Hughes v. Canada (Human Rights Commission)

Hughes v. Canada (Human Rights Commission)
Court (s) Database
Federal Court Decisions
Date
2020-10-20
Neutral citation
2020 FC 986
File numbers
T-1315-18
Notes
A correction was made on October 26, 2020
Decision Content
Date: 20201020
Docket: T-1315-18
Citation: 2020 FC 986
Toronto, Ontario, October 20, 2020
PRESENT: Justice A.D. Little
BETWEEN:
CHRIS HUGHES
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
Commission
and
TRANSPORT CANADA
Respondent
ORDER AND REASONS
[1] These reasons concern an appeal made in writing under Rule 51 of the Federal Courts Rules, SOR/98-106. The applicant, Mr Hughes, asks the Court to vary or set aside in part an Order of Prothonotary Ring dated November 28, 2019 (the “Order”). In that Order, the Prothonotary dismissed a show-cause contempt motion against Transport Canada and four individual public servants including the Minister of Transportation.
[2] For the reasons below, the appeal is dismissed.
[3] Mr Hughes was not represented by legal counsel on this appeal. In summary without legal jargon, the Prothonotary did not make any errors that justify a change to her conclusions. On an appeal, this Court can change the Prothonotary’s legal conclusions if she made an error in stating the correct law. The Court can also change the Prothonotary’s conclusions about whether the evidence satisfies the correct legal test, but only if that error is obvious to the Court and affected the overall outcome – so much so that the outcome would have been different if the Prothonotary had not made the obvious error. I did not find either kind of error in the Prothonotary’s reasons.
I. Events Leading to the Appeal
[4] There is a considerable procedural history to the dispute between the parties, including the events leading to this appeal. Only a summary is needed for present purposes.
[5] This proceeding is rooted in a 2014 decision of the Canadian Human Rights Tribunal (the “Tribunal”) which held that Transport Canada discriminated against Mr Hughes on the basis of disability in the staffing process for a Marine Security Analyst (PM-04) position at Transport Canada: Hughes v Transport Canada, 2014 CHRT 19. The Federal Court initially set aside the Tribunal’s decision on judicial review, but the Federal Court of Appeal restored it: Hughes v Canada (Attorney General), 2016 FCA 271.
[6] On July 1, 2018, the Tribunal released its decision on remedies: Hughes v Transport Canada, 2018 CHRT 15. It comprises more than 400 paragraphs. It ordered Transport Canada to instate Mr Hughes as a Marine Intelligence Analyst at the PM-04 group and level classification and to pay monetary compensation. The Tribunal made an 11-paragraph Remedies Order under s. 53 of the Canadian Human Rights Act, RSC 1985, c H-6, in the following terms:
1. The Respondent shall instate the Complainant, subject to the required security clearance, on the first reasonable occasion, and without competition, to the position of Intelligence Analyst at the PM-04 group and level classification, with all attendant employment benefits. The location of the position will be Esquimalt, British Columbia, or Vancouver, British Columbia, provided the Complainant is willing to relocate.
2. Immediately after the Complainant’s instatement into the PM-04 Intelligence Analyst position, the Respondent shall provide training to the Complainant appropriate to the position, having regard to the passage of time since the discriminatory practice.
3. The Respondent shall pay to the Complainant compensation for lost wages (excluding Overtime), which the Complainant would have earned as a Marine Security Analyst at the group and level of PM-04, during the period May 8, 2006 to May 7, 2011, including any wage rate increases in accordance with the relevant Collective Agreements, and subject to all usual deductions for an indeterminate employee.
4. From the award in paragraph 3 of this Remedies Order, the Respondent shall deduct an amount equivalent to the Complainant’s employment income for each year of the period.
5. The award of compensation for lost wages is subject to the parties’ obligations under ss. 45 and 46 of the Employment Insurance Act.
6. The Respondent shall contribute all amounts which the Respondent would have contributed to all Pension plans to which the Complainant, as an indeterminate employee, would have subscribed to, for the period May 8, 2006 to May 7, 2011.
7. The Respondent shall pay the Complainant the amount of $46,100 in compensation for lost Overtime wages during the period May 8, 2006 to May 7, 2011, subject to any standard deductions for these kinds of wages.
8. The Respondent shall pay to the Complainant a gross-up amount sufficient to cover any additional income tax liability arising from the order for the Respondent to pay the Complainant in a lump-sum, regular wages, Overtime and any taxable benefits that he would have otherwise earned over the period May 8, 2006 to May 7, 2011.
9. Pursuant to s. 53(2)(e) of the Act, the Respondent shall pay to the Complainant the amount of $15,000, as compensation for pain and suffering resulting from the discriminatory practice.
10. Pursuant to s. 53(3) of the Act, the Respondent shall pay to the Complainant the amount of $5,000, as compensation for the Respondent’s reckless engagement in the discriminatory practice.
11. Pursuant to s. 53(4) of the Act, and Rule 9(12) of the Tribunal’s Rules of Procedure, the Respondent shall pay the Complainant interest on the compensation ordered, accruing from May 8, 2006 to the date of payment. This interest shall be simple interest, calculated on a yearly basis, at a rate equivalent to the Bank of Canada rate (monthly series) set out by the Bank of Canada. In no case shall the accrual of interest on awards made under subsection 53(2)(e) or 53(3) result in a total award that surpasses the statutory maximums therein prescribed.
[7] Both parties applied for judicial review of the Remedies Decision. Justice LeBlanc dismissed the application of the Attorney General and allowed Mr Hughes’s application in part: Hughes v Canada (Attorney General), 2019 FC 1026. Justice LeBlanc set aside the Remedies Decision insofar as it related to the determination of the ultimate cut-off date of May 2011 for compensation for lost wages and benefits. He remitted the matter to a differently constituted panel of the Tribunal for redetermination.
[8] Both parties have appealed Justice LeBlanc’s decision.
[9] Promptly after the Tribunal released its Remedies Decision, and while the applications for judicial review were pending, Mr Hughes sought to have the Remedies Decision implemented. In June and July 2018, soon after the Remedies Decision was released, the applicant’s counsel wrote to counsel for Transport Canada demanding immediate payment of the Tribunal’s monetary award. Transport Canada, through its counsel, took the position that the amount of payment was in dispute due to its application for judicial review.
[10] On July 9, 2018, the applicant filed a true copy of the Remedies Decision with this Court. A certificate of filing of a true copy of the order was placed in the Federal Court file. The Federal Court Administrator did not and has not issued a certificate of judgment pursuant to Rule 474 of the Federal Courts Rules against the Crown, nor did the Administrator deliver such a certificate to the Deputy Attorney General of Canada.
[11] By late July 2018, the applicant took the position in correspondence that Transport Canada’s failure to pay the monetary portion of the award amounted to a contempt of court. According to Transport Canada, s. 30(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50 (the “CLPA”), in conjunction with Rule 474 of the Federal Courts Rules, operated to stay any payment of the damages award until the final disposition of its outstanding judicial review application.
[12] On August 8, 2018, the applicant filed a Notice of Motion for contempt of the Tribunal’s Order, seeking an order that Transport Canada appear for a show-cause hearing pursuant to Rule 467.
[13] On October 12, 2018, after various procedural issues were resolved, Prothonotary Ring was assigned as Case Management Judge. The parties also reached an Agreed Statement of Facts filed with the Court on October 10, 2019 (the “ASF”).
[14] On November 13, 2018, the Applicant filed an amended motion for contempt under Rules 359, 466 and 467 for an order compelling Transport Canada and four individuals to appear before the Court to “show-cause why they should not be found guilty of contempt of Court for disobeying” the Tribunal’s Remedies Decision. In addition to Transport Canada (which was the respondent before the Tribunal against which the Remedies Order was made) the motion named four new individuals as being in alleged contempt: Minister of Transport Marc Garneau; an Executive Director at Transport Canada, Trevor Heryet; and two Department of Justice legal counsel, Malcolm Palmer and Kevin Staska.
[15] Mr Hughes’s allegation was that Transport Canada and the named individuals breached the Remedies Order “by failing to begin the process to appoint Mr Hughes to the position of Marine Security Analyst (non-monetary award) and by failing to begin the process of calculating lost wages, pension etc. (the monetary awards)”.
[16] After Mr Hughes filed his contempt motion, it was adjourned sine die and a variety of events intervened, including other motions, applications and settlement discussions. Amongst those was a motion for relief under subs. 24(1) of the Canadian Charter of Rights of Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11: Hughes v Canada (Human Rights Commission), 2019 FC 53 (Heneghan, J). In that decision, Justice Heneghan rejected Transport Canada’s position that s. 30 of the CLPA effects a stay of execution of the Remedies Decision pending resolution of Canada’s judicial review application: at paras 40 and 46.
[17] Following Justice Heneghan’s decision, Transport Canada issued a cheque in the amount of $352,970.07 to Mr Hughes in respect of certain monetary amounts ordered in the Remedies Decision.
[18] Eventually, on November 8, 2019, the parties attended a show-cause hearing for the motion for contempt before Prothonotary Ring.
[19] On November 28, 2019, Prothonotary Ring made the Order dismissing the motion. That decision is the subject of this appeal.
[20] A number of additional factual points are material. First, as noted, paragraph 1 of the Tribunal’s Remedies Decision dated June 1, 2018 provided that Transport Canada “shall instate the Complainant, subject to the required security clearance, on the first reasonable occasion, and without competition, to the position of Intelligence Analyst at the PM-04 group and level classification, with all attendant employment benefits” [underlining added]. In that regard:
A PM-04 opening has been available at Transport Canada since June 1, 2018: ASF at para 72.
On December 10, 2018, Transport Canada sent Mr Hughes the requisite security and personnel forms for him to complete: ASF at para 51.
There was no evidence that from June 1, 2018 to December 10, 2018 Mr Hughes asked Transport Canada to send him any security forms to complete.
On January 17, 2019, counsel for Transport Canada wrote to counsel for the applicant providing further information related to the delivery of the security clearance forms and confirming that Transport Canada would cover the cost of any fees associated with obtaining the fingerprints necessary for the security clearance: ASF at para 67.
As of the date of the ASF (October 10, 2019), Transport Canada had not received any completed security forms from Mr Hughes: ADF, at para 76.
II. The Order under Appeal
[21] Prothonotary Ring identified two issues for determination: first, a “threshold” issue of whether contempt was even available against the five alleged contemnors; and second, if contempt were available, whether Mr Hughes had established a prima facie case that contempt has been committed by the alleged contemnors.
[22] On the first, threshold issue, the Prothonotary concluded that Transport Canada could not be the subject of a contempt proceeding because contempt of court is not available against the Crown, in part due to Tahmourpour v Canada (Human Rights Commission), 2013 FC 1131 (“Tahmourpour FC”), aff’d 2014 FCA 204 (without concluding on this point). However, based on comments in Tahmourpour FC, the Prothonotary held that a finding of contempt may be available against a Crown official, even if not named as a party in a court order, if the Crown official subject to the contempt proceedings had knowledge of that order and either statutory or delegated responsibility to comply with that order, and disobeyed or otherwise failed to comply with it. With respect to the four individuals named in the contempt proceeding, the Prothonotary held that only Minister Garneau could, in law, be the subject of a contempt proceeding, only for the instatement portion of the award, and only if Mr Hughes could demonstrate a prima facie case that contempt had been committed by Minister Garneau by failing to implement the instatement provision of the Tribunal’s Remedies Decision. Minister Garneau could not be found in contempt with respect to non-payment of the monetary order because under s. 30 of the CLPA, the Minister of Finance has exclusive responsibility to pay such awards: at para 43.
[23] On the second issue, the Prothonotary concluded that Mr Hughes had not discharged his onus to establish a prima facie case that Minister Garneau, or any of the individuals, had failed to comply with the Remedies Decision as Mr Hughes alleged. The Prothonotary set out the following legal test for civil contempt at paragraphs 48-49 of her reasons:
[48] It is well established that civil contempt has three elements which must be proved by the moving party:
1. the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”;
2. the party alleged to have breached the order must have had actual knowledge of it; and
3. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v Laiken, 2015 SCC 17 (CanLII), [2015] 2 SCR 79 at paras 32 to 35 [Carey]; ASICS Corporation v 9153-2267 Québec inc., 2017 FC 5 at para 32 [ASICS].
[49] With respect to the third element, all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact a breach of a clear order of which the alleged contemnor has had notice. There is no additional requirement to establish an intention to disobey, in the sense of desiring or knowingly choosing to disobey the order or judgment in question (i.e. “contumacious” intent): Carey at para 38; ASICS at para 33.
[24] With respect to the instatement aspect of the Remedies Decision, the Prothonotary held at paragraph 53 that the it was “apparent on the face of the Tribunal’s Remedies Decision” that the order that Transport Canada instate Mr Hughes to the position of Intelligence Analyst was “expressly made subject to Mr Hughes fulfilling all of the required conditions of employment for the position, including the security clearance”. She referred to paragraph 1 of Tribunal’s Order (“subject to the required security clearance”) and to the following paragraph in the Tribunal’s reasons:
[272] I therefore conclude that subject to s. 54(a) of the Act, and subject to Mr Hughes meeting all the required conditions of employment for the position—including the security clearance, the Respondent must instate him on the first reasonable occasion as a PM-04 Intelligence Analyst.
[Underlining added by Prothonotary Ring]
[25] The Prothonotary held that there was “no dispute on the evidence before me that Mr Hughes has not fulfilled the requirement for a security clearance”. She noted that in in the ASF, the parties agreed that counsel for Transport Canada sent copies of the required security clearance and screening personnel forms to counsel for Mr Hughes on December 10, 2018 even though the Tribunal did not specifically order this step. Further information was provided on January 17, 2019. She noted that in paragraph 72 of the ASF, a position has been available at Transport Canada since June 1, 2018. The Prothonotary then referred to paragraph 76 of the ASF:
76. As of the date of these Agreed Statement of Facts, Transport Canada has not received completed security forms from Mr Hughes, a requisite initial step for appointment to the Marine Intelligence Analyst position.
[26] The Prothonotary found at paragraph 58 of her reasons that “[i]n accordance with the terms of the Remedies Decision, [the applicant] is required to submit the required security forms as a precondition to being instated in the Intelligence Analyst position.”
[27] The Prothonotary noted Mr Hughes’s argument at the hearing that before he submitted an application for a security clearance, he “wanted Transport Canada to make an offer of employment to him which indicates what will happen if he fails the security clearance”. The Prothonotary observed that this “may be how Mr Hughes would like the process to unfold, but it is completely contrary to what is required by the Remedies Decision. The Tribunal expressly provided that Mr Hughes is required to obtain a security clearance before Transport Canada must reinstate [sic] him” [original italics].
[28] At paragraph 63, she concluded:
[63] Since the provision in the Remedies Decision requiring the instatement of Mr Hughes in an Intelligence Analyst Position is contingent on Mr Hughes first obtaining a security clearance, and he has taken no steps to satisfy that requirement, I find that Mr Hughes has failed to establish a prima facie case that Minister Garneau, or any of the other alleged contemnors, have breached the instatement provision in the Remedies Order.
[29] With respect to the financial payments aspect of the Remedies Decision, the Prothonotary was not persuaded that Mr Hughes had established a prima facie case that any of the alleged contemnors intended to evade the obligation on Transport Canada to pay the monetary award to Mr Hughes. As discussed, she concluded that Minister Garneau could not be liable for contempt by failing to pay the monetary compensation awarded under the Remedies Decision because he did not have the statutory or delegated authority to authorize such a payment from the Consolidated Revenue Fund.
[30] For the sake of completeness, and in the event that she erred in her analysis of the threshold issue, the Prothonotary continued her analysis on the evidence, finding that Mr Hughes had not established a prima facie case that any of the alleged contemnors were in breach of the Remedies Decision by failing to pay the monetary award.
[31] The Prothonotary referred to s. 29 of the CLPA, which provides that no execution shall issue on a judgment against the Crown. Instead, she noted, awards against the Crown are to be paid by the Minister of Finance from the Consolidated Revenue Fund, pursuant to s. 30 of that CLPA, upon receipt of a certificate of judgment against the Crown.
[32] Rule 474 of the Federal Courts Rules provides for the issuance of a certificate of judgment where an order against the Crown for the payment of money is executory and is either not under appeal or has been affirmed or varied on appeal. After setting out Rule 474, the Prothonotary noted that the parties had agreed, in the ASF, that “[a]t no point, pursuant to Rule 474 … did the Federal Court Administrator issue a certificate of judgment against the Crown nor did the Administrator deliver such a certificate to the Deputy Attorney General of Canada”. She further noted that Justice Heneghan concluded that a party in the position of Mr Hughes was required to make a request under the Rules for a certificate of judgment, and that he had not complied with Rule 474: Hughes v Canada (Human Rights Commission), 2019 FC 53 at paras 48-50 and 63. In the absence of such a certificate of judgment, Mr Hughes had not demonstrated a prima facie case for contempt.
[33] Finally, the Prothonotary was not satisfied that Mr Hughes has established a prima facie case that “any of the alleged contemnors” had intentionally failed to pay the monetary award made by the Tribunal.
[34] Prothonotary Ring therefore dismissed Mr Hughes’s motion, and exercised her discretion not to award costs to the respondent.
III. Preliminary Issues
A. New Evidence on Appeal (1)
[35] There are two issues as to new evidence on appeal. The first arose in an unusual way.
[36] The respondent’s written submissions stated that in the applicant’s motion record, Mr Hughes had attempted to admit excerpts of fresh evidence before this Court that were not before the Prothonotary. The respondent objected, because Mr Hughes did not bring a formal motion and did not establish that the relevant test for new evidence on an appeal has been met.
[37] At first blush, this was a curious submission, for the applicant’s motion record index did not refer to anything new for the appeal. His filed motion record contained no documents other than his initial written submissions for the appeal. Its index listed his Notice of Motion for this appeal and other Court Orders but no new or proposed evidence. His written submissions also did not mention or make any apparent reference to new or fresh evidence, or anything by way of new material.
[38] In his reply submissions, under the heading “Arguments raised by Respondent”, the applicant advised that he “anticipated raising these issues in Reply and therefore gave a ‘heads up’ to the respondent”. He stated that the “issues being raised are not evidence but are rather statutory provisions and Treasury Board policies” that Transport Canada is required to follow. A couple of paragraphs later, some of the fog lifted when the applicant’s Reply submissions referred to a statutory provision, a “Treasury Board Standard on Security”, two Public Service Commission documents and a “Public Works Security Policy”.
[39] The applicant did not file a Notice of Motion to seek the admission of these documents into evidence on this appeal or provide evidence as to why the documents were not before the Prothonotary or not located earlier. In addition, none of the documents was actually filed in a motion record. The applicant’s submission in reply was that the documents were not “evidence” and were “publically posted” and therefore, the applicant maintained, Prothonotary Ring should have availed herself of them. He provided a link to a website that apparently houses the documents, and asserted that the documents are “authorities” or “secondary sources” that are listed in his Reply and that they govern the federal Public Service. He did not refer to any specific argument of the respondent to which the new argument and documents responded.
[40] In fact, from my own review, the new documents are directly related to a new argument made by the applicant in his reply submissions. That position was that Transport Canada was required from the outset to send him a “letter of offer that would include any and all ‘subject to’ clauses” [original emphasis]. The applicant’s reply argument also noted that he has been requesting a letter of offer from December 2018 onwards. Mr Hughes raised a similar point before the Prothonotary and, as noted already, she dismissed the argument (at para 59, as set out above at para 27). However, I have been unable to find arguments about a requirement for a letter of offer in the applicant’s initial submissions on this appeal, nor any responsive mention of that issue in the respondent’s submissions.
[41] Very recently, in a separate motion to this Court under Rule 431, Mr Hughes requested an Order requiring the government appoint him through a conditional letter of offer to the position at Transport Canada. Justice McVeigh dismissed that motion on August 20, 2020: Hughes v. Transport Canada, 2020 FC 843. The arguments Mr Hughes made in his reply submissions on this appeal substantially overlap with the position he took before Justice McVeigh.
[42] In my view, on this appeal it is not appropriate for the Court to consider the new documents listed by the applicant, or the arguments in relation to them, for the following reasons:
(i) they were not before Prothonotary Ring on the original contempt motion;
(ii) they are not before the Court on this motion either, as they were not included in a motion record. The Court cannot try to track them down as public documents, for example by looking on the Internet: Canada (Attorney General) v Kattenburg, 2020 FCA 164 (Stratas, JA), at para 32. Apart from being improper to do so, there would be no affidavit before the Court to identify the documents as the ones the applicant wants to rely on, or to explain what they are and how they might apply to the present case;
(iii) the applicant’s initial submissions on the appeal made no mention of the documents and made no argument about them. They were first raised in his reply submissions, as was the general position taken by the applicant that Transport Canada should have sent him an offer letter. Even if the issue of an offer letter was generally known to the respondent outside this motion and a similar issue was raised before the Prothonotary, it is not fair to the respondent to raise these new documents and arguments first in reply on this appeal. Despite the applicant’s courteous “heads-up” to the respondent’s counsel, it leaves the respondent without an opportunity to answer the applicant’s written reply submissions about the meaning and importance of the documents in its own written submissions, or about the broader issue the applicant now raises;
(iv) the applicant did not file a Notice of Motion or otherwise make a request for admission of the documents as fresh evidence on appeal, nor did he provide any evidence to meet the test for fresh evidence on an appeal to this Court: see David Suzuki Foundation v. Canada (Health), 2018 FC 379 (Kane, J), at paras 16-19, 36-39, 41; Carten v Canada, 2010 FC 857 (Gauthier, J), at para 23; and
(v) a number of issues related to an offer letter have been raised by Mr Hughes and determined by this Court, including in relation to whether he is entitled to an offer letter under paragraph 1 of the Tribunal’s decision. The argument on this appeal would essentially constitute a collateral challenge to Justice McVeigh’s Order and Reasons: see 2020 FC 843, esp. at page 2 at #1 and #4 and at paras 4, 6, 10, 14-18 and 23. The proper way to attempt to reverse that Order is to appeal. I recognize that the parties filed their written submissions on this motion before Justice McVeigh’s decision, but that does not detract from the point that the Court has already determined issues between these parties raised by Mr Hughes related to an alleged requirement for an offer letter.
[43] To some, these concerns may seem like technical or procedural points. In fact, however, they go directly to the fairness of this appeal in writing under Rule 51. All parties, including parties not represented by legal counsel, must play by some basic ground rules. Several come up here.
[44] First, there are three stages in written arguments on a motion in writing. They are set out in Rule 369 of the Federal Courts Rules. An applicant submits written representations. Then the responding party answers them and may raise its own points. Then the applicant may reply. The exchange of written representations ends there.
[45] At the second stage, a responding party is entitled to know and respond to all the substantive arguments the applying party is relying on. At stage three, the reply affords the applicant a chance to answer the responding party’s arguments. On the subject of reply, Justice Mactavish explained in Deegan v Canada (Attorney General), 2019 FC 960, at para 121:
It is a well-established principle that new arguments are not the proper subject of Reply. The purpose of a Reply is to respond to matters raised by the opposing party, not to produce new arguments or new evidence that should have been raised in first instance. Proper Reply is limited to issues that a party had no opportunity to deal with, or which could not reasonably have been anticipated.
[46] A new argument made first in reply that does not respond to an argument by the respondent and should have been raised in the applicant’s first submission is not permitted because a responding party has no opportunity to answer it in written submissions. It is a matter not only of fairness but also of sensible process. Without limits on the scope of reply and a firm end to legal arguments at the reply stage, some litigating parties would continue to exchange written representations like ping-pong. That would cause delays, waste time, drive up legal costs and generally serve no one well.
[47] A second ground rule is that documentary evidence has to come before the Court in a motion record. This ensures that everyone has the same things to look at during the motion. Motion records are governed by Rules 364 and 365.
[48] Third, in order to be included in a motion record, a document must be admissible as evidence. The Court can only act on facts that are proven by evidence, matters of judicial notice or statutory deeming provisions: see Kattenburg, at para 32 and the cases cited there. Where a party seeks to enter a document as evidence, it is very often attached to an affidavit that explains it to the Court. I note that the Court may consider legal arguments about a statute without formal proof of it, as Mr Hughes correctly submitted.
[49] Fourth, on an appeal under Rule 51, the Court considers the evidence as it stood before the Prothonotary and does not consider new factual evidence unless the evidence passes a legal test allowing its admission as fresh evidence on appeal. That legal test allows, on an exceptional basis, for the admission of new evidence on appeal where it could not have been made available earlier; will serve the interests of justice; will assist the Court; and will not seriously prejudice the other side: David Suzuki Foundation, at para 37; Carten, at para 23. In addition, it must affect the outcome or impact the merits of the appeal: David Suzuki Foundation, esp. at paras 38, 41 and 56.
[50] Lastly, there are legal limitations on bringing the same issues to Court more than once. The legal principles of issue estoppel and res judicata prevent re-litigation of an issue or cause of action that has been decided on its merits: see British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52, [2011] 3 SCR 422, at paras 24-25, 27, 34; Penner v Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, at paras 28-31, and paras 88-91 and 98-100; Tuccaro v Canada, 2014 FCA 184, at paras 12-17; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248.
[51] For the reasons above, I will not consider the applicant’s new documents, or his arguments in relation to them, on this appeal.
B. New Evidence on Appeal (2)
[52] By letter dated August 25, 2020, Mr Hughes wrote to the Court stating that the applicant “discovered yesterday a material non-disclosure”, which he stated “is significant and goes to the heart of the Contempt issue”. He attached two pages of a poster for a job opening that he stated “is the exact job the Tribunal ordered the Respondent instate the Applicant into on June 1, 2018”. The poster is alleged to show that Transport Canada would staff the position at various security levels. The applicant’s letter claims that the document undermines the respondent’s position that the applicant could only be hired as a Marine Intelligence Officer with the “highest security clearance” (Top Secret), and that the security clearance must be obtained prior to sending him a letter of offer. The poster on its face stated that the competition for the job closed in January 2018.
[53] The applicant requested that the Court allow the parties to make brief submissions on this new evidence. However, before that, I must determine whether this evidence should be considered on this appeal.
[54] By letter dated August 28, 2020, the respondent submitted that the evidence is irrelevant to the appeal before the Court, that the applicant was out of time to tender this evidence because it predates the June 1, 2018 order of the Tribunal, and that the new evidence does not meet the test for adducing new evidence on appeal. The respondent also submitted that the request for this new evidence was an abuse of process as an attempt to circumvent findings made in an Order by Justice McVeigh that Mr Hughes is not entitled to a letter of offer for employment prior to his security clearance: Hughes v Transport Canada, 2020 FC 843. The respondent did not identify the specific findings it relied upon.
[55] In my view, the job posting should not be admitted as fresh evidence on appeal.
[56] First, the applicant provided no explanation as to why this evidence of a job posting that closed in January 2018 could not be found before late August, 2020 and specifically, why it was not before the Prothonotary on the contempt motion in November 2019. The new evidence therefore does not pass the test for new evidence on appeal from David Suzuki Foundation and Carten, which requires, among other things, that for new evidence to be admissible on appeal, it must not have been made available any earlier.
[57] Second, the job posting evidence has marginal relevance to this appeal. The Prothonotary referred in passing to different levels of security at paragraph 60 of her reasons: she mentioned that an affidavit sworn in response to another motion brought by Mr Hughes stated that “[o]n December 10, 2018, the forms necessary for Mr Hughes to seek top secret clearance and to allow him to potentially fill the Assignment Coverage Position on a determinate basis were forwarded to his counsel” [emphasis added]. She made no other reference to different levels of security clearance elsewhere in her reasons.
[58] On this appeal, Mr Hughes’s initial submissions also made little reference to different levels of security. Where he did touch on it, he argued that it was not relevant to the present contempt allegations (at para 63 of his submissions, below):
62. The respondent admitted a position existed on June 1, 2018. The security forms needed to be mailed out to the Applicant within days. Instead the Respondent rewrote the Award order saying they did not have to comply. And they did so without seeking a Stay by consent or seeking a Court approved Stay. The security forms were not emailed until December 10, 2018. The Contempt charge is for failing to take any action between June 1, 2018 and November 13, 2018 to begin implementing the order not for failing to appoint the Applicant.
63. All these other issues over the security forms not being returned due to credit worthiness concerns, Top Secret vs Secret are outside the scope of the contempt charges. In fact, they would be subject to a completely separate charge of contempt.
[Original emphasis in para 62; underlining added to para 63.]
[59] In his Reply submissions, there is no reference to different security levels as an issue in this case, although I note that in certain of the cases relied upon by the applicant (e.g. Tahmourpour), different levels of security were part of the facts.
[60] On the applicant’s own position, therefore, the proposed new evidence has no, or very marginal, relevance to the outcome of this Rule 51 appeal from the Prothonotary’s Order. The respondent made no submissions on this appeal about different security levels. I find therefore that the proposed new evidence has little or no relevance to this appeal.
[61] Because the proposed new evidence of the job posting does not pass the test for fresh evidence on appeal and has marginal or no relevance to the merits of the appeal, it should not be admitted as evidence or considered on this appeal. It is not necessary to conclude in relation to the respondent’s argument about the effect of Justice McVeigh’s decision.
IV. The Appeal
A. Standard of Review on a Rule 51 Appeal
[62] On an appeal from a discretionary order of a Prothonotary under Rule 51 of the Federal Courts Rules, the Court applies the standards of review established in the Federal Court of Appeal’s decision in Hospira Healthcare Corp. v Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 FCR 331. Justice Nadon, speaking for a five-person panel of the Court, held that the Federal Court may only interfere with a discretionary decision of a Prothonotary if the Prothonotary made an error on a question of law, or if the Prothonotary made a palpable and overriding error on a question of fact or mixed fact and law: Hospira at paras 68-69 and 79. The Court in Hospira adopted the same standard for Rule 51 appeals as set out by the Supreme Court of Canada in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, for appellate review of decisions by trial judges: Housen, at paras 19-37.
[63] The correctness standard may also apply to a question of law or a legal principle that is extricable from a question of mixed fact and law: Hospira, at paras 66, 71-72; Creston Moly Corp. v Sattva Capital Corp., 2014 SCC 53, [2014] 2 SCR 633, at paras 53-55, 63-64; Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 FCR 344 (Stratas, JA), at paras 57 and 74; Canadian National Railway v Emerson Milling, 2017 FCA 79, [2018] 2 FCR 573 (Stratas, JA), at paras 21-28; Teal Cedar Products Ltd. v British Columbia, 2017 SCC 32, [2017] 1 SCR 688, at para 44; Clayworth v Octaform Systems Inc., 2020 BCCA 117 (Hunter, JA), at para 47. However, if the impugned findings are factually suffused or a legal principle is not readily extricable, the standard will be palpable and overriding error: Mahjoub at paras 60, 156 and 318; Housen, at para 36; Teal Cedar Products, at paras 45-46.
[64] The correctness standard is a non-deferential standard of review in which the Court can substitute its own opinion, discretion or decision for that of the Prothonotary: Hospira, at para 68; Mahjoub, at para 58. By contrast, the palpable and overriding standard is a highly deferential standard of review: Benhaim v St. Germain, 2016 SCC 48, [2016] 2 SCR 352, at para 38. In Mahjoub, Justice Stratas described the palpable and overriding error standard in the following words:
[61] Palpable and overriding error is a highly deferential standard of review: Benhaim v. St. Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. See Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46, cited with approval by the Supreme Court in St. Germain, above.
[62] “Palpable” means an error that is obvious. Many things can qualify as “palpable.” Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence.
[63] But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding.
[64] “Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been fou