Date: 20060317
Docket: T-600-02
Citation: 2006 FC 355
Ottawa,
Ontario, the 17th day of March 2006
Present:
Prothonotary Mireille Tabib
BETWEEN:
JEAN-CLAUDE
DROLET
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
Docket:
T-601-02
BETWEEN:
GEORGES DUMONT
Plaintiff
and
HER MAJESTY
THE QUEEN
Defendant
REASONS FOR
ORDER AND ORDER
[1]
This is
the defendant’s second attempt to have the plaintiffs’ actions summarily
dismissed pursuant to Rule 221 of the Federal Court Rules.
[2]
In a judgment dated December 15, 2003 (Dumont
v. Canada (F.C.A.), [2004] 3 F.C. 338, 2003 FCA 475, hereinafter Dumont),
the Federal Court of Appeal ruled on an initial motion by the defendant in
which it sought to have the actions struck out pursuant to section 9 of
the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the Crown
Liability Act), or alternatively, to have the proceedings stayed until the
conditions in subsection 111(2) of the Pension Act, R.S.C. 1985,
c. P-6, have been met. In its judgment the Court of Appeal allowed the
defendant’s motion in part and struck out the actions in the two cases, except
with regard to the portion of the actions based on section 7 of the Canadian
Charter of Rights and Freedoms (the Charter). On that part of the
actions, the Court granted the plaintiffs the right to amend their actions to
specify how section 7 of the Charter had been infringed, and stayed
the actions until the conditions laid down by section 111(2) of the Pension
Act have been met.
[3]
Following
the Federal Court of Appeal’s judgment, the actions were amended, and further
particulars provided; the plaintiffs also stated that the requirements of
subsection 111(2) of the Pension Act had been met.
[4]
This is
the background against which the defendant filed its second motion to strike,
on the grounds that the re‑amended statements of claim did not comply
with the Court of Appeal’s order, that the facts as alleged disclosed no
reasonable cause of action under section 7 of the Charter, that the
actions as re‑amended were still excluded by section 9 of the Crown
Liability Act and that the appropriate remedy in the case at bar would have
been judicial review of the decisions granting the plaintiffs a pension.
FACTS AND PROCEEDINGS
[5]
It will be
recalled that the plaintiffs are former members of the Canadian Armed Forces.
In their initial actions, they sought a pecuniary award against Her Majesty the
Queen as compensation for the loss and harm suffered on account of illness,
primarily post-traumatic stress syndrome, sustained and aggravated during their
military service. As a cause of action, the initial statements of claim cited
the civil liability resulting from the negligence of the defendant’s employees,
officials or agents, the abuse of authority on the part of the plaintiffs’ superiors,
a failure to perform their fiduciary and legal obligations and a breach of
section 7 of the Charter.
[6]
The facts
alleged in the initial statements of claim, which for the purposes of its
judgment the Court of Appeal assumed to be as proven, were as follows.
[7]
The
plaintiffs became members of the Armed Forces in 1981 and were discharged on
medical grounds in 2001. At different times, both were assigned to various
peace-keeping missions abroad, for example in Cyprus, Croatia, Yugoslavia,
Somalia, Haiti and East Timor. It was alleged that there were traumatizing
aspects in these missions which were well known to their superiors, but that,
nevertheless, no medical treatment or follow-up was provided to them upon their
return. Moreover, they were subjected to additional duties and
responsibilities for which they were not qualified, thereby increasing the
stress suffered and worsening their condition. They accordingly alleged that
the defendant has not established any system destined to provide psychological
services to persons returning from traumatizing missions or to prevent abuses
of authority and the imposition of a workload which, in the circumstances, was
excessive.
[8]
In its
decision, the Court of Appeal noted that all the damages claimed related to illnesses
or ailments suffered during military service, for which the plaintiffs could
apply for a pension.
[9]
Accordingly,
it concluded that the civil liability actions were precluded by section 9
of the Crown Liability Act. As to the fiduciary relationship relied on
by the plaintiffs in support of their actions, the Court concluded that this
allegation did not alter the nature of the actions as actions in civil
liability. The Court of Appeal therefore held that the actions should be
dismissed, except with regard to the alleged infringement of the rights
guaranteed by the Charter.
[10]
As to this
aspect of the actions, the Court of Appeal noted the following:
[78] The appellants did not explain
in any way how section 7 of the Charter has been infringed. However,
in the event that the defendant has breached the appellant’s rights that are
guaranteed by this section, it is far from certain that section 9 of the
Act can be relied upon to exclude a fair and appropriate remedy in keeping with
the circumstances. It is up to the judge responsible for applying
subsection 24(1) of the Charter to assess whether the pension that
might be awarded is appropriate and fair in regard to the circumstances, or if
it would be appropriate to add further compensation.
[11]
However,
since subsection 111(2) of the Pension Act lays down as a
prerequisite to the bringing of an action not precluded by section 9 of
the Crown Liability Act that the plaintiff has made and is pursuing a
pension application until a decision has been made that no pension may be paid,
the Court of Appeal accordingly stayed the actions until that condition had
been met. It also allowed the plaintiffs to amend their actions in consequence
of the judgment.
[12]
Although
this was not apparent from the appeal file, the plaintiffs had filed pension
applications well before the hearing of the appeal on account of the ailments
described in the statements of claim, and the pension applications had been
allowed. In fact, contrary to the strict provision of subsection 111(2)
of the Pension Act, which states that actions shall be stayed “until a
decision . . . that no pension may be paid . . . has been confirmed”, the
plaintiffs maintained that they had met the conditions laid down by the Federal
Court of Appeal; more specifically, they made the following statement in their
amended and expanded statements of claim:
[translation] Pension applications
were made pursuant to the Pension Act for all the injuries or illnesses
listed in paragraph 61, the ailments related to the symptoms described in
the paragraph, and any aggravation thereof. All the applications so made have
been acknowledged as entitling the plaintiffs to a pension. Non-entitlement
to the pension has not been recognized for any of these injuries,
illnesses, ailments or symptoms.
(Emphasis
added.)
[13]
As to
other amendments to the statements of claim, the plaintiffs deleted virtually
nothing from the initial statements of claim, but first undertook to re-word
certain allegations, now qualifying as breaches of the Charter certain
acts which had already been alleged as breaches of fiduciary obligations or
negligence. They then added further allegations:
a. the Armed Forces imposed a
system of guardianship and total obedience governing all aspects of soldiers’
lives, including access to medical care;
b. illness among members –
especially mental or psychological illness – is systematically ignored by the
Armed Forces;
c. the Armed Forces failed in
their duty to analyze and make preparations for foreign missions so as to avoid
threatening the lives or health of soldiers;
d. the Armed Forces knew or
should have known that this mission threatened the lives and physical safety of
the plaintiffs;
e. the Armed Forces failed to
adequately prepare the plaintiffs for the exceptional, but well known, risks of
the missions.
[14]
Accordingly,
the effect of the amendments was chiefly to add, in respect of the actions,
allegations of systemic conduct by the Armed Forces and deficiencies prior
to the missions, whereas the initial actions placed greater emphasis on the
conduct of certain government officials and were limited to deficiencies subsequent
to the missions, that is, to acts aggravating a state of health the cause
of which was not otherwise raised.
DEFENDANT’S ARGUMENTS
[15]
The
defendant made a manifold argument. First, she submitted that the actions
should be struck out – in their entirety – on the ground of abuse of process,
because the amended statements of claim failed to abide by the requirements of
the Court of Appeal judgment in two separate respects. The first of these had
to do with the causes of action which were the basis for the action: the
defendant submitted that, contrary to the Court of Appeal judgment striking out
the actions based on civil liability and a fiduciary relationship, the
plaintiffs did not eliminate any allegations of facts giving rise to civil
liability, but instead proceeded to re-word or dress up facts already alleged,
to suggest a remedy based on the Charter, although the nature of the
action remained unchanged. The defendant argued that the second ground for
which this was an abuse of process was that the plaintiffs did not meet the
conditions laid down by subsection 111(2) of the Pension Act, as
directed by the Court of Appeal, since none of the pension applications made by
the plaintiffs resulted in a decision that they were not entitled to pensions.
On the contrary, all the applications were allowed and the plaintiffs said they
were satisfied with this.
[16]
In
addition to abuse of process, the defendant argued that, as amended, the
statements of claim still disclosed no reasonable cause of action. In this
regard, the defendant maintained that the facts alleged established no
infringement of section 7 of the Charter and that since the losses
alleged were compensated under a statutory compensation plan, the purpose of
the plaintiffs’ action was to obtain double compensation for the same loss.
She argued that such double compensation is not allowed by section 24 of
the Charter and, moreover, is precluded by section 9 of the Crown
Liability Act. Finally, the defendant submitted that the plaintiffs’ only
avenue, if they were not satisfied with the benefits received or the limits
imposed by section 9 of the Crown Liability Act, was to challenge
the quantum of the pension awarded by way of administrative and judicial review
or to challenge the constitutional validity of section 9 of the Crown
Liability Act.
[17]
As an
alternative relief, should the Court decline to strike out the actions in their
entirety, the defendant asked the Court to strike the paragraphs which were the
basis for the actions in civil liability or resulting from a fiduciary
obligation, both to give effect to the Court of Appeal judgment and to comply
with section 9 of the Crown Liability Act.
ANALYSIS
Abuse of process
Preliminary remarks
[19]
The Court
notes that in Burberry Ltd. v. Colton, [2003] F.C.J. No. 149, the
only authority cited by the defendant in support of this proposition, the Court
merely struck out an amended defence which circumvented a series of orders by
the Court, but did not go so far as to dismiss the prior defence. I gather, as
the Court in fact noted in Burberry, that the Court has the power to
strike pleadings which do not comply with an order of the Court, and that this
power may even lead to the dismissal of the action or the underlying defence.
However, this power – and more specifically, the power to dismiss not only the
pleading but the action itself – should only be exercised in cases where the
abuse is obvious and the interests of justice require it. In the case at bar,
for the reasons set out below, I am not persuaded that the amended statements
of claim clearly contravene the Court of Appeal judgment. Moreover, even if
such were the case, they would not justify either the striking out of the
amended statements of claim or the dismissal of the actions.
Amendments relating to causes of action
[20]
The
defendant objected that the plaintiffs had not eliminated from their statements
of claim allegations giving rise to an action in civil liability or based on a
fiduciary obligation. However, it should be borne in mind that the Court of
Appeal judgment did not mention the striking of specific paragraphs from the
statements of claim, but indicated for each case that “the action is struck with
the exception of the part that is based on section 7 of the Charter . . .
The appellant shall . . . amend his statement of claim so that
it complies with the reasons for judgment”. Prima facie, therefore, the
plaintiffs had no duty to eliminate or delete any paragraph or allegation
whatever from their statements of claim, except in so far as this was necessary
to make the statements of claim “[comply] with the reasons for judgment”. The
reasons for judgment, for their part, identified no paragraph or allegation
which should necessarily be deleted because a part of the actions had been
dismissed. Since the judgment does not clearly state that some allegations
should be struck out, this Court would have to find that, in its reasons, the
Court of Appeal held that some of the facts alleged in the initial statements
of claim could not be used to support an action based on section 7 of the Charter,
or even be relevant thereto, and should therefore be eliminated. Clearly, this
Court cannot so find. What is more, the defendant’s argument seems to be based
on the premise which, in my view, is wrong, that facts giving rise to a
recognized cause of action could not give rise to a different cause of action in
light of additional facts.
[21]
In my
opinion, the same argument applies to the defendant’s objection that the
plaintiffs’ amended statements of claim merely underwent cosmetic changes
designed to give a different legal complexion to the same facts. Indeed, and
the case law cited by the defendant makes this clear, mere re-wording or
qualification of identical facts cannot suffice to alter the gist of an
action. However, what the defendant’s argument assumes – and this is where the
Court does not share her opinion – is that the amendments were limited to
re-wording and added nothing new.
[22]
Indeed, in
his argument, counsel for the defendant undertook a detailed comparative
discussion of the initial and the amended statements of claim, identifying
material that was deleted, re‑worded and added. As to additions, counsel
for the defendant submitted that, apart from certain general allegations and
factual conclusions devoid of any factual basis, the amended statements of
claim contained no fact that was not already known and taken into account by
the Court of Appeal when the latter concluded that the plaintiffs did “not
explain in any way how section 7 of the Charter has been
infringed”.
[23]
If that
were the case, I might perhaps have agreed with the defendant and found that
the plaintiffs had in fact made a skilful attempt to evade the result of the
Court of Appeal’s judgment.
[24]
However,
the defendant’s submission that the amended statements of claim put forward no
new facts rests on premisses which I do not accept. I have already listed
above (in paragraphs 13 and 14 of these reasons) the additional
allegations which the plaintiffs inserted in their amendments. With respect
for the defendant’s position, I cannot consider that the allegations regarding
a failure to make adequate preparation for peace missions and a failure to
train and prepare the plaintiffs to face the risks of such missions are so
vague and lacking in detail that they should be regarded as gratuitous
conclusions with no factual basis. Moreover, the defendant in fact filed a
motion for particulars relating to the amended statements of claim, as part of
which it could have asked that additional details on these allegations be
provided: it did not do so and is now hardly in a position to say that the
allegations should be ignored because they are too vague. The allegations
relating to the systemic refusal by the Armed Forces to recognize and treat
post‑traumatic stress syndrome among its members were clearly not part of
the initial statements of claim. If these facts have come to the attention of
the Court of Appeal, it was, as appears from paragraph [32] of the reasons
for judgment, through the joint book of authorities filed by the parties at the
hearing. If the Court of Appeal noted these facts, it was as [translation] “background”, not as facts alleged or to be alleged in
these actions. There is nothing in the Court of Appeal’s reasons from which it
can be inferred with certainty that the Court considered these facts as
allegations when it found that the statements of claim did not adequately
explain how section 7 of the Charter had been infringed.
[26]
The
question whether the additional facts alleged suffice to support an action
under the Charter does not have to be decided in dealing with the argument
based on abuse of process: it should instead be discussed as a separate
question; as amended, did the statements of claim disclose a reasonable cause
of action?
Subsection 111(2) of the Pension Act
[27]
The ruling
of the Court of Appeal stated as follows:
. . . the
action is stayed until the requirements of subsection 111(2) of the Pension
Act have been satisfied.
The
appellant shall, within 60 days of the date of this judgment, amend his
statement of claim so that it complies with the reasons for judgment.
[28]
It will be
recalled that subsection 111(2) of the Pension Act provides that:
|
111(2) An action that is not
barred by virtue of section 9 of the Crown Liability and Proceedings
Act shall, on application, be stayed until (a) an application
for a pension in respect of the same disability or death has been made and
pursued in good faith by or on behalf of the person by whom, or on whose
behalf, the action was brought; and (b) a decision to the effect
that no pension may be paid to or in respect of that person in respect of the
same disability or death has been confirmed by an appeal panel of the
Veterans Review and Appeal Board in accordance with the Veterans Review
and Appeal Board Act.
|
111(2) L’action
non visée par l’article 9 de la Loi sur la responsabilité civile de
l’État et le contentieux administratif fait, sur demande, l’objet d’une
suspension jusqu’à ce que le demandeur, ou celui qui agit pour lui, fasse, de
bonne foi, une demande de pension pour l’invalidité ou le décès en cause, et
jusqu’à ce que l’inexistence du droit à la pension ait été constatée en
dernier recours au titre de la Loi sur le Tribunal des anciens combattants
(révision et appel).
|
[29]
Clearly,
the conditions laid down in subsection 111(2) of the Pension Act
have not been met. The plaintiffs did, in good faith, make pension
applications for all the disabilities in issue, but there was no decision that
a pension might not be paid, as the applications were all allowed
without even the need for an appeal.
[31]
It is true
that the conditions laid down in subsection 111(2) of the Pension Act
were not met, since that subsection requires not only that an application be
made in good faith (with which the plaintiffs complied) but that the
application have been dismissed – which was not the case. Assuming that the
judgment is clear and not open to interpretation, failure to comply with that
part of the judgment does not in any way result from the plaintiffs’ actions or
intentions. What is more, if the fact that the plaintiffs could not in good
faith meet the second condition laid down in subsection 111(2) of the Pension
Act must entail the award of relief, that relief cannot be the dismissal of
the action, but a continuance of the stay of the action ordered by the Court of
Appeal. If necessary, this Court would have no choice but to recognize that
the stay ordered by the Court of Appeal continues to apply and the only
possible remedy available to the parties would be an application to the Court
of Appeal for the stay to be lifted.
[32]
The other
aspect to be considered here is the part of the Court of Appeal’s judgment
which authorizes amendment of the statement of claim “so that it complies with
the reasons for judgment” (emphasis added). The option of amending
mentioned in the judgment is not subject to the stay, the time allowed being
60 days from the date of the judgment, not from the lifting of the stay.
Accordingly, the fact that the plaintiffs amended their actions despite the stay
does not go against the judgment. What is more, the judgment specifically
authorizes an amendment to make the statements of claim comply with the reasons
for judgment. In my view, the reasons for judgment clearly indicate that the
Court of Appeal expected the part of the actions based on infringement of
section 7 of the Charter to proceed once entitlement to the
pension was determined and its amount set:
[78] The appellants did not
explain in any way how section 7 of the Charter has been
infringed. However, in the event that the defendant has breached the
appellant’s rights that are guaranteed by this section, it is far from certain
that section 9 of the Act can be relied upon to exclude a fair and
appropriate remedy in keeping with the circumstances. It is up to the judge
responsible for applying subsection 24(1) of the Charter to
assess whether the pension that might be awarded is appropriate and fair in
regard to the circumstances, or if it would be appropriate to add further
compensation.
[Emphasis added.]
[33]
Moreover,
this is the interpretation accepted by the Court of Appeal itself in the recent
case of Canada v. Prentice, 2005 FCA 395, where it wrote at
paragraph 68:
However, the
Court also held that if the Trial Judge concluded that there had been a
violation of section 7 of the Charter and that the Crown could not
set up its immunity against that violation, the only appropriate and just
remedy that the Trial Judge could grant in the circumstances, under
section 24 of the Charter, would be the difference between the
value of the harm actually suffered and the value of the compensation that the
plaintiffs had received or would receive once the administrative process had
concluded.
[34]
It was
thus entirely permissible for the plaintiffs to amend their action the way they
did, namely to refer to the pensions sought and awarded for the disabilities in
question and to argue, as contemplated by the Court of Appeal that, in view of
the circumstances and the alleged infringement of the guaranteed rights,
subsection 24(1) of the Charter allowed additional pecuniary
compensation to be awarded despite section 9 of the Crown Liability Act.
[35]
Moreover,
if my reading of the Court of Appeal judgment is wrong, I still would hold that
the failure to meet the strict conditions of subsection 111(2) of the Pension
Act did not go against the Court of Appeal judgment or was not an abuse of
process, but was only a ground to continue the stay requiring the intervention
of the Court of Appeal.
Cause of action based on section 7 of Charter
[36]
The
defendant submitted that, as amended, the statements of claim disclosed no
reasonable cause of action based on an infringement of section 7 of the Charter.
The defendant maintained, first, that the Court of Appeal had held that the
facts initially put forward were insufficient to establish an infringement of a
right guaranteed by section 7, and that the new allegations added nothing
relevant that had not already been examined by the Court of Appeal. I have
already found earlier in these reasons that the amendments did contain new
facts. As the Court of Appeal said nothing about the nature of the facts that
would be necessary to establish an infringement of section 7 of the Charter,
it seems to this Court that it would be a pointless exercise to insist on
identifying what the amendments add to the statements of claim and then trying
to assess whether the nature and relevance of the additions were [translation] “substantial” enough to outweigh the Court of Appeal’s
judgment. Rather, in my opinion, the Court should consider the amended
statements of claim as entirely separate documents and determine whether, as a
whole, the facts alleged reasonably suggest an infringement of section 7
of the Charter. Based on that analysis, I will consider the defendant’s
second argument on this point, namely a failure by the plaintiffs to identify
or put forward the rule or rules of fundamental justice according to which the
infringement of fundamental rights must be judged.
[37]
The
parties were agreed on the principle that a finding that section 7 of the Charter
has been infringed requires more than showing that the government has infringed
the life, liberty and security of the plaintiffs. It must also be shown that
such infringement is not consistent with the rules of fundamental justice
(section 7 of Charter; R. v. White, [1999] 2 S.C.R. 417; R.
v. Malmo-Levine, [2003] 3 S.C.R. 571).
[38]
While the
defendant concedes, for the purposes of the motion at bar, that the
infringements alleged by the plaintiffs in their pleadings (including
post-traumatic stress) may reasonably be considered to amount to infringements
of the lives and security of the person of the plaintiffs, she argues that none
of the allegations in the amended statements of claim discloses what rule of
fundamental justice applies and the nature of the alleged infringement.
[39]
It is
worth recalling here a few general rules of law applicable in the case at bar.
To begin with, on a motion to dismiss, it is not for the plaintiff to establish
the validity of his action. The burden of proof rests entirely on the
defendant. He bears the very heavy burden of satisfying the Court that the
facts, as alleged, can in no wise provide a reasonable cause of action. The
applicable standard is the complete absence of a cause of action. Even
the merest chance of success will entail the rejection of such a motion. The
pleading must be examined as a whole and interpreted in a liberal or generous
way in its context (Martel v. Samson Indian Band, [1999] F.C.J.
No. 374). Finally, the pleadings may, but in general do not have to, set
out the applicable law (Rules 174 and 175; Conohan v. Cooperators,
[2002] 3 F.C. 421).
[40]
As a
consequence, the plaintiffs’ failure to define in their statements of claim the
rule or rules of fundamental justice allegedly contravened is not fatal. It
would undoubtedly have been desirable for the plaintiffs to set out the
principles relied on, if not in their statements of claim, at least in their
written submissions on this motion. It would probably even be useful for the
pleadings to eventually clarify this aspect so as to ensure that the factual
and legal bases are adequately defined for the purposes of an effective trial.
However, doubts as to the legal foundation of an action are not sufficient to
strike out a statement of claim.
[41]
As to the
sufficiency of the facts alleged, I do not intend to review the defendant’s
many arguments here one by one. Suffice it to say that, however persuasive
they may be, their common defect is that the various points of fact alleged as
raised in isolation by the defendant, who thus submits that either none of the
faults or actions alleged against the defendant caused the item or items of
damage suffered by the plaintiffs or that the acts or decisions which directly
affected the plaintiffs involve no rule of fundamental justice.
[42]
On a
generous reading of the statements of claim as a whole and in their context, as
is required, and ignoring their unfortunate tendency to use the language of
civil liability and fiduciary duty, the following factual propositions may be
obtained: the defendant, in a systemic and unjustified manner, ignored or
refused to recognize a risk factor peculiar to the health and safety of its
soldiers, namely, to the preservation of their mental health. The various
facts and circumstances put forward could serve to illustrate or establish the
existence of this systemic failure to consider, deal with, and treat this
particular type of injury or ailment. During oral argument, counsel for the
plaintiffs submitted at the hearing that these actions by the defendant
contravened the rules of fundamental justice regarding discrimination, equality
under the law, protection against arbitrary action and the duty of a person in
a position to require another person to do work to limit the risks inherent in
such work.
[43]
The legal
rules which may make up a rule of fundamental justice are not predetermined (Reference
Re Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486). It appears to me to be
impossible to hold, on a preliminary motion to dismiss, that it was apparent
that the legal rules relied on by the plaintiffs in their oral argument were
not rules of fundamental justice, that the systemic conduct alleged against the
defendant did not contravene such rules or that the conduct did not cause or
contribute to the infringements complained of by the plaintiffs.
[44]
For these
reasons, the Court rejects the defendant’s argument that the allegations in the
statement of claim disclose no reasonable cause of action based on
section 7 of the Charter.
Double compensation and
section 9 of Crown Liability Act
[45]
In support
of its argument on this point, the defendant noted the following facts and
principles:
- the Court
of Appeal found that the damages claimed by the plaintiffs in their initial
actions were all related to military service and the basis for a pension;
- the
plaintiffs are now receiving pensions in respect of all these damages, pensions
awarded to them pursuant to the Pension Act which are thus statutory
compensation for all injuries and losses sustained;
- by their
amendments, the plaintiffs are claiming no new heads of damage for which a
pension has not already been awarded.
[46]
Accordingly,
the defendant submitted that the plaintiffs’ actions amount to a claim for
double compensation for the same damage, a notion in conflict with the purposes
of sections 7 and 24 of the Charter.
[47]
On that
basis, the defendant submitted that section 9 of the Crown Liability
Act precludes a suit in the case at bar, and that, to avoid the obstacle
set by section 9, the plaintiffs had no choice but to challenge the
constitutional validity thereof, something they did not do.
[48]
Finally,
the defendant argued that the Federal Court of Appeal did not rule on these
arguments in its prior decision, due to the absence of allegations sufficient
to establish a cause of action based on an infringement of a right guaranteed
by the Charter.
[49]
It seems
clear to this Court that the Court of Appeal expressly held that this argument
could not be accepted at the stage of a motion to dismiss the action. Indeed,
the Court of Appeal reiterated this conclusion in Canada v. Prentice, supra,
interpreting the decision as follows:
[68] What I
understand from this is that absent specific allegations from which the Court
could determine that there had been a violation of section 7 of the Charter,
the Court allowed the plaintiffs to amend their statements of claim and left it
to the Trial Judge to determine whether the conditions for section 7 of
the Charter to apply had been met. The Court also stated its opinion
that it was not plain and obvious, at the motion to strike stage, that the
Crown’s immunity was a bar to the exercise of a remedy based on section 7
of the Charter, thus again leaving the ultimate decision to the Trial
Judge. However, the Court also held that if the Trial Judge concluded that
there had been a violation of section 7 of the Charter and that the
Crown could not set up its immunity against that violation, the only
appropriate and just remedy that the Trial Judge could grant in the
circumstances, under section 24 of the Charter, would be the
difference between the value of the harm actually suffered and the value of the
compensation that the plaintiffs had received or would receive once the
administrative process had concluded.
[Emphasis
added.]
[50]
This
argument of the defendant is accordingly rejected.
Alternative administrative
remedy
[52]
Not only
is this argument in conflict with the reasons and import of the Court of Appeal
decision, but it is also clearly without foundation in that it assumes that the
administrative tribunals responsible for determining the amounts of pensions
payable under the Pension Act have the authority necessary to go beyond
the limits set by the Act and Regulations and award any pension they consider
appropriate and just in the circumstances. Not only do the provisions of the Pension
Act seem to clearly exclude such discretion, the defendant submitted no
argument in support of that theory. Accordingly, the defendant has not
established that a challenge of the pension awarded in the administrative
courts responsible for deciding on the amounts of pensions payable under the Pension
Act was in fact an adequate administrative remedy which deprived this Court
of jurisdiction.
[53]
In
addition, it should be noted that, on request made before the hearing of this
motion and with the plaintiffs’ consent, the Court reserved the defendant’s
right, in another application to strike, to argue a want of jurisdiction of this
Court based on the plaintiffs’ failure to use the grievance procedure set out
in section 29 of the National Defence Act, R.S.C. 1985, c. N‑5.
That argument, which the defendant did not initially include as a basis for the
motion at bar, was made and will be argued in some 25 related cases. In the
event that a subsequent determination in those other cases is relevant to the
facts of the case at bar, the defendant will thus have an opportunity to
present arguments to that effect in this case. This Court’s want of
jurisdiction on account of the existence of this other administrative remedy
will thus not be addressed in these reasons.
Striking out in part
[54]
Alternatively,
the defendant prayed the Court, if it came to the conclusion that the
plaintiffs’ action should not be struck out in its entirety, to strike out the
facts and events alleged in the initial statement of claim in support of
remedies based on civil liability or arising out of a fiduciary duty.
[55]
As
mentioned earlier, the fact that the Court of Appeal recognized that causes of
action based on civil liability and a fiduciary duty were precluded by
section 9 of the Crown Liability Act does not mean that the facts alleged as a basis for such remedies
may not, in light of additional facts, also give rise to an action based on a
breach of the Charter
and should accordingly be struck out. To accept this argument, the Court would
have to examine each factual allegation in the statement of claim to determine
whether it is clear and obvious that the allegation cannot be relevant to
establishing a breach of section 7 of the Charter involving the plaintiffs. The defendant did not herself attempt to
engage in such an exercise or to point out to the Court which allegation or
paragraph it viewed as lacking in relevance and deserving of being struck out.
In any event, since the plaintiffs’ action is based on the allegation of
systemic conduct by the defendant, which the facts and circumstances
specifically put forward may eventually illustrate or demonstrate, it is
impossible for this Court to find in respect of any fact or allegation, that it
is clearly and obviously devoid of any relevance to the cause of action.
Subsidiary
conclusions and dispositions
[56]
The
defendant’s motion is accordingly dismissed, with costs to the plaintiffs. As
I did in Bernath v. Her Majesty The Queen, 2005 FC 1232, the deadlines
in the case at bar, including the deadlines mentioned in Rule 51 for
appealing this decision, are stayed until further order of this Court. This
stay is intended to ensure that any appeals which may be filed against various
decisions made or to be made on motions to dismiss the action by the defendant
in these cases, and some 25 others, will be managed in the manner most
effective for the parties and this Court.
[57]
Additionally,
the procedures and deadlines for filing another motion to dismiss by the
defendant, this time based on the failure to seek a remedy under
section 29 of the National Defence Act will, if necessary, be
determined in a management conference to be arranged.
ORDER
THIS COURT ORDERS THAT:
1.
The
defendant’s motions are dismissed, with costs to the plaintiffs;
2.
The
deadlines for the next stages in this case, including deadlines required by
Rule 51 of the Federal Court Rules for appealing this order, are
stayed until further order of this Court.
“Mireille
Tabib”
Certified
true translation
François
Brunet, LL.B., B.C.L.
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