Date: 20001110
Docket: T-1423-98
OTTAWA, ONTARIO, NOVEMBER 10, 2000
BEFORE: TREMBLAY-LAMER J.
BETWEEN:
ALI GAHAM
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
O R D E R
The action is dismissed with costs.
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Danièle Tremblay-Lamer JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001110
Docket: T-1423-98
BETWEEN:
ALI GAHAM
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] The plaintiff filed an action in tort for injuries committed by the defendant's employees, claiming the sum of $350,000 as damages for intangible injury as the result of events surrounding the termination of his employment in the Public Service.
[2] In his statement of claim the plaintiff alleged the following facts.
[3] The plaintiff worked for the Department of Human Resources Development of Canada as a benefit officer, CR-05, at the Montreal Regional Call Centre from January 5 to June 3, 1998, the date on which he was suspended from his duties with pay.
[4] The plaintiff's work involved informing and serving the public both as to their entitlement to benefits and the benefits paid by various programs, in connection with the 1998 renewal campaign for the guaranteed income supplement.
[5] The plaintiff accepted an offer of term employment, from January 5 to March 31, 1998.
[6] The conditions of employment were subject inter alia to the Public Service Employment Act.[1]
[7] The plaintiff was offered, and he accepted, an extension of his contract of employment for a further fixed period, from March 31 to June 10, 1998.
[8] The conditions of employment were then subject inter alia to the collective agreement applicable to the CR-05 group and level.
[9] On May 25, 1998 the plaintiff was told by Luc Lévesque, the service director, that his period of employment would end on June 10, 1998 as agreed.
[10] On May 27, 1998 the plaintiff met with his union representative, Raymond Martineau, to discuss his dissatisfaction.
[11] On May 28, 1998 Hélène Leclerc, technical advisor, and Jacques Cadieux, trainer, alternately listened by telephone to the way the plaintiff provided services.
[12] On May 29, 1998 a meeting was held between the plaintiff, Luc Lévesque, service director, and Michel Robitaille and Jacques Cadieux, trainers.
[13] On June 2, 1998 Michel Robitaille, trainer, assessed the way the plaintiff provided services by listening to calls which he took from his work station.
[14] On June 3, 1998 a meeting was held between the plaintiff, Michel Lamarche, Director of the Montreal Regional Call Centre, and Gilles Lajoie, security officer, and Sylvie St-Arnaud, investigator.
[15] Following that meeting, the plaintiff was suspended from his duties with pay until the termination of his contract of employment. The plaintiff's employment ended on June 10, 1998, as scheduled.
[16] He alleged that in the assessment of June 2, 1998 Michel Robitaille, trainer, abused his power in the course of his duties by actions toward him which were arbitrary, vexatious and humiliating.
[17] Further, at the dismissal meeting and interview of June 3, 1998 Michel Lamarche allegedly seriously damaged his reputation by wrongfully accusing him of terrorism and making his charges public at a farewell meeting organized for employees, having him expelled from the workplace with threats of arrest, intimidating him before third parties and searching his briefcase.
[18] The plaintiff claimed the sum of $350,000 as damages for intangible injuries suffered, namely insomnia, loss of appetite, humiliation, bitterness, disillusion, stress, the fear of being arbitrarily accused and arrested, invasion of privacy and injury to his reputation and also for the destruction of his career both in the Public Service and the private sector.
[19] On August 4, 1998 the defendant filed a motion opposing the action and asking that it be struck out on the ground that the Court did not have jurisdiction ratione materiae to hear the action.
[20] On September 14, 1998 Denault J. dismissed the motion on the ground that the record as it stood did not indicate that the plaintiff was an employee within the meaning of the Public Service Staff Relations Act,[2] since there was no accumulation of two offers of employment for a limited time.[3] In view of his finding, Denault J. decided not to deal with the exclusive nature of recourse to the grievance procedure.
[21] On January 19, 2000 the prothonotary Richard Morneau made an order regarding the pre-trial conference in which he found that the question of jurisdiction was res judicata:
[TRANSLATION]
According to the Court at this stage, as a result of this Court's decision on September 14, 1998, the question of this Court's jurisdiction ratione materiae to hear the instant action by the plaintiff is now finally res judicata and the defendant is precluded from again raising this question in future.[4]
[22] On January 31, 2000 the defendant appealed this part of the order.
[23] On March 27, 2000 Nadon J. allowed the appeal. In the opinion of Nadon J., the prothonotary could not at the pre-trial conference decide one of the questions which the trial judge would have to decide, namely whether the judgment of Denault J. put an end to the discussion of jurisdiction.
[24] Nadon J. concluded that the question of the Court's jurisdiction to hear the plaintiff's action should be added to the questions to be decided by the trial judge.
[25] The plaintiff alleged that at the meeting of May 29, 1998 the defendant's employees Luc Lévesque, Michel Robitaille and Jacques Cadieux abused their power in the course of their duties by directing pressure and intimidation at him to compel him to accept the decision not to renew his contract of employment, as well as threatening him with disciplinary action without good reason.
[26] After hearing all the evidence in the case at bar and the submissions by the parties, I consider that Ali Gaham was an employee within the meaning of the Public Service Staff Relations Act at the time of the incidents described. As such, he could make use of the grievance procedure, and this has the effect of depriving the Court of its jurisdiction ratione materiae.
[27] It is regrettable that such a conclusion should be reached after the hearing on the merits, but I did not come to the conclusion that there was no doubt that Mr. Gaham was an employee until after I had heard all the defendant's evidence.
[28] In the case at bar, I consider that the judgment rendered by Denault J. does not have the force of res judicata since, first, the Court can rule on its jurisdiction at any stage, and second, because Denault J. did not make a final ruling on the point.
[29] In Barmash v. C.E.C.M.,[5] Décary J. recognized that although a judge could not review a judgment of another judge of his Court, which was exclusively within the province of the Court of Appeal, he clearly could not be bound when he had to rule on his competence as to subject matter.
[30] If on hearing the evidence on the merits a judge comes to the conclusion that he does not have jurisdiction ratione materiae to hear a case, he must decline to hear it : this is a rule of public order.
[31] The Quebec Court of Appeal came to the same conclusion in Colleret v. Succession de banques.[6]
[32] Although this line of authority has developed in accordance with art. 164, Quebec Code of Civil Procedure,[7] the principle has also been recognized in the common law jurisdictions. A judgment rendered without jurisdiction is null and void and maybe ignored.[8] This is what the Ontario Court of Appeal held in McIntosh v. Parent:
It is a well recognised principle that the lack of jurisdiction in the Court deprives the judgment of any effect whether by estoppel or otherwise, even where the party alleged to be estopped himself sought the assistance of the court whose jurisdiction is impugned: Rogers v. Wood (1831), 2 B. & Ad. 245; Dublin (Archbishop) v. Trimleston (1847), 12 Ir. Eq. R. 251; Toronto Railway Co. v. Toronto Corporation, [1904] A.C. 809, 815.[9]
[33] In Manella, it repeated the same principle, namely that "[t]he judgment is not res judicata for this Court never had any jurisdiction".[10]
[34] Since the evidence clearly established that this case is not one which should be submitted to the Federal Court, I have no choice but to decline jurisdiction.
[35] Furthermore, my brother Denault J. dismissed the defendant's motion on the ground that [TRANSLATION] "the case as it stands does not indicate that the plaintiff is an employee"[11] (my emphasis).
[36] I conclude that the evidence available to him at the time of the motion could not have been conclusive on the point.
[37] The evidence as a whole indicated that the plaintiff worked continuously from January 5 to June 3, 1998, the date on which he was suspended with pay. There was no interruption of employment.[12] There were not two separate contracts of employment, but a single term contract of employment followed by an extension for a specified period.
[38] Since because of its extension the plaintiff's contract of employment was longer than three months the plaintiff was an employee within the meaning of the Public Service Staff Relations Act, and the effect of this was to bring him within the collective agreement applicable to the CR-05 group and level.
[39] Mr. Gaham was informed of this in a letter dated March 20, 1998 and a letter dated April 8, 1998, which explained the changes in his withholdings and fringe benefits.[13]
[40] The defendant also filed a pay identification slip which confirmed that Mr. Gaham was a member of the bargaining unit.[14]
[41] Ms. Macatto, a pay specialist, testified that once a contract of employment runs beyond three months, the employee becomes subject to the collective agreement. On April 1, Mr. Gaham paid a union contribution.
[42] Mr. Gaham did not himself dispute that he had paid this contribution. He also admitted that on May 27, 1998 he met with his union representative, R. Martineau, to discuss his dissatisfaction with the non-renewal of his contract.
[43] The Public Service Staff Relations Act is a complete code in itself which provides for exclusive use of the grievance procedure to decide any dispute relating to an employee's terms of employment.
[44] This exclusivity of the remedy results from the combined effect of the provisions of the collective agreement applicable to the plaintiff, the Public Service Staff Relations Act and the rules of precedent laid down by the Supreme Court of Canada, especially in Weber[15] and O'Leary.[16]
[45] A grievance was the only remedy open to the plaintiff, since his claim dealt with his conditions of employment, and in particular the actions taken by his employer regarding his conditions of employment.
[46] For these reasons, I feel I must decline jurisdiction.
[47] The action is dismissed with costs.
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Danièle Tremblay-Lamer JUDGE |
Ottawa, Ontario
November 10, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1423-98
STYLE OF CAUSE: ALI GAHAM
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 16, 2000
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: November 10, 2000
APPEARANCES:
Grégoire M. Bijimine FOR THE PLAINTIFF
Carole Bureau FOR THE DEFENDANT
Suzon Létourneau
SOLICITORS OF RECORD:
Grégoire M. Bijimine FOR THE PLAINTIFF
Attorney
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
[1] R.S.C. 1985, c. P-33.
[2] R.S.C. 1985, c. P-35.
[3] Gaham v. Canada et al. (1998), 160 F.T.R. 102.
[4] January 19, 2000, T-1423-98 (F.C.T.D.).
[5] [1977] C.P. 1077.
[6] [1989] R.D.J. 35 (Q.C.A.).
[7] R.S.Q., c. 25.
[8] J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Markham, Butterworths, 1999), at pp. 992-93.
[9] (1924), 55 O.L.R. 552, at 558.
[10] Manella v. Manella, [1942] 4 D.L.R. 712, at 717.
[11] Gaham, supra, note 3, at 106.
[12] Testimony of Ms. Maccato, pay specialist.
[13] Exhibits D-2 and D-3.
[14] Exhibit D-4.
[15] Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.
[16] New Brunswick v. O'Leary, [1995] 2 S.C.R. 967.