishing Ltd. (1986), 8 C.P.R. (3d) 405 (F.C.T.D.) at 407-408; Discreet Logic, supra [and Association of Parents Support Groups v. York (1987), 14 C.P.R. (3d) 263 (F.C.T.D.)]. (Emphasis added.)
[18] I consider that the point at issue is the same here as in docket T-2414-03. This conclusion is supported by Marie Marmet's affidavit. It is also confirmed by the order of Prothonotary Morneau on August 22, 2003:
[TRANSLATION]
1.1. Can the plaintiff, by the combined effect of section 17 of the Federal Courts Act and subparagraph 3(a)(i) of the Crown Liability and Proceedings Act, bring the action at bar in extra-contractual civil liability, in view of the fact that he has other available remedies to assert his claims, which are exclusively concerned with his terms of employment as a corrections officer, namely:
(a) a right to file a grievance under section 91 of the Public Service Staff Relations Act and his collective agreement;
(b) a right to file a complaint under Part II of the Canada Labour Code;
(c) a right to file a complaint under the Non-Smokers' Health Act;
(d) the right to file a claim for corporeal damage, including psychological damage, pursuant to the Government Employees Compensation Act.
[19] The facts of the two cases are clearly similar. In both cases, there was a claim for damages by corrections officers alleging exposure to second-hand smoke on their work shifts. In one case the action is by an individual and the other is a class action.
[20] The respondent argued that allowing the stay would cause him serious hardship. In his submission, he states that this motion should have been filed much earlier, and he added that he has been preparing for his trial for a long time. However, in his memorandum, he submitted that ultimately he would prefer a stay to striking out.
[21] He also said that an initial motion was already dismissed by Prothonotary Morneau on February 25, 2004 and he did not understand why another motion of the same type was now up for discussion.
[22] However, in dismissing the motion to stay proceedings in the case at bar on February 25, 2004 Prothonotary Morneau stated:
The stay now being sought by the Crown must be regarded as an intermediate step, with the view, ultimately, to having the claim struck in the case at bar. If, in a timely manner, before the hearing on the merits in this case, the Crown has a final decision on its motion to strike in the Hélène Galarneau case, T-2414-03, the Crown may apply for summary judgment or to have the action struck against the plaintiff, if the circumstances and the interests of justice then so warrant.
To date no final decision has been made, but the defendant nevertheless filed a motion to strike, and alternatively a motion for a stay.
[23] In view of the parties' arguments, I consider it would be better to stay the action at bar until a final decision is made in docket T-2414-03. The best interests of the parties and the administration of justice would be better served by doing this. For example,
(1) contradictory decisions or conclusions could be avoided;
(2) additional costs would be saved;
(3) judicial resources would be better used.
[24] In arriving at this conclusion, I have taken into account the hardship or injustice which the respondent may suffer, but with respect for the contrary view I feel that the balance of convenience is in the applicant's favour (Swift v. Canada, 2001 FCT 1388, [2001] F.C.J. No. 1909 (F.C.T.D.) (QL)).
[25] For the foregoing reasons, the Court allows the motion to stay the proceedings and stays both the plaintiff's action and the motion to strike until a final decision is made in docket T-2414-03. When the final decision is known the parties may, if they see fit, ask the Judicial Administrator for a priority date to dispose of the remaining issues. However, I will not retain jurisdiction over the case at bar.
ORDER
THE COURT ORDERS THAT:
1. the motion to stay the proceeding is allowed;
2. the plaintiff's action and the motion to strike are stayed until a final decision is rendered in docket T-2414-03; when the final decision is known the parties may, if they see fit, ask the Judicial Administrator for a priority date to dispose of the remaining issues; however, I will not retain jurisdiction over the case at bar;
3. costs in the cause.
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"Michel Beaudry"
Judge
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Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1890-02
STYLE OF CAUSE: MICHEL LALIBERTÉ, CORRECTIONS OFFICER
and
HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 25, 2004
REASONS FOR ORDER
AND ORDER BY: BEAUDRY J.
DATE OF REASONS
AND ORDER: October 29, 2004
APPEARANCES:
Michel Laliberté FOR THE PLAINTIFF
(for himself)
Marc Ribeiro FOR THE DEFENDANT
Marie Marmet
SOLICITORS OF RECORD:
Michel Laliberté FOR THE PLAINTIFF
Drummondville, Quebec
(for himself)
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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