PRACTICE |
Res Judicata |
Lavigne v. Canada (Office of the Commissioner of Official Languages)
T-2291-03
2004 FC 1359, Blais J.
1/10/04
18 pp.
Appeal from Prothonotary's decision ((2004), 255 F.T.R. 244 (F.C.)) striking out plaintiff's action with no right to amend--Plaintiff, employed with Human Resources Development (HRD) (then Department of Health and Welfare) from August 1992 to March 1993, not passing performance review--Had filed complaints to Commissioner of Official Languages (COL) during employment--Request for access to personal information in COL's file, made after inquiry, denied--Despite refusal, plaintiff commenced action against HRD (T-1977-94) based on COL findings concerning employment--F.C. finding HRD infringed Official Languages Act (OLA), but neither granting damages nor reinstatement --Plaintiff then lodging complaint with Privacy Commissioner re: COL decision not to divulge personal information--F.C. finding in favour of plaintiff (confirmed by S.C.C.)--Plaintiff now wanting to re-argue T-1977-94 in light of new (personal) information--No new substantive remedies being sought in present application--Applicable test re: exception to res judicata rule, admitting new evidence, set out in Wavel Ventures Corp. v. Constantini (1996), 193 A.R. 81 (Alta. C.A.): new evidence previously impossible to obtain with exercise of due diligence; capable of altering outcome of first trial--HRD having admitted to fault in T-1977-94, new evidence must be capable of altering amount of damages for test to be met--New evidence establishing no causal link between plaintiff's non-rehiring, breach of OLA, thus not altering outcome of first trial--Prothonotary not improperly exercising discretion to strike out motion based on lack of new evidence--Also properly denying amendment--Regarding part of claim dealing with COL's negligence, incompetence, fraud, bias, appellant not submitting evidence as to why OLA, s. 75(1) violating Charter, not disclosing arguments in support of submissions--Prothonotary's findings Privacy Act, s. 12 claim now res judicata because should have been raised earlier well founded--Argument refusal to disclose information amounting to fraud unsubstantiated-- Appeal dismissed--Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 75(1)--Privacy Act, R.S.C., 1985, c. P-21, s. 12.