Date: 20060407
Docket: T-1358-03
Citation: 2006 FC
456
Ottawa,
Ontario, the 7th day of April, 2006
Present: Prothonotary Tabib
BETWEEN:
GEORGES VILLENEUVE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendent
REASONS FOR
ORDER AND ORDER
[1]
Cpl. Georges Villeneuve is
suing the Crown under section 24 of the Canadian Charter of Rights and
Freedoms (the Charter) to obtain compensation for damages resulting from
illness or injury – in particular, post-traumatic stress syndrome – suffered or
aggravated in the course of his military service and resulting from an
infringement of his rights guaranteed by section 7 of the Charter.
[3]
The
plaintiff’s action is part of a series of some 28 similar actions brought by
former soldiers which are managed by the undersigned. Following the Court of
Appeal’s decision in two of those actions (Dumont v. Canada, [2004] 3
F.C.R. 338, hereinafter Dumont-Drolet), applicable to the actions
brought by Georges Dumont and Jean-Claude-Drolet), the actions were amended so
as to rely only on the alleged infringement of section 7 of the Charter, as the
Court of Appeal held that causes of action in civil liability or for the
infringement of a fiduciary duty were precluded by section 9 of the Crown
Liability and Proceedings Act (R.S.C. 1985, c. C-50: the Crown Liability
Act). In reply to these amended actions, the defendent raised a large set
of grounds for dismissal, most of which were common to all the actions, but the
specific application of which might vary with the particular circumstances of
each case. To avoid a repetition of what happened in the cases of
Messrs. Drolet and Dumont – where the motion to dismiss which was to have
been a “test case” relevant to all the cases ultimately merely led to a series
of generic amendments and a new round of motions to dismiss – I directed that
motions to strike based on all the arguments for striking made by the defendent
be filed in each case. Accordingly, while dealing with each case on its
particular facts and circumstances, the Court and the parties could still
identify common themes and general principles which ideally would form a
coherent framework.
[4]
Accordingly,
this motion flows from the decisions in Bernath v. Canada, 2005 FC 1232
(hereinafter Bernath), and Dumont v. Canada, 2006 FC 355
(hereinafter Dumont).
[5]
The
arguments made by the defendent in the case at bar are as follows:
(a) despite
the amendments, the action is still essentially an action in civil liability
precluded by section 9 of the Crown Liability Act;
(b) the action
discloses no cause of action based on sections 7 and 24 of the Charter, in
that:
(i) the
plaintiff cites no rule of fundamental justice which has been violated;
(ii) the
plaintiff’s action under section 24 of the Charter is still precluded by
section 9 of the Crown Liability Act and amounts to a claim for
double compensation for a loss that has already been compensated for;
(c) the Court
lacks jurisdiction, in view of the plaintiff’s failure to exhaust his remedies
under the grievance procedure set out in section 29 of the National Defence
Act, R.S.C. 1985, c. N-5;
(d) the
plaintiff’s action is barred by the statute of limitations;
(e) alternatively,
the defendent is asking the Court to strike nearly 40 paragraphs of the amended
statement of claim on the ground that they are vague, general, unsupported by
relevant facts, or redundant.
ALLEGATIONS OF STATEMENT OF
CLAIM
[6]
As in the
case of Messrs. Dumont and Drolet, the amended statement of claim contains
general allegations to the effect that the defendent in a systemic manner:
·
created a
system of guardianship and total obedience governing all aspects of the
soldiers’ lives, including access to medical care;
·
failed to
recognize the existence of mental illness among its members;
·
knowingly
failed to carry out its duty to make analyses and preparations for foreign
missions so as to avoid threats to the lives and the health of soldiers;
·
failed to
adequately prepare the plaintiff for the exceptional, but well-known, risks of
such missions;
·
failed to
provide a medical follow-up or a service of therapy or assistance to its
members when they returned from missions, despite the fact that the
traumatizing aspects of those missions were well known;
·
allowed
its members to be subject to harassment, abuse of authority and the imposition
of an excessive workload.
[7]
Those
general allegations reflect verbatim the allegations contained in the amended
statements of claim of Messrs. Dumont and Drolet. By their very nature,
therefore, they are general and lacking in detail, relating to the plaintiff’s
specific circumstances only by the use of phrases such as [translation] “on account of the
aforementioned facts” or “as described above in this statement of claim”.
[8]
As to the
plaintiff’s specific circumstances, the following allegations have been made:
·
the
plaintiff became a member of the Armed Forces in 1981 and was discharged on
medical grounds in February 2002;
·
he took
part in four foreign missions, in Cyprus in 1985, in Israel in 1989, in the
Persian Gulf in 1991 and in Bosnia in 1995;
·
in 1991,
while participating in the Gulf War he [TRANSLATION] “was a witness of
atrocities associated with the war” and “lived in an unbearable climate of
insecurity, stress and fear which caused him to be constantly afraid for his
own life”;
·
in 1995
the plaintiff completed a form for submission to the Gulf War Clinic at the
National Defence Medical Centre in Ottawa;
·
at the
plaintiff’s insistence, this form, which [translation]
“had been collecting dust” in the office of Dr. Fortier in Valcartier for a
year, was submitted to the Gulf War Clinic;
·
the Gulf
War Clinic specialists diagnosed the plaintiff as having post-traumatic stress
problems in 1996 and his therapy began in February 1997;
·
in
addition to Dr. Scott, the attending physician in Ottawa, the plaintiff was
treated or examined by three Valcartier physicians, namely Drs. Fortier, Pépin
and Martineau; in addition, he was authorized to have ten sessions with a
civilian therapist in Ottawa, Ms. Keeler;
·
the
opinions, treatment and recommendations of the physicians in Valcartier and
Ottawa were conflicting;
·
the Valcartier
physicians harassed the plaintiff and placed unnecessary pressure on him and
his wife so he would cease being treated in Ottawa;
·
on the
recommendations of Valcartier physicians, the plaintiff was given thankless
tasks;
·
in August
1998 the plaintiff was transferred to Ottawa and remained there until he was
discharged. No specific allegation is made in the statement of claim for the
period following this transfer.
ANALYSIS
[9]
As will be
more fully discussed below, I have concluded that the plaintiff’s action should
be dismissed for want of jurisdiction, in view of the existence of an
appropriate remedy under section 29 of the National Defence Act.
Consequently, it will not be necessary for me to consider the other grounds for
dismissal submitted by the defendent. Nevertheless, in view of the possibility
of an appeal, it is important to ensure that all the preliminary submissions
have been fully considered.
(a) Applicant’s
action is still an action in civil liability precluded by section 9 of the Crown
Liability Act
[11]
In
addition to the submission that the statement of claim does not identify the
rule or rules of fundamental justice allegedly contravened by the defendent’s
actions, to which I will return below, the defendent submitted that the
statement of claim was nothing but a civil liability action in disguise, since
it made no further allegations, and claimed no further heads of damages, than
those already addressed to the Federal Court of Appeal in Dumont-Drolet,
when that Court held that the actions as formulated were precluded by section 9
of the Crown Liability Act.
[12]
That
submission has already been made by the respondent in Canada v. Prentice,
2005 FCA 395 (on appeal from 2004 FC 1657) and in Dumont.
[13]
Though Prentice
involved a member of the R.C.M.P. rather than the Armed Forces, it is relevant
since it appears from the Court of Appeal’s reasons that the allegations in the
amended statement of claim were drafted by the same counsel as in the case at
bar, in response to Dumont-Drolet. The summary of allegations clearly
suggests that the statement of claim in Prentice used the same template
as the statement of claim in the case at bar. At trial, Blanchard J. held that
the defedent had not established beyond all doubt that the statement of claim
was without basis. For its part, the Court of Appeal refused to rule on this
point, holding that the action should be dismissed on the ground that the
plaintiff had not exhausted his administrative remedies, which might have made
it possible to determine the [translation]
“basic” compensation that could be used eventually to determine an additional
compensation.
[14]
I
personally examined the issue in Dumont, supra and came to the following
conclusion:
[TRANSLATION]
[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
stated: the defendent in a systemic and unjustified manner ignored or refused
to recognize a risk factor peculiar to the health and safety of its soldiers,
namely the safety 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. In his oral argument, counsel for the plaintiffs at the
hearing submitted these actions by the defendent 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 amount to rules 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
applicants in their oral argument were not rules of fundamental justice, that
the systemic conduct alleged against the defendent did not contravene such
rules or that the conduct did not cause or contribute to the infringements
complained of by the plaintiffs.
[15]
As noted
above, the allegations of systemic conduct in the case at bar are exactly the
same as in Dumont: as it was held that it was not clear such conduct had
no chance whatever of being a basis for an action relying on an infringement of
section 7 of the Charter, in theory the result should be the same in the case
at bar.
[16]
However, I
note that while the general circumstances alleged are the same, there are significant
differences in the specific facts put forward by the plaintiff in the case at
bar. Unlike what happened in Dumont, the plaintiff in the case at bar
did not allege that the refusal to recognize or treat his illness following the
Gulf War made his condition worse; what is more, the statement of claim
contained specific allegations which tend to contradict the general allegation
that the defendent systematically refused to recognize and treat his illness,
at least from 1995 onwards. The plaintiff claims to have been affected by
systemic conduct consisting in a refusal to recognize and treat mental
illnesses, though he admits his own post-traumatic stress syndrome was
identified and diagnosed as a result of action taken by the defendent in 1995,
and the specific actions which he is complaining about all had to do with
differences of professional opinions amongst his physicians regarding the
treatment approved and undertaken for him in 1997.
[17]
Those gaps
and contradictions in the statement of claim are significant. If I had not held
that the action should be dismissed on other grounds, they would have warranted
the striking out of at least part of the statement of claim, with an option to
amend, but not the dismissal of the action itself. At the very least there
would still be, as a possible basis for an action, the allegation of systemic
failure to make preparations, which I would have hesitated to dismiss on a
preliminary motion to strike.
(b) Sections 7 and
24 of the Charter
[18]
These same
arguments were submitted to the Court in Dumont and were not accepted.
The reasons given for dismissing those arguments at the motion to dismiss stage
are also applicable in the case at bar.
(c) The
Court lacks jurisdiction in view of plaintiff’s failure to exhaust his remedies
under the grievance procedure set out in section 29 of National Defence Act
[19]
Section 29
of the National Defence Act provides a procedure for filing and
resolving grievances. The plaintiff in the case at bar did not make use of this
procedure, and filed no grievance respecting the facts, circumstances and
causes of action alleged in the statement of claim.
[20]
The
defendent submitted that the existence of this internal remedy procedure
deprives this Court of jurisdiction to hear the case at bar, as the plaintiff
is required to make use of the administrative remedy provided for by the Act.
[21]
In Vaughan
v. Canada, [2005] 1 S.C.R. 146, the Supreme Court of Canada has
considerably clarified and strengthened the law relating to the jurisdiction of
courts in cases where an administrative remedy is provided. It now seems beyond
question that, when a dispute falls within the scope of an administrative
dispute resolution system, a court must decline jurisdiction in favour of the
competent administrative tribunal, unless it is established that the system
provided for by statute does not offer the relief sought, or that due to a
special and individualized dispute, resort to the administrative tribunal is
not appropriate (in particular, in the case of informants).
-
Does this
type of dispute fall within the jurisdiction of the grievance body?
-
Does the
grievance body have the authority to grant the relief sought?
-
Is there
any reason to conclude that use of the grievance procedure is not appropriate
in the circumstances?
Jurisdiction of grievance body over a
dispute of that nature
[23]
In his
written submissions, the plaintiff argued that, on account of the
constitutional basis of his claim, there is some doubt as to the jurisdiction
of the grievance body, and that, in any case, preference should be given to
access to the courts. Those arguments were not emphasized in the oral argument.
Moreover, in connection with Bernath, I had already expressed the view
that the Chief of Staff not only had the necessary jurisdiction to determine
whether a violation of the Charter had taken place and, if necessary, grant
“fair and appropriate” relief, but that, when hearing a grievance, he was the
most readily accessible tribunal for the determination of such matters, and
thus the most appropriate one. The Court of Appeal’s reasons in Prentice
are also conclusive and binding on this point:
[51]
It has now
been recognized that an arbitrator has jurisdiction to apply the Charter on the
same basis as the other laws of the country.
In applying the law of the land to the disputes before them, be it the
common law, statute law or the Charter, arbitrators may grant such remedies as
the Legislature or Parliament has empowered them to grant in the circumstances.
For example, a labour arbitrator can consider the Charter, find laws
inoperative for conflict with it, and go on to grant remedies in the exercise
of his powers under the Labour Code: . . . . If an arbitrator can find a law
violative of the Charter, it would seem he or she can determine whether conduct
in the administration of the collective agreement violates the Charter and
likewise grant remedies.
(Weber, at para. 61;
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570,
at p. 597).
[53]
An
arbitrator is also a tribunal of competent jurisdiction, if his or her enabling
statute authorizes it, to award damages for a Charter violation, "assuming
that damages are an appropriate remedy for a Charter breach" (Weber,
at paragraphs 62 and 75; see also Boucher v. Stelco
Inc., 2005 SCC 64, at paragraph 29).
[24]
In his
oral argument, counsel for the plaintiff submitted that the wording of section
29 of the National Defence Act limited the scope of the grievance
procedure to purely administrative matters, so that the case at bar, having to
do with the defendent’s constitutional obligation to ensure the safety of its
soldiers, would fall outside the grievance system.
[25]
Subsection
29(1) of the National Defence Act reads as follows:
Right to
grieve
29. (1) An
officer or non-commissioned member who has been aggrieved by any decision, act
or omission in the administration of the affairs of the Canadian Forces
for which no other process for redress is provided under this Act is entitled
to submit a grievance.
Droit de
déposer des griefs
29. (1) Tout
officier ou militaire du rang qui s'estime lésé par une décision, un acte ou
une omission dans les affaires des Forces canadiennes a le droit de
déposer un grief dans le cas où aucun autre recours de réparation ne lui est
ouvert sous le régime de la présente loi.
[Emphasis added.]
[26]
The
current wording of that section is the result of a legislative amendment (Act
to Amend the National Defence Act and to make consequential amendments to other
Acts, S.C. 1998, c. 35) which came into effect on June 15, 2000. Section 29
formerly read as follows:
29. Except
in respect of a matter that would properly be the subject of an appeal or
petition under part IX, an officer or man who considers that he has suffered
any personal oppression, injustice or other ill-treatment or that he has any
other cause for grievance, may as a matter of right seek redress from such
superior authorities in such manner and under such conditions as shall be
prescribed in regulations made by the Governor in Council.
29. Sauf
dans le cas d'une affaire pouvant régulièrement faire l'objet d'un appel ou
d'une révision aux termes de la partie IX, l'officier ou l'homme qui
s'estime lésé d'une manière ou d'une autre peut, de droit, en demander
réparation auprès des autorités supérieures désignées par règlement du
gouverneur en conseil, selon les modalités qui y sont fixées.
[Emphasis added.]
[27]
It is this
earlier version of section 29 which I analyzed in Bernath as follows:
[35] In Jones v.
Canada, [1994] F.C.J. No. 1742, this Court described the scope of
application of the grievance procedure under section 29 of the National
Defence Act as follows:
[9]
Thus the Statement of
Claim in its entirety can be struck on this ground. It is also vulnerable to
being struck due [to] the provisions of the National Defence Act which
provides a specific redress process, as counsel for the defendants points out
at p. 24 of the transcript:
. . . it's the broadest possible wording
[of section 29 of the Act] that accommodates any and every wording, phrasing,
expression of injustice, unfairness, discrimination, what-not. It covers
everything. It leaves nothing out. It's exhaustively comprehensive.
We are not dealing with a situation under
the Public Service Employment Act.
[10] Parliament has passed the various
sections of the National Defence Act and here section 29 clearly is
applicable. Counsel for the defendants, at p. 30 of the transcript, stated:
That section 29, there is no
equivalent provision in any other statute of Canada in terms of the scope of
the wrongs, real, alleged, imagined wrongs that a person can get redress for
anything. That is the difference between the civilian and the military person.
[11] Accordingly, the defendants' motion to
strike is allowed with costs, without prejudice to the plaintiff to launch a
new action or pursue the remedies available under the National Defence Act,
if permitted by the Act at this time.
[36] Similarly, in Pilon
v. Canada, [1996] F.C.J. No. 1200, the Court held:
The National Defence Act, R.S.C.
1985, c. N-5, section 29, provides for a redress of grievance procedure wherein
members of the military may have any issue adjudicated which deals with
"personal oppression, injustice or other ill-treatment" or "any
other cause for grievance". This Court has held that where such an
expansive resolution mechanism exists the complainant is required to pursue
a remedy through this statutory mechanism before turning to the civil courts
for relief (Gallant v. The Queen in Right of Canada (1978), 91 D.L.R.
(3d) 695, and Jones v. Her Majesty the Queen and Major D.R. Harris, (23
November 1994), T-236-94, [1994] F.C.J. No. 1742.
[Emphasis added]
[37] So it
appears that the grievance procedure under section 29 of the National
Defence Act is the most comprehensive of all the proceedings, even beyond
the procedures under the Public Service Staff Relations Act, R.S.C.
1985, c. P-35 (PSSRA).
and further, at
paragraph 66 of the same reasons:
[66] I do not think Mr.
Justice Binnie's remarks in Vaughan should necessarily be limited to
strictly labour relations matters. If the principles laid down in Vaughan
are articulated in a labour relations context, it is because both the grievance
process in section 91 of the PSSRA and the dispute at issue in that case were
exclusively concerned with labour relations. However, the scheme under the National
Defence Act is comprehensive and unrestricted. In that sense, it reflects
the very reality on which the plaintiff's Charter arguments are based, that the
members of the armed forces are not employees bound by contract but
unilaterally enrolled; that the administrative structures, the chain of
command, the complex relationships between the members of the armed forces and
the command and military life itself are entirely defined by the National
Defence Act and the Queen's Regulations and Orders (Jones, supra;
Gallant v. The Queen, 91 D.L.R. (3d) 695 (F.C.)). The exhaustiveness of
the regulation of military life goes hand-in-hand, therefore, with the
exhaustiveness of the dispute resolution process. It is the very effectiveness
of this overall dispute resolution process under the National Defence Act
that is impugned if the courts defer to it only in strictly labour relations
matters. Curial deference applies with equal force, therefore, to proceedings
that pertain to the grievance procedure provided by the National Defence Act.
[28]
The
plaintiff’s argument does not relate to the wording of section 29 of the National
Defence Act prior to June 2000, but to its wording as amended. In my view,
there is no doubt, relying on both the wording of section 29 as it read and on
the interpretation given to it by the courts, that the plaintiff’s remedy in
the case at bar falls within the scope of the grievance procedure as then
defined. Accordingly, the plaintiff essentially argues that, by the amendment
made to section 29 of the National Defence Act, Parliament actually
narrowed the scope of the grievance procedure to complaints based on decisions,
acts or omissions of a purely administrative nature, and so excluded the
subject-matter of the instant case. I do not subscribe to that argument.
[29]
To begin
with, we should note that, even assuming that the introduction of the phrases
“in the administration of the affairs” or “dans les affaires” into section 29
was intended to restrict the definition of matters which could be the subject
of a grievance, the circumstances giving rise to the plaintiff’s action would
still fall within the scope of that section. The alleged failures, whether with
regard to the quality of training and preparation for missions, the recognition
and treatment of medical conditions, the establishment and application of
systems of obedience and authority in the Armed Forces or the control of
duties, are clearly acts, omissions or decisions pertaining to the
administration of the affairs of the Armed Forces. Insofar as a special effect
is to be given, in the English version of the legislation, to the phrase “in
the administration of the affairs”, it is with respect to the decision, act or
omission which that effect may cause, not the nature of the impact which the
decision may have on the soldiers affected.
[30]
What is
more, to follow the reasoning of the plaintiff, I would have to conclude that,
in adopting the legislative amendments in question, Parliament intended to
substantially and significantly narrow the scope of the grievance procedure,
something which neither the rules of interpretation nor the legislative
background to that section allow me to do.
[31]
The
administrative summary accompanying the Act to Amend the National Defence
Act and to make consequential amendments to other Acts clearly indicates
that the purpose of revising section 29 of the National Defence Act was
to create a grievance review committee. The nature and scope of this purpose is
accurately reflected by the amendments themselves. There is nothing in the
summary or in the amendments made to suggest that any narrowing of the matters
and circumstances which might be the basis for a grievance was one of the
purposes intended or a necessary consequence of their implementation.
[32]
The
generally accepted rules of interpretation encourage the courts to assume that
where Parliament has not expressed a clear intention, it does not wish to alter
established law or limit the rights conferred on its subjects. Significantly,
although there are transitional provisions expressly addressing the procedure
applicable to current grievances (see section 101 of the Act to Amend the
National Defence Act and to make consequential amendments to other Acts),
there is no transitional provision for grievances which would no longer be
possible as a result of the amendments. If Parliament had intended to substantially
restrict the subject-matters falling under the scope of the grievance
procedure, we must presume it would have done so in a clear and unambiguous way
and would have specified to what extent the right to a grievance which arose
before adoption of the allegedly restrictive amendment could or could not be
exercised under the new legislation.
[33]
It is also
relevant to note that, in Prentice, supra, the Federal Court of Appeal
specifically cited the grievance procedure in section 31 of the Royal Canadian
Mounted Police Act, R.S.C. 1985, c. R-10, as one of the administrative
procedures which would make it possible to determine a “basic compensation” in
similar circumstances. The wording of subsection 31(1) is similar to the one of
the paragraph of section 29(1) in its English version with which we are
concerned here, and reads as follows:
31. (1)
Subject to subsections (2) and (3), where any member is aggrieved by any
decision, act or omission in the administration of the affairs of the Force
in respect of which no other process for redress is provided by this Act, the
regulations or the Commissioner's standing orders, the member is entitled to
present the grievance in writing at each of the levels, up to and including the
final level, in the grievance process provided for by this Part.
31. (1) Sous
réserve des paragraphes (2) et (3), un membre à qui une décision, un acte ou
une omission liés à la gestion des affaires de la Gendarmerie causent un
préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit
la procédure applicable aux griefs prévue à la présente partie dans le cas où
la présente loi, ses règlements ou les consignes du commissaire ne prévoient
aucune autre procédure pour corriger ce préjudice.
[Emphasis added.]
Jurisdiction
of grievance body to grant relief sought
[35]
In Bernath,
I have already held that the grievance body created pursuant to section 29 of
the National Defence Act had the necessary jurisdiction to award damages
as relief pursuant to section 24 of the Charter:
[37] So it
appears that the grievance procedure under section 29 of the National
Defence Act is the most comprehensive of all the proceedings, even beyond
the procedures under the Public Service Staff Relations Act, R.S.C.
1985, c. P-35 (PSSRA). In relation to the latter, two recent judgments of the
Federal Court, applying the Supreme Court of Canada decision in Nova Scotia
(Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, have ruled
unambiguously that grievance officers authorized to apply the PSSRA grievance
procedure are also authorized to apply the Charter and to rule on the
applicable relief provisions, including the payment of damages and punitive
damages under section 24 of the Charter: Desrosiers v. Canada (A.G.),
2004 FC 1601 and Galarneau v. Canada (A.G.), 2005 FC 39.
[38] The
grievance mechanism under the National Defence Act being, as we have
seen, even more complete than the one under the PSSRA, the Chief of Staff
obviously must have the requisite authority and jurisdiction to apply the
Charter, determine whether Charter rights have been breached, and, where
applicable, grant monetary compensation as relief under section 24 of the
Charter if he determines that the pension otherwise granted is insufficient in
the circumstances.
[36]
The
plaintiff did not return to this point in his written submissions or his oral
argument.
Whether
grievance procedure appropriate in circumstances
[37]
Under the
rules recognized in Vaughan, access to the ordinary courts of law is
still possible in cases where use of the administrative procedure would not be
proper or efficient. The plaintiff submitted that the very nature of his
complaint meant that use of the grievance procedure would not have been proper
or efficient. For the reasons given below, this argument cannot be accepted.
[38]
The
circumstances in which the courts would be justified in exercising their
residual discretionary powers to hear disputes are not expressly defined or
listed in Vaughan. At the same time, the discussion of Binnie J. for the
majority in recognizing the existence of this residual authority is based on
the special cases in which recourse to the courts has been allowed despite the
existence of a grievance procedure, namely Pleau (Litigation Guardian of) v.
Canada (Attorney General) (1999), 182 D.L.R. (4th) 373 (N.S.C.A.), and Guenette
v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (C.A.). Those two
cases involved employees who alleged they had been the victims of harassment or
punitive measures by their superiors after reporting misconduct or the
squandering of public monies, in other words whistle-blowers. In those special
cases, Binnie J. concluded, recourse to the courts had been possible because
the grievance procedure before the person ultimately responsible for operation
of the Department in question was not appropriate:
[20] The
courts were understandably reluctant to hold that in such cases the employees’
only recourse was to grieve in a procedure internal to the very department they
blew the whistle on, with the final decision resting in the hands of the person
ultimately responsible for the running of the department under attack, namely
the Deputy Minister (or designate). The judges concluded that at some
point their complaints should be dealt with by an adjudicator independent of
the department but that the PSSRA did not provide for it. In both cases,
it was pointed out that the “exclusivity” language of ss. 91 to 96 of the
PSSRA was weaker than the labour relations provision at issue in Weber.
The legislative door had been left open enough for the judiciary to enter.
[39]
Relying on
this exception, the plaintiff submitted that, since the basis of his action
questioned the operation or systemic conduct of the Armed Forces, for which the
Chief of Staff, the final level in the grievance process, is ultimately
responsible, it was [translation]
“difficult to believe” that the person deciding the grievance could have the
necessary independence to render a proper decision on the merits of the
grievance.
[40]
The
plaintiff reads much too broadly the comments of Binnie J., forgetting that
those comments related very specifically to cases involving whistle-blowers, in
which very specific allegations were made not only that the employees in
question had reported wrongful conduct but that those employees had also
suffered reprisals from their superiors for doing so. If we were to adopt the
interpretation suggested by the plaintiff, every grievance having to do with
directives, decisions or omissions adopted or tolerated by senior decision-making
authorities would be treated as “whistle-blowing”, that would make the
grievance procedure illusory or ineffective and would automatically give
litigants access to the courts. In my view, what makes the case of
whistle-blowing employees special and the grievance procedure ineffective or
inappropriate is not the initial whistle-blowing nor the wrongdoing or abuses
reported, but the existence of reprisals or punitive action taken against the
whistle-blowing employee for doing so. Moreover, it is such reprisals
themselves which are generally the basis for the grievance and give rise to a
reasonable fear of bias on the part of the decision-maker.
[41]
It should
be borne in mind that although the plaintiff questioned the legality and the
constitutional validity of the decisions and actions taken by the Armed Forces,
he did not allege that he filed any complaint in regard to those decisions or
actions: accordingly, he also did not allege that he suffered any reprisals or
threats on account of such complaint or report. The nature of the plaintiff’s
complaint does not make him a whistle-blower: there is nothing in the statement
of claim or the court record to suggest that the circumstances could reasonably
indicate that, in the case at bar, use of the grievance procedure by the
plaintiff would have been inappropriate or ineffective. Further, as final
determination of the grievance was subject to judicial review by the courts,
the plaintiff would have had to establish more than a mere possibility that a
decision on the grievance would be tainted by bias.
[42]
In
conclusion, I am of the view that the grievance procedure provided for by
section 29 of the National Defence Act, both in its original version and
as amended on June 15, 2000, was a dispute resolution procedure both
appropriate and effective in disposing of the plaintiff’s claim as made in his
statement of claim that, in the light of both versions of section 29 of the National
Defence Act the grievance body created thereby, had the necessary authority
to order adequate relief and that, accordingly, this Court does not have
jurisdiction to hear this action.
[43]
For this
reason, the plaintiff’s action will be dismissed.
(d) Prescription
[45]
Counsel
for both parties took the position in the case at bar that the three-year
prescription period provided for by article 2925 of the Civil Code of Quebec,
S.Q. 1991, c. 64, applied here by operation of section 32 of the Crown
Liability Act, which reads as follows:
32. Except as otherwise provided in this Act or in any
other Act of Parliament, the laws relating to prescription and the limitation
of actions in force in a province between subject and subject apply to any
proceedings by or against the Crown in respect of any cause of action arising
in that province, and proceedings by or against the Crown in respect of a cause
of action arising otherwise than in a province shall be taken within six years
after the cause of action arose.
32. Sauf disposition contraire de la présente loi ou de
toute autre loi fédérale, les règles de droit en matière de prescription qui,
dans une province, régissent les rapports entre particuliers s'appliquent lors
des poursuites auxquelles l'État est partie pour tout fait générateur survenu
dans la province. Lorsque ce dernier survient ailleurs que dans une province,
la procédure se prescrit par six ans.
[46]
As
mentioned in Bernath, and in accordance with the holding of the Federal
Court of Appeal in Canada v. Maritime Group (Canada) Inc., [1995] 3 F.C.
124, for provincial rules on prescription to apply, all the elements of the
cause of action (including the “fault”, the damage and proximate cause) must
have occurred in the same province.
[47]
In Bernath,
I concluded, at paragraph [73], that :
Since the hardships for which relief is
requested all have some connection, directly or indirectly, with the events
occurring in Haiti in September 1997, it is impossible, in my opinion, to
conclude that it is plain and obvious that the six-year limitation period is
unavailable for any or all of the alleged causes of action. Nor does it seem to
me appropriate, without hearing the evidence, to try to separate out the
various possible elements of fault, damages and causal connections, if any,
that would found a distinct cause of action located solely in Quebec, and to
which the three-year prescription would clearly apply.
[48]
Similarly,
in spite of the submissions by the parties, in determining the applicable rule
of prescription, I just cannot disregard the fact that the post-traumatic
stress syndrome complained of by the applicant, which was the ultimate basis
for all the damage claimed, was caused by or on the occasion of his
participation in the Gulf War. As this crucial event occurred out of Quebec,
the Court is unable to hold, for the purposes of a motion to dismiss, that all
or part of the plaintiff’s claim can clearly be governed by the prescription
period provided for by the Civil Code of Quebec.
[49]
The
parties did not deal at length with the question of how their arguments on
prescription would be affected if it were held that the six-year prescription
could be applicable. It is true that the length of the prescription
period, whether three or six years, is hardly relevant in the case at bar as
the action was brought over six years after the first post-traumatic stress
diagnosis was given to the plaintiff. What the parties do not appear to have
contemplated is that the possible application of the six-year prescription
under the Crown Liability Act would not only change the length of the
applicable prescription period but also the fundamental legal principles
applicable to the determination of issues pertaining to prescription on a
preliminary basis.
[50]
Even when
the Court expressed doubts as to the applicable prescription period, the
parties still proceeded to plead the substantive argument developed in their
motion records, assuming it would be necessary whatever the applicable rule of
prescription might be. The parties assumed that this argument would in any case
have to be disposed of, whether the prescription was that of the Civil Code
of Quebec or the six-year prescription under section 32 of the Crown
Liability Act. That is not the case.
[51]
While it is
common in Quebec for courts to strike out an action on a preliminary motion to
dismiss on the ground of prescription, that is not true in common law
jurisdictions. Under Quebec law, prescription is not simply a ground of defence
which a defendant must plead and prove specifically. Prescription has the
effect of completely extinguishing a cause of action (art. 2921 C.C.Q.). Since
it does not have to be “pleaded” as a ground of defence, it may be raised at
any time, even on appeal (art. 2881 C.C. Q.).
[52]
In other
words, if, on the very face of the statement of claim, the facts indicate that
the action is prescribed, the defendent may rely on prescription by way of a
preliminary motion and ask the Court to dismiss the action in its entirety on
the ground that the statement of claim discloses no reasonable cause of action,
since the cause of action put forward is prima facie extinguished by
prescription. Moreover, if there are facts to support an argument of waiver,
interruption or suspension of prescription, it is for the plaintiff to make
them, since it is incumbent on him to allege in his statement of claim all the
facts giving rise to a cause of action. If this is not done, the cause of
action is prima facie extinguished.
[53]
At common
law, on the contrary, prescription is not a substantive bar to the right relied
on by the plaintiff, but merely a procedural ground of defence which may
prevent the plaintiff from asserting the right of action in question. A
defendant who does not specifically raise prescription in his defence in his
argument is barred from presenting evidence of it or relying on it. This means
that a plaintiff who undertakes an action that is prima facie prescribed
has no duty to justify it or to guard against a possible defence of
prescription. The right he is asserting is not extinguished simply by the lapse
of time and remains entirely actionable, so long as the defendant does not
raise prescription in his defence. This is why facts which may suspend,
interrupt or defeat prescription do not have to be pleaded in the statement of
claim and are generally only put forward in reply, in response to a specific
defence of prescription. This fundamental difference as to the nature and
effect of prescription means that, when prescription does not have the effect
of extinguishing rights – as is the case with general legislation on
prescription in provinces other than Quebec and section 32 of the Crown
Liability Act – the prescription of an action is not an admissible basis
for dismissing an action on a preliminary motion. This rule was set out clearly
and unequivocally by the Federal Court of Appeal in Kibale v. Canada
(F.C.A.), [1990] F.C.A. No. 1079:
A motion under Rule 419(1)(a) must be considered
solely on the basis of the procedural documents, as no evidence is admissible.
This is stated in Rule 419(2) ... On the other hand, a statute of limitations
under the common law does not terminate the cause of action, but only gives the
defendant a procedural means of defence that he may choose not to employ and must,
should he choose to employ it, plead in his defence (see Rule 409). In other
words, a plaintiff is not, in writing his declaration, obligated to allege all
the facts demonstrating that his action was brought in due time. A plaintiff is
not obligated to foresee all the arguments the adverse party might bring
against him. He can wait until the defence is filed and, should the defendant
argue that the application is late, plead in reply any facts disclosing, in his
opinion, that it is not late. It follows that, as Collier J. held in Hanna
et al. v. The Queen (1986), 9 F.T.R. 124, a defendant must plead a statute
of limitations in his defence; he cannot do so in a motion to strike out under
Rule 419 because, for the reasons I have set out, an action cannot be said to
be late on the sole ground that the statement does not demonstrate it is not
late.
[54]
As
mentioned, neither the applicant nor the respondent cited this case or
submitted any argument in this regard. The parties seemed entirely willing to
let the Court simply resolve the preliminary question of prescription on the
following question: were the allegations in the statement of claim, if taken as
proven, [translation]
“sufficient” to answer the argument of prescription?
[55]
Notwithstanding
the attitude and expectations of counsel, the Court is bound by the conclusions
in Kibale. Accordingly, as I have found that it was possible that the
applicable period could be the six-year prescription period specified in the Crown
Liability Act, I cannot allow a motion to strike based solely on the ground
that the statement of claim did not allege sufficient facts to establish
interruption or suspension of the prescription.
(e) The striking out of certain
paragraphs
[57]
I am not
persuaded by the defendent’s argument and, consequently, if I had not struck
the action on other grounds I would not have struck the paragraphs identified
by the defendent for the reasons suggested by it.
CONCLUSIONS AND SUBSIDIARY DISPOSITIONS
[58]
For the
reasons given above, I allow the defendent’s motion in part and dismiss the
applicant’s action on the ground that this Court lacks jurisdiction because of
the existence of an appropriate remedy set out in section 29 of the National
Defence Act; with costs to the defendent.
[59]
As for Bernath
and Dumont, the deadlines in the case at bar, including the deadlines
mentioned in Rule 51 for appealing this order, are stayed until a contrary
order is made so that possible appeals from these decisions and the decisions
to be rendered in some 25 related cases can be managed in the most effective
manner for the parties and the Court.
ORDER
THE COURT ORDERS THAT:
- The defendent’s motion is allowed in
part;
- The plaintiff’s action is dismissed
with costs to the defendent on the motion and the action;
- Deadlines for the next stages in
this proceeding, including deadlines laid down by Rule 51 of the Federal
Court Rules for appealing this order, are stayed until a contrary
order is made by the Court.
“Mireille Tabib”
Certified true
translation
François Brunet, LLB,
BCL
Email this Content