Bordeleau v. Canada, (1989) 32 F.T.R. 21 (TD)

• Judge: Dubé, J.
• Court: Federal Court (Canada)
• Case Date: June 05, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 32 F.T.R. 21 (TD)

Bordeleau v. Can. (1989), 32 F.T.R. 21 (TD)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Sylvain Bordeleau (demandeur) v. Sa Majesté La Reine (défenderesse)

(T-769-89)

Indexed As: Bordeleau v. Canada

Federal Court of Canada

Trial Division

Dubé, J.

June 23, 1989.

Summary:

A member of the Canadian Armed Forces was dismissed because of his sexual orientation. He commenced an action for damages against the federal Crown. This action was struck out by the Senior Prothonotary because the six-level grievance procedure as set out in the National Defence Act Regulations had not been entirely exhausted. After exhausting the grievance procedure he commenced a second action for damages against the Crown. The Crown applied to strike out the second action.

The Senior Prothonotary of the Federal Court of Canada, Trial Division, without detailed reasons, allowed the Crown's application to strike on the basis of res judicata. The Armed Forces member appealed.

The Federal Court of Canada, Trial Division, allowed the appeal and set aside the decision of the Prothonotary.

Estoppel - Topic 376

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - General principles - The Federal Court of Canada, Trial Division, referred to the conditions precedent to the application of res judicata in Quebec under the Civil Code of Lower Canada, art. 1241 - See paragraphs 7, 8.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - A member of the Armed Forces was dismissed because of his sexual orientation - He sued the federal Crown for damages - His action was struck because he had not exhausted the grievance procedure under the National Defence Act Regulations - After exhausting the grievance procedure, he commenced a second action against the Crown - The Senior Prothonotary struck this action on the basis of res judicata - The Federal Court of Canada, Trial Division, held that the Prothonotary erred because the prerequisites to the application of res judicata as set out in art. 1241 of the Civil Code of Lower Canada were not met - See paragraphs 1 to 8.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - A member of the Canadian Armed Forces was dismissed in 1986 because of his sexual orientation - In 1987 he commenced a damages action against the Crown - The Senior Prothonotary struck this action because he had not exhausted the statutory grievance procedure - In 1989, after exhausting the grievance procedure, he commenced a second action, which the Prothonotary also struck on the basis of res judicata - The Federal Court of Canada, Trial Division, set aside the Prothonotary's decision, holding that he erred in applying res judicata - Further it was not absolutely clear that the member did not have a reasonable cause of action, nor was it clear whether the action was prescribed.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See Practice - Topic 2230].

Cases Noticed:

Gallant v. The Queen (1978), 91 D.L.R.(3d) 695 (F.C.T.D.), refd to. [para. 9, footnote 2].

Sylvestre v. Canada, [1986] 3 F.C. 51; 72 N.R. 245 (C.A.), consd. [para. 9, footnote 3].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.P.R. 287, consd. [paras. 9, 16, footnotes 4, 17].

Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 F.C. 359; 78 N.R. 30 (F.C.A.), refd to. [para. 13, footnote 6].

Stiles v. Canada (Attorney General) (1986), 3 F.T.R. 234, refd to. [para. 14, footnote 7].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 10, 11]; sect. 15 [paras. 10, 12, 13]; sect. 32(1)(a) [paras. 16, 17].

Civil Code of Lower Canada, art. 1241, para. 1 [para. 7]; art. 2232 [para. 19]; art. 2260(6)(c) [para. 20]; art. 2261(2) [para. 18, footnote 10]; art. 2261(3)(c) [para. 20]; art. 2262(3)(c) [para. 20].

Crown Liability Act, R.S.C. 1985, c. C-50, sect. 32 [para. 18].

National Defence Act Regulations, sect. 19.26 [para. 3].

Authors and Works Noticed:

Ducharme, Léo, Précis de la Preuve (en matiéres civiles et commerciales), 2e éd., 1985, p. 99 [para. 7, footnote 1].

Martineau, Pierre, La Prescription, 1977, pp. 251 [para. 23]; 354 [para. 22].

Counsel:

Norbert Losier, for the plaintiff;

Raymond Piché, for the defendant.

Solicitors of Record:

Norbert Losier, Montreal, Quebec, for the plaintiff;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This appeal was heard in Montreal, Quebec, on June 5, 1989, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on June 23, 1989: