Date : 20001204
Docket: T-2004-99
Between:
YVON GIROUX
Plaintiff
and
HER MAJESTY IN RIGHT OF CANADA
Defendant
Introduction
[1] This is an action by the plaintiff in civil liability against the defendant under para. 3(a) of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, as amended, on the grounds that, if I understand his cause of action in its entirety, the members of selection boards on two different occasions intentionally and therefore in bad faith either abused their power or made defamatory remarks about him: delicts for which the plaintiff claims exemplary damages of $50,000.
Background
[2] Since this is a simplified action because of the amount sought by the plaintiff, the parties introduced their evidence by way of affidavit. Initially, the plaintiff had prepared a statement of claim which, like his affidavit, is very detailed. As a result, the defendant's defence responds to the plaintiff's statement of claim with a similar amount of detail.
[3] In my view, a good understanding of the case does not require as much detail as the plaintiff has provided. This is, after all, an action for damages; we are not sitting as a selection board or an appeal board established under section 21 of the Public Service Employment Act, R.S.C., 1985, c. P-33, as amended; nor are we dealing with an application for judicial review of an appeal board decision.
[4] To find the defendant liable in this case, the constituent elements of liability with respect to the various alleged delicts must be identified: a fault, damage and a causal connection between the two. If, in a given case, there is either no fault or no damage, there can be no liability.
[5] Although the Court does not intend to strike out any of the plaintiff's claims (the defendant is apparently not objecting to this), it must be realized that understanding the plaintiff's cause of action as a whole requires taking into account both the plaintiff's statement of claim and his affidavit; it is clear that the delicts he alleges in the first twenty-six paragraphs of his affidavit are described in paragraphs 7 to 9 of his statement of claim as merely introductory to the delicts alleged later. The plaintiff's affidavit filed in August 2000 is therefore broader than his statement of claim filed in November 1999 (see paragraph [52] infra for other comments on this issue).
[6] The plaintiff's action can be described essentially as follows.
[7] The plaintiff was unsuccessful in a competition held in 1995 to fill Large Case File Manager positions at the AU-4 group and level. The competition was later set aside by an appeal board decision dated January 6, 1997, (the decision of January 6, 1997,) that allowed the appeal of Raymond Lamarche, a colleague of the plaintiff, who had also been unsuccessful in the competition for the same reasons as the plaintiff: unlike the vast majority of the some 80 candidates who had participated in the competition, neither the plaintiff nor Mr. Lamarche had given details of their relevant work experience, as shown by the evidence presented to this Court.
[8] The appeal board allowed Mr. Lamarche's appeal because it found that the selection board had erred in requiring a fixed number of years to satisfy the experience criterion and that the complexity of the experience had not been properly assessed, as it was judged on the basis of a list of duties and sections of the Act, although the notice of competition did not require such a high degree of detail.
[9] As a result of that decision and in accordance with subsection 21(3) of the Public Service Employment Act, Ms. Courchesne-Renaud, Regional Chief of the Public Service Commission (the Commission), issued corrective measures to be followed in resuming the assessment of all the candidates. Subsection 21(3) of the Act reads as follows:
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
[10] The corrective measures prescribed by the Commission may be summarized as follows: (1) two years' experience shall not be considered necessary; (2) the experience shall not be assessed based on a detailed description of experience, which was determined to be contrary to the requirements set out in the statement of qualifications; (3) the disparities among the various sources of information about the candidates shall be reduced; and (4) the rules established for assessing candidates shall not be changed part way through the process. In addition, Ms. Courchesne-Renaud had made it clear to both the Department representatives and the members of the selection board that the candidates' experience was to be assessed based on the updated information as of the date of the new assessment that would have to be carried out.
[11] For greater certainty, however, the relevant part of the measures that were sent by Ms. Courchesne-Renaud to the Human Resources Division at Revenue Canada on February 10, 1997, reads as follows:
[TRANSLATION] This refers to the above-noted appeal that has been allowed. After reviewing the entire case and after having various discussions with the appellant's representative, the managers, union representatives and Human Resources officials, I am directing that the following corrective measures be implemented to ensure compliance with the merit principle:
- The eligibility lists established as a result of this process are invalid, and no appointment may be made based on those lists.
- Given that the appeal board decision does not put in issue the qualifications of the candidates on the eligibility lists, current acting appointments may continue until the corrective measures have been implemented.
- The work experience of all the candidates who participated in the competition shall be reassessed based solely on the experience criterion in the statement of qualifications. If any new candidates meet the requirements relating to work experience, the selection board shall conduct an assessment of the other required qualifications.
- The board shall not assess the candidates based on a detailed description of their work experience because neither the statement of qualifications nor the notice of competition stated in any way that the candidates had to give details of their work experience.
- As stated in the appeal board decision, the selection board shall attempt to resolve the disparities between the information that it already has on the candidates and the information obtained from statements by those candidates. This affects Mr. Lamarche and any other candidate whom the selection board knows personally.
- The board shall use the established rating guide to carry out the assessment of the candidates. As pointed out by the appeal board, the selection board may not change the rules in the middle of the game. With respect to all the candidates, the board shall therefore ensure that scores obtained for other qualifications do not take the place of the requisite work experience.
- It is agreed that these corrective measures shall be implemented as soon as possible and that a new list must be drawn up for each competition.
- All unsuccessful candidates shall have a right of appeal with respect to the proposed appointments.
- The Department shall inform all the candidates in the competitions of the corrective measures prescribed by the Public Service Commission of Canada.
[12] It is with respect to the selection board's implementation of these measures during its reassessment of the candidates that the plaintiff alleges that a member of the selection board, Pierre Nadeau--and therefore the entire selection board, since one member never acts alone or acts on behalf of the selection board--blatantly abused his power by intentionally and in bad faith failing to carry out the reassessment prescribed by the corrective measures. The plaintiff also alleges that Ms. Courchesne-Renaud was negligent in failing to monitor compliance with the measures that she had issued and instructed Revenue Canada to carry out.
[13] The plaintiff's allegations about the conduct of the selection board are based on certain reasons stated by the chairman of the appeal board that made the decision of January 6, 1997, and that allowed the new appeals by the plaintiff and Mr. Lamarche on May 28, 1997 (the May 1997 decision); because so much time had elapsed since the selection process had begun, the appeal board completely set aside the selection process.
[14] The applicant specifically refers to the following passages from the May 1997 decision, which we will revisit (see paragraphs [42] and following, infra):
[TRANSLATION] It can now no longer be argued that the first appeal board erred and we cannot disregard the decision governing the parties on the same subject . . . It is therefore fundamentally unjustifiable for the selection board to have given the same score to the appellant Lamarche for the complexity of work experience, because that completely flies in the face of the decision.
In addition, having heard the statements of the board members, I do not think that they had sufficient knowledge about the candidates' recent work experience. . . That is not what was required of the board under the corrective measures prescribed by the PSC, and the measure that was taken was done in such a way as to clearly circumvent the decision . . .The change that was made was not what should have been expected after the first appeal decision: the board merely made a change in form rather than the change in substance that was obviously required in this case.
[15] That is the background with respect to the first set of delicts alleged against the defendant.
[16] The plaintiff maintains that the other delicts alleged against the defendant are based on the following facts.
[17] After the first selection process was set aside following the May 1997 decision, Revenue Canada initiated a second selection process in January 1998 to fill what were, for all practical purposes, the same positions.
[18] The plaintiff applied for the position and took two tests as part of the new competition; he passed the written examination but was unsuccessful at the interview. The failure to succeed at the interview resulted in him being disqualified from the competition.
[19] Because the plaintiff was dissatisfied with the disqualification, he appealed the appointments proposed by the selection board.
[20] At a hearing before the appeal board, the plaintiff made his allegations, the Department provided a reply to the allegations, the plaintiff was granted a right of reply and the Department had the last word by responding to the plaintiff's reply.
[21] The plaintiff claims that the Department made a number of false or misleading statements in the two replies that it provided to the appeal board.
[22] It is here that the second series of delicts alleged by the plaintiff comes into play. He maintains that the members of the selection board knowingly and maliciously made a series of false and misleading statements and defamatory remarks in the two replies that they provided to the appeal board.
[23] In summary, according to the plaintiff, we are therefore dealing with two series of delicts committed maliciously and in bad faith by servants of the Crown.
[24] The plaintiff claims that the first series allegedly occurred during the first selection process and related to the selection board's implementation of the corrective measures prescribed by the Commission. He says that the second series occurred in the submissions made by the selection board in the second selection process.
[25] It is to be noted for our purposes that both selection processes were attempting to fill the same type of position. It is also to be noted that the members of the selection boards were not the same for the two processes and that none of the public servants on the selection boards or at the Commission knew the plaintiff personally.
[26] In fact, the plaintiff was never able to identify nor did he try to identify the personal reasons why any of the defendant's servants would have wanted to injure him personally.
[27] The two series of alleged delicts should now be considered in turn.
Analysis
1st series of delicts: the intentional failure to implement the corrective measures
[28] As stated above, these delicts were allegedly committed during the implementation of the corrective measures by the selection board; the plaintiff submits that a member of the selection board, Pierre Nadeau (and therefore the selection board), blatantly abused his power by intentionally and in bad faith failing to carry out the reassessment prescribed by the corrective measures. The plaintiff also alleges that the Commission's Ms. Courchesne-Renaud was negligent in failing to monitor compliance with the measures that she had issued and instructed Revenue Canada to carry out.
[29] In order to dispose of this issue, we must determine whether the plaintiff has proven that the failure to implement the measures--the fault that we will take as a given at this stage--caused damage to him, that is, according to paragraphs 123 and 126 of his affidavit, caused him to not obtain one of the positions that were the subject of the competition.
[30] Those paragraphs of the plaintiff's affidavit read as follows:
[TRANSLATION]
123. On a professional level, I lost the opportunity of filling a position that interested me very much.
. . .
126. If the selection board had followed the appeal board decision and considered my work experience between 1994 and February 1997, no appeal would have been started in April 1997 and the competition would not have been set aside. If that had been the case, I would have obtained the maximum score of 125/125 for the experience factor because my testimony before the appeal board proved that I had the complex experience required by the selection board.
[31] In my view, certain corrections need to be made to the above-mentioned paragraph 126 before we continue our review.
[32] First, it must be understood that when the plaintiff refers to the appeal board decision he means the one dated January 6, 1997. That decision does not by any means order that the candidates' work experience between 1994 and February 1997 be considered. The appeal board decision merely allows the appeal. It is the corrective measures issued later that require the selection board to update the candidates' work experience.
[33] Second, the appeal board decision of January 6, 1997, referring to one part of the plaintiff's testimony, does not make any comment on the validity of the work experience mentioned by the plaintiff before the board. At his paragraph 126, the plaintiff refers indirectly to pages 7 and 8 of the appeal board decision. These pages are found in that part of the decision where the board simply sets out the allegations of the parties before it. As I understand it, the passages that the plaintiff seems to be referring to are as follows:
[TRANSLATION] The appellant Giroux stated that he had been a basic files auditor in Longueuil, and that, in his opinion, the files he dealt with at that level were complex. After the reassessment, his score increased slightly (from 40 to 50/125), but that did not accurately reflect the worth of his actual experience. Mr. Nadeau had remembered some relatively old work experience that ultimately earned him 10 points, and Mr. Nadeau had told him that if he had applied and mentioned the FAPI (which is found in the detailed list on the first grid), he would have got more points. Then, the appellant listed one by one all relevant work experience that he had had between October 1995 and February 1997. The selection board had failed to consider that work experience because he was working in a different location.
[34] Contrary to the plaintiff's submission, the appeal board is neither agreeing nor deciding that he had the complex experience required by the selection panel. The board simply did not have that jurisdiction. That is the function of the selection board.
[35] That being so, it must ultimately be understood from the plaintiff's affidavit and more particularly from paragraphs 123 and 126 thereof, as well as from the cross-examination of the plaintiff before this Court, that if his reassessment for the period from 1994 to February 1997 had been carried out in a detailed manner and in accordance with how the plaintiff understood the corrective measures (that is, if the board had not merely assessed the type of work that the plaintiff did during the period 1994 to 1997 but had taken into account in a very detailed manner the files that he dealt with during that same period), the selection board would have awarded him the maximum number of points--125/125 for the experience criterion, which is the issue in dispute here-- instead of 50/125, which was awarded to him at the initial assessment and the reassessment required by the corrective measures.
[36] We are therefore to understand that those 75 additional points would have enabled the plaintiff not only to make up the shortfall of 41 points and obtain the pass score in the competition, but would also have enabled him to obtain one of the positions that were the subject of the competition; this would be the main damage suffered by the plaintiff in the first process.
[37] In evidence before this Court, during oral testimony in which counsel for the defendant was attempting to establish the credibility of the witness (given that the witness had not yet been cross-examined or confronted by the plaintiff), a member of the selection board, Pierre Nadeau, first contradicted the plaintiff regarding a conversation that they allegedly had had shortly after the reassessment, in which Mr. Nadeau told the plaintiff that his experience with basic files from November 1994 to February 1997 should have earned him the maximum number of points, that is, 125/125. The witness Nadeau remembered that a meeting might have taken place, and although he could not recall the exact content of the conversation on that point, he nevertheless categorically denied having made such a statement to the plaintiff.
[38] According to Nadeau--and on that point his testimony is consistent with the statements in his affidavit, particularly paragraphs 25 to 41 thereof--the selection board was sufficiently aware of the type of files in the Longueuil office where the plaintiff worked to know that he could not have encountered enough complexity in those basic files from 1994 to 1997 to earn him the number of missing points required to qualify for the competition.
[39] After reading the affidavit of Mr. Nadeau and hearing his testimony, the Court accepts his version.
[40] Under the circumstances, it is also appropriate to note that the plaintiff has clearly failed to establish in evidence before this Court (in his statement of claim, affidavit or even on cross-examination) that the selection board failed to consider any relevant work experience that would have earned him the 41 points he was short after the second assessment.
[41] In my view, the plaintiff has therefore not established that he suffered any damage as a result of his reassessment, even if one were to conclude that it was flawed or that the Commission was negligent in failing to monitor the measures.
[42] Moreover, although the appeal board decision of May 28, 1997, states that the selection board's actions after the appeal board decision of January 6, 1997, and after the corrective measures were issued, were nothing but an exercise in form aimed at circumventing its decision of January 6, I am of the view that the evidence submitted to the Court by the defendant in this action, in particular the affidavits of Pierre Nadeau and Marie-Josée McArdle, establish that the selection board had sufficient grounds to proceed as it did with regard to both the plaintiff and Mr. Lamarche. In my opinion, it is reasonable and plausible to conclude that both the decision of January 6, 1997, and the corrective measures contained elements or conclusions that literally caught the selection board between the decision of January 6, 1997, and the corrective measures issued subsequently. The selection board therefore attempted to act within the confines of what it understood it had the power to do. It cannot therefore be argued that the conduct of the selection board as a result of the appeal board decision of January 6, 1997, was flawed or abusive such as to establish liability on the part of the defendant.
[43] Neither the Commission's Ms. Courchesne-Renaud nor any member of the selection board knew the plaintiff, and as noted above, he did not introduce any evidence to establish a motive or reasons proving that the Commission or the selection board acted as they did subsequent to the appeal board decision of January 6, 1997, knowingly, with intent to abuse their power or out of sheer malice. The downside of the appeal brought by the plaintiff and Mr. Lamarche leading to the appeal board decision of May 28, 1997, cannot therefore be connected to a fault giving rise to liability on the part of the defendant.
[44] It seems appropriate to cite here the following comments by the Federal Court of
Appeal in paragraphs 10 and 11 of Kibale v. Canada, [1994] A.C.J. no. 161 (C.A.):
10 2. Regardless of this question of prescription, the Court does not think that either simply finding irregularities existed in the way the competition was held (assuming that it was possible to identify those irregularities despite the absence of any indication as to the procedure to which this competition was subject) nor proof that this was an appointment made without observing the requirements of the Act regarding the merit principle (assuming that the evidence clearly indicated this, which is not the case) could be a sufficient basis for an action by the appellant for damages. Such an action can only be admitted on proof of a wrongful act from which damage directly resulted. The common law does not recognize the concept of a special civil wrong for breach of a legal obligation (see the Supreme Court of Canada judgment in Her Majesty the Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; see also as to this the recent judgment of Strayer J. of the Trial Division of this Court in Beaton v. Public Service Commission of Canada et al., 6 Admin. L.R. 119). Further, the causal link between the injury allegedly sustained, namely not being appointed, and the irregularity or deficiency mentioned could only exist if the appellant had acquired some right to such an appointment, which is not the case. Success in a Public Service competition is not in itself a source of substantive law.
11 3. Finally, quite apart from prescription, in our opinion the appellant was not able to show the existence in his case of the first condition for an action in tort under the Crown Liability Act, namely the commission by one or other of the Crown servants involved of a wrongful act at common law, a tort of negligence which led to his not being appointed to one of the positions involved in the competition in which he took part. As any allegation of discrimination, malice or bad faith was ruled out in advance, no evidence was presented, and no attempt was even made to present it, to indicate that there was any kind of negligence. On the basis of the facts as established no one appears to have acted wrongfully or contrary to what he believed in good faith should have been done in the circumstances.
[45] I will now consider the second series of delicts alleged by the plaintiff.
2nd series of delicts: false and misleading statements and defamatory remarks made by the second selection board
[46] As noted above in paragraph [17] and following, the plaintiff alleges that at the appeal board hearing, after he had been unsuccessful in the second selection process, the selection board knowingly and maliciously made a series of false and misleading statements and defamatory remarks about him.
[47] The plaintiff describes the situation as follows in paragraphs 23 and 24 of his statement of claim:
[TRANSLATION]
23. At the hearing, the plaintiff made his allegations, the Department provided a reply to the allegations, the plaintiff was granted a right of reply and the Department had the last word by responding to the plaintiff's reply.
24. The Department made a number of false or misleading statements in the two replies provided to the appeal board. . . .
[48] It must be understood from paragraph 95 of the plaintiff's statement of claim that he alleges that the selection board also made defamatory remarks at the reply stage.
[49] The first issue to be considered is the selection board's false statements before the appeal board.
[50] The plaintiff maintains that those statements were made with a planned and deliberate intent to act maliciously in order to win the case before the appeal board at all costs (see paragraph 93 of his statement of claim on this point).
[51] The plaintiff is therefore alleging that perjured evidence was given in order to influence the appeal board in determining whether the selection board had complied with the merit principle.
[52] As an aside, it is interesting to note that once the plaintiff recognized the apparently false nature of these statements, he began to consider an action in damages for this perjured evidence. (If one goes back to the first selection process, it must be noted that the abusive and negligent reassessment of the candidates, as alleged by the plaintiff, had not led him to consider an action and did not seem to give rise to liability until the plaintiff drafted his reply and in particular his affidavit.)
[53] If we return to the issue of perjured evidence, although he characterizes it as perjured before the appeal board, it is clear from the cross-examination of the plaintiff before this Court that in his written reply before the appeal board, the plaintiff's only goal concerning the statements was to point out that they were incorrect. He did not raise the issue of bad faith on the part of the members of the selection board before the appeal board.
[54] The appeal board rejected all of the plaintiff's submissions. He brought an application for judicial review of that decision. The Trial Division of this Court dismissed the plaintiff's application on August 9, 2000. The plaintiff appealed that decision on September 20, 2000 (see Court file A-566-00).
[55] The plaintiff maintains that determining the appropriateness of the selection board's reassessment was the prerogative of the appeal board, but that the selection board's deliberately false statements before the appeal board could and must be the subject of an action in damages before this Court without requiring that the matter be brought before the appeal board or the Federal Court on an application for judicial review.
[56] However, para. 18.1(4)(e) of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, provides that the Federal Court may grant relief by way of judicial review if it is satisfied that the tribunal, here the appeal board, acted by reason of perjured evidence.
[57] It therefore seems to me that the plaintiff should have fully raised the issue of perjured evidence before the appeal board and certainly as a ground of attack in the above-mentioned application for judicial review.
[58] In my view, the plaintiff could not split his attack on the selection board's purported false statements into two proceedings. It appears that the plaintiff's own position is that the perjured evidence is relevant in that it goes to the function or role of the appeal board. Therefore, the plaintiff should first have disputed those statements before the appeal board, and if that did not succeed, he should have brought an application for judicial review, which he has not done.
[59] The Court is therefore unable to consider the issue of perjured evidence in this action. Since there can be no finding of fault in this case, no damages can be awarded.
[60] Furthermore, even if the Court were able to assess the perjured evidence in this case, it is difficult to see how the action could get very far, given that the appeal board did not even find that the selection board's statements were incorrect.
[61] In addition, the plaintiff put great emphasis on the fact that Mr. Justice Pinard of this Court had dismissed the defendant's motion to strike the plaintiff's statement of claim. The full text of that decision puts it in context:
Motion by the defendant for an order dismissing the plaintiff's action with costs on the ground that the Trial Division of the Federal Court of Canada lacks jurisdiction to hear the plaintiff's action on the merits and for an order striking the plaintiff's statement of claim with costs on the ground that it discloses no cause of action.
[Paragraphs 204(a), 298(2)(a) and (b) of the Federal Court Rules, 1998]
O R D E R
Having regard to paragraphs 1 to 6 inclusive of the Statement of Claim as well as one of the subsequent explanatory allegations in the same document, it is clear that we are dealing with an action for damages based on the alleged fault of defamatory remarks by servants of the Crown about the plaintiff. At this stage of the proceedings, the facts pleaded in the Statement of Claim are assumed to be true. Accordingly, based on sections 3(a) and 10 of the Crown Liability and Proceedings Act, and on paragraph 17(5)(b) of the Federal Court Act, the motion is dismissed. (See also Todd B. Shaw v. H.M.Q., Court file T-422-97, a decision of Prothonotary Hargrave.) The defendant will have 30 days to serve and file a defence.
Costs in the cause.
[62] In my view, this decision is nothing more than a refusal by the Court to strike the plaintiff's statement of claim in the context of a motion in which the facts pleaded in the statement of claim are presumed to be true, and the first paragraphs of the statement of claim refer to defamatory remarks. I see nothing in this decision, including the reference to the Todd B. Shaw case, that contradicts the reasoning thus far in this case. The decision of Pinard J. does not in any way constrain the Court's assessment of the merits of the case at trial, as is the case here.
[63] I will now assess the defamatory remarks set out in paragraphs [22] and [48] above.
[64] The plaintiff maintains that in her submissions to the appeal board, Ms. Sylvie Tremblay, who represented the deputy head of the Department of National Revenue and who had prepared her submissions in consultation with the members of the selection board, made defamatory remarks by saying aloud the following words taken from her written submission:
[TRANSLATION] He [the plaintiff] does not give the complete answers and he takes them out of context for his own benefit.
[65] The plaintiff considers these remarks to be defamatory and damaging to his reputation because they implied to his colleagues who were at the hearing that he had intentionally attempted to mislead the appeal board and therefore that he had attempted to lie in order to win his case.
[66] In my view, the plaintiff is clearly overreacting to these statements, particularly if we look at the context in which they were made.
[67] From my understanding of the evidence, these statements were made in good faith by Ms. Tremblay to reflect her perception of the facts as interpreted and put forward by the plaintiff.
[68] These are the exact words for which Ms. Tremblay and in fact the selection board are being faulted (the contentious allegation is at the end and is underlined):
[TRANSLATION] With respect to the allegation that Daniel Beaulac should not be a qualified candidate, we have demonstrated that the assessment of that candidate is completely justified. It is important to note that Mr. Giroux's submissions take parts of sentences out of context, and he interprets those sentences in his own way and for his own benefit in order to connect each of them to the answer grid. He does the same thing when he makes comparisons with the successful candidates. He does not give the complete answers and he takes them out of context for his own benefit.
[69] After hearing all the evidence and submissions of the parties, the appeal board made the following findings. I note that except for the sentence with which the plaintiff takes issue, the appeal board squarely adopted Ms. Tremblay's approach:
[TRANSLATION] In conclusion, I must emphasize that the appellant argued his case by interpreting in his own way the notes taken by the members of the selection board. It must be noted that the board's conclusions about the scoring of each answer of the candidates were made in the context of an interview and were not based solely on the notes taken by its members. It must also be added that they arrived at a consensus shortly after each interview, when the candidates' responses were still fresh in their minds. On the other hand, the appellant interpreted the interview notes that were made available to him several months later in a completely different context from an interview.
I agree somewhat with the representative of the Department when she states that the appellant took parts of sentences out of context and interpreted them in his own way in order to connect each of them to the answer grid. He did the same thing when he made comparisons with the answers of the successful candidates.
[70] The plaintiff did not argue before this Court that the appeal board had made defamatory remarks about him. In my view, inserting the impugned sentence clearly does not constitute defamation, particularly when the context and the statements preceding that sentence are considered. That sentence is an integral part of the other statements preceding it--statements that were confirmed by the appeal board. In my view, it is unnecessary to read anything into the fact that the appeal board did not repeat the impugned sentence verbatim.
[71] I agree completely with the defendant's submissions in paragraphs 136, 137 and 141 of its defence:
[TRANSLATION]
136. Ms. Tremblay's remarks, which were adopted by the appeal board, are not in any way defamatory because they constitute a necessary, fair and objective analysis of the plaintiff's submissions and were made by a servant of the defendant acting in the legitimate exercise of her duties before a quasi-judicial administrative tribunal, not maliciously, but only to assert that the selection board's submissions were more valid in fact and in law than the plaintiff's;
137. In deciding to appeal the results of the competition in which he had been unsuccessful, the plaintiff knew that the selection board would seek to defend the soundness of its assessment of the candidates in fact and in law;
. . .
141. Therefore the plaintiff cannot fault Ms. Tremblay, whose submissions were based on the facts in evidence and constituted a necessary, fair and legitimate rebuttal of his submissions;
[72] Moreover, in my view, the principles developed by the Quebec Court of Appeal in Borenstein v. Eymard, [1992] R.R.A. 491, at page 493, concerning partial immunity for statements made by lawyers are applicable in this case, although the person who made the remarks at issue is not a lawyer. In that case, the Court established the following principles:
[TRANSLATION] Defamation in a pleading gives rise to a remedy in damages only if it is established that the defamatory allegations are not only false, but are irrelevant to the dispute, and that they were made maliciously or at least with a recklessness that amounts to malice because there was no reasonable or probable cause to make them.
[Emphasis in the original.]
[73] The plaintiff in this case has completely failed to establish that the remarks he is disputing are false, irrelevant, or were made maliciously without reasonable or probable cause. On the contrary, the evidence led by the defendant strongly supports the finding that none of these conditions exist.
[74] In my view, the impugned sentence (see paragraph [64] supra) does not constitute a defamatory remark. Accordingly there is no fault on the part of the defendant, and therefore there is no need to formally assess whether the plaintiff has suffered any damage.
Conclusion
[75] Since I am unable to find that the defendant is liable for any of the alleged delicts, I cannot find that the defendant has committed a fault based on the plaintiff's allegation that his various disputes before the appeal boards earned him a reputation as a troublemaker among his colleagues. Moreover, the plaintiff's evidence on that issue with respect to damage consisted of only one allegation in his own affidavit. The plaintiff did not submit any affidavit from his colleagues in which they perceived him to be as he describes. His only evidence therefore is hearsay, and the Court could hardly rely on that to award damages even if the Court had made a finding of fault.
[76] In conclusion, the plaintiff has not satisfied me that the defendant should be found liable for any of the delicts that he alleges.
[77] For these reasons, the plaintiff's action will be dismissed with costs.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
December 4, 2000
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-2004-99
YVON GIROUX
Plaintiff
AND
HER MAJESTY IN RIGHT OF CANADA
Defendant
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:November 7, 8 and 9, 2000
REASONS FOR JUDGMENT OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR JUDGMENT:December 4, 2000
APPEARANCES:
Yvon Giroux for the plaintiff
Raymond Piché for the defendant
Dominique Guimond
SOLICITORS OF RECORD:
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Date: 20001204
Docket: T-2004-99
MONTRÉAL, QUÉBEC, THE 4th DAY OF DECEMBER 2000
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
YVON GIROUX
Plaintiff
and
HER MAJESTY IN RIGHT OF CANADA
Defendant
JUDGMENT
The plaintiff's action is dismissed with costs.
Richard Morneau
Prothonotary
Certified true translation
Mary Jo Egan, LLB
Federal Court of Canada
Trial Division
Date: 20001204
Docket: T-2004-99
Between:
YVON GIROUX
Plaintiff
AND
HER MAJESTY IN RIGHT OF CANADA
Defendant
REASONS FOR JUDGMENT