[2] In the early 1990s, he was sent on peacekeeping duties to the former Yugoslavia. As a result of his witnessing horrific scenes while on that mission, he has developed post-traumatic stress disorder (PTSD) and he manifests all the symptoms normally associated with that disorder.

[3] He was released from the Canadian Armed Forces in 1998. He maintains that he should not have been released. He receives both a service pension and a disability pension.

[4] By his suit, he claims damages for the Crown's alleged failure to recognize and timely treat his condition. The action alleges general systemic and policy failure by the Armed Forces to prepare for, recognize, guard against, treat, and deal with PTSD and to take proper account of the fact that it may and does occur in the absence of physical injury. While there is no doubt that the claim sounds in part in negligence, and names and numbers of individual servants and agents of the Crown whose acts the Crown is alleged to be vicariously liable for, it also, as I have said, asserts systemic and policy failures.

[5] It also alleges breaches of fiduciary obligation and Charter violations which are said to have damaged the plaintiff.

[6] The material facts alleged in support of all these different grounds of claim are, in my view, inextricably intertwined and I find it impossible in any practical way to deal with them separately on a motion such as this.

[7] The Crown now moves for summary judgment dismissing the action as statute barred by section 269 of the National Defence Act of which I now set out the text:

269. (1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.

269. (1) Les actions pour un acte accompli en exécution - ou en vue de l'application - de la présente loi, de ses règlements, ou de toute fonction ou autorité militaire ou ministérielle, ou pour une prétendue négligence ou faute à cet égard, se prescrivent par six mois à compter de l'acte, la négligence ou la faute en question ou, dans le cas d'un préjudice ou dommage, par six mois à compter de sa cessation.

Section 24 of the Crown Liability and Proceedings Act is also relevant:

24. In any proceedings against the Crown, the Crown may raise

(a) any defence that would be available if the proceedings were a suit or an action between persons in a competent court; and

(b) any defence that would be available if the proceedings were by way of statement of claim in the Federal Court.

24. Dans des poursuites exercées contre lui, l'État peut faire valoir tout moyen de défense qui pourrait être invoqué:

a) devant un tribunal compétent dans une instance entre personnes;

b) devant la Cour fédérale dans le cadre d'une demande introductive.

[8] I am going to dismiss the motion.

[9] First on a simple reading of the statement of claim, it seems to me that it can be read as alleging a continuing failure on the part of the Crown to carry out its alleged duties to the plaintiff. Some of the alleged failures are posterior to the date which is six months before the action was taken and are said, in some cases, to continue even to this day.

[10] Second, given the fact that the alleged failures are said to be systemic, operational and policy based, it seems to me that the principles laid down in cases such as White v. Canada (Attorney General), [2002] B.C.J. No. 1821 (S.C.) (QL), aff'd [2003] B.C.J. No. 442 (C.A.) and Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445 should be applied to prevent the Crown from invoking a short prescriptive period in order to defeat the claim before trial. This is not obviously to state that the claim has merit or will succeed, but simply that it must be tried.

[11] Third, to the extent that the claim is based on alleged breach of fiduciary duty, it seems to me that it does not sound in tort and results in direct and not vicarious liability on the part of the Crown. By its very terms section 269 applies to and protect only "person(s)" and therefore excludes the Crown from the ambit of its protection. Again, I am not called upon at this stage to say that the claim is well founded but I think that it does deserve to be tried.

[12] Finally, while there is no doubt in my mind that generally applicable periods of prescription apply to a Charter based claim, I refer here amongst others to my own judgment in the case of St-Onge v. Canada [1999] F.C.J. No. 1842 (T.D.) (QL), aff'd [2000] F.C.J. No. 1523 (C.A.), leave to appeal to S.C.C. denied, [2001] C.S.C.R. No. 638, I have very serious doubt that the government can insulate itself from such claims by adopting legislation which is applicable only to its servants, and I note parenthetically that section 269 cannot apply to anyone else, and creating short draconian prescriptive periods which are a mere fraction of what would apply to any other claim. I refer here as well to the decision of the Court of Appeal in Prete v. Ontario (1993), 16 O.R. (3d) 161 (C.A.), leave to appeal to the S.C.C. denied, [1994] S.C.C.A. No. 46. At a minimum, it would seem to me that such legislation would require to be justified under section 1. Since by definition such justification would necessitate a trial. The question cannot be dealt with on a summary judgment motion such as this.

[13] I will accordingly, as I said, dismissed the motion for summary judgment.

[14] On the matter of costs, plaintiff has asked for costs on a solicitor-client basis on the grounds that the same prescriptive period was originally invoked in an earlier motion to strike brought by the Crown and was then abandoned just before the hearing. I do not think that this is a proper ground for imposing solicitor-client costs. However, the plaintiff is entitled to his costs on the ordinary scale to be assessed and I would in the circumstances, because I do not think this motion should have been brought, order that such costs be payable forthwith and in any event of the cause.

ORDER

Defendant's motion for summary judgment is dismissed. Plaintiff is entitled to his costs on the ordinary scale to be assessed. Costs are payable forthwith and in any event of the cause.

James K. Hugessen

Judge

Ottawa, Ontario

January 30, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-294-00

STYLE OF CAUSE: Peter Duplessis v. Her Majesty the Queen

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: January 29, 2004

REASONS FOR ORDER AND ORDER BY

THE HONOURABLE MR. JUSTICE HUGESSEN

DATED: January 30, 2004

APPEARANCES:

Barbara McIsaac, Helen Gray

and Christopher Edwards FOR PLAINTIFF

Michael Roach FOR DEFENDANT

SOLICITORS OF RECORD:

McCarthy Tétrault

Ottawa, Ontario FOR PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada FOR DEFENDANT

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Duplessis v. Canada, 2004 FC 154

Citations2004 FC 154

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2004 FC 154