Federal Court Decisions

Date:  20050419

Docket:  T-1890-02

Citation:   2005 FC 527

BETWEEN:

                                                          MICHEL LALIBERTÉ

                                                                                                                                               Plaintiff

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]               This is a motion by the defendant to strike the statement of claim by the plaintiff, who is representing himself, and to dismiss his action pursuant to paragraph 221(1)(a) of the Federal Courts Rules (the Rules) on the ground that this Court has no jurisdiction ratione materiae to hear the plaintiff’s action, in view of the fact that, in a now final decision of this Court delivered by Madam Justice Gauthier on January 14, 2005 in Galarneau v. Canada (Attorney General), 2005 FC 39, [2005] F.C.J. No. 42 (hereinafter Galarneau), the Court found — in a case similar to the one before us, for the purposes of the present motion — that a dispute such as this is covered by a complete code and that an array of administrative procedures for redress is provided for by Parliament.

Background

[2]               In paragraphs 5, 6, 18 and 19 of a decision dated October 29, 2004 in this matter (2004 FC 1524), Mr. Justice Beaudry acknowledged in the following terms that this case and Galarneau were essentially similar:

[5]           On November 12, 2002 the plaintiff filed an action against Her Majesty the Queen for damages. He said he had been exposed to secondary cigarette smoke on his work shifts.

[6]           On December 19, 2003 Ms. Galarneau brought a class action for the same reasons in case T‑2414‑03.

. . .

[18]         I consider that the point at issue is the same here as in docket T‑2414‑03. This conclusion is supported by Marie Marmet's affidavit. It is also confirmed by the order of Prothonotary Morneau on August 22, 2003:

[translation]

1.1. Can the plaintiff, by the combined effect of section 17 of the Federal Courts Act and subparagraph 3(a)(i) of the Crown Liability and Proceedings Act, bring the action at bar in extra‑contractual civil liability, in view of the fact that he has other available remedies to assert his claims, which are exclusively concerned with his terms of employment as a corrections officer, namely:

(a)    a right to file a grievance under section 91 of the Public Service Staff Relations Act and his collective agreement;

(b)    a right to file a complaint under Part II of the Canada Labour Code;

( c)   a right to file a complaint under the  Non-Smokers’ Health Act;

(d)    the right to file a claim for corporeal damage, including psychological damage, pursuant to the Government Employees Compensation Act.

[19]         The facts of the two cases are clearly similar. In both cases, there was a claim for damages by corrections officers alleging exposure to second‑hand smoke on their work shifts. In one case the action is by an individual and the other is a class action.

[Emphasis added.]

[3]However, since the final decision in Galarneau was not yet available to the Court (my decision dated May 18, 2004 in the matter was appealed and eventually settled by the decision by Gauthier J. dated January 14, 2005), Beaudry J. stayed the plaintiff’s action until a final decision was delivered in Galarneau.  Beaudry J. crystallized this postponement by staying both the plaintiff’s action and the defendant’s motion to strike with the following words:

[T]he plaintiff's action and the motion to strike are stayed until a final decision is rendered in docket T‑2414‑03; when the final decision is known the parties may, if they see fit, ask the Judicial Administrator for a priority date to dispose of the remaining issues . . . .

[4]When Beaudry J. refers to obtaining a priority date from the Judicial Administrator, it is clear that he anticipates that the final decision in Galarneau will be favourable to the plaintiff in Galarneau and, consequently, to the plaintiff in this case on the issue of the Court’s jurisdiction to hear the actions.

[5]However, the final decision in Galarneau has now been delivered and, as noted above, consists of the decision by Gauthier J. dated January 14, 2005, as that decision was not appealed, and the period for doing so has now expired.

[6]Thus, the defendant in this case could renew its application to dismiss the plaintiff’s action.

[7]In Galarneau, the Court made the following decisive comments:

[3]           In their motion, the defendants ask that the action be dismissed, arguing that the Court does not have jurisdiction ratione materiae to hear a dispute that bears essentially on the steps taken by the Correctional Service of Canada (CSC) as an employer to maintain the occupational health and safety of its employees, including Ms. Galarneau. The subject matter, they say, is one for which the collective agreement and the Public Service Staff Relations Act, R.S.C. 1985, c. P‑35 (PSSRA) provide an exclusive dispute settlement procedure that applies over and above any other administrative remedies provided for in other federal legislation such as the Canada Labour Code, R.S.C. 1985, c. L‑2 (Part II), the Government Employees Compensation Act, R.S.C. 1985, c. G‑5 and the Non‑smokers' Health Act, R.S.C. 1985 (4th Supp.), c. 15, and which allow Ms. Galarneau and her colleagues to put an end to this situation and obtain compensation for the resulting damages.

. . .

[8]           As Prothonotary Morneau states in his decision, the plaintiff criticizes the CSC for failing to comply with its obligations under the Non‑smokers' Health Act because correctional officers are illegally exposed to second‑hand smoke in the course of their employment.

[9]           She argues that this situation constitutes a breach of the CSC's duty to ensure the health and safety of its employees under the Canada Labour Code and violates her right to security guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 (the Charter). The employer's conduct amounts to a civil fault giving rise to damages as well as exemplary damages and a permanent injunction.

. . .

[70]         Having considered each and every one of the arguments raised by the plaintiff, the Court finds that these occupational health and safety issues between the federal Crown and the correctional officers employed by it are clearly the subject matter of a complete code and that a significant panoply of administrative remedies has been provided by Parliament. The existing statutory scheme excludes the Court's jurisdiction over claims by these employees and by Ms. Galarneau in particular. 

[Emphasis added.]

[8]             The recent decision of the Supreme Court of Canada dated March 18, 2005 in Vaughan v. Canada, 2005 SCC 11 only reinforces the latest finding by Gauthier J.

[9]Since it is plain and obvious that the pith and substance of the dispute in the present case are similar to those in Galarneau, it is also plain and obvious that the finding by Gauthier J. at paragraph 70 of her reasons applies to our plaintiff and that, consequently, the defendant’s motion to strike the plaintiff’s statement of claim and dismiss his action must be allowed.

[10]           The plaintiff makes much of the fact that this is the third time that the defendant has challenged his action in order to derail it before a full hearing on the merits is held and that, for this reason, the present motion to strike by the defendant should be dismissed.  According to the plaintiff, the order delivered by me on August 22, 2003, following the pre-hearing conference held in this matter means that a hearing on the merits should be held in this case.

[11]           I believe that the plaintiff is wrong in taking this view of the matter.

[12]           It should have been clear to all from a reading of the order dated August 22, 2003, that the Court was not accordingly rejecting the defendant’s arguments concerning this Court’s lack of jurisdiction to hear the plaintiff’s action on the merits.  In fact, in drawing up the issues to be determined at the hearing, the Court expressed itself in part as follows:

[TRANSLATION]

1. The issues for determination at the hearing will be the following:

1.1     Can the plaintiff, by the combined effect of section 17 of the Federal Courts Act and subparagraph 3(a)(i) of the Crown Liability and Proceedings Act, bring the action at bar in extra‑contractual civil liability, in view of the fact that he has other available remedies to assert his claims, which are exclusively concerned with his terms of employment as a corrections officer, namely:

(a)            a right to file a grievance under section 91 of the Public Service Staff Relations Act and his collective agreement;

(b)           a right to file a complaint under Part II of the Canada Labour Code;

(c)            a right to file a complaint under the Non-Smokers’ Health Act;

(d)           the right to file a claim for corporeal damage, including psychological damage, pursuant to the Government Employees Compensation Act.

[13]           While my order dated February 25, 2004 dismissed the defendant’s motion to stay (although this form of redress was granted by Beaudry J. on October 29, 2004) and set a date for hearing the plaintiff’s action on the merits, I included the following caveat at paragraph 9:

If, in a timely manner, before the hearing on the merits in this case, the Crown has a final decision on its motion to strike in the Hélène Galarneau case, T‑2414‑03, the Crown may apply for summary judgment or to have the action struck against the plaintiff, if the circumstances and the interests of justice then so warrant.

[14]           This caveat increased the possibility that the outcome of the present case would depend on the outcome of Hélène Galarneau’s case.  On October 29, 2004, the decision of Beaudry J. went even further in that direction.

[15]           Since a final decision by our Court now makes it clear that the Court has no jurisdiction ratione materiae over an action such as the one brought by the plaintiff, the interests of justice, the public and the parties involved demand that everything now be placed on record to avoid the possibility of a four-day trial eventually being held for no reason.

[16]           The defendant’s motion will accordingly be granted.  As for costs, since the present case was dependent on a final decision in Galarneau and the Court did not award costs in Galarneau, it is, in my view, appropriate here to order that the defendant’s motion be granted, without costs.

Montréal, Quebec

April 19, 2005

Certified true translation

Michael Palles    

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-1890-02

MICHEL LALIBERTÉ

                                                                         Plaintiff

and

HER MAJESTY THE QUEEN

                                                                     Defendant

PLACE OF HEARING:                                Montréal, Quebec

DATE OF HEARING:                                  April 4, 2005

REASONS FOR ORDER BY:                     Richard Morneau, Prothonotary

DATED:                                                        April 19, 2005

APPEARANCES:

SOLICITORS OF RECORD: