Digests

Giroux v. Canada

T-2004-99

2001 FCT 531, Blais J.

25/5/01

39 pp.

Motion to set aside order of Morneau P. dismissing plaintiff's (applicant) simplified action--Applicant employed by Canada Customs and Revenue Agency, unsuccessful in 1995 competition to fill Large Case File Manager positions at AU-4 group and level--Competition set aside January 6, 1997, by appeal board decision--Corrective measures taken for reassessing all candidates--Applicant alleged member of selection board abused power by, intentionally and in bad faith, failing to do reassessment prescribed by corrective measures--After first selection process set aside following May 1997 decision, Revenue Canada initiated second selection process in January 1998 to fill same positions--Applicant took two tests, written examination (successful) and interview (unsuccessful)--Members of selection board alleged to have knowingly and maliciously made series of false and misleading statements and defamatory remarks--Powers of prothonotary set out in r. 50--R. 51 providing for appeal from order of prothonotary--Deference accorded to prothonotary on appeal from discretionary decision--Judge hearing appeal intervening where decision clearly wrong--Normal appellate standards aplying to non-discretionary findings of prothonotary--Prothonotary not erring in assessment of evidence relating to respondent's negligence--Evidence not establishing abuse of power or negligence by respondent--Evidence not inconsistent and fact that selection board not specifically aware of individual's work experience not necessarily meaning selection board not aware of type of work individual does at particular office--Whether prothonotary erred in finding false statements allegedly made by selection board constitute perjured evidence within meaning of Federal Court Act, s. 18.1(4)(e)--Mere fact evidence not given under oath not meaning not evidence within meaning of s. 18.4(e)--Such testimony at very least constituting fraud within meaning of s. 18.1(4)(e) as given in bad faith with intent to deceive--Whether prothonotary erred in deciding to strike out part of applicant's action--Applicant suggesting respondent's motion to strike in December 1999 opportunity to persuade Court applicant's action should be dismissed--Motion dismissed by Pinard J.--Morneau P. not erring in finding not prevented by decision of Pinard J. from concluding part of action should be struck out and decision not constraining Court's assessment of merits of case at trial--Morneau P. correct in deciding decision of Pinard J. not constituting res judicata on issue--Applicant not allowed to be compensated for damage caused by own "omission"--Prothonotary not erring in concluding applicant should have made submissions before appeal board and on judicial review, having regard to Federal Court Act, s. 18.1(4)(e)--Applicant's evidence not establishing false statements--Prothonotary not erring in concluding plaintiff's action could not get very far--Motion dismissed--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Federal Court Rules, 1998, SOR/98-106, rr. 50, 51.