Date: 19980731
Docket: T-2153-95
BETWEEN:
ANNA DUPUIS
Applicant
AND
HER MAJESTY THE QUEEN
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondents
AND
THE OFFICE OF THE COMMISSIONER
OF OFFICIAL LANGUAGES
Mis-en-cause
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by the Respondent, Her Majesty the Queen, for an order striking out paragraphs 11, 14, 15, 36, 53 and 54 of the affidavit of Eva Ludvig (the impugned paragraphs) filed by the Office of the Commissioner of Official Languages (the OCOL). The grounds are not so much on the basis that the impugned paragraphs contain hearsay or that their content is not within the personal knowledge of Mrs. Ludvig as alleged in the Respondent's notice of motion, but rather on the basis that these paragraphs contain conclusions of law as drawn by the OCOL or as reported by the Applicant to the OCOL. The Respondent argues that the said conclusions are irrelevant, thus inadmissible in evidence since it is for the Court and not the OCOL to ascertain de novo the facts and to draw its own conclusions in law. Counsel for the Respondent suggested that the OCOL by these conclusions might try to unduly influence the Court in its favour.
[2] The impugned paragraphs read as follows:
| 11. These two files were investigated by OCOL, HRDC recognized its errors and the Commissioner concluded that HRDC had not respected its obligations under section 36 of the Official Languages Act. |
| 14. According to the complaint file which I reviewed in preparing the present affidavit, Ms. Dupuis came to the Montreal office on August 1, 1994 to inform OCOL that the HRDC still was not fulfilling its obligations with regard to language of work under Part V of the OLA, despite assurances from management that the situation had been corrected. Ms. Dupuis also complained that she was the object of discrimination because she had made complaints to OCOL. |
| 15. More specifically, Ms. Dupuis complained that she continued to receive internal communications pertaining to supervision, central and personal services in French only, thereby denying her her right to work in the language of her choice, English. Ms. Dupuis informed the regional officer of specific instances of how and when her right to work in English was not respected. |
| 36. None of these infractions listed above were ever denied by any representatives of HRDC at any meetings we had with them during the investigation. Rather, HRDC informed us of their efforts to improve the situation. Consequently, the investigation focussed on corrective measures to be put in place by HRDC. |
| 53. During this meeting, the Department's representatives never disputed any of the allegations of Ms. Dupuis recognizing that Part V of the OLA was not respected in the Verdun CEC and they wanted to know what OCOL would accept as a solution in order to close the file. |
| 54. Consequently, the focus of the meeting was on solutions to the problems raised by Ms. Dupuis' complaint. HRDC pointed out to us the efforts being made to improve the situation. |
[3] Counsel for the Respondent conceded that the underlined sections of the impugned paragraphs quoted above could remain as they do not contain inadmissible material.
[4] For its part, counsel for the OCOL argues that it is trite law that it is for the Court to evaluate, both in fact and in law, the situation between the Applicant and the federal department involved herein and that, therefore, the impugned paragraphs have not been submitted to influence the Court. Counsel suggested that the affidavit of Ms. Eva Ludvig, the Quebec Representative of the OCOL, was filed in order to provide to the Court a complete and accurate picture of the OCOL's investigation of the complaint of the Applicant.
[5] It was brought to the Court's attention that further to the service of the motion at bar but before the hearing, the OCOL agreed to delete several other paragraphs of the affidavit of Eva Ludvig further to the allegation by the Respondent that the said paragraphs contained conclusions of law and not strictly facts.
[6] What remains to be decided is whether, under the present circumstances, the impugned paragraphs call for a motion to strike or whether the Respondent should be satisfied in pleading the adequacy of the impugned paragraphs at the hearing on the merits of the case.
[7] The motion at bar is made in the course of proceedings brought to the Court by the Applicant under Part X of the Official Languages Act. R.S.C. 1985, c. 31 (4th Supp.) (the Act).
[8] Subsection 77(1) and section 80 of the Act read:
| 77.(1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part. |
| 80. An application made under section 77 shall be heard and determined in a summary manner in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act. |
[9] In accordance with these provisions, and notwithstanding the fact that no special rules have been enacted pursuant to section 46 of the Federal Court Act, on October 12, 1995 the Applicant filed with this Court an application under section 77 of the Act by way of an originating notice of motion.
[10] Clearly, therefore, the Applicant has decided to proceed by way of an application rather than by way of an action. In Lavigne v. Canada, [1997] 1 C.F. 305, at 317, this Court recognized the validity of proceeding by way of an application even though in that case - as in the present situation - damages were sought by the Applicant:
| The Official Languages Act, by contrast, includes section 80 which states: |
| 80. An application made under section 77 shall be heard and determined in a summary manner in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act. |
| Thus, the legislator has specified that the application under section 77 of the Act brought by the applicant shall be heard and determined in a summary manner in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 14; 1992, c. 1, s. 68)]. No such rules have been adopted. The applicant has respected Part X of the Act by proceeding by way of application rather than by way of action. In the absence of any special rules adopted under section 46 of the Federal Court Act, the procedure established under Part X of the Act ought to be respected and given full effect in the expedient fashion provided for by the legislator. |
| (emphasis added) |
[11] Rule 304(1)(c) of the Federal Court Rules, 1998 by referring to the Act appears to confirm that remedies under Part X of the Act are to be brought by way of applications under Rule 301 and following.
[12] Therefore, counsel for the Respondent's contention that the proceeding brought by the Applicant on October 12, 1995 be seen as an action cannot be followed for the reasons expressed above.
[13] The motion to strike under study is thus directed against an application. The jurisprudence applicable to the appropriateness of bringing motions to strike against applications is therefore applicable here.
[14] In Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at 54-55, Strayer J.A. stated the following:
| This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion. |
| (emphasis added) |
[15] Earlier at p. 53, Strayer J.A. noted:
| This all reinforces the view that the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case. |
(See also Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported judgment of this Court dated September 6, 1996, File No. T-793-96.)
[16] Counsel for the Respondent referred the Court to the case of Dragage F.R.P.D. Ltée v. Bouchard et al. (1994), 84 F.T.R. 81, where the Court agreed to strike out several paragraphs from an affidavit in the course of an application. One must note, however, that this case was decided prior to the decision of the Federal Court of Appeal in Pharmacia.
[17] I agree that it is trite law that under an application pursuant to section 77 of the Act, it is for this Court to come to its own findings of facts and law. In that regard, I doubt that the OCOL in submitting the impugned paragraphs really believed it could influence this Court in its favour. I am more inclined to believe that the affidavit of Eva Ludvig has been submitted for the purpose argued by counsel for the OCOL. At best, the adequacy of the impugned paragraphs is a debatable issue and, in accordance with the Pharmacia case, is not a matter for a motion to strike.
[18] For the above reasons, this motion shall be denied, with costs to follow.
[19] As mentioned earlier, at the beginning of the hearing of this motion, Counsel for the OCOL acknowledged that she had agreed to withdraw several paragraphs from the affidavit of Eva Ludvig. Counsel shall be afforded a period of ten (10) days from the date of the order to be issued to proceed with these deletions and accordingly to serve and file on all parties an amended affidavit of Eva Ludvig.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
July 31, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-2153-95
ANNA DUPUIS
Applicant
AND
HER MAJESTY THE QUEEN
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondents
AND
THE OFFICE OF THE COMMISSIONER
OF OFFICIAL LANGUAGES
Mis-en-cause
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:July 27, 1998
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:July 31, 1998
APPEARANCES:
Ms. Anna Dupuis for the Applicant
Mr. Raymond Piché for the Respondents
Ms. Elizabeth Grace for the Mis-en-cause
SOLICITORS OF RECORD:
Mr. George Thomson for the Respondents
Deputy Attorney General of Canada
Ottawa, Ontario
Ms. Elizabeth Grace for the Mis-en-cause
Ottawa, Ontario