Date: 20101129
Docket: T-279-10
T-280-10
Citation: 2010
FC 1195
Ottawa, Ontario, November 29, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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ESGENOÔPETITJ (BURNT CHURCH)
FIRST NATION
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Applicant
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and
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ALMA BOUCHER
IN HER CAPACITY AS INSPECTOR,
HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA,
LABOUR PROGRAM,
ANDREW CURTIS BARTIBOGUE,
AND E. THOMAS CHRISTIE, Q.C.
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicant is seeking to appeal Prothonotary Morneau’s Order granting the
Respondent’s motion to strike the application for judicial review and
dismissing the Applicant’s motion under Rule 318.
[2]
For
the reasons that follow, I agree with the Respondent that this motion should be
dismissed on the basis that it is an abuse of process. The Applicant should not
be allowed to maintain multiple proceedings dealing with the same issues before
the Court, with the attending risk of conflicting decisions that could only
bring the administration of justice into disrepute. A copy of these reasons and
order shall be placed in both files T-279-10 and T-280-10.
I. Background
[3]
The
underlying judicial review application stems from a complaint of unjust
dismissal made by the Respondent, Curtis Bartibogue, against the Applicant, Esgenôpetitj
(Burnt
Church) First
Nation. Alma Boucher, an inspector with the Labour Program (the “Inspector”),
was assigned to the file.
[4]
In
the section of the unjust dismissal complaint form that asked him to specify what
employment positions he held with the Applicant, the Respondent Bartibogue
wrote in “band counsellor”, which is an elected position, not subject to the
provisions of the unjust dismissal complaint process of the Canada Labour
Code, R.S., 1985, c. L-2.
[5]
The
Inspector attempted to settle the matter between the parties. She forwarded the
complaint form to the Applicant and requested reasons for the Respondent
Bartibogue’s dismissal. The Applicant did not respond. The Inspector determined
that the parties would not be able to settle the matter. The Respondent
Bartibogue then requested the appointment of an adjudicator.
[6]
As
mandated under the legislation, the Inspector prepared a report for the
Minister and forwarded a copy of the complaint to the Minister for the appointment
of an adjudicator. On the copy of the complaint form that was forwarded to the
Minister, the Inspector had added the words “youth coordinator” and “fisheries
manager” to the job title portion of the complaint form filled out by the Respondent
Bartibogue to clarify the employment positions he held with the Applicant.
[7]
The
Minister appointed the Adjudicator to hear and adjudicate on the complaint. At
the first oral hearing before the Adjudicator on January 27, 2010, the
Applicant became aware of the fact that the Adjudicator had been provided with
an “altered” version of the Respondent Bartibogue’s complaint. He also learned
that the Respondent Bartibogue had a copy of this “altered” form. He requested
an adjournment on this basis, which was granted.
[8]
Applicant’s
counsel then contacted the Inspector and inquired as to the addition of the job
titles on the complaint form. The Inspector explained that the notations were
made to reflect the Respondent Bartibogue’s employment history with the Applicant.
The Inspector also explained that at some time after she made the notations to
the complaint form, the Respondent Bartibogue contacted her and requested a
copy of his complaint form for the purposes of the adjudication. Accordingly,
she sent him the “altered” version of the complaint form. She apologized for
not sending a copy of the “altered” form to the Applicant as well.
[9]
On
February 26, 2010, the Applicant commenced a judicial review application
challenging the Inspector’s “decision” to submit the altered complaint form to
the Minister (file T-279-10). The Applicant also brought a judicial review
application challenging the Minister’s “decision” to appoint an adjudicator to
hear and determine an “altered” version of the complaint (file T‑280‑10).
Among the remedies being sought in both cases was an order of certiorari
respectively seeking the quashing of the Inspector’s and the Minister’s
“decision” to submit an altered form, declaratory relief that the Inspector and
the Minister committed a jurisdictional error, and an interim order staying the
adjudication.
[10]
No
stay motion was brought by the Applicant to halt the adjudication, and the
adjudication was completed on March 23, 2010.
[11]
On
March 16, 2010, the tribunal record, which was certified by the Inspector, was
filed with the Court in file T-279-10. Applicant’s counsel challenged the
contents of the Certified Tribunal Record (“CTR”) by way of letter to the
Court. In conjunction with early efforts to resolve this matter, the Respondent
“Alma Boucher in her capacity as Inspector” addressed the Applicant’s concerns
regarding the contents of the CTR.
[12]
In
letters dated April 14th, 15th, and 20th, the
Respondent advised the Applicant of his concerns with respect to having these
two judicial review applications underway before a final decision on the
substantive merits of the case has been rendered by the Adjudicator. The
Respondent also advised that if the Applicant was unwilling to discontinue
these applications, motions to strike would be pursued on both applications.
[13]
On
April 22, 2010, Applicant’s counsel advised that his client was not prepared to
discontinue these applications and would be proceeding with a motion on court
file number T‑279‑10, challenging the CTR.
[14]
The
Respondent proceeded with the motions to strike and responded to the
Applicant’s Rule 318 motion. The Applicant did not file submissions on the
motions to strike.
[15]
By
Order dated May 18, 2010, Prothonotary Morneau granted the motions to strike on
both files and dismissed the Applicant’s motion under Rule 318. The
Prothonotary essentially adopted all of the written representations made by the
Respondent.
[16]
On
May 28, 2010, the Applicant filed appeals of these decisions under Rule 51 of
the Federal Courts Rules.
[17]
On
May 28, 2010, the Adjudicator also released his decisions on the merits of the
unjust dismissal complaint. In his decision, he addressed the merits of the
Applicant’s arguments regarding the effect of the Inspector’s actions in making
the notations on Respondent Bartibogue’s complaint form.
[18]
On
June 25, 2010, the applicant sought judicial review of the Adjudicator’s
decision.
[19]
The
Respondent’s counsel then contacted the Applicant’s counsel to determine if he
would be amenable to discontinuing the Rule 51 motions since he was also
seeking judicial review of the Adjudicator’s decision. An offer was made to the
effect that the Respondent would not seek costs in relation to the Rule 51
motions if the Applicant would discontinue prior to June 8, 2010. It appears
that no reply was received to that offer. However, the Applicant’s motion
records on the appeals were received on June 9, 2010.
II. Issues
[20]
The
following issues arise on this appeal:
a) What is the
appropriate standard of review on the appeal from the order of the Prothonotary?
b) Should the
Applicant’s motion appealing the Prothonotary’s Order be dismissed on the basis
that it is an abuse of process?
c) Has the
Prothonotary erred in granting the motions of the Respondent to strike the
applications for judicial review filed by the Applicant?
d) Has the
Applicant demonstrated that the Prothonotary proceeded on a wrong principle or
upon a misapprehension of the facts such that his decision on the Rule 318
motion should be reviewed de novo?
III. Analysis
A. What is the appropriate standard of
review on the appeal from the order of the Prothonotary?
[21]
The
standard of review to be applied in an appeal of a Prothonotary’s decision is
well settled. A discretionary decision ought not to be disturbed on an appeal
to a judge unless: a) the questions raised on the motion are vital to the final
disposition of the case, or b) the prothonotary erred in that the impugned
decision is based on a wrong principle or upon a misapprehension of the facts:
see Merck & Co. Inc. v. Apotex Inc., 2003 FCA 488.
[22]
Given
the context and the nature of the questions raised in the appeal, there is no
question that the Court must exercise its own discretion de novo with
respect to the Prothonotary’s decision on the motion to strike.
[23]
The
standard of review with respect to the Prothonotary’s decision on the
Applicant’s motion under Rule 318 is different. That motion did not raise an
issue that was vital to the final disposition of the case. Accordingly, the
Prothonotary’s decision should only be disturbed in the event this Court was to
find that the Prothonotary erred or based his decision on a wrong principle of
law or a misapprehension of the facts. Otherwise, his decision should be
granted significant deference.
B. Should the Applicant’s
motion appealing the Prothonotary’s Order be dismissed on the basis that it is
an abuse of process?
[24]
Counsel
for the Respondent argued that it would be an abuse of process for the
Applicant to pursue this appeal of the Prothonotary’s decision, first because
the Adjudicator has already made a determination on the substantive issues
under review, and further because that decision is now the subject of another
application for judicial review. I agree with this submission.
[25]
Courts
have the inherent power to prevent the misuse of procedure in a way that would
bring the administration of justice into disrepute. This doctrine has been
applied where relitigation would violate such principles as judicial economy,
consistency, finality, and the integrity of the administration of justice: see Toronto (City) v. C.U.P.E.,
Local 79, 2003 SCC 63.
[26]
In
the present case, the applicant is attempting to maintain multiple proceedings
in this Court that raise the same legal issues regarding the legality and
impact of the Inspector’s actions in making the notations to the complaint
form. The Applicant’s attempt to pursue multiple applications in order to reach
a favourable outcome risks bringing the administration of justice into
disrepute, given the possibility of conflicting decisions from the Court on the
same issue. It is also a waste of judicial resources and leads to a needless
increase in legal costs for the parties forced to respond to multiple
applications.
[27]
Counsel
for the Applicant submitted that the Adjudicator cannot question the complaint
form on the basis of which he was appointed. No authority has been submitted to
support this proposition, which appears to be based on a very narrow
construction of s. 242 of the Canada Labour Code. The powers
conferred on the Adjudicator by paragraph 242(2) are very broad, and there is
no indication that this provision would prevent the Adjudicator from looking at
the complaint itself. On the contrary, parties must be given full opportunity
to present evidence and make submissions without restriction. I fail to see how
an adjudicator could disregard evidence properly introduced that would have the
effect of stripping him of his jurisdiction to adjudicate on a complaint.
[28]
It
is also an abuse of process for the Applicant to bring a Rule 51 motion
challenging the Prothonotary’s Order on the motion to strike in the particular
circumstances of this case. Despite being advised by counsel for the Respondent
that motions to strike would be brought if the Applicant was unwilling to
discontinue its applications for judicial review, the Applicant did not file
submissions in response to these motions. At the hearing, counsel for the
Applicant argued that he did not have instructions from his client to plead
before the Prothonotary. While this may explain why counsel did not make representations,
in the absence of any further explanation, it does not excuse the Applicant for
having waited for so long before reacting to the Respondent’s motion to strike.
[29]
To
condone the Applicant’s behaviour would frustrate the Respondent’s attempt to
seek an economical and speedy resolution to the underlying application by
advancing the motion to strike under Rule 369. It would also frustrate the
judicial process and waste judicial resources by undermining the discretion of
the Prothonotary. This approach also forces upon the Respondent the additional
expense of responding to an appeal when no effort was made to defend the merits
of the application at first instance.
[30]
For
all these reasons, this motion ought to be dismissed as an abuse of process.
C. Has the Prothonotary
erred in granting the motions of the Respondent to strike the applications for
judicial review filed by the Applicant?
[31]
In
any event, the Applicant’s motion ought to be dismissed as the Prothonotary was
correct in granting the motion to strike.
[32]
First
of all, this Court is clearly empowered to summarily dismiss an improper Notice
of Application, either as an exercise of its inherent jurisdiction or on the
basis of Rule 4 of the Federal Courts Rules. That being said, a motion
to strike is an exceptional remedy, especially in the context of an application
for judicial review. Since such an application is meant to be dealt with
summarily, it is ordinarily more proper to deal with any objection to the
application in the context of the hearing on the merits, if only because a full
grasp of the facts and of the context will often be necessary to deal with the
objection. I agree with the Applicant, therefore, that a motion to strike will
not be granted except in the most obvious and exceptional circumstances, where
a notice of application is so fundamentally flawed that it has no chance of
success: see, inter alia, David Bull Laboratories (Canada) Inc.
v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.); Moses v. R.,
2002 FCT 1088, at para. 6.
[33]
Counsel
for the Respondent submitted that the judicial review application was
fundamentally flawed because it failed to challenge a “decision” or “matter”
within the meaning of s. 18.1 of the Federal Courts Act. The Inspector’s
action in submitting the “altered” complaint form to the Minister, as opposed
to the original complaint form, as the Respondent argued, had no effect or
impact on the rights of the parties. Accordingly, it was not a “matter” as
defined in s. 18.1 of the Federal Courts Act and there is allegedly no
jurisdiction for this Court to intervene.
[34]
I
do not find this argument convincing. I agree that it is not the role of the
Inspector in the context of an unjust dismissal claim to make substantive
decisions regarding the merits or scope of a claim. In Lemieux v. Canada,
[1998] 4 F.C. 65, the Federal Court of Appeal determined that the role of the
Inspector is to receive the complaint, request reasons for the dismissal, and
attempt to resolve the complaint. Where these efforts are unsuccessful, and at
the request of the complainant, it is the role of the Inspector to forward the
complaint to the Minister along with a report stating that efforts to resolve
the matter were unsuccessful.
[35]
In
accordance with the statutory scheme, once the Inspector’s efforts to resolve
the complaint failed, the Respondent Bartibogue had a right to request the
appointment of an Adjudicator, regardless of whether he had included his
previous job titles on the complaint form.
[36]
The
determination of the substantive merits of the claim is no doubt an issue
within the purview of the Adjudicator. However, the Inspector has a decision of
her own to make; that is, whether to accept or reject the complaint. She must
determine, pursuant to ss. 240(1) of the Canada Labour Code, whether the
complainant has completed twelve consecutive months of continuous employment;
whether he or she is a member of a group of employees subject to a collective
agreement; and whether, pursuant to ss. 240(2), the complaint was made within
ninety days from the date of the dismissal. The findings of the Inspector on
these issues and the decision to forward or not to forward the complaint to the
Minister is clearly a “decision” for the purposes of s. 18.1 of the Federal
Courts Act: see Canadian National Railway Company v. Souchereau,
2009 FC 293, at para. 9.
[37]
The
fact that there was purportedly nothing illegal about the Inspector adding
information to the Respondent Bartibogue’s employment history gleaned from the
documentation submitted in support of his claim, as the Adjudicator ultimately
found, is immaterial. There may well be cases where additions made to a
complaint form would be of more import. The appropriateness of an Inspector’s
handling of a complaint form cannot be determinative of the issue of whether it
was a “matter” as defined in s. 18.1 of the Federal Courts Act, just as
the correctness of his or her findings with respect to the requirements set out
in s. 240 of the Canada Labour Code cannot be the criterion to decide
whether it must be considered a “decision” opening the door to an application
for judicial review: see S.S. Steamships Co. Ltd. v. Elvidge
(1998), 146 F.T.R. 219 (F.C.).
[38]
But
even if the Inspector’s actions in forwarding the “altered” complaint must be
considered a reviewable “decision”, the application was still fundamentally
flawed because the proper forum for the Applicant to challenge the scope and
timeliness of a complaint was before the Adjudicator, not before the Federal
Court. It is well established that the Court should decline jurisdiction in
judicial review proceedings where the Applicant has failed to exhaust the
administrative remedies available to him: see, for example, Air Canada
v. Lorenz, [2000] 1 F.C. 494, at para. 14 (F.C.); Canadian Pacific
Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3.
[39]
In
the present case, the Applicant had an alternate remedy by virtue of the
adjudication process provided for in Part III of the Canada Labour Code.
This process allows the Applicant an opportunity to challenge all aspects of an
unjust dismissal complaint before an independent adjudicator. This is the
proper forum for the Applicant to raise any substantive issues, including the
argument that the Respondent Bartibogue was too late to challenge his dismissal
from the position of youth coordinator because he did not write it on the
complaint form within the statutory time frame.
[40]
Counsel
for the Applicant contended that an Adjudicator does not have jurisdiction to
determine whether his own appointment (a result of the Inspector’s
recommendation to the Minister) is invalid, especially if this invalidity
results from the Inspector acting in excess of her jurisdiction. As previously
mentioned, no authority was provided in support of this proposition. An
Adjudicator mandated to enquire under s. 242 of the Code must obviously
consider whether the conditions precedent to a validly-filed complaint have
been met. A validly-filed complaint is a condition precedent to the
jurisdiction of such an Adjudicator: Seaspan International Ltd. v. Bauer,
2003 FCT 560 (F.C.).
[41]
In
fact, the Applicant did participate in the adjudication process and did present
arguments regarding the legality of the Inspector’s actions to the Adjudicator,
whose decision was released on May 28, 2010. The Adjudicator rejected the
applicant’s claims regarding the legality and impact of the Inspector’s actions
and, on the substantive merits of the claim, found in favour of the Respondent
Bartibogue. The Applicant has sought judicial review of that decision. Accordingly,
the motion to strike was justified since the Applicant has already had access
to an alternative administrative remedy by virtue of the adjudication process.
[42]
The
motion to strike was also warranted on the basis that it was premature to allow
a judicial review application, which at its root challenged the scope and
timeliness of an unjust dismissal claim, before a final decision was made by
the Adjudicator on the merits of the claim. There is a longstanding rule in the
federal Courts that absent exceptional circumstances, there is no immediate
judicial review of interlocutory matters pending a final determination by the
decision maker: see, for ex., Szczecja v. Canada (1993), [1993]
F.C.J. No. 934 (F.C.A.), at para. 4; CHC Global Operations v.
Global Helicopter Pilots Assn., 2008 FCA 344; Lundbeck Canada Inc.
v. Canada (Minister of Health), 2008 FC 1379 (F.C.), at paras. 27-28; Fairmount
Hotels Inc. v. Canada (Corportions), 2007 FC 95
(F.C.), at para. 9.
[43]
In
the present case, the Inspector’s actions in adding the background information
to the complaint form and in submitting it along with her report were
interlocutory matters that did not determine the legal issues between the
parties. Under the statutory scheme, all of the substantive decisions regarding
the merits of the complaint, including its scope and timeliness, are left to
the adjudicator.
[44]
Allowing
the judicial review of interlocutory matters unnecessarily delays the final
determination of the claim and fragments the issues, which results in increased
legal costs to the parties forced to respond to multiple interlocutory
applications. This is particularly apparent in the present case, where there
were two judicial review applications commenced, which in essence both
challenged the scope and timeliness of the complaint, before the Adjudicator
even made a final decision on the issue. This is certainly not a course of
conduct to be encouraged. The whole scheme of the unjust dismissal provisions
in the Canada Labour Code aims at a speedy resolutions of such claims.
Allowing judicial review of interlocutory matters can only frustrate
Parliament’s intention.
[45]
The
proper approach would have been to await the decision of the Adjudicator and
then, if the Applicant disagreed with his assessment of the claim, consider
seeking judicial review at that time. This would have ensured that all of the
substantive issues surrounding the complaint were determined in one forum on the
basis of a complaint record. The Applicant’s concerns regarding the scope and
timeliness of the complaint might even have been rendered moot, depending on
the outcome of the adjudication.
[46]
The
release of the Adjudicator’s decision and the subsequent judicial review
application advanced by the Applicant further highlights the fact that there is
and there was a remedy available to the Applicant in the event he disagreed
with the findings of the Adjudicator with respect to the impact of the
Inspector’s actions.
[47]
Accordingly,
the motion to strike was also warranted on the basis that there were no special
circumstances to justify deviating from the general principle preventing
immediate judicial review of interlocutory matters.
D. Has the Applicant
demonstrated that the Prothonotary proceeded on a wrong principle or upon a
misapprehension of the facts such that his decision on the Rule 318 motion
should be reviewed de novo?
[48]
Pursuant
to Rule 318 of the Federal Courts Rules, counsel for the Applicant
requested a number of documents that were not part of the Certified Tribunal
Record certified by the Inspector. He requested, among other things, the
following:
1) Documents,
records or materials containing or referring to conversations between the
Inspector and the Respondent Bartibogue relating to his alleged dismissal;
2) Documents,
records or materials containing or referring to information exchanged between
the Respondent Bartibogue and Denis Haché, a person employed in the same office
as Inspector Boucher whose name was affixed to the Respondent’s complaint, and
particularly concerning the issue of whether an elected Indian Band Councillor
could file a complaint of unjust dismissal pursuant to s. 240 of the Canada
Labour Code; and
3) Documents,
records or materials of, or relating to, communications between Denis Haché and
the Respondent Inspector Boucher concerning the complaint.
[49]
In
letters sent to counsel for the Applicant, counsel for the Respondent Inspector
indicated that the Inspector did not keep notes detailing her discussions with
the complainant, and added that the Inspector recalled confirming verbally with
Mr. Bartibogue that he had worked as a fisheries manager and youth coordinator,
which in turn corresponded to the Inspector’s understanding of his past
employment with the Applicant based on her review of the documentary evidence
submitted in support of the claim.
[50]
As
for the questions surrounding Denis Haché, counsel for the Respondent was able
to confirm with her client that Mr. Haché had been working as an Early
Resolution Officer for the Labour Program, and that it was likely in that
capacity that his name was written on the complaint form when it was received
in the office so it would be forwarded to him internally. Counsel for the
Respondent also told counsel for the Applicant that the Inspector had confirmed
that Mr. Haché’s early involvement in this matter played no role in her
decision to make the notations on the form.
[51]
The
Respondent therefore attempted to address the Applicant’s request for the
production of further documentation by advising that much of the material
requested did not exist. The Respondent also attempted to clarify the fact that
Denis Haché’s preliminary involvement in the file as an Early Resolution
Officer had no connection to the Inspector’s involvement in the file or to her
actions in making the notations to the form and sending it to the Minister. It
is clear that the Applicant’s request exceeded the parameters of a permissible
Rule 317 request: the documents sought were not before the Inspector when she
submitted the “altered” form to the Minister, some did not even exist and, in
many instances, were completely unrelated to the matter under review.
[52]
There
is jurisprudence to suggest that in some cases, it may be necessary to produce
materials beyond those that were before the decision-maker where it is alleged
that the decision-maker breached the rules of procedural fairness or was
biased: see Deer Lake Regional Authority Inc. v. Canada (Attorney
General), 2008 FC 1281 (F.C.), at paras. 29-35; Gagliano v. Canada (Commission
of Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC
720, at paras. 50-52, aff’d 2007 FCA 131.
[53]
Even
though the Applicant raised jurisdictional and procedural fairness issues in
the present case, it was not a situation where the additional material would
have assisted the Court in determining the merits of the application. There was
no question that the Inspector added the notations to the complaint form and
submitted it to the Minister. There was also no dispute that the notations were
made sometime around May 2009 and that all the material relevant to the
Inspector’s actions in this regard was included in the CTR. Accordingly, the
relevant facts required to determine the merits of the claim were before the
Court. This is not a case in which the additional information would have been
helpful to the Court in determining the jurisdictional or procedural fairness
issues raised.
[54]
There
was no obvious reason why the additional information was being requested or why
it would be required for the Court to consider the merits of the application. Since
the Applicant failed to provide any cogent explanation as to why this
information was required to determine the merits of the application, the
request was akin to a “fishing expedition” for some unknown purpose. This
approach is unacceptable in a judicial review proceeding. In the words of the
Federal Court of Appeal in Access Information Agency Inc. v. Canada
(Transport), 2007 FCA 224:
21. (…) The purpose of the rule is to
limit discovery to documents which were in the hands of the decision-maker when
the decision was made and which were not in the possession of the person making
the request and to require that the requested documents be described in a
precise manner. When dealing with a judicial review, it is not a matter of
requesting the disclosure of any document which could be relevant in the hopes
of later establishing relevance. Such a procedure is entirely inconsistent
with the summary nature of judicial review. If the circumstances are such that
it is necessary to broaden the scope of discovery, the party demanding more
complete disclosure has the burden of advancing the evidence justifying the
request.
[55]
For
all of the above reasons, I therefore find that the Applicant has failed to
demonstrate a valid basis for intervening with Prothonotary Morneau’s
discretionary decision dismissing the Rule 318 motion.
ORDER
THIS COURT
ORDERS that the Applicant’s motion under Rule 51 be dismissed, with
costs to the Respondent in both files.
"Yves
de Montigny"
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