Bernath v. Canada, 2005 FC 1232

                                                                                                                                  Date: 20050909

                                                                                                                             Docket: T-1683-02

Citation: 2005FC1232

Ottawa, Ontario, Friday, the 9th day of September 2005

PRESENT:      MADAM PROTHONOTARY MIREILLE TABIB

BETWEEN:

PATRICK BERNATH

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER

TABIB P.

[1]         In 1985, while he was in excellent physical and psychological health, Patrick Bernath joined the Canadian Forces reserve. He later became a member of the Canadian Armed Forces and advanced to the rank of Master Corporal. Thirteen years later, barely 30 years of age, injured in the shoulder, suffering from a post-traumatic stress syndrome, MCpl Bernath requested and obtained his release from the Armed Forces. He said he was disappointed and betrayed by a military administration that, according to the allegations in the statement of claim, not only refused to recognize or treat his injuries but denigrated his suffering and humiliated him.

[2]         MCpl (rt) Bernath is receiving a full disability pension for his injuries and illnesses. A grievance filed in regard to the circumstances that had caused and aggravated his injuries and his post-traumatic stress syndrome, and that ultimately led to his early release, resulted in certain remedies of an administrative nature, but no additional monetary compensation.

[3]         According to MCpl (rt) Bernath, the disability with which he must now live and the loss of his military career are the result of Her Majesty the Queen's violation of the rights guaranteed to him by the Canadian Charter of Rights and Freedoms (the Charter). He is therefore suing the Crown for monetary relief pursuant to section 24 of the Charter.

[4]         The Crown has moved to dismiss the action and strike out the proceeding on the basis that the Chief of Staff's decision on the grievance has the effect of res judicata and bars the plaintiff's action. In the alternative, the Crown argues that the cause of action as a whole is out of time.

THE FACTS:

[5]         The facts on which the plaintiff's action is based, and which I take as proved for the purposes of this motion, appear as follows in the statement of claim filed on October 30, 2002, and subsequently amended with further particulars.

[6]         Although in perfect physical and mental condition when he enrolled in the Armed Forces, the plaintiff was declared unfit to participate in missions abroad in August 1996, owing to a shoulder injury. Irrespective of this medical classification, the plaintiff was declared fit to participate as a photographer on a peacekeeping mission in Haiti in February 1997. He was given no preparatory training. Despite the physiotherapy treatments required for his shoulder injury, such treatments were not available in Haiti.

[7]         In September 1997, the plaintiff was assigned to an operation to retrieve bodies from a boat that had foundered at Monrouie, Haiti. Since the Haitians refused for religious reasons to remove the bodies from the water, the plaintiff was forced to physically perform this job, which aggravated his shoulder injury and set off a post-traumatic stress syndrome (PTSS).

[8]         Although diagnosed in the weeks following this incident, the plaintiff's PTSS was not adequately treated on his return to Canada in October 1997: the plaintiff was refused permission to continue to be treated by his attending physician; sick leave was denied or, if granted, was ignored; medical recommendations concerning the appropriate pace of work were cancelled; and worse still, he was forced to work overtime and treated as a "liar" and "manipulator".

[9]         Infuriated, and in the belief that he was being harassed in order to drive him out of the Armed Forces and deprive him of the medical care to which he was entitled, the plaintiff resolved to request his release on January 23, 1998, seeing this as the only way to [translation] "be treated as I should be". Here again, the route was fraught with pitfalls: two physicians certified that he did not qualify, on medical grounds, for release. However, the plaintiff was declared qualified for release two days later, and his release became effective on April 8, 1998.

[10]       A grievance filed in 1998, which will be discussed in greater detail later, was not finally decided at the last level until 2001, and not without arousing some controversy as well, given the refusal by the Chief of Staff to send it to the Grievance Board established by a statutory amendment that came into force in June 2000.

[11]       The circumstances which, according to the statement of claim, make the above facts a breach of the plaintiff's section 7 Charter rights, and not mere negligence, results from the system of institutional dependency established by the defendant, through which it controls all aspects of a soldier's life, including access to basic medical care, the culture of mandatory obedience and submission, and the duty imposed on soldiers to obey any lawful order including orders that endanger their life or their health, subject to punishment if disobeyed. Accordingly, the defendant's actions are alleged to have breached the plaintiff's right to security of his person, contrary to the principles of fundamental justice.

[12]       However, the action is alleged to qualify for dismissal as res judicata or an abuse of process on the basis of the following facts, contained in the defendant's motion record and uncontradicted by the plaintiff:

[13]       On March 27, 1998, prior to his release, the plaintiff filed a [translation] "request for redress", in other words, a grievance, under section 29 of the National Defence Act, R.S.C. 1985, c. -5. The grievance relates the following facts:

-            The deployment to Haiti notwithstanding his medical classification.

-            His involvement in the operation to recover dead bodies.

-            The refusal to allow treatment by the physician of his choice, the refusal of recommended sick leave, the denigration, the overtime contrary to medical recommendations.

-            The duty to resort to release and its acceptance despite some medical opinions of non-qualification.

[14]       As one can see, apart from the allegations of delay or irregularities in the processing of the grievance, the plaintiff's grievance results from and is based on the same facts as those that give rise to the present action.

[15]       The plaintiff subsequently added to the grievance file some recent medical comments and opinions, including medical assessments establishing a connection between the aggravation of his shoulder injury and his service in Haiti. The plaintiff also formally amended his grievance application. The facts at the basis of the application remain the same, albeit reformulated, and the plaintiff develops the following claims:

1.          He should not have been deployed to Haiti.

2.          His presence in Haiti aggravated the condition of his shoulder.

3.          Without this aggravation, he could have healed and continued his career in the Armed Forces.

4.          He was not treated appropriately (medically or administratively) on his return from Haiti, witness his PTSS.

5.          The plaintiff should not have had to bear alone the consequences of the Armed Forces' unreasonable errors. (The pensions awarded under the Veterans Act are not sufficient to compensate for this type of error.)

[16]       The request for redress was also amended twice, ultimately claiming:

1.          The Canadian decoration;

2.          The award of the same commendation that might be awarded to his regiment for services in Haiti; and

3.          [translation] "Monetary compensation to be determined by an arbitration board pursuant to Book VII of Quebec's Code of Civil Procedure" (to compensate for the damages caused by the loss of his career within the Armed Forces).

[17]       A final decision was taken, lastly, at the level of the Chief of Defence Staff, stating the following reasons/conclusions:

[translation]      

-            " . . . I do not consider your doctor's recommendation allowing you to go to Haiti as a photographer to be incorrect."

-            " . . . I have no reason to doubt the professionalism and work of the medical experts and I think they did everything they could to provide you with the appropriate healthcare. . . ."

-            " . . . the administrative release procedures were performed correctly and no administrative or medical irregularity could be identified."

-            " . . . your commanding officer had the authority to grant or deny that sick leave. However, in the circumstances, I think it would have been logical to approve the additional recommended sick leave."

[18]       As for the remedies, the Chief of Staff granted:

1.          the denied sick leave, consequently pushing back the effective date of release, and the administrative and financial measures resulting therefrom;

2.          eligibility to receive the Canadian decoration; and

3.          award of commendation for services in Haiti;

but concluded as follows in regard to the request for monetary compensation:

[translation]

Finally, concerning your final request, that is, monetary compensation to be determined by an arbitration board, I am unable to grant it to you since no statutory or regulatory provision gives me that authority. You are now a recipient of a pension for the health problems you suffered while you were a member of the CF. The benefits you are getting represent a final compensation to which you are entitled and take into account all of the factors relevant to your situation at the time of your release. In fact, according to section 9 of the Crown Liability and Proceedings Act and section 111 of the Pensions Act, it is not possible both to receive a pension and to sue the CF after being injured.

In short, I think you have been the victim of some injustice and I approve a partial redress in that I am ordering that the sick leave that you were denied be given back to you, thereby allowing you to receive the CD for your twelve years of good and loyal services. I am further awarding you the commendation of the CDS for your courage and the steps that you took during the recovery of the victims of the wreck of the vessel "La Fierté Gonâvienne" in Haiti. However, I do not support your request for monetary compensation.

[Emphasis added]

RES JUDICATA, ESTOPPEL AND ABUSE OF PROCESS

Applicable principles and issues

[19]       The doctrine of res judicata attaches not only to the decisions of the ordinary courts but to the decisions of administrative bodies and tribunals, provided the decision maker had the necessary jurisdiction and the duty to act judicially (see Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460).

[20]       Res judicata and issue estoppel apply not only to the cause of action specifically pleaded in the prior proceeding, but to the rights, questions or facts distinctly put in issue and directly determined by the tribunal, though for a different cause of action. Where estoppel applies, it forecloses any attempt to reopen the argument on the cause of action, the right or the question decided, even if based on facts, arguments or points of law that were not raised or might properly have been raised in the previous proceeding (see Danyluk, supra; Procter and Gamble Pharmaceuticals Canada Inc. v. Canada, [2004] 2 F.C. 85 (FCA); [1951] S.C.R. 346">Maynard v. Maynard, [1951] S.C.R. 346).

[21]       If formal estoppel does not pertain to collateral matters or issues that can simply be inferred from the judgment through reasoning, the Court does have the discretion to dismiss an action raising this kind of questions by applying the doctrine of abuse of process. Even when a particular situation does not fulfil the strict criteria for the application of issue estoppel, if a party is essentially seeking to relitigate on a different legal basis an action or proceeding based on the same facts as in a previously determined proceeding, it is an abuse of process, a waste of time and resources both for the adverse party and for the administration of justice, eroding the principle of res judicata and the finality of judgments; the public interest requires that the Courts put an end to that litigation (see, for the applicable general principles, Sauvé v. Canada, [2002] F.C.J. No. 1001; Musqueam Indian Band v. Canada, [1990] 2 F.C. 351).

[22]       In the case of the doctrine of res judicata, as in the case of abuse of process, a fundamental issue is the prior decision-maker's capacity and jurisdictional authority to make the decision that is said to have been or that could have been decided. A decision made without jurisdiction cannot be binding on anyone and cannot constitute res judicata; similarly, a party cannot be criticized for abuse of process because it failed to bring before a tribunal an issue or remedy that the tribunal was not competent to decide.

[23]       It is therefore essential, in the case at bar, to determine whether the Chief of Staff deciding the grievance of MCpl (rt) Bernath under section 29 of the National Defence Act had the necessary jurisdiction to grant the plaintiff relief under section 24 of the Charter. If so, it will be necessary to ask ourselves whether the right to such compensation was indeed put in issue and determined by the Chief of Staff's decision or whether, if it was not directly decided, it is an issue that could or ought to have been put before the Chief of Staff in the grievance itself.

[24]       Irrespective of whether the ultimate right to relief under section 24 of the Charter was within the jurisdiction of the Chief of Staff, it will be necessary to examine whether the determination he made of the questions of fact and law that were put before him and in regard to which issue estoppel is raised stand in the way of the plaintiff's present proceeding, thus disclosing no valid cause of action.

[25]       Finally, as we are instructed by Danyluk, supra, and the principles applicable to the theory of abuse of process, the Court, notwithstanding any conclusion that is unfavourable to the plaintiff, will have to consider whether, having regard to the particular facts and circumstances of this case, there is cause to exercise its discretionary authority to allow the action to proceed nevertheless in order to avoid injustice.

[26]       Let us note, lastly, that since this is a motion to dismiss, the standard that the Court must apply to the determination of these issues is whether it is plain and obvious that, because of res judicata, issue estoppel or abuse of process, the plaintiff's action is devoid of any chance of success.

Did the Chief of Staff have jurisdiction to grant relief under section 24 of the Charter?

[27]       At the hearing and in the supplementary written submissions filed at the Court's request, the plaintiff insists that the Chief of Staff ruled, in his decision, that he did not have jurisdiction to grant the monetary compensation requested by MCpl (rt) Bernath. I do not agree with such a broad interpretation as the plaintiff would give to the decision in question. To my way of thinking, it is clear, from the actual text of the decision, that any defect of authority that may have been invoked by the Chief of Staff in his decision is limited to the way in which the monetary compensation sought by the plaintiff was to be established, namely, "Monetary compensation to be determined by an arbitration board".

[28]       That is certainly how the plaintiff had initially conceived it, as is demonstrated by the written submissions contained in his motion record in reply, at paragraphs 22 and 23:

[translation]

22.            Furthermore, to clearly understand the decision of the Chief of Staff, we refer the Court to page 159 of the defendant's motion record, where we find the 3rd request of the plaintiff in paragraph 4.5 of his re-amended grievance, which begins as follows:

"4.5         Monetary compensation to be determined by an arbitration board pursuant to Book VII of the Quebec Code of Civil Procedure".

23.            It is clear that the Chief of Defence Staff could not render a decision based on the Quebec Code of Civil Procedure and thus that his decision that he did not have jurisdiction was the only one that he could render.

[Double underlining added]

[29]       It is very clear to me, however, that the Chief of Staff thought he had the necessary jurisdiction to grant monetary compensation to the plaintiff, provided the facts and the applicable law allowed it. Having found that he could not grant the requested relief, the Chief of Staff continued his decision by laying out the reasons why, in his opinion, he could not grant monetary compensation over and above the pension received by the plaintiff under the Pensions Act, namely section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the Crown Liability Act) and section 11 of the Pensions Act, R.S.C. 1985, c. P-6.

[30]       So the Chief of Staff did not stop at the strict question of whether he had the necessary authority to order the mode of determination of monetary compensation as claimed in the grievance, but gave some consideration overall to whether the facts and circumstances presented to him provided a basis for granting monetary compensation in light of the applicable law. Following this exercise, he concluded: " . . . I do not support your request for monetary compensation."

[31]       Whatever the case, and even if some doubt subsisted as to the actual conclusion of the Chief of Staff concerning his jurisdiction to grant monetary compensation, it is his theoretical jurisdiction, and not the jurisdiction he himself defined, that must be determinative in deciding whether his decision amounts to an adjudicative decision that may have the effect of res judicata:

Once it is determined that the decision maker was capable of receiving and exercising adjudicative authority and that the particular decision was one that was required to be made in a judicial manner, the decision does not cease to have that character ("judicial") because the decision maker erred in carrying out his or her functions.

[Danyluk, supra, at paragraph 47]

[32]       There is no doubt that the Chief of Staff, both under the scheme that existed before the statutory amendments that came into force in 2000 and under the new scheme, had the requisite jurisdiction to determine, in the context of a claim for redress or a grievance, an officer's right to receive monetary compensation, including compensation in the form of relief under section 24 of the Charter.

[33]       Section 29 of the National Defence Act, as it was in April 1998, when the grievance was initially filed, reads as follows:

[34]       This section was amended and replaced by sections 29 to 29.28. Sections 29 to 29.15, which govern the grievance procedure that exists today, came into force on June 15, 2000. Sections 29.16 to 29.28, which cover the establishment and functioning of a Grievance Board, came into force on March 1, 2000.^[1] Apart from the procedural mechanism provided, I do not think the amendments altered in any way the scope of the jurisdiction or powers of the Chief of Staff as the final authority on grievances. Subsection 29(1), as amended, continues to define grievance rights 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. -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). 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.

Was the plaintiff's right to compensation under section 24 of the Charter determined?

[39]       Neither the plaintiff's grievance nor the Chief of Staff's decision mentions the Charter, a breach of Charter rights or, obviously, the right to relief under Charter section 24.

[40]       Since the plaintiff's cause of action is based exclusively on an alleged breach of a Charter right, it seems clear that the Chief of Staff's decision, which does not rule specifically on the violation of any such right, does not constitute res judicata in regard to the cause of action.

[41]       However, that does not end the argument over issue estoppel. As mentioned earlier, the cases hold that res judicata extends to any "right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up . . . though for a different cause of action" (Danyluk, supra, at paragraph 24). The question that is raised, then, is whether a right or a question fundamental to the success of the plaintiff's action was "distinctly put in issue and directly determined" by the decision of the Chief of Staff. The answer to that question will to a large degree be determined by the way in which the question or right that was put at issue and determined by the previous proceeding, and that would defeat the present proceeding, is to be defined.

[42]       Here is how the Supreme Court, per Dickson J., described the questions that are contemplated by the doctrine of estoppel ([1975] 2 S.C.R. 248">Angle v. Canada (Minister of National Revenue - M.N.R.), [1975] 2 S.C.R. 248, at pages 267-68):

It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment. . . . The question out of which the estoppel is said to arise must have been "fundamental to the decision arrived at" in the earlier proceedings: per Lord Shaw in Hoystead v. Commissioner of Taxation [[1926] A.C. 155.]. The authors of Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181, 182, quoted by Megarry J. in Spens v. I.R.C. [[1970] 3 All. E.R. 295.], at p. 301, set forth in these words the nature of the enquiry which must be made:

                . . . whether the determination on which it is sought to found the estoppel is "so fundamental" to the substantive decision that the latter cannot stand without the former. Nothing less than this will do.

[43]       This very limited definition of the scope of issue estoppel was specifically reiterated by the Supreme Court in Danyluk, supra, at page 476.

[44]       The fundamental issues that must be decided in this case were succinctly defined by the Court of Appeal in Drôlet v. Canada, [2003] F.C.J. No. 1857. In Drôlet, the Court had to determine whether actions in damages brought against the Crown by former soldiers for disabilities and injuries suffered during their military service should be struck out under section 9 of the Crown Liability Act on the ground that they disclosed no reasonable cause of action. Dismissing the actions based on any cause of action other than a breach of a section 7 Charter right, the Court defined as follows the questions that were to be determined at the conclusion of a trial:

[78] . . . However, in the event that the respondent has breached the appellants' 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]

[45]       The parties in this litigation, represented by the same attorneys, had agreed that the outcome of the Drôlet decision would apply in this case; the amended statement of claim subsequently filed by the plaintiff therefore purports to be consistent with the definition of the cause of action and the issues allowed by the Court of Appeal in Drôlet.

[46]       Although the plaintiff's grievance ultimately sought the same remedy as the present action - monetary compensation additional to the pension received in derogation of section 9 of the Crown Liability Act - I do not think it can be said that Charter issues were fundamental to the decision reached by the Chief of Staff or even necessarily or implicitly included in the reasoning that led to the decision. And although the ultimate result of the Chief of Staff's decision - the refusal of monetary compensation - could fall if the Charter arguments advanced by the plaintiff were allowed, the Chief of Staff's decision would not necessarily be nugatory. In fact, the Chief of Staff's decision is, if you will, the first step in an analysis leading to the examination of the question raised in this litigation, that is, the determination that the damages suffered by the plaintiff, for which compensation is sought, are the same as those that entitle him to the pension received, and thus that section 9 of the Crown Liability Act defeats any subsequent suit against the Crown. That being said, and as the Court of Appeal held in Drôlet, if the relevant facts demonstrate that a breach of Charter rights has occurred, it is possible that section 24 of the Charter would nevertheless allow additional redress. Accordingly, I find that the decision on the grievance does not have the effect of res judicata or issue estoppel in regard to the fundamental rights and questions in the application of the Charter to the circumstances of this action.

[47]       Since the doctrine of issue estoppel does not strictly apply in this proceeding, the question of whether the issue for determination here could or should have been submitted within the framework of the grievance cannot be used to establish estoppel. In fact, in Danyluk, supra, the Supreme Court, at page 476, paragraph 24, excluded a broader definition of issue estoppel, explaining that it does not apply to "all matters which were, or might properly have been, brought into litigation". Instead, it is only when estoppel applies to a question distinctly determined that the notion of the issue that "could or should have" been submitted comes into play, in order to define the scope of the estoppel resulting from this issue. That being said, a party's duty to raise all of its arguments and causes of action at the first appropriate moment remains relevant, as we will see later, to the notion of abuse of process.

Do the questions actually decided by the Chief of Staff defeat the plaintiff's action?

[48]       Although the Chief of Staff's decision does not have the effect of res judicata in regard to the cause of action or the general question of the application of the Charter to the facts in dispute, it remains that in making his decision the Chief of Staff did specifically consider and rule on certain allegations of fact made by the plaintiff that are part of the factual framework of this proceeding. Issue estoppel applies, in my opinion, to the factual and mixed fact and law determinations reached by the Chief of Staff. More particularly, since the plaintiff specifically sought a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition, the quality, sufficiency and appropriateness of the medical treatment received, and the administrative treatment of his medical condition and his application for release, the plaintiff is bound by the Chief of Staff's specific findings on these issues, and cannot seek to obtain a different conclusion from this Court in regard to them (see Leblanc v. R., 2005 FCA 234, Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.)).

[49]       Let us note at this point that the Chief of Staff directly and specifically concluded that the decision to deploy him to Haiti notwithstanding his medical condition was made on a medical recommendation, with the consent of the plaintiff, and was correct; that the medical care given to the plaintiff was appropriate, characterized by professionalism, and recommended; that his release was voluntary, and that the administrative process was carried out correctly, without medical or administrative irregularities. It is only in terms of the administrative treatment of the sick leave recommended by the attending physician that the Chief of Staff concedes that, although the commanding officer had the necessary authority to refuse them, their refusal was unjust. Accordingly, then, while the plaintiff's action alleges as specific faults the decision to send the plaintiff to Haiti, the "refusal" of medical treatment, and the faulty release of the plaintiff, the effect of the Chief of Staff's decision is to estop the plaintiff from pleading these facts and findings. As factual circumstances supporting the plaintiff's action there remain only the allegations of a lack of training prior to the departure for Haiti as a photographer and the refusal (albeit authorized) by his commander to approve the sick leave and pace of work prescribed by the doctors, in a system so established as to require absolute obedience and to control all aspects of the life of the soldiers.

[50]       I entertain substantial doubt as to whether these circumstances constitute a breach of the rights guaranteed by section 7 of the Charter, that is, an infringement of the life, liberty and security of the person that is not in accordance with the principles of fundamental justice. Even if we were to find that the plaintiff's fundamental rights had been breached, it would still be necessary, for the plaintiff to prevail, to find that in the circumstances, including the administrative remedy awarded by the Chief of Staff for the refusal of sick leave, the pension obtained by the plaintiff is not appropriate relief and that it is necessary to add additional monetary compensation.

[51]       Whatever the doubts I entertain as to the plaintiff's chances of success, in particular regarding the second step in the analysis, these doubts do not suffice to find that the action is so devoid of merit that it has no chance of success. While the improbability of a determination favourable to the plaintiff does not in itself justify the dismissal of the action, it will nevertheless be appropriate to take this into account when exercising the Court's discretion in the analysis of the theory of abuse of process.

[52]       Indeed, having found that the Chief of Staff's decision does not defeat the plaintiff's action on grounds of res judicata or issue estoppel, the Court must now consider whether the action nonetheless constitutes an abuse of process such that it must be struck out.

Abuse of process

[53]       The principles underlying the notion of abuse of process are the same ones that gave rise to the principles of res judicata and issue estoppel: the need to ensure the finality of litigation and avoid repetitive proceedings, potentially inconsistent results and inconclusive proceedings. Mr. Justice Binnie, referring to the foundations of the estoppel rule in Danyluk, had the following to say (supra, at paragraph 18):

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

[54]       Similarly, the judgment of the Judicial Committee of the Privy Council in Hoystead v. Commissioner of Taxation, [1926] A.C. 155, cited and approved many times by the Supreme Court of Canada ([1951] S.C.R. 346">Maynard v. Maynard, [1951] S.C.R. 346, [1975] 2 S.C.R. 248">Angle, supra, and [1976] 2 S.C.R. 621">Grandview (Town of) v. Doering, [1976] 2 S.C.R. 621), states at page 165 that:

Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances.

If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.

[55]       The doctrine of abuse of process allows the application of these same fundamental principles in cases where issue estoppel does not strictly apply but the similar interests of finality of judgments, repetitious litigation and the interests of justice are involved.

[56]       This Court, in Sauvé v. Canada, [2002] F.C.J. No. 1001, 2002 FCTD 721, approved the reasoning of the Ontario Court of Appeal in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) in these words:

[14] In Canam Enterprises Inc., supra, Justice Finlayson, for the majority, said this about abuse of process at paragraph 31 of the report:

                [31] However, we are not limited in this case to the application of issue estoppel. The court can still utilize the broader doctrine of abuse of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy . . . [emphasis mine]

[15] In that same case, Goudge J.A. in dissent, framed the concept of abuse of process in these words at paragraphs 55 and 56 of the report:

                [55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel . . . .

                [56] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined . . . . [emphasis mine]

[57]       Similarly, in Musqueam Indian Band v. Canada, [1990] 2 F.C. 351, the Federal Court cites with approval the following passage from the decision of the Manitoba Court of Appeal in Solomon v. Smith, [1988] 1 W.W.R. 410 (Man. C.A.):

[41] Lyon J.A. went on to say at page 421:

I agree with Philp J.A. that a plea of issue estoppel is not available. However, to permit the statement of claim to proceed would be an abuse of process and that is the principle applicable. In considering this doctrine, it seems to me prudent to avoid hard and fast institutionalized rules such as those which attach to the plea of issue estoppel. By encouraging the determination of each case on its own facts against the general principle of the plea of abuse, serious prejudice to either party as well as to the proper administration of justice can best be avoided. Maintaining open and ready access to the courts by all legitimate suitors is fundamental to our system of justice. However, to achieve this worthy purpose, we must be vigilant to ensure that the system does not become unnecessarily clogged with repetitious litigation of the kind here attempted. There should be an end to this litigation. To allow the plaintiff to retry the issue of misrepresentation would be a classic example of abuse of process -- a waste of the time and resources of the [page366] litigants and the court and an erosion of the principle of finality so crucial to the proper administration of justice.

[58]       The plaintiff's grievance before the Chief of Staff essentially and fundamentally sought monetary compensation to compensate for the physical damages suffered and the loss of his military career owing to "errors and injustices" committed in regard to him by the leaders of the armed forces. Furthermore, it is clear from the reformulation of the grievance filed in February 2000 (tab 1(g) of the defendant's motion record, at page 159) and the plaintiff's reply to the disclosure of the documents to be considered by the redress authority (letter of November 7, 2000, tab 1(k) of the defendant's motion record, at page 172), that the plaintiff clearly understood that a pension award was being set up against him as an impediment to obtaining additional monetary compensation. Faced with this obstacle, the plaintiff was specifically asking that the Chief of Staff consider the circumstances as a whole in order to determine whether the "unreasonable" or "unacceptable" nature of the "errors" and "injustices" committed in regard to him justified the limitation of his compensation to the available pension plan:

[translation]

Yes, I have obtained a Veterans Affairs pension; but I do hope that these pensions were not provided as a panacea for the unreasonable errors of the CF in some individual cases such as mine! [p. 159].

Concerning my claim for monetary compensation through an arbitration tribunal, don't counterpose some legal reasoning about my pension obtained from Veterans Affairs! Was this statutory initiative provided in those cases where unacceptable negligence on the part of the CF authorities completely wrecks a young soldier's career? No! And above all, is the latter question even relevant in the case of a request for redress of an injustice? [p. 172].

[59]       However, the fundamental issue in this litigation, as formulated by the Federal Court of Appeal in Drôlet, is also "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", on the basis of the same facts.

[60]       It seems evident to me that, apart from the characterization of the Crown's impugned acts as a breach of the section 7 Charter right, and the reference to section 24(1) of the Charter as a legal basis for derogation from section 9 of the Crown Liability Act, the fundamental right giving rise to the present litigation is exactly the same as that submitted to and determined by the Chief of Staff.

[61]       The harm to be remedied, the nature of the relief requested, and the facts and circumstances resulting in the harm, are strictly the same. The only difference between the facts and arguments presented in the grievance and those presented in this legal proceeding is the linkage of the relevant facts around an argument that is specifically Charter-based and the emphasis on the system of obedience and control imposed by the armed forces on its members, and the use of this argument to support the allegation of a breach of a Charter right. With respect, the sole purpose behind the infusion of a Charter argument is to justify a second attempt to obtain monetary compensation additional to a pension notwithstanding section 9 of the Crown Liability Act. This argument could have been raised and determined within the grievance; if it was not, it is only through the plaintiff's failure to articulate it distinctly. To paraphrase the comments of the Judicial Committee of the Privy Council in Hoystead, it is only because legal ingenuity had not been exhausted that this litigation did not end with the decision of the Chief of Staff.

[62]       In my opinion, in the absence of exceptional circumstances justifying it, to allow the plaintiff to proceed in this Court on a cause of action that could and should have been presented in the context of the preceding grievance would be tantamount to allowing this party to engage in "serial pleading" or to split his case, and that is the very essence of an abuse of process.

[63]       In his additional written submissions, the plaintiff argues forcefully that under the principles laid down in Nova Scotia (WCB) v. Martin, supra, the primary imperative, where Charter rights are at issue, is access to "the most accessible forum available, without the need for parallel proceedings before the courts" (Martin, paragraph 29). I fail to see how this argument could justify the plaintiff's action in this Court. To the contrary, under the principles laid down in Martin, the most accessible forum in this instance, without the need for parallel proceedings before the courts, was clearly the grievance authority under the National Defence Act. It may be that the plaintiff's exhaustion of the administrative remedy available to him without raising his Charter arguments means that this Court is the only forum now accessible to him, but a situation created by the plaintiff's own conduct cannot serve as justification for an abuse of process.

[64]       Furthermore, the Supreme Court of Canada, quite recently, in Vaughan v. Canada, [2005] 1 S.C.R. 146, reminded us of how important it is that tribunals not jeopardize the process set out in the legislative schemes by permitting parallel access to the courts.

[65]       The plaintiff argues that the alleged breach of Charter rights in this case places this proceeding well beyond a mere labour relations conflict and thus, implicitly, that the judgment in Vaughan should apply only to labour disputes.

[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.

The Court's exercise of discretion

[67]       The power to dismiss an action on the ground that it constitutes an abuse of process is within the discretionary authority of the Court. Just as the Court has the duty, before dismissing an action on the ground of res judicata or issue estoppel, to consider whether there are circumstances under which the normal application of this doctrine would create an injustice, the Court must, in exercising its discretion in a matter of abuse of process, take into account the circumstances of the case, with the objective of ensuring that justice is done.

[68]       The plaintiff in this proceeding has submitted no facts or submissions of law that would explain why the Charter arguments were not, could not or should not have been submitted within the grievance proceeding. There is no allegation or submission that the grievance proceeding was, either in this particular instance or even generally, an inappropriate forum for determining the issues in dispute, or that there was no compliance, nor could there be, with the rules of fundamental justice. In short, the only "injustice" cited by the plaintiff is that he has been deprived of the right to present his case before a court. In light of the decision in Vaughan, this cannot be an injustice.

[69]       On the contrary, I think that allowing the action to proceed would infringe the principles of finality of judgments and undermine the integrity and efficiency of the comprehensive and complete dispute resolution procedure provided by the National Defence Act. Furthermore, given the findings of fact arrived at by the Chief of Staff, a major share of the allegations in the statement of claim cannot be maintained, allowing some serious doubts to persist about the chances of success of the action. In the circumstances, there is no justification for the adverse effect that allowing the action would have on the administration of justice.

Conclusion

[70]       In conclusion, I think it is plain and obvious that the Chief of Staff had the necessary jurisdiction to hear and determine the plaintiff's claim as formulated in his amended statement of claim, that this claim could and should have been raised in the course of the plaintiff's grievance filed under the National Defence Act, and that the plaintiff's action constitutes, therefore, an abuse of process.

[71]       I am further satisfied that there is no circumstance that could justify allowing the action to proceed notwithstanding the observed abuse of process.

[72]       The plaintiff's action will therefore be dismissed by reason of abuse of process.

FURTHER CONSIDERATIONS

[73]       In view of my determination, it is not necessary to rule on the prescription and limitation of actions argument submitted by the defendant. However, I would say in this regard that the six-year limitation period set out in section 32 of the Crown Liability Act applies in regard to actions in which not all of the causes of action occurred within the same province (Canada v. Maritime Group (Canada) Inc., [1995] 3 F.C. 124, 185 N.R. 104 (C.A.)). 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.

[74]       Finally, this action is part of a group of more than 25 distinct proceedings brought by former soldiers, but with the same attorneys, and which I am managing in common. Motions to dismiss raising similar or related points of law have been filed in these other dockets and will be heard within the coming months. To ensure the effective management and possible consolidation of any appeals that could be filed in regard to this order and the decisions resulting from the pending motions, the periods prescribed by rule 51 of the Federal Court Rules for appealing this order are suspended pending an order to the contrary by this Court.

                        "Mireille Tabib"

                          Prothonotary

Certified true translation

Kelley A. Harvey

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                        T-1683-02

STYLE:                                                            Patrick Bernath

v.

Her Majesty the Queen

PLACE OF HEARING:                                  Montréal, Quebec

DATE OF HEARING:                                    March 2, 2005

ADDITIONAL SUBMISSIONS

RECEIVED:                                                   April 1 and April 28, 2005

REASONS FOR ORDER:                            Madam Prothonotary Mireille Tabib

DATE OF REASONS:                                   September 9, 2005

APPEARANCES:

Jacques Ferron                                      FOR THE PLAINTIFF

Gilles Savard

Pierre Salois                                                      FOR THE DEFENDANT

Mariève Sirois Vaillancourt

SOLICITORS OF RECORD:

JACQUES FERRON                                       FOR THE PLAINTIFF

Québec, Quebec

JOHN H. SIMS, Q.C.                                      FOR THE DEFENDANT

Deputy Attorney General of Canada