Date: 19980206
Docket: T-1938-97
MONTRÉAL, QUEBEC, THIS 6th DAY OF FEBRUARY 1998
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
GHYSLAIN GAUDET,
Plaintiff,
AND
HER MAJESTY THE QUEEN
and
CORRECTIONAL SERVICE CANADA,
Defendants.
ORDER
Paragraph 54 of the amended defence and counterclaim filed by the Crown on December 18, 1997 is struck out. The Crown will have to review the calculations and amounts set out in paragraph 57 of its claim. It is given leave to file and serve a reamended defence and counterclaim within ten days of this order to reflect this decision.
The plaintiff's motion is otherwise dismissed.
Costs in the cause.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
Date: 19980206
Docket: T-1938-97
Between:
GHYSLAIN GAUDET,
Plaintiff,
AND
HER MAJESTY THE QUEEN
and
CORRECTIONAL SERVICE CANADA,
Defendants.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the plaintiff under rules 401(1)(c), 419(1)(a) and 1718(3) of the Federal Court Rules (the rules) seeking to have the counterclaim filed by the defendants (the Crown) in this case dismissed.
[2] According to the plaintiff, the Crown should proceed by separate action, having regard to the lack of any connection between the main claim and the counterclaim (the claim).
[3] If this argument were to succeed, the entire claim would be struck from the record of this case and there would be no need to consider the second argument made by the plaintiff. We shall therefore commence our analysis with the first argument.
[4] The second argument the plaintiff submits is that certain paragraphs of the claim do not fall within the jurisdiction rationae materiae of the Court. In those paragraphs, the Crown is claiming moral and exemplary damages in addition to claiming the expenses from the plaintiff that it allegedly incurred for replacing employees for whose temporary departure the plaintiff was allegedly responsible.
Background
[5] The plaintiff, who is an inmate in one of the Crown's correctional institutions, filed an action for damages and exemplary damages against the Crown on the ground that from July 1995 to August 1997 the employees of the institution where he was an inmate knowingly violated his constitutional rights by making him endure inhuman conditions of detention.
[6] In its claim, the Crown essentially refers to the same period of time, but instead submits that it was the plaintiff who created a climate of terror against the employees of the correctional institution. In that respect, it accuses the plaintiff of being directly responsible for the fact that three of its employees had to leave their jobs because of either post-traumatic stress or situational anxiety.
[7] Those employees have been compensated by the Crown under the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (the Act).
[8] Under subsection 9(3) of the Act, the Crown is statutorily subrogated to the rights of those employees. It filed the claim in which it is claiming damages and exemplary damages, inter alia, under the provisions of that subsection.
[9] Subsections 9(3) and (4) of the Act read as follows:
| 9.(3) If the employee or the dependants referred to in subsection (1) elect to claim compensation under this Act, Her Majesty shall be subrogated to the rights of the employee or dependants and may maintain an action in the name of the employee or dependants or of Her Majesty against the person against whom the action lies and any sum recovered shall be paid into the Consolidated Revenue Fund. |
| (4) Where an action is brought under subsection (3) and the amount recovered and collected exceeds the amount of compensation to which the employee or his dependants are entitled under this Act, there may be paid out of the Consolidated Revenue Fund to the employee or his dependants such portion of the excess as the Minister with the approval of the Treasury Board deems necessary but if after that payment has been made the employee becomes entitled to an additional amount of compensation in respect of the same accident, the amount paid under this subsection may be deducted from the additional compensation. |
Analysis
Striking out the claim under paragraph 1718(3)
[10] According to the plaintiff, there is no connection between the source of the plaintiff's action, which is based on the Canadian Charter, and that of the claim, which is based on the Act and the Civil Code of Québec. On this point, we can agree with the plaintiff. We would add that the execution of the parties' claims is each independent of the other. Again, this appears to be sound.
[11] For these reasons, the plaintiff submits that the claim must be tried separately from the main action. I do not agree.
[12] In this case, it does not seem to me that the source of the remedy sought or the execution of that remedy is a valid and obvious reason why I must order that the claim be tried separately under paragraph 1718(3) of the rules.
[13] Paragraph 1718(3) reads as follows:
| 1718.(3) If it appears that the subject-matter of a counterclaim or cross-demand ought for any reason to be disposed of by a separate action, the Court may order the counterclaim or cross-demand to be struck out, may order it to be tried separately, or may make such order as may be expedient. |
(Emphasis added)
[14] According to the case law under this rule, each case turns on its facts and it is up to the Court to assess those facts (see Her Majesty the Queen v. Central Tobacco Mfg (1980) Ltd. - Les Manufacturiers Tabac Central (1980) Ltée, [1985] 1 CTC 357 at 358 (F.C.T.D.)).
[15] What seems to me to be obvious in this case is that examining the conduct of the parties toward each other during the period from July 1995 to August 1997 may be useful in assigning blame. A single common body of evidence may then be introduced at the trial.
[16] By separating the claim from the plaintiff's action, we might well create a situation in which the evidence to be introduced will be duplicated. This must be avoided (Central Tobacco, supra, page 361).
[17] In addition, much of the claim was already in the record when the plaintiff previously filed pleadings responding to the claim. In my view, therefore, he is now barred from relying on paragraph 1718(3) of the rules.
[18] There is therefore no reason in this case to order that the claim be tried separately.
Jurisdiction rationae materiae of the Court
[19] Although the plaintiff admits that the decision of the Federal Court of Appeal in Her Majesty in right of Canada v. Montreal Urban Community Transit Commission, [1980] 2 F.C. 151 (F.C.) (F.C.A.) (M.U.C.T.C.) allows the Crown to bring an action in the Federal Court based on the Act, the plaintiff submits that the paragraphs of the claim in which the Crown is claiming moral damages, exemplary damages and the expenses of replacing the absent employees constitute claims that fall within the jurisdiction not of this Court but of the provincial courts.
[20] According to his counsel, these damages or expenses were not paid to government employees and they are not the type of damages for which the Act provides for payment. Accordingly, these damages do not arise under the Act and the basis on which the Court would have jurisdiction over them is lost.
[21] With respect to the moral and exemplary damages, it is of little consequence whether they were paid or could have been paid to the employees. Clearly, under subsection 9(3), once compensation is paid, the Crown is subrogated to the rights of action of the employees thus compensated under the Act. Under the decisions in M.U.C.T.C., supra, and The Queen v. P.B. Ready-Mix Concrete & Excavators Ltd. (1956), 5 D.L.R. (2d) 268, this subrogation covers all of the employees' rights, as if they themselves had chosen to initiate an action against the plaintiff instead of opting for compensation under the Act.
[22] It seems to me that each employee could have claimed moral and exemplary damages from the plaintiff in an action of that nature. Accordingly, these heads of damages arise under the Act and the Court has jurisdiction in respect thereof.
[23] The same is not true, in my opinion, with respect to paragraph 54 of the claim. That paragraph reads as follows:
| [TRANSLATION] |
| 54. Her Majesty is also entitled to claim from the plaintiff the expenses incurred as a result of the direct consequences of the absence of three employees for an extended period (trouble and inconvenience, wages paid to replace the absent employees, overtime, etc.) valued at $7,000; |
(Emphasis in the original)
[24] In my view, this head of the claim is in fact one that belongs to the Crown itself and does not correspond to any right of action that the government employees might have asserted. The Crown therefore cannot rely on the Act to claim this $7,000. Paragraph 54 is therefore without basis in federal law.
[25] As we know, this requirement is necessary to preserve the expression of jurisdiction found in paragraph 17(5)(a) of the Federal Court Act, R.S.C. 1985, c. F-7; that paragraph reads:
| 17.(5) The Trial Division has concurrent original jurisdiction |
| ( a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; |
[26] The plaintiff is therefore correct in seeking to have paragraph 54 struck out. Accordingly, the Crown will have to review the calculations and amounts set out in paragraph 57 of its claim. It will be given leave to file and serve a reamended defence and counterclaim to reflect this decision. An order will issue accordingly.
[27] The plaintiff's motion will otherwise be dismissed, costs in the cause.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
February 6, 1998
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court File N0: T-1938-97
between
GHYSLAIN GAUDET,
Plaintiff,
" and "
HER MAJESTY THE QUEEN,
and
CORRECTIONAL SERVICE CANADA,
Defendants.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1938-97
STYLE OF CAUSE: GHYSLAIN GAUDET
Plaintiff
AND
HER MAJESTY THE QUEEN
and
CORRECTIONAL SERVICE CANADA
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 2, 1998
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: February 6, 1998
APPEARANCES:
Sylvie Bourgeois for the plaintiff
Éric Lafrenière for the defendants
SOLICITORS OF RECORD:
Sylvie Bourgeois for the plaintiff
Bourgeois et Danis
Lorraine, Quebec
George Thomson for the defendants
Deputy Attorney General of Canada
Montréal, Quebec