Date:
20101015
Docket:
A-91-09
Citation: 2010 FCA 269
Present: Pelletier
J.A.
BETWEEN:
LUC
BEAULNE
Applicant
and
PUBLIC
SERVICE ALLIANCE CANADA
Respondent
REASONS
FOR ORDER
PELLETIER
J.A.
[1]
Mr.
Beaulne is filing a motion to set aside the order issued by this Court on May
28, 2010, on the ground that this order was obtained by fraud. This motion is
accompanied by a second one whereby Mr. Beaulne is requesting an order to have
Board Member John Mooney appear before the Federal Court of Appeal.
[2]
The
order dated May 28, 2010, ordered the registry to strike from the applicant’s
record certain documents that were not before the lower Court when it made its
decision. Mr. Beaulne requested a review of this order, which was denied. This
motion is Mr. Beaulne’s third attempt to bring before the Court these
documents, which it has already declared to be inadmissible.
[3]
Mr.
Beaulne is basing his request on the allegation that counsel for the
respondent, Ms. Homier-Nehmé, misrepresented the veracity of the facts on
February 3, 2010. In its decision on May 28, 2010, the Court notes the
following:
Chantal Homier-Nehmé’s affidavit
mentions the various reasons for which the respondent objects to the receipt of
the disputed paragraphs and documents. The affidavit submitted by Mr. Beaulne’s
representative does not contradict any of Ms. Homier-Nehmé’s statements. It is
therefore logical that the facts that she outlines are true.
[4]
Since
they remained silent when Ms. Hormier-Nehmé made allegations during the first
motion concerning these documents, Mr. Beaulne and his representative lack
credibility when they attempt to question the integrity of a member of the Bar.
[5]
Mr.
Beaulne justifies himself by citing a passage from the Court’s reasons, in
which it justifies dismissing the request for reconsideration.
It is settled case law that the
record before the reviewing court is the record that was, or was compiled,
before the lower tribunal [...] In general, this case consists of pleadings,
exhibits and, if they exist, transcripts...
[6]
Mr.
Beaulne claims that the documents in issue are his arguments before the Public
Service Labour Relations Board. If the use of the term “argument” led to
confusion, the Court is responsible for clarifying that the documents to which
it referred by using this term are the originating document, that is to say the
application that the applicant addressed to the Public Service Labour Relations
Board, and the response filed by the respondent. In any event, the documents
that the applicant would like to file with this Court are not the argument but
rather the evidence that the Board did not see fit to receive.
[7]
The
applicant’s motion to set aside the order issued by this Court on May 28, 2010,
will therefore be dismissed.
[8]
As
for the motion to have Board Member John Mooney testify before this Court, it
will also be dismissed. The Federal Court of appeal is not a trial court. It
does not hear oral testimony. It bases its actions on sworn statements or
transcripts.
[9]
The
Court believes that this motion is a blatant abuse of process and deserves to
be sanctioned. The record filed by the respondent sets out the fact that due to
the two previous orders made by this Court, through which Mr. Beaulne was
ordered to pay the costs of these motions, Mr. Beaulne owes the respondent the
amount of $2,457.08 ($1,228.54 x 2). It requires that Mr. Beaulne honour this
obligation within the next 30 days, failing which his application will be
dismissed. This seems to impose an unwarranted financial burden impeding Mr.
Beaulne’s rightful access to this Court. On the other hand, the stubbornness
displayed by Mr. Beaulne or his representative regarding this issue caused the
applicant to sustain financial prejudice and slowed the case’s progress.
[10]
The
respondent is entitled to costs in this motion, which the Court sets at
$1,228.54 (which includes disbursements and taxes). The obligation to pay the
costs in this motion is stayed until the Court rules on Mr. Beaulne’s
application.
“J.D.
Denis Pelletier.”
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