Date: 19981229
Docket: T-34-98
BETWEEN:
NOEL AYANGMA
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
DUBÉ J:
[1] These two motions are for summary judgments under Rule 216 of the Federal Court Rules, 1998. The first motion is from the defendant, Her Majesty the Queen, who seeks to strike out the plaintiff"s statement of claim. In the second motion, the plaintiff, Mr. Noël Ayangma, moves to strike out the defendant"s statement of defence.
1. Facts
[2] The plaintiff completed on March 23, 1994, an employment application for the positions of air traffic controller and flight services specialist with Transport Canada. On August 7, 1994, he scored 100% on the air traffic controller written aptitude test. He was then called for an oral interview, which he failed. The chair of the board at the interview was John S. Navaux. One of the two other members was Yves Aubry. The plaintiff filed a complaint against Transport Canada to the Human Rights Commission and to the Public Service Commission, alleging racial discrimination.
[3] On January 9, 1995, the plaintiff filed the statement of claim under attack based on "slanderous and libelous remarks" made by Mr. John S. Navaux of Transport Canada to Anick Hébert in the course of the Canadian Human Rights Commission's investigation on November 11, 1996. The alleged remarks appear in paragraph 10 of the statement of claim as follows:
| Q. "Comment expliquez-vous que le plaignant ait obtenu une note parfaite à l'examen oral mais qu'il ait obtenu une note si faible à l'entrevue de selection" |
| A. "Ne sait pas c'est la première fois qu'il voit un si grand écart. Habituellement, quand quelqu'un réussit très bien à l'écrit il va bien réussir à l'oral". |
| Il croit (et c'est seulement son opinion personnelle) que le plaignant a peut-être eu accès au test d'aptitude". |
| "Le plaignant a dejà travaillé dans un ministère dans le passé qui a déjà administré les tests d'aptitude". |
| "C'est pratiquement impossible d'avoir 100%". |
[4] In paragraph 9 of her defence, the defendant denied that allegation of the plaintiff and stated in paragraph 26 that on November 11, 1996, John S. Navaux and Yves Aubry ceased to be her employees. Paragraph 26 reads as follows:
| 26. As to the whole of the statement of claim the defendant says that on November 1, 1996 John Navaux and Yves Aubry ceased to be employees of the Defendant and became employees of Nav Canada, a private company, incorporated under Part II of the Canada Corporations Act to assume certain functions previously carried out by Transport Canada as more fully set out in the Civil Air Navigation Services Commercialization Act S.C. 1996, ch. 20. The Defendant says that Nav Canada was the employer of John Navaux and Yves Aubry at the time they were interviewed by Anick Hébert and the Defendant denies that he is vicariously liable with respect to any of the matters alleged in the Statement of Claim. |
[5] Mr. Navaux, in his affidavit in support of the defendant's motion, claims that he was employed as Manager, Area Control Centre Operations for Transport Canada, from June 1988 until October 31, 1996. Mr. Navaux, Mr. Aubry and other employees became employed by Nav Canada Ltd. and ceased to be employed by the defendant on November 1, 1996. Mr. Navaux was employed by Nav Canada Ltd. until January 10, 1997, at which time he resumed employment with the defendant.
[6] Both motions for summary judgments involve the same facts. However, each raises different questions. I will therefore address the defendant's motion first, as was done at the hearing.
2. The Defendant"s Motion to Strike Out the Statement of Claim
[7] The key issue is whether Mr. Navaux and Mr. Aubry were servants of the Crown at the time the alleged statements were made or were they merely witnesses summoned to testify before the Canadian Human Rights Commission?
[8] The plaintiff submits that a principal and his agent are jointly and severally liable for torts committed by the agent. The injured party or parties may sue either the principal, the agent, or both. Even if the defendant claims that she is not responsible for the statements of Mr. Navaux and Mr. Aubry, both were representing Transport Canada as their agents and for its benefit at the time they were questioned by the Canadian Human Rights Commission. They were not representing Nav Canada Ltd. or themselves during this interview. The plaintiff claims that Mr. Navaux and Mr. Aubry were therefore servants of the Crown at the time the alleged statements were made.
[9] At the instant hearing, the plaintiff alleged that Transport Canada not only ratified Mr. John Navaux's and Mr. Aubry"s actions, but arranged for their attendance and availability in appearing before Ms. Hébert. He argued that the defendant made no effort to repudiate or distance herself from them.
[10] On the other hand, the defendant contends that Mr. Navaux and Mr. Aubry were not Crown servants at the time the alleged statements were made. She claims that no agency relationship and no ties joined these two gentlemen to Transport Canada.
[11] The Crown Liability and Proceedings Act1, at paragraph 3(a), stipulates as follows:
| 3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable |
| (a) in respect of a tort committed by a servant of the Crown. |
[12] "Servant" (of the Crown) is defined in section 2 of the Crown Liability and Proceedings Act as including agents. Thus, a servant of the Crown is anyone who is employed by the Crown or acts as an agent for the Crown.
[13] The legislation authorizing the Minister of Transport to transfer the rights of Her Majesty in designated civil air navigation services assets to the Corporation (Nav Canada Ltd.) is the Civil Air Navigation Services Commercialization Act2 which clearly states, at section 8:
| 8. For all purposes the Corporation is not an agent of Her Majesty in right of Canada and, when providing civil air navigation services, is not doing so on behalf of Her Majesty in right of Canada. |
| (my emphasis) |
[14] Consequently, neither Nav Canada Ltd. nor its employees could have been considered agents or servants of the Crown "for all purposes" and when providing air navigation services. We must now consider if Messrs. Navaux and Aubry, in their own capacity can be considered to have been retained as agents of the Crown in respect of their role before the Canadian Human Rights Commission.
[15] They would have been agents of the Crown if Transport Canada had retained their services to settle a human rights complaint on its behalf. If Transport Canada had delegated to them the power to resolve the complaint in question, to enter into negotiations with the plaintiff, and to come to a settlement on behalf of Transport Canada, Mr. Navaux and Mr. Aubry would have been involved in an agency relationship with Transport Canada. There is no evidence to that effect. In the present case, Mr. Navaux and Mr. Aubry were called upon by the Canadian Human Rights Commission to be interviewed concerning events that occurred while they were employed by Transport Canada. At the time of the interview, they were not employees of Transport Canada and had no mandate to bind their former employer as agents.
[16] The cross-examination of Mr. Navaux on his affidavit3, conducted by the plaintiff, makes the point very clearly:
| Q. ...Mr. Navaux, on the date of the interview with Ms. Anick Hebert, were you in the employment of the Defendant, Her Majesty the Queen and the federal department of Transport Canada? |
| A. No, I was not. |
| ... |
| Q. Mr. Navaux, would it be fair for me to suggest that you were, as a permanent employee of Transport Canada, holding a lien against the post you occupied at Transport Canada as Manager, Area Control Centre? |
| A. ...the answer is no4. |
[17] The Civil Air Navigation Services Commercialization Act5 confirms the status of its new employees at section 58:
| 58. Every designated employee who has accepted an offer of employment from the Corporation before the transfer date ceases to be employed in the Public Service on the expiration of the day immediately before the transfer date. |
[18] I must therefore find that on November 11, 1996, Mr. Navaux and Mr. Aubry were not servants of the Crown as defined under subsection 3(a) of the Crown Liability and Proceedings Act. It follows that an action against the Crown cannot be founded upon any tort they may or may not have committed when they were being interviewed as witnesses.
3. Disposition
[19] Consequently, since the author of the alleged slanderous and libelous remarks was neither a servant nor an agent of the Crown at the relevant time, there is no genuine issue for trial under Rule 216 and summary judgment is awarded to the defendant. The plaintiff's own motion for summary judgment is dismissed. Costs to the defendant.
OTTAWA, Ontario
December 29, 1998
Judge
__________________3 Transcript of the Cross-Examination on an affidavit of Mr. John Navaux by Mr. Noël Ayangma held on August 10, 1998, at Charlottetown, Queens County, Province of Prince Edward Island.