Date: 20110418
Docket: A-90-10
Citation: 2011 FCA 140
CORAM: EVANS
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
R. MAXINE COLLINS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] The appellant, R. Maxine Collins, appeals from a
decision of a Judge of the Federal Court striking out, with costs, the amended
statement of claim filed by Ms Collins. The Judge’s order was silent as to
whether the pleading was struck out with or without leave to amend. The reasons
in support of the Judge’s order are cited as 2010 FC 254, 366 F.T.R. 40.
[2] Paragraph
1(a) of the amended statement of claim set out Ms Collins’ claim for general
damages against the Crown on account of:
i.
misfeasance
in public office;
ii.
negligence
in deliberately failing to enforce statutory provisions; and
iii.
violation
of the Canadian Charter of Rights and Freedoms (Charter).
[3] The
main issue to be determined on this appeal is whether the Judge erred in
striking out the amended statement of claim.
The Nature of Ms Collins’
Claim
[4] Ms
Collins’ claim arises from her assertion that while she was employed by the
Canada Revenue Agency (CRA), her co-workers violated subsection 241(1) of the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (Act) by improperly
looking at her personal income tax information. Although subsection 239(2.2)
of the Act makes contravention of subsection 241(1) an offence, Ms Collins
asserts that, aside from firing one employee, the CRA failed to provide any
effective redress to her. The two subsections of the Act referred to by Ms
Collins state as follows:
|
239.
(2.2) Every person who
(a) contravenes
subsection 241(1), or
(b) knowingly
contravenes an order made under subsection 241(4.1)
is
guilty of an offence and liable on summary conviction to a fine not exceeding
$5,000 or to imprisonment for a term not exceeding 12 months, or to both.
[…]
241.
(1) Except as authorized by this section, no official or other representative
of a government entity shall
(a) knowingly
provide, or knowingly allow to be provided, to any person any taxpayer
information;
(b) knowingly
allow any person to have access to any taxpayer information; or
(c) knowingly use any taxpayer
information otherwise than in the course of the administration or enforcement
of this Act, the Canada Pension Plan, the Unemployment Insurance
Act or the Employment Insurance Act or for the purpose for which
it was provided under this section.
|
239.
(2.2) Commet une infraction et encourt, sur déclaration de culpabilité
par procédure sommaire, une amende maximale de 5 000 $ et un
emprisonnement maximal de 12 mois, ou l’une de ces peines, toute personne :
a) soit
qui contrevient au paragraphe 241(1);
b) soit
qui, sciemment, contrevient à une ordonnance rendue en application du
paragraphe 241(4.1).
. .
.
241. (1) Sauf
autorisation prévue au présent article, il est interdit à un fonctionnaire ou
autre représentant d’une entité gouvernementale :
a) de
fournir sciemment à quiconque un renseignement confidentiel ou d’en permettre
sciemment la prestation;
b) de
permettre sciemment à quiconque d’avoir accès à un renseignement
confidentiel;
c) d’utiliser sciemment un renseignement
confidentiel en dehors du cadre de l’application ou de l’exécution de la
présente loi, du Régime de pensions du Canada, de la Loi sur
l’assurance-chômage ou de la Loi sur l’assurance-emploi, ou à une
autre fin que celle pour laquelle il a été fourni en application du présent
article.
|
[5] Ms
Collins alleges that the CRA has made a planned and deliberate policy decision
not to enforce subsection 239(2.2) of the Act. Ms Collins further asserts that
she wanted the CRA to tell its employees “that what they were doing was not
only morally and ethically wrong, but also a criminal offence for which they
could be prosecuted” (emphasis deleted). However, it did not, and after she
requested that the CRA investigate the unauthorized access to her personal tax
records CRA employees retaliated against her in a manner that created a toxic
work environment. Subsequent requests for assistance from the Public Service
Human Resources Management Agency of Canada, the Public Service Integrity
Commissioner and the RCMP, an attempted complaint under the Canada Labour
Code, and requests for access under the Privacy Act and the Access
to Information Act did not result in any assistance being provided to Ms
Collins.
The Issues
[6] On
this appeal Ms Collins raises a number of arguments, including her assertions
that the Judge ignored misconduct by counsel for the respondent, restricted
oral argument and showed “a blatant bias” against her in her reasons. In my
view, the issues to be decided on this appeal are:
i.
Has
the appellant made out her allegations of bias against the Judge?
ii.
If
not, what is the standard of review to be applied by this Court to the Judge’s
decision to strike out the amended statement of claim?
iii.
Did
the Judge err by striking out the amended statement of claim?
iv.
Should
the appellant be given leave to re-amend the amended statement of claim?
Consideration of the
Issues
i. Have the allegations of bias
been made out?
[7] As
we explained in our reasons dismissing Ms Collins’ three motions that asked the
members of the panel hearing this appeal to recuse themselves on account of
real or apprehended bias, there is a strong presumption that judges will administer
justice impartially. This presumption is not easily rebutted and “convincing
evidence” is required to prove an allegation of reasonable apprehension of bias
(R. v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 32).
[8] Ms
Collins acknowledges that she cannot substantiate any allegation of bias
arising from the conduct of the hearing before the Judge. This is because she
alleges a conspiracy involving the court reporter and others that resulted in a
falsified and fabricated transcript.
[9] Turning
to her other allegations of bias, there is no merit in Ms Collins’ submission
that the Judge acted improperly in accepting the Crown’s re-amended motion to
strike the claim. Justice Campbell allowed Ms Collins to amend her claim
so as to withdraw those portions of the claim that related to a proposed class
action and he stated that this amendment was without prejudice to the Crown’s
right to pursue its pending motion to strike the claim in its entirety. The
Crown’s motion to strike had been filed, but not served (see page 94 of the
appeal book). Nothing in Justice Campbell’s comments could, or did, prohibit
the Crown from amending its motion record in order to advance further grounds
for striking the pleading.
[10] Finally,
many of Ms Collins’ imputations of bias stem from the Judge’s interpretation of
the amended statement of claim. Ms Collins says that the Judge did not construe
the claim as Ms Collins intended. From this, Ms Collins infers that the
Judge was biased. However, during the hearing of this appeal we advised Ms
Collins that it was not clear to us that the amended statement of claim can
fairly be construed as Ms Collins submits. Ms Collins acknowledged both that
she was “not an artful pleader” and that the statement of claim “was not
perfect”. The fact that the Judge interpreted the allegations in the amended
claim in a different manner from Ms Collins’ intended interpretation is not
evidence of bias.
[11] In
my view, the Judge’s reasons demonstrate a careful and thorough review of a
long (123 paragraphs) and difficult pleading. Nothing in the Judge’s
reasons supports any reasonable apprehension of bias on the part of the Judge.
No convincing evidence of real or apprehended bias has been provided by Ms
Collins.
ii. The Standard of Review to be
Applied to the Judge’s Decision
[12] In
Apotex Inc. v. Canada (Governor in Council), 2007 FCA
374, 370 N.R. 336 this Court considered the test to be applied when reviewing a
decision of a judge on a motion to strike a pleading. At paragraph 15 the test
was described as follows:
The respondents correctly
point out that the decision to grant or refuse a motion to strike is a
discretionary one. When the lower court judge has made a discretionary
decision, it will usually be afforded deference by the appellate court.
However, the latter will be entitled to substitute the lower court judge’s
discretion for its own if the appellate court clearly determines that the lower
court judge has given insufficient weight to relevant factors or proceeded on a
wrong principle of law: Elders Grain Co. v. Ralph Misener (The),
[2005] F.C.J. No. 612, 2005 FCA 139 at paragraph 13. This Court may also
overturn a discretionary decision of a lower court where it is satisfied that
the judge has seriously misapprehended the facts, or where an obvious injustice
would otherwise result: Mayne Pharma (Canada) Inc. v. Aventis Pharma
Inc., [2005] F.C.J. No. 215, 2005 FCA 50, 38 C.P.R. (4th) 1 at paragraph 9.
[emphasis added]
[13] The
burden is on Ms Collins to demonstrate an error that justifies this Court’s
interference with the order under appeal (j2 Global Communications, Inc. v.
Protus IP Solutions Inc., 2009 FCA 41, 387 N.R. 135 at paragraphs 4-5).
iii. Did the Judge err in striking
out the amended statement of claim?
[14] As
set out above, the amended statement of claim sought damages on account of:
a.
misfeasance
in public office;
b.
negligence
in deliberately failing to enforce statutory provisions; and
c.
Charter
violations.
Each cause of action will be considered in
turn.
a. Misfeasance in
public office
[15] The
Judge understood the amended statement of claim to base the claim of
misfeasance upon the failure of the CRA and the RCMP to lay charges and
prosecute offences under subsection 239(2.2) of the Act. The Judge
correctly found that law enforcement officers and prosecutors possess
discretion as to the laying of charges and their prosecution, so that a failure
to lay charges cannot be an unlawful act as required in order to establish the
tort of misfeasance in public office.
[16] Ms
Collins does not take issue with that analysis. Rather, she states that the
amended statement of claim does not base the claim of misfeasance in public
office upon any failure to enforce the statutory provision.
[17] However,
paragraphs 4, 29, 36, 37, 42 and 43 of the amended statement of claim allege
that:
4. In
written policy consistent with statements on the Canada Revenue Agency [CRA]
website, the CRA has made a planned and deliberate decision not to enforce
subsection 239(2.2) of the ITA by characterizing unauthorized access as
unlawful, i.e., not authorized by law, rather than illegal, i.e., expressly
forbidden by statute, or an offence liable to a fine or imprisonment.
[…]
29.
The
Plaintiff’s experience in laying information and making a complaint pursuant to
subsection 244(1) of the ITA is that the RCMP acts in concurrence with the CRA
with respect to the non-enforcement of subsection 239(2.2) of the ITA.
[…]
36.
The
failure on the part of the CRA to call a spade a spade with respect to offences
committed by CRA employees, indicates the clear priority of protecting the
employees of the CRA in order to protect the reputation of the CRA even at the
expense of failing to adequately protect the confidentiality of taxpayer
information.
37.
The Plaintiff
states that the CRA owes Canadian taxpayers a statutory duty to ensure the
protection of personal information from unauthorized disclosure to CRA
employees, and through these individuals to the general public; and, the CRA is
deliberately negligent in performing this duty through failing to enforce
provisions enacted for the purpose.
[…]
42.
The Plaintiff
has in her possession documents supporting the involvement of many federal
government entities, including documents which confirm the agreement of the
RCMP with the policy of the CRA with respect to the plan not to enforce
subsection 239(2.2) of the ITA.
43.
The
Plaintiff asserts that the aforesaid deliberate conduct of the CRA and the
federal government in denying taxpayers, and the Plaintiff in particular, the
protection of statutory law, case law, and the Charter of Rights and Freedoms
constitutes misfeasance in public office, negligent statutory administration,
abuse of power, and disregard for the principles of fundamental justice under
the rule of law which has resulted in loss and damage to the Plaintiff.
[18] In
my view, the Judge’s interpretation of the claim as framed by Ms Collins was
reasonable, and her analysis of that claim was appropriate. Ms Collins has not
demonstrated that in striking the pleading relating to misfeasance in public
office the Judge seriously misapprehended the pleadings, proceeded on a wrong
principle of law or otherwise erred so as to warrant intervention by this
Court.
b. Negligence in the
enforcement of a statutory provision
[19] Ms.
Collins argues that:
46. It is
under the negligence cause of action that the claim reaches out beyond the CRA
to those other federal government entities who were made aware of violations of
section 241 of the Income Tax Act and did nothing to protect taxpayer
information choosing instead to act to protect the CRA.
47.
This cause
of action is not based on a statutory duty to enforce subsection 239(2.2)
of the Income Tax Act, but rather on the necessity of enforcing this
provision in order to meet the requirements of a statutory private law duty of
care to protect taxpayer information. This is clearly established in paragraphs
[5] and [6] of the Amended Statement of Claim.
[…]
52.
The
Appellant specifically established the statutory law duty of care in paragraphs
[10] and [12] of the Amended Statement of Claim.
53.
Throughout
the Amended Statement of Claim, the Appellant pleaded that subsection 239(2.2)
of the Income Tax Act, being a criminal offence provision, was enacted
for the purpose of deterring unauthorized access to taxpayer information.
[20] Paragraphs
5, 6, 10 and 12 of the amended statement of claim referred to in argument by Ms Collins
allege the following:
5. In
the Plaintiff’s experience, employees of the CRA are not advised by the CRA,
either verbally or through written policy, that violations of subsection 241(1)
of the ITA constitute an offence pursuant to subsection 239(2.2) of the ITA.
6. This
policy deprives Canadian taxpayers of the protection of section 241 which has
been interpreted by the Federal Court of Appeal [Diversified Holdings Ltd.
v. Canada, [1991] 1 C.T.C. 118] as being for the protection
of taxpayers.
[…]
10.
The CRA is
required, under the provisions of the Privacy Act, to keep a record of
all authorized and unauthorized uses of a taxpayer’s personal information.
[…]
12. The
Federal Court of Appeal found the legislative intent of section 241 to be for
the protection of the confidentiality of information given to the Minister for
the purposes of the ITA. The Federal Court of Appeal further found privilege to
be established in favour of the taxpayer who gives information to Revenue
Canada on the understanding such information will remain confidential.
[21] Relying
upon the decision of the Supreme Court of Canada in Canada v. Saskatchewan Wheat Pool, [1983] 1
S.C.R. 205, the Judge found the failure to follow a statutory provision does
not by itself constitute negligence. The Judge also found that no positive
common law duty lies upon the Crown to bring forth charges and prosecute under
subsection 239(2.2) of the Act.
[22] Ms
Collins has not demonstrated any error in the Judge’s analysis. No common law
or private duty of care arises from the facts as pleaded in the amended
statement of claim. It follows from this failure that the amended statement of
claim does not plead any proper cause of action in negligence. That portion of
the pleading relating to alleged negligence was properly struck.
c. Charter violations
[23] As
the Judge correctly noted, the amended statement of claim neither identified
which rights were said to be violated nor pled material facts that might
support such a claim. On this appeal, Ms Collins argues as follows with
respect to this aspect of the claim:
59. Do
civil servants, or Ministers of the federal government, have the authority to
create and implement a policy which enforces section 239 of the Income Tax
Act against taxpayers but does not enforce section 239 against federal
government employees?
60. The
Amended Statement of Claim pleads “they” do not possess the requisite authority
due to the operation of the rule of law enshrined in the Constitution.
61. Is the
undisputed policy of never enforcing subsection 239(2.2) of the Income Tax
Act, an issue which comes within the tests established in Anns as
referenced in paragraph [20] of the Amended Amended Written Representations of
the Responding Party?
[…]
66. The
Respondent has a statutory private law duty of care to protect taxpayer
information. The Respondent was negligent in exercising this duty of care in
that a powerful tool provided by Parliament went unused and ignored.
67. The
failure to use this powerful tool against government employees while regularly
filing criminal offence charges against taxpayers, violates the rule of law. A
policy that violates the rule of law is a policy made in bad faith and under
the influence of extraneous considerations.
[…]
71. The
Appellant is not claiming damages pursuant to subsection 24(1) of the Charter.
[…]
73. The
Appellant established a prima facie private law duty of care under section 241
of the Income Tax Act and also through reference to the statutory duty
to keep records of all access to taxpayer information as provided under the
relevant provisions of the Privacy Act.
[24] In
my view, these paragraphs fail for the same reasons the claim in negligence
failed. The submission that any failure to follow the law is actionable is
contrary to the jurisprudence of the Supreme Court of Canada in cases such as Saskatchewan
Wheat Pool, cited above, and Holland v. Saskatchewan, 2008 SCC 42,
[2008] 2 S.C.R. 551.
iv. Should Ms Collins be given
leave to re-amend the amended statement of claim?
[25] As noted above, the Judge’s order did not specify whether the claim was
struck out with or without leave to amend. Rule 221 of the Federal Courts
Rules requires consideration of this issue.
[26] In order to strike a pleading without leave to amend, any defect in
the pleading must be one that cannot be cured by amendment. See Simon v.
Canada, 2011 FCA 6, 410 N.R. 374 at paragraph 8. In my view, the claim in
negligence and the claim based upon violation of the Charter cannot be cured by
amendment. However, I believe the claim based upon misfeasance in public office
can be cured.
[27] The
elements of the cause of action of misfeasance in public office are:
1.
A
public officer must engage in deliberate and unlawful conduct in his or her
capacity as a public officer.
2.
The
public officer must have been aware that his or her conduct was both unlawful
and likely to harm the plaintiff. This requirement establishes a required nexus
between the parties. There must be a conscious disregard for the interests of
those who will be affected by the misconduct in question.
[28] Insofar
as the nature of the misconduct is concerned, the essential question is whether
the alleged misconduct is deliberate and unlawful. A plaintiff must also show
damage which was caused by the alleged misconduct and that the damage was of
sufficient magnitude to warrant compensation. See Odhavji Estate v.
Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at paragraph 22 and
following.
[29] Turning
to the current pleading, the amended statement of claim alleges the following:
a.
Paragraph
241(1)(c) of the Act prohibits an official from knowingly using any taxpayer’s
information otherwise than in the course of the administration or enforcement of
the Act.
b.
The
plaintiff worked at the CRA from November 2005 to November 2007.
c.
Two
employees of the CRA accessed the plaintiff’s personal income tax account and
this access was unauthorized.
d.
Following
an investigation by the CRA that found unauthorized access, co-workers made
remarks to the plaintiff based on personal knowledge of her personal income tax
returns.
e.
The
plaintiff suffered retaliation and public embarrassment.
f.
As
a result of the breach of privacy, the plaintiff sought professional help and
suffered from depression, thoughts of suicide and anxiety attacks. As well, she
had to resign from what was a toxic workplace, thus suffering financial
hardship.
[30] I conclude that with appropriate amendments a cause of action could
properly be pleaded alleging the Crown to be vicariously liable for the
misfeasance of officials who improperly accessed and disseminated confidential
information concerning Ms Collins. It follows that I would clarify the Judge’s
order by specifying that Ms Collins is given leave to re-amend her pleading so
as to allege the tort of misfeasance in public office. No leave would be given
to amend any other cause of action.
[31] It may well be helpful to remind Ms Collins that any further
pleading must comply with all of the rules of the Federal Court governing
pleadings. Any failure to comply with those rules could result in the
re-amended pleading being struck out.
[32] To illustrate, the amended statement of claim pleads evidence
extensively and does not contain a concise statement of the material facts as
is required by Rule 174. Further, while a party may raise any point of law in a
pleading (Rule 175), a statement of claim cannot consist of legal argument.
[33] The requirement that a pleading contain a concise statement of the material
facts relied upon is a technical requirement with a precise meaning at law.
Each constituent element of the cause of action must be pled with sufficient
particularity. What is required when pleading the tort of misfeasance in public
office was discussed by this Court in Merchant Law Group v. Canada (Revenue Agency),
2010 FCA 184, 405 N.R. 160 at paragraph 29 and following. A narrative of what
happened is unlikely to meet the requirements of the Federal Courts Rules.
Ms Collins would be well advised to seek legal advice with respect to the
elements that must be contained in any re-amended pleading she may wish to
file.
Conclusion
[34] For these reasons I would dismiss the appeal, but I would clarify
the order appealed from to specify that Ms Collins is given leave to re-amend
the amended statement of claim to allege the tort of misfeasance in public
office.
[35] I would award the costs of this appeal in the cause.
“Eleanor R. Dawson”
“I agree
John M. Evans J.A.”
“I agree
Johanne Trudel J.A.”
Email this Content