Vachon v. Canada Revenue Agency, 2015 ONSC 6096
Court File No.: 14-61149 Date: 2015-10-06
Ontario Superior Court of Justice
Between:
Claude André Vachon Plaintiff
– and –
Canada Revenue Agency, Professional Institute of the Public Service of Canada and Certified General Accountants of Ontario Defendants
Counsel: The Plaintiff, in person Joël Dubois, for the Defendant Certified General Accountants of Ontario (moving party)
Heard: September 24, 25, 2015 (Ottawa)
Reasons for Decision
C.T. Hackland J.
[1] The defendant, The Certified General Accountants Association of Ontario (“the Association”) moves to dismiss the plaintiff’s action as frivolous, vexatious or otherwise an abuse of process under Rule 21.01(3)(d) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 or, in the alternative, summary judgement dismissing the action under Rule 20.
[2] For the reasons discussed below, I allow the motion and dismiss the plaintiff’s claim in its entirety.
[3] At the material times, the plaintiff was a member of the Association and subject to their professional oversight pursuant to the Certified General Accountants Act, 2010 S.O. 2010 and predecessor statutes. On September 21, 2008, the plaintiff made a formal complaint, by way of email, to the Association (the complaint) about the conduct of several other members of the Association. The individuals complained against were employees of the Canada Revenue Agency (“CRA”) where the plaintiff was also employed. His complaint was related to issues which had arisen in the workplace. I would note that the plaintiff’s claims in this action against CRA and his former union have been discontinued.
[4] The Association referred the complaint to its Complaints Committee for investigation in view of the plaintiff’s allegations of, among other things, breach of the Association’s Code of Ethics and Rules of Professional Conduct. The plaintiff, after initially committing to comply with the Associations demands to substantiate his complaint, ultimately failed to respond to the Committee’s repeated demands for information. He claimed that he was legally precluded from doing so because the documentation he had was regarded as confidential by the CRA.
[5] As a result of the plaintiff not substantiating his complaints, the Association’s Professional Conduct Tribunal issued a Notice of Hearing against the plaintiff setting a hearing date of June 25, 2009. The plaintiff did not attend his hearing but did provide written submissions. In a decision dated July 13, 2009, the Tribunal made various orders against the plaintiff. The Association by-laws provided for a 30 day appeal period. The plaintiff did not appeal the Tribunal’s decision nor did he seek judicial review. The plaintiff did not comply with the Tribunal’s further order to substantiate his original complaints and as a result, was expelled from the Association in August of 2009. Again, no steps were taken to appeal his expulsion.
[6] In the present action, commenced June 17, 2014, the plaintiff seeks to impugn the 2009 decisions of the Association’s Professional Conduct Tribunal. He objects to the fairness of the procedures followed, to the content of the Notice of Hearing, to the communication of the Notice of Hearing and to the Tribunal’s reasons for decision and the publication of the reasons on the Association’s website and in the Association’s magazine known as “Statements”. He says the Notice of Hearing and the Tribunal’s decision were false and defamatory of him.
[7] The law is well settled that a party cannot fail to appeal a Tribunal’s decision and then in a subsequent separate proceeding, seek to impugn or collaterally attack the original decision. This is an abuse of process and will not be permitted, see Toronto(City) v. C.U.P.E, Local 79, 2003 SCC 63. I would dismiss this action on this basis.
[8] Unfortunately, it is not completely clear what claims or causes of action the plaintiff is attempting to assert with respect to the time period following the Tribunal’s decision. The Statement of Claim is in essence a 79 page (209 paragraphs) essay or narrative of the plaintiff’s problems in his workplace (i.e. at CRA) and his interactions with the Association. It discusses how the discipline proceedings exacerbated his problems with his employer and ultimately led to his “constructive dismissal” some 3 years later. The pleading does not comply with the requirements of the Rules of Civil Procedure, and it is unclear what causes of action are being asserted.
[9] The Association elected to file a Statement of Defence rather than challenge the Statement of Claim. It did so on the assumption that the plaintiff was claiming damages based on the torts of defamation, conspiracy and breach of privacy (“intrusion upon seclusion”). At the hearing of this motion, the plaintiff confirmed that indeed his claims are based on these causes of action.
[10] As noted, the plaintiff’s complaints about the Discipline Tribunal and the Association’s processing of the discipline proceeding are barred by the collateral attack principle and I will therefore not say more about the details of these complaints. It is also well settled that the Tribunal enjoys an absolute privilege from defamation claims in relation to the performance of its functions. Further, concerning the Association’s publications on its website and in the its Statements magazines, to the extent that they are in furtherance of a quasi-judicial proceeding, they are also protected from claims in defamation by an absolute privilege, see Fraileigh v RBC Dominion Securities Inc., 2009 92109 (Ont. S.C.J.), Byrne v. Maas, 2007 49483 and Said v. University of Ottawa, 2013 ONSC 7186.
[11] With respect to the tort of conspiracy, this is not pleaded with any clarity nor is there any air of reality to such a claim. The plaintiff did not attempt to substantiate such a claim in his factum or oral argument.
[12] The plaintiff’s principal submission to the Court is that the Association defamed him, by allowing the Notice of Hearing to remain accessible via internet search (such as Google) of the Association’s website (or other data bases) for an unduly long time (in particular the period of November 2009 to July 2012). The Association has provided evidence that the Notice of Hearing was posted on its website on June 19, 2009 and was taken down from its website on June 30, 2009. However, the plaintiff has filed email records dated July 13, 2012 from his employer showing that his superiors at the CRA accessed the Notice of Hearing on that date and were extremely upset to learn of the allegations against CRA employees. From the plaintiff’s perspective, the problem with the Notice of Hearing was that it had attached to it his September 21, 2008 email complaint against his co-workers which he had come to appreciate was an embarrassment to him, particularly in the context of his workplace. The Notice of Hearing began by re-citing “…the attached letter dated 21 September 2008 was received by the Discipline Committee from you. The Committee identified the letter as one that may violate the Code of Ethical Principles of Rules of Conduct…” (underlining added)
[13] The plaintiff’s September 21, 2008 complaint was an extraordinary document. It was headed “Private and Confidential”. The subject line read “Corruption involving CGA members”. It went on to make scurrilous allegations against seven individuals, including two of the plaintiff’s senior managers at the CRA and several other co-workers. The complaint alleged collusion and cover up of crimes, corruption, criminality, fraud, career obstruction, defamation, harassment, retaliation, full blown scandal and obstruction of justice. It threatened a criminal investigation. It ended “…I am disgusted by the actions of the above named CGA’s. Best regards Claude Vachon CGA.”
[14] As noted, the Association took the unusual step of publishing this email, unredacted, as an attachment to the Notice of Hearing. Perhaps, predictably, when the plaintiff’s supervisors at CRA eventually accessed the Notice of Hearing on the internet on July 13, 2012, the plaintiff was removed from the workplace pending a medical assessment.
[15] In any event, does the plaintiff have a viable cause of action against the Association for defamation based on the possibility that he could establish that the Notice of Hearing remained accessible to the public through internet search for some 3 years after the Tribunal’s decision? I would answer that in the negative for several reasons.
[16] The Association cannot be said to have defamed the plaintiff by posting an email that he himself authored. The plaintiff’s email defamed the persons complained against, not the plaintiff. The plaintiff submitted that by attaching his email complaint to the Notice of Hearing which alleged that he failed to provide evidentiary support for his allegations, this suggested that the allegation was true i.e. that he was refusing to provide substantiation for his serious allegations. In point of fact, the discipline Tribunal found the allegation to be true and, as noted, that finding cannot be collaterally attacked. In my opinion, if the email harmed its author, the plaintiff, it was because of the bizarre and scurrilous nature of the allegations contained in it. Respectfully this is a case of volenti non fit injuria – to the wrongdoer, no harm is done. The plaintiff was the author of his own misfortune.
[17] The Association also submits that the defamation claim arising from the Notice of Hearing remaining accessible to the public is clearly statute barred. Under s. 4 of the Limitations Act, S.O. 2002, c. 24, Sched. B, the plaintiff’s claim had to have been commenced within 2 years of the plaintiff becoming aware of the alleged defamation. There is a great deal of evidence before the Court that as far back as the 2009-2010 time frame, the plaintiff was making allegations of defamation against the Association
[18] At paragraph 193 of his Affidavit, the plaintiff admits that he contacted lawyers in September 2009 for the purpose of suing CGA Ontario for having destroyed his “reputation, career, livelihood, business connections, friendships”, and damaged his “health since 2009 with seven different forms of alleged defamation”. In addition, in his Affidavit, Mr. Vachon states that he saw both the article in the CGA Statements magazine and the Notice of Hearing, including his email complaint of September 22, 2008, published on the internet as early as December 2009, and that by March 2012, this had caused him to be alienated at CRA by a group of over 50 people and to suffer mental distress.
[19] In September of 2011, the plaintiff wrote what he called “a report” to the Chair of the Association’s Board of Governors enclosed with a letter entitled “Illegal Activities of CGA Ontario’s Discipline Committee”. On page 2 of his report, the plaintiff outlines in detail his objections to the Notice of Hearing, to which his email complaint was attached and which he notes “is very easily found through a Google search on the internet.” He observes that he has been “defamed across the federal government” as this information is readily accessible to the accountants he works with.
[20] I accept the Association’s submission that the plaintiff’s defamation claim should have been commenced within two years of his September 2011 “report”, at the latest. As noted, the Statement of Claim was not issued until June 2014. The same observation applies to the plaintiff’s claim for the tort of intrusion upon seclusion as he bases this claim on the Association’s actions in allowing the Notice of Hearing with his email complaint attached, to remain accessible to internet searches for some 3 years after the hearing. In other words, the alleged defamation and the breach of privacy complaint are based on the same facts. I find that both these claims are statute barred.
[21] I do not accept the plaintiff’s argument that he did not discover his defamation claim for the purposes of section 4 of the Limitations Act until much later when he found out through a federal Freedom of Information (“FOI”) request that his superiors at CRA accessed the Notice of Hearing via the internet and were very upset leading to his removal from the workplace. This amounts to saying that he did not appreciate the full extent of his damages until he acquired additional information through his FOI request. The case law establishes that once a plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action has accrued, see Barry v. Pye, 2014 ONSC 1937, citing Peixeiro v Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 (SCC).
[22] The plaintiff argues that the alleged defamation should be taken as having been re-published each day through the entire time the Notice of Hearing remained accessible on the internet, (until July 2012) relying on Shtaif v. Toronto Life Publishing Co. Ltd, 2013 ONCA 405. In my view, Shtaif does not support that proposition. Shtaif holds that an internet posting of a prior defamatory print publication is a republishing of the defamation and any limitation period based on discoverability will run from the point where the internet defamation is discovered. In the present case, as I have found, the internet defamation was discovered by September 2011, at the latest.
[23] In any event, the Association is shielded by a statutory immunity under section 64 of the Certified General Accountants Act, 2010 S.O. 2010, Chapter 6 (“2010 Act”) (in force May 18, 2010) which provides:
No action or other proceeding may be instituted against CGA Ontario, the Board or any committee or tribunal, any member or former member of CGA Ontario, of the Board or of a committee or tribunal, or any officer, employee or agent of CGA Ontario or of the Board for any act done in good faith in the exercise or performance or the intended exercise or performance of any power or duty of CGA Ontario under this Act or the Public Accounting Act, 2004 for any alleged neglect or default in the exercise or performance in good faith of such power or duty.
[24] The plaintiff also argues that his privacy interests were violated by the publication of the Notice of Hearing, relying on the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, cf.31 (“the FIPPA”). I would observe that the FIPPA applies only to an “institution” as defined in the Act or regulations and such listing does not include the defendant.
[25] The Court of Appeal in Jones v. Tsige, 2012 ONCA 32 recognized a tort of intrusion upon seclusion, the elements of which are:
a) The defendant’s conduct must be intentional or reckless;
b) The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
[26] The Court of Appeal stated at para. 71 of Jones v. Tsige:
The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum..
[27] The Court of Appeal noted that the right to privacy is not absolute, such that there will be cases in which the defences that are available to those who communicate facts which are in the public’s interest to know will outweigh an individual’s right to privacy. In the present case the posting of the Notice of Hearing and the Tribunal’s decision was in the public interest and was authorized by the Association’s by-laws. The postings did not concern the plaintiff’s private affairs but rather his professional conduct concerning complaints he chose to make against other members of the Association. In any event, the tort of intrusion upon seclusion cannot be used to circumvent the defences available to what is in essence a claim for defamation, such as absolute or qualified privilege.
[28] In conclusion, for the reasons set out above, I find that this action constitutes an abuse of process in that it is primarily a collateral attack on the procedures, actions and reasons of an administrative tribunal where no appeal or judicial review was sought. In addition the defamation and breach of privacy claims asserted are not capable of succeeding and therefore summary judgment dismissing the action is granted.
[29] I request the defendant moving party to submit a written submission on costs within 14 days and the plaintiff may respond within 14 days of receiving the defendant’s submissions.
Mr. Justice Charles T. Hackland
Released: October 6, 2015
Citation: Vachon v. Canada Revenue Agency, 2015 ONSC 6096 Court File No.: 14-61149 Date: 2015/10/06
Ontario Superior Court of Justice
Between:
Claude André Vachon Plaintiff
– and –
Canada Revenue Agency, Professional Institute of the Public Service of Canada and Certified General Accountants of Ontario (moving party) Defendants
Reasons for Decision
C.T. Hackland J.
Released: October 6, 2015