Shooting the Messenger
32 - In the Federal Court of Appeal
With a Fool for a Client
I was still in denial. I would not admit it. I still believed Foreign Affairs got rid of me because they wanted to shut down the Currency Fluctuation Reporting System and return to the good old days when they helped themselves with impunity to millions of dollars to which they were not entitled.
They had not only fired me, but done it in such a way that, even if again they were discovered with their sticky fingers in the taxpayers' cookie jar no one would dare breathe a word to anyone.
Damn it, why shouldn’t I believe them!
They had shouted it under oath during the hearing before adjudicator Thomas W. Brown. They told Thomas W. Brown, they told the lawyers for Treasury Board, they told anyone who would listen that YES! we stole millions of dollars, and since we have fired him we are again stealing millions of dollars, and here was Judge Louis Marceau saying I had it all wrong.
It was Judge Marceau’s turn to raise his voice in an attempt to get me to listen and acknowledge that I was badly mistaken.
“You were fired because of your complaint to the Commissioner of Official Languages,” he shouted, “ADMIT IT!”
I understood the power of money to corrupt. What I could not understand was that, in today’s day and age — it was the 1980s after all — they’re were still people, people who had taken an oath to uphold the laws of Canada who would go out of their way to ruthlessly castigate and ostracize a citizen for abiding by those laws even when there was no monetary advantage in doing so.
I should have admitted what was obvious to Judge Marceau, probably his colleagues, and should have been obvious to me.
Before the Federal Court will hear your appeal you have to provide it with your arguments in writing. It's called a Memorandum of Points of Arguments of the Applicant.
Judge Marceau had obviously read my memorandum. In it I wrote: "my discharge was motivated by a department angered by the applicant's complaint to the Commissioner of Official Languages…” (Para. 34, Federal Court - Memorandum of Points of Arguments, Further Readings)
If I wrote it, why could I not admit it in open court?
It is one thing to offer an explanation for what happened and then categorically state that it is the only explanation. The circumstantial nature of some of the proof caused me to doubt my own initial and apparently correct conclusion, at the worst possible time.
I could not admit to the Court something that I had trouble admitting to myself. Maybe it was because my conscience was troubled by contradictory evidence.
Foreign Affairs officials, under oath, had sworn that I had been fired for failing to produce the massive Currency Fluctuation Report using an adding machine.
This was the reason given by Thomas W. Brown for upholding the actions taken by Foreign Affairs — everything from the Appraisal From Hell, to the solitary confinement, to the unrelenting harassment, to the theft of my pay, to my unlawful dismissal!
How could I not believe it?
For Federal Court Judge Louis Marceau this was “the big lie”; a lie so big, so outrageous that you are inclined to believe it.
I told Judge Marceau that I could not say, with absolute certainty that my complaint to the Commissioner of Official Languages had led to my dismissal; after all, Thomas W. Brown, in finding Foreign Affairs blameless, wrote: “management has explained that ‘coincidence’ as being merely apparent”.
Then, like a fool, I asked the Court to let me finish, maybe the situation would become clearer.
That last remark was even more stupid when you consider I was reading from a brief the Court had had in its possession for quite some time.
It's no excuse, but I was unburdening myself. I know that now. I was trying to get rid of so much emotional baggage that I lost sight of why I was there. I am usually a good listener, but that day I wasn’t listening. I had a story to tell and I was going to tell it.
The Court obliged the fool, and let me finish. They then adjourned the proceedings promising to return shortly, it was assumed, to hear what the assembly of government lawyers had to say.
We all waited in absolute silence. The passage of time must have weighted more heavily on the leader of the government's legal team. He got up, walked over to the court clerk’s station, and asked her to enquire as to how much longer they would have to sit there. They may have been Federal Court Judges, but he was a Queen's Council.
The door to the judges' chamber was on my side of the court room, almost directly in front of where I was sitting. The clerk opened the door to reveal the three judges in animated discussion. They were taken aback by the interruption and one of them waved her off.
The Queen’s Council picked up his robe and returned to his side of the court room and sat down.
I don't know how the communication was made, but a short time later the court clerk again got up and went into the judges' chamber, closing the door behind her. She re-appeared, maybe five minutes later, followed by Judges Marceau, Pratte and MacGuigan.
Doctor of Law Bouzigon (not the Queen’s Council) got up, only to be told to sit down by Justice MacGuigan; they did not need to hear from the government.
Justice MacGuigan spoke for the Court. He dismissed my appeal then and there. He said something about not having proven my case under section such-and such. Then, almost as an afterthought, awarded cost to the government.
I was again thankful for small mercies. To have to pay the cost of that mass of government talent occupying the first two benches to my right would have been ruinous, and I could not be ruined much further.
It had taken two years to get this far. To see it end like this was somewhat of a disappointment, to say the least.
Evelyne’s poisoned affidavit gave the Federal Court an easy way out and they took it.
If her affidavit was less than useless why did I introduce it into evidence in the first place?
I was not aware at the time of the implication of her affidavit on section 28*, the section of the Federal Court Act used by the judges to deny my appeal, but Evelyne and her advisers had to know that if I introduced her affidavit into evidence that I would be severely weakening my case.
Did they deliberately engineer a situation where I would be caught in a no-win situation? A situation whereby I could not introduce the letter from Joe Clark into evidence without introducing her affidavit in which Evelyne declares that adjudicator Brown only had her client’s best interest at heart when he found him guilty of a crime he had not committed.
I should have kept quiet about both the letter from Joe Clark and the poisoned affidavit and instead focused almost exclusively on two other reversible errors where malice or absent of malice was not an issue, thereby depriving the Court of an uncomplicated excuse to dismiss my appeal.
I should have instead focused on Thomas W. Brown’s casual disregard of due process, or better still, I should have gone where Judge Marceau wanted me to go, where the evidence of Thomas W. Brown's prejudiced Decision was overwhelming, and stayed there.
Thomas W. Brown had either deliberately downplayed key evidence that pointed to my having been fired for my complaint to the Commissioner of Official Languages or completely misunderstood the impact of the complaint on the Department of Foreign Affairs, which would explain the draconian actions it took against me.
Two of the three judges were francophones. In my oral and written arguments I had pointed out that Thomas W. Brown had misunderstood or deliberately downplayed the contents of a letter from the Office of the Commissioner of Official Languages.
A recap of what Ms. Mary Lee Bragg wrote:
As I mentioned, our investigation at the headquarters of External Affairs allowed us to appreciate that the incident you reported is just a symptom of a much larger problem. Our report, which will be submitted to the Department shortly, will be addressing these wider issues …
Mary Lee Bragg, Office of the Commissioner of Official Languages, November 23 1984.
Thomas W. Brown’s interpretation of what she wrote:
On November 23, 1984, Exhibit G-15, the Commissioner’s Office wrote to the griever, advising him that his complaint was being pursued together with others of the same nature involving the Department.
Decision of Thomas W. Brown in Bernard Payeur v. TREASURY BOARD (Foreign Affairs), page 101.
The adjudicator’s interpretation of what Ms. Bragg wrote is completely wrong. She was writing about the extent of the problem, not about the number of complaints of which there was only one, (mine) or that the complaint was a run-of-the-mill type. Judges Pratte and Marceau had to know this. Section 28 and Evelyne’s affidavit gave the Court a quick easy way out.
Thomas W. Brown’s downplaying of the seriousness of the Department’s breach of the Official Languages Act — whether it was deliberate or because of a misunderstanding — was a “reversible error.” On this issue alone they could have found in my favour, so why did they not do so?
I would speculate that the Judges, with the possible exception of Marceau, like Thomas W. Brown, did not dare render a decision that would have exposed how little a pillar of the federal government, the Department of Foreign Affairs, cared about the rights of francophones to work in the language of their choice and would actually fire someone who complained.
The separatist movement was gaining momentum with arguments that the federal government could not be trusted to protect and further francophone interests and here was proof positive.
I would speculate further that the Federal Court's deliberate actions which allowed me to take my argument to the Supreme Court of Canada was a sop; my reward for having taken my fight this far or, conceivably, to alleviate a guilty conscience.
After the judges had made their exit and we were all getting up to leave, the Court Clerk asked me to please wait. She had a message for me.
After the government side had filed out she spoke to me in these terms, as best I can recall:
They believe you, but their hands are tied by section 28 of the Federal Court Act that requires you to prove, not only that an injustice has been done, but that it was done out of malice.
They believe that given the chance you will take this to the Supreme Court, which is why you will be getting the order of dismissal in writing. With this written notification you can appeal their decision to the Supreme Court, asking that Court ‘when there is clear evidence of injustice, is the Federal Court bound by section 28 of the Federal Court Act.’
As promised, a few weeks later I received the Federal Court of Appeal’s written notification of the dismissal of my petition.
I began preparing my submission for the Supreme Court of Canada.
* In considering an attack based on section 28(1) (c) it should be kept in mind that, for such an attack to succeed, there are, according to the wording of section 28(1) (c) three conditions precedent, viz:
(a) the Tribunal must have made an ‘erroneous’ finding of fact,
(b) that erroneous finding must have been made
(i) in a perverse or capricious manner, or
(ii) without regard for material before the Tribunal, and
(c) the decision attached must be ‘based’ on the erroneous findings”
Rohm and Haas v. Anti-Dumping Tribunal (1978).