Date: 20010301
Docket: T-2279-00
Neutral reference: 2001 FCT 135
MONTRÉAL, QUEBEC, MARCH 1, 2001
BEFORE: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
MARIO BUTTINO
Plaintiff
AND
THE ATTORNEY GENERAL OF CANADA
Defendant
Motion by the defendant for an order dismissing with costs the plaintiff's action alleging want of jurisdiction in the Trial Division of the Federal Court of Canada to hear the plaintiff's action on the merits and because it disclosed no cause of action.
[Rules 208(d), 221(a) and (b) and 359 et seq.
of the Federal Court Rules (1998)]
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
Facts
[1] The plaintiff filed an action for damages against the defendant in the Registry of this Court on December 7, 2000.
[2] The following facts emerged from the plaintiff's statement of claim and are taken as proven.
[3] The plaintiff has claimed unemployment insurance benefits on various occasions (paragraph 2 of the plaintiff's statement of claim).
[4] In the course of an investigation the Commission learned, by obtaining data taken from information collected by Customs, that the plaintiff had left Canada while he was receiving benefits (paragraph 3 of the plaintiff's statement of claim).
[5] The Commission accordingly summoned the plaintiff to an interview (paragraph 5 of the plaintiff's statement of claim).
[6] Based on the information obtained the Commission on December 4, 1997 rendered decisions to the effect that pursuant to ss. 32 and 43 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, repealed and replaced by the Employment Insurance Act, S.C. 1996, c. 23, in effect on June 30, 1996 ("the Act"), the plaintiff was ineligible for benefits since he was outside Canada, thus creating an overpayment in the amount of $3,931. The Commission also imposed on the plaintiff a penalty of $440, thus making the amount of his debt $4,371 (paras. 6 and 7 of the plaintiff's statement of claim).
Analysis
[7] It is quite clear that the only objection made by the plaintiff in his action is that the decisions by the Commission which resulted in the overpayment and penalty were illegal as they were based on a judgment in T-864-98, rendered on January 29, 1999. The plaintiff accordingly claimed the amount of the overpayment and the penalty which he reimbursed and damages occasioned by the recovery of these amounts by the Commission.
[8] Under s. 79 of the Act, any decision by the Commission may be appealed to a board of referees, and may subsequently be appealed to an umpire under s. 80 of the Act. Finally, under s. 84 of the Act the decision of an umpire is final and not subject to appeal but may be the subject of judicial review under s. 28 of the Federal Court Act.
[9] Accordingly, the proper recourse was the appeal procedure laid down in ss. 79 and 80 of the Act and, ultimately, judicial review pursuant to s. 28 of the Federal Court Act.
[10] This Court therefore does not have jurisdiction to hear the action for damages and interest brought by the plaintiff because of the exclusive appeal procedure laid down in the Act for challenging decisions by the Commission and obtaining the relief sought. This conclusion must stand, regardless of the decision the Supreme Court will arrive at following the leave to appeal granted (Privacy Act (Can.) (Re), [2000] 3 F.C. 82: application for leave to the Supreme Court granted on August 17, 2000 (27846)).
[11] The Court must therefore consider whether to strike the plaintiff's statement of claim and dismiss his action pursuant to Rules 208(d) and 221(1)(a).
[12] The plaintiff raised the possibility of amending his statement of claim, and in particular para. 19 thereof, to further clarify the bases of the damages claimed.
[13] Paragraph 19 reads as follows:
[TRANSLATION]
The plaintiff is also entitled to claim damages amounting to $2,000 and exemplary damages amounting to $1,000 for the harm, injury, inconvenience and so on caused to him by depriving him of the employment insurance benefits and for the stress he had to endure as a direct result of actions taken by the defendant . . .
[14] It is apparent that at present the damages mentioned in para. 19 refer only to the recovery process by which the Commission sought the overpayment. These aspects of the case are intrinsically related to the legality of the decisions rendered in December 1997, and that legality can only be challenged by the appeal procedure laid down in the Act.
[15] Based on the affidavit filed by the plaintiff at the hearing, and in particular the statements made by his counsel, it appears that the plaintiff would now like to base the damages in para. 19 of his statement of claim on a completely different cause of action, namely the fact that in the days following December 4, 1997 he claims he was misled by a Commission employee about the scope and consequences of appealing his case pursuant to ss. 79 et seq. of the Act.
[16] It would appear that this approach by the plaintiff to his damages creates a new cause of action in this regard. It thus cannot be said that this cause of action arises out of facts which are substantially the same as those which are the basis of the claim for damages under the current para. 19 of the statement of claim. As a result, under Rule 201 I clearly cannot consider this possibility of an amendment.
[17] Rule 201 reads as follows:
| 201. An amendment may be made under rule 76 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of substantially the same facts as a cause of action in respect of which the party seeking the amendment has already claimed relief in the action.
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201. Il peut être apporté aux termes de la règle 76 une modification qui aura pour effet de remplacer la cause d'action ou d'en ajouter une nouvelle, si la nouvelle cause d'action naît de faits qui sont essentiellement les mêmes que ceux sur lesquels se fonde une cause d'action pour laquelle la partie qui cherche à obtenir la modification a déjà demandé réparation dans l'action.
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[18] Consequently, the Court must allow the defendant's motion with costs and strike the plaintiff's statement of claim and dismiss his action pursuant to Rules 208(d) and 221(1)(a). The other grounds of challenge raised by the defendant do not therefore have to be considered. Further, any suspension of the case at bar in whole or in part pending the decision by the Supreme Court would be of no value to the plaintiff since the Federal Court's jurisdiction over the plaintiff's action would not be in any way altered by that decision. The application for a stay made by the plaintiff in his reply record is also dismissed.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Federal Court of Canada
Trial Division
Date: 20010301
Docket: T-2279-00
Between:
MARIO BUTTINO
Plaintiff
AND
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-2279-00
STYLE OF CAUSE: MARIO BUTTINO
Plaintiff
AND
THE ATTORNEY GENERAL OF CANADA
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 19, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: March 1, 2001
APPEARANCES:
Rosa Riolo Vaccaro for the plaintiff
Suzon Létourneau for the defendant
SOLICITORS OF RECORD:
Rosa Riolo Vaccaro for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
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