2011 QCCA 894, 2011 QCCA 894

Translated from the original French Gagliano c. Canada (Procureur général) 2011 QCCA 894 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019897-099 (500-17-020795-046) DATE: May 13, 2011 CORAM: THE HONORABLE MARC BEAUREGARD, J.A. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. THE HONOURABLE ALFONSO GAGLIANO APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF CANADA THE HONOURABLE STEPHEN OWEN THE RIGHT HONOURABLE PAUL MARTIN RESPONDENTS - Defendants JUDGMENT [ 1 ] THE COURT ; – On the appeal from a judgment rendered July 2, 2009, by the Superior Court (the Honourable Kevin Downs, J.), District of Montreal, dismissing the appellant’s action; [ 2 ] After examination, hearing and deliberations; [ 3 ] The trial judge dismissed the appellant’s action on the ground that his recall as a Canadian ambassador fell under the Governor General of Canada’s discretionary power, which is not subject to judicial review. [ 4 ] The judge also found that the televised speech given in 2005 by the respondent Paul Martin, then Prime Minister of Canada, and the interview given in 2004 to a Globe and Mail journalist by Stephen Owen, the Minister of Public Works and Government Services, did not incur the liability of the Government of Canada or the personal liability of the respondents. [ 5 ] Essentially, the Court agrees with the trial judge. [ 6 ] There was no contract of employment between the Government and the appellant, who fulfilled a role within the State defined by the terms and conventions of the Constitution. [1] His appointment was at pleasure and fell, as was his recall, under the Governor General of Canada’s discretionary power under the Letters Patent issued by King George VI in 1947. [2] [ 7 ] Moreover, the trial judge’s findings of fact regarding the absence of any fault by the respondents’ are not subject to review by this Court in this case. [ 8 ] The Court’s intervention is warranted, however, with respect to costs. [ 9 ] The appellant believed in good faith that he had been appointed as ambassador for a fixed term of four years.

That belief was based, inter alia , on a written document from the Department of Foreign Affairs, the content of which could easily lend itself to such understanding. This was the principal source of the dispute, and his case was based largely on a written document issued by the Government. [ 10 ] It should also be noted that the respondents did not call any witnesses to testify at trial, instead basing the major elements of their argument on questions of law.

[ 11 ] On the whole, the amount of costs the appellant is facing is unfair and disproportionate. [ 12 ] The Court finds that the judge should have used his discretionary power under art. 477 of the Code of Civil Procedure to dismiss the action without costs. FOR THESE REASONS: [ 13 ] ALLOWS the appeal without costs for the sole purpose of replacing paragraph 130 of the trial judgment with the following: [130] Without costs. MARC BEAUREGARD, J.A. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. Mr. Alfonso Gagliano Personally Mtre Alberto Martinez Mtre Jacques Jeansonne DESLAURIERS JEANSONNE For the respondents Date of hearing: May 9, 2011