Date: 20000329
Docket: T-1423-98
Between:
ALI GAHAM,
Plaintiff,
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
NADON J.
[1] The defendant is appealing a decision by the prothonotary Richard Morneau, dated January 19, 2000.
[2] The prothonotary"s decision is titled [TRANSLATION] "Order concerning pre-trial conference and conduct of action". The prothonotary"s power to make such an order derives from Rule 265(b ) of the Rules of this Court, which provides the following:
| 265. At a pre-trial conference, |
. . . . .
| (b) a prothonotary may make any order respecting the conduct of the action other than an order under a motion referred to in any of paragraphs 50(1)(a) to (i). |
[3] Specifically, the defendant objected to paragraph 2 of the order of January 19, 2000, in which the prothonotary said the following:
| [TRANSLATION] |
| According to the Court at this stage, on account of this Court"s judgment dated September 14, 1998, there is now a final and conclusive res judicata on the question of this Court"s jurisdiction ratione materiae to hear the instant action by the plaintiff and the defendant is precluded in future from raising this point again. |
[4] The judgment of September 14, 1998 to which the prothonotary referred in paragraph 2 of his decision is one by Denault J. At paragraph 1 of his judgment, Denault J. summarized the motion before him as follows:
| The defendants challenge the jurisdiction of this Court and move for the dismissal of the action for damages brought by the plaintiff as a result of the non-renewal of his employment for a specified period within the federal public service at Human Resources Development Canada in Montréal. |
[5] After reviewing the question raised by the defendant"s motion, Denault J. came to the conclusion that the plaintiff was not a public servant within the meaning of the Public Service Staff Relations Act , R.S.C. 1985, c. P-35, and hence the Federal Court had jurisdiction to hear his action.
[6] The defendant filed no notice of appeal from Denault J."s judgment. For a clearer understanding of the matter, I set out below paragraphs 7 and 8 of Denault J."s judgment:
| [7] Moreover, in order to be subject to or to have the right to the grievance procedure provided in Part IV of the Public Service Staff Relations Act (sections 91 et seq.), one must be an employee within the meaning of subsection 2(1) of the Act: |
| "employee" means a person employed in the Public Service, other than |
| ( h) a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more. |
| In its present state, the record does not indicate that the plaintiff is an employee withing [sic] the meaning of the Act. |
| [8] In light of my conclusion with respect to the jurisdiction of this Court to hear and decide this case, it is unnecessary to deal with the argument of counsel for the defendants and the long line of supporting case law concerning the exclusivity of the remedy to [sic] the grievance procedure to which an employee is subject. |
[7] Following dismissal of her motion, the defendant filed a 96-paragraph defence. At paragraphs 31 et seq., the defendant alleged that the plaintiff was an employee within the meaning of the Public Service Employment Act, R.S.C. 1985, c. P-33, and under the Public
Service Staff Relations Act. At paragraph 87 of her defence the defendant alleged the following:
| [TRANSLATION] |
| The defendant again alleges that this Court has no jurisdiction to hear the plaintiff"s action on the merits since the exclusive relief procedure for obtaining compensation was, under the relevant legislation, available to the plaintiff as an employee within the meaning of the P.S.S.R.A. [Public Service Staff Relations Act ] and he decided not to make use of this . . . |
[8] The plaintiff filed a reply to the defendant"s defence. At paragraphs 32 and 33 of his reply the plaintiff alleged the following:
| [TRANSLATION] |
| [32] Contrary to what was argued by the defendants, the plaintiff did not work as a regular employee but as a casual employee, so that he was excluded from the scope of the Public Service Staff Relations Act. |
| [33] Further, as the Court has dismissed the defendants" motion to dismiss the plaintiff"s action for lack of jurisdiction, the matter is now res judicata and hence, in accordance with the res judicata rule, the defendants can no longer dispute the Court"s jurisdiction over the plaintiff"s action . . . |
[9] The plaintiff accordingly joined issue on the question of jurisdiction raised by the defendant. The plaintiff did not file a motion to strike the paragraphs in the defence where the defendant raised the question of jurisdiction.
[10] Subsequently, the parties filed their memoranda regarding their holding of a pre-trial conference to be held before the prothonotary Richard Morneau. The pre-trial conference was set down for 9:30 a.m. on January 18, 2000 in Montréal.
[11] On January 19, 2000 the prothonotary signed the order objected to by the defendant.
[12] With respect, I can only conclude that the prothonotary exceeded his powers when he for all practical purposes struck out the paragraphs in the defence regarding the Court"s jurisdiction to hear the plaintiff"s action.
[13] As I have already indicated, the plaintiff joined issue on the question of jurisdiction and filed no motion asking that the relevant paragraphs of the defence be struck out. Consequently, in my opinion the prothonotary could not decide at the pre-trial conference one of the points which the trial judge would have to resolve, namely whether Denault J."s judgment ended the debate about jurisdiction.
[14] It is worth noting that when counsel for the parties appeared for the pre-trial conference, they had received no indication or notice that they would have to argue before the prothonotary the question raised by the pleadings, namely whether there was res judicata on the question of jurisdiction.
[15] It appeared that the prothonotary raised this question ex officio and decided it as he did because he was of the view that Denault J." s judgment on September 14, 1998 had concluded the argument. Once again, with respect, I consider that the prothonotary exceeded his powers.
[16] If the plaintiff wished to argue this question before the trial, he was quite free to file a motion asking that the relevant paragraphs in the defence be struck out or asking the Court to decide this point of law.
[17] In the circumstances, I can only allow the defendant"s appeal and reverse the prothonotary"s decision. Paragraph 2 of the prothonotary"s order will accordingly be struck out and the question regarding this Court"s jurisdiction to hear the plaintiff"s action added to the questions to be decided by the trial judge.
[18] Costs to follow.
| Marc Nadon Judge |
Montréal, Quebec
March 29, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-1423-98 |
STYLE OF CAUSE: ALI GAHAM,
Plaintiff,
AND
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, |
Defendant.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: March 27, 2000 |
| REASONS FOR ORDER BY: Nadon J. |
| DATED: March 29, 2000 |
APPEARANCES:
| Grégoire M. Bijimine for the plaintiff |
| Suzon Létourneau for the defendant |
SOLICITORS OF RECORD:
| Grégoire M. Bijimine for the plaintiff |
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Ottawa, Ontario
| FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20000329 Docket: T-1423-98 Between: ALI GAHAM, Plaintiff, AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Defendant. REASONS FOR ORDER |