Date: 20020410
Docket: A-536-00
Ottawa, Ontario, April 10, 2002
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
DANIEL AUDET
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
JUDGMENT
The appeal is dismissed with costs.
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J. Richard
Chief Justice |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020410
Docket: A-536-00
Neutral citation: 2002 FCA 130
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
DANIEL AUDET
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Hearing held at Montréal, Quebec on March 21, 2002.
Judgment rendered at Ottawa, Ontario on April 10, 2002.
REASONS FOR JUDGMENT BY: RICHARD C.J.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 20020410
Docket: A-536-00
Neutral citation: 2002 FCA 130
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
DANIEL AUDET
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1] This is an appeal from an order by a trial judge on June 9, 2000, (2000) 194 F.T.R. 5, dismissing with costs the appeal from a decision of the prothonotary Morneau on May 17, 2000, (2000) 190 F.T.R. 294, striking out the statement of claim and dismissing the action of the appellant (T-1391-99) on the ground that it lacked a cause of action, was frivolous and constituted an abuse of process.
[2] On August 22, 1995 the appellant filed in the Trial Division of the Federal Court of Canada a claim for damages (T-1793-95) in the amount of $1,284,000 and a claim for unpaid salary (T-1794-95) in the amount of $147,290.
[3] On October 17, 1995, following negotiations between the appellant and the respondent, the parties, represented by counsel, concluded an agreement. That agreement, signed by the appellant with his counsel as witness, provided inter alia:
[TRANSLATION]
In view of the dispute between the parties as set out in Federal Court files (T-1794-95 and T-1793-95);
In view of the fact that the parties wish to settle this dispute amicably;
. . . . .
4. Audet undertakes not to sue the RCMP/its present or former members in connection with his relationship to the RCMP/its members since 1991;
. . . . .
9. The RCMP undertakes to pay Audet the sum of $105,000 in full and complete settlement of any past, present or future claim resulting from any relations he may have had with the RCMP from 1991 to the date of signature hereof, and in particular the claims set forth in T-1793-95 and T-1794-95;
10. Audet authorizes his counsel to sign a discontinuance in T-1793-95 and T-1794-95;
11. This agreement constitutes a transaction within the meaning of the Civil Code of Quebec.
[4] The events which led to the signature of the said agreement occurred between November 1991 and December 1994: the actions brought described these events.
[5] On August 4, 1999 the appellant served a new claim against the respondent for damages in the amount of $1,284,000 (T-1391-99). The appellant's new claim was based on the same events and claimed the same damages as those previously alleged.
[6] The respondent pleaded estoppel of the appellant's action by filing a motion to dismiss on the ground that the application disclosed no cause of action, was frivolous and constituted an abuse of process.
[7] The motion to dismiss was allowed by the prothonotary and affirmed on appeal by a trial judge. The appellant is now appealing to this Court.
[8] In his decision the prothonotary noted that the text of the agreement is clear and that paras. 9 and 10 of the agreement clearly establish that it was made in complete settlement of cases T-1793-95 and T-1794-95. It was also mentioned that the compensation paid on October 17, 1995 and the action before him (which referred to case T-1794-95) related to the same incidents and damages.
[9] He further noted that s. 9 of the Crown Liability and Proceedings Act ("the Act") prohibited an individual from suing the government and its servants when compensation had been paid by the Crown.
[10] I note in passing that the scope of s. 9 has subsequently been considered by the Supreme Court of Canada in Sarvanis v. Canada, [2002] S.C.C. 28.
[11] The appellant argued in this Court that the agreement was void and that his consent to discontinue his action for damages was vitiated and was the focus of untruthful representations by the respondent.
[12] The appellant submitted that s. 9 of the Act did not constitute an estoppel when the proceeding brought against the Crown concerned losses allegedly resulting from wrongful activities.
[13] However, the appellant did not bring an action to vacate the transaction in a court with jurisdiction over the matter.
[14] The appellant also did not offer to return to the respondent or pay into court the sum of $105,000 he received from the respondent when the agreement was signed, which would have had the effect of placing the parties in the situation in which they were before the transaction.
[15] The record disclosed that the appellant not only did not offer to repay the $105,000 or pay it into court, he admitted it was impossible for him to do so.
[16] A notice of discontinuance does not as such prevent the party who filed it from bringing another action on the same matter (see Drapeau v. Canada (Minister of National Defence) (1996), 119 F.T.R. 146 (F.C.T.D.)).
[17] However, in the case at bar the discontinuance resulted in an agreement the purpose of which was to settle the dispute between the same parties and which was a transaction within the meaning of the Civil Code of Quebec.
[18] The appellant disregarded the agreement on his own initiative and filed a new action based on the same facts covered by the agreement.
[19] In these circumstances, the trial judge had no choice but to affirm the dismissal of the action by the prothonotary.
[20] The appeal should be dismissed with costs.
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J. Richard
Chief Justice |
I concur.
Robert Décary J.A.
I concur.
Marc Noël J.A.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-536-00
STYLE OF CAUSE: DANIEL AUDET v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 21, 2002
REASONS FOR JUDGMENT BY: Richard C.J.
CONCURRED IN BY: Décary J.A.
Noël J.A.
DATED: April 10, 2002
APPEARANCES:
Daniel Audet for himself
Raymond Piché for the respondent
SOLICITORS OF RECORD:
Daniel Audet for himself
Lavaltrie, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario