Marsot v. Canada (Minister of National Defence), 2002 FCT 226

Date: 20020228

Docket: T-2333-00

Neutral citation: 2002 FCT 226

BETWEEN:

                                                    MARIE-CATHERINE MARSOT

                                                                                                                                                         Plaintiff

                                                                             - and -

                                    HER MAJESTY the QUEEN in right of CANADA

                                              (MINISTRY OF NATIONAL DEFENCE)

                                                                                                                                                   Defendant

                                                            REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                 The defendant, Her Majesty the Queen in right of Canada (the "federal Crown") seeks, pursuant to subsection 213(2) of the Federal Court Rules, 1998 (the "Rules"), summary judgment in this action on the basis it is statute-barred by section 9 of the Crown Liability and Proceedings Act ("CLPA") and section 111 of the Pension Act (the "Pension Act") since the plaintiff, Captain Marsot, a member of the Canadian Armed Forces and currently on medical leave, is in receipt of a disability pension for Post-Traumatic Stress Disorder ("PTSD"). Alternatively, the federal Crown seeks a stay under the newly enacted provision of section 111 of the Pension Act (effective October 27, 2000) providing for a mandatory stay in some circumstances, until Captain Marsot has filed an application extending her pension to cover major depression for which she has not applied.

[2]                 Section 9 of the CLPA reads:

9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. [emphasis mine]

9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte -- notamment décès, blessures ou dommages -- ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.

[3]                 Section 111 of the Pension Act since October 27, 2000 now reads:

BACKGROUND

[4]                 Marie-Catherine Marsot joined the regular force of the Canadian Armed Forces ("CAF") in 1997 after having been in the Canadian Reserves since 1991. She was posted to the Canadian Forces Base, Petawawa, where she was the first female infantry officer in the First Battalion of the Royal Canadian Regiment ("RCR").

[5]                 On December 15, 2000, Captain Marsot filed a statement of claim naming Her Majesty the Queen in right of Canada (Ministry of National Defence), Major J. S. Shipley, Major P. Koch, and Major R.D. McIlroy as defendants. An amended statement of claim was filed on May 11, 2001, deleting the majors as individual defendants. They were at various times her direct supervisors.

[6]                 In her affidavit, which was not cross-examined upon, filed opposing the federal Crown's motion for summary judgment, she describes her action in the following terms:

. . . I am bringing this action against the Crown because of the failure of the Department of National Defence and my direct supervising officers to conform with the Canadian Forces Administrative Orders on harassment and discrimination, and for the breaches of my Charter Rights, breaches of contract, breaches of fiduciary duty and the various intentional torts committed by Crown agents that occurred over a 3 year period. My action is not for damages for post-traumatic stress disorder. My action is for the breaches of various statutory and common law obligations owing to me which were perpetuated by Majors McIlroy, Shipley, and Koch and by the senior personnel in the Department of National Defence overall, as detailed below. Further my action against the Crown is for injuries suffered by me not only in Kosovo but also prior to my tour of duty in Kosovo at the hands of the Defendant and her agents. [emphasis mine]

[7]                 She recites in her affidavit during her tenure with the RCR, she was subjected to almost constant harassment because of her gender by her direct supervisors over a three-year period. This treatment, she says, included being sworn at, called "stupid", advised she was a "bad officer", called G.I. Jane, being mocked in front of her troupes, yelling at her during military training, stating she should be at home raising her child and, as a woman, she was not fit to be an infantry officer. She believes she was treated in this manner to either lead her to quit the army or, at a minimum, change her specialty from an infantry officer to something more "gender integrated".

[8]                 She states, in her affidavit, she relied on the Canadian Forces Administrative Orders on harassment and discrimination and believed the senior personnel in the CAF would ensure these policies were followed.

[9]                 She alleges she complained about the treatment she received from her direct supervisors but nothing was done.

[10]            These allegations are rejected by the Federal Crown in its statement of defence.

[11]            Captain Marsot filed a formal harassment complaint against Major Koch on January 5, 2000 as a result of her experiences in Kosovo. The CAF convened a board of inquiry to examine whether or not her complaints of harassment could be substantiated.

[12]            The Board of Inquiry reported its findings on June 23, 2000 and found, in the plaintiff's view, she did experience harassment on several occasions, on account of abuse of authority and discrimination. The defence does not interpret the Board of Inquiry's findings the same way.

[13]            The First Battalion of the RCR was deployed to Kosovo in December 1999. Captain Marsot was medically repatriated from Kosovo on March 24, 2000 and was seen by Dr. Goldstein who referred her to Dr. T. Girvin, a military psychiatrist.

[14]            Dr. Goldstein, in a consultation request note to Dr. Girvin, wrote under the heading "reason for assessment":

Capt. Infantry Officer medically repatriated from Kosovo due to depression and anorexia. Multiple serious issues, verbal and physical harassment (over 3 years) but exacerbated by events in Kosovo. Currently being investigated by NIS Board of Inquiry and the Chief Defence Staff. Currently stable. Depression improving and is regaining weight but has several criteria for PTSD as well. For your assistance/therapy.

[15]            Dr. Girvin's diagnosis of Captain Marsot is dated May 4, 2000 and in part reads:

Axis I: Post traumatic stress disorder, chronic, and major depressive episode, moderate without psychotic features.

                                                 . . .

Axis IV: The chronic stress of working in an atmosphere of            harassment by superior officers is rated as severe and in addition, the acute stressor while on deployment of physical and verbal threat by her Company Commander is rated as extreme.

Axis V: Global assessment of functioning is currently rated at 40 with major impairments to her ability to work and to her family relationships as well as major impairment to her mood. Best in past year is estimated at 70 with some mild symptoms of sleep disturbance and preoccupation in respect of the harassment at work.

[16]            On May 4, 2000, Dr. Girvin recommended extended sick leave for Captain Marsot. He identified his diagnosis as "PTSD, chronic major depression".

[17]            On April 18, 2000, Captain Marsot made application to the Department of Veterans' Affairs ("DVA") for a disability pension. The disability she claimed was PTSD. She wrote in her application:

I was diagnosed and repat home from Kosovo . . . with PTSD as a result of excessive harassment by the military. I transferred from the Reserve from Reg. Force in August 1997. I am a female infantry officer--the first one in the RCR where I work since 1997. [emphasis mine]

[18]            In her application, she identified the effect the PTSD had on her everyday activities in the following terms:

I am incapable of going to work right now. Nightmare. Avoidance of people related to workplace. Anxiety attacks. Irregular heartbeat, insomnia, nausea, incapable of working with chain of command, flashbacks.

[19]            Captain Marsot filled out a Declaration of Injury or Illness during Service in a Special Duty Area with a view of applying for a pension. She answered "yes" to the question "Have you had any injury or illness during your service in Kosovo from 12 Dec. 99 to 24 March 00".

[20]            On October 27, 2000, the DVA ruled favourably on her application. DVA said she was pensionable under subsection 21(1) of the Pension Act, Special Duty Area, Kosovo. Her disability was assessed at thirty percent (30%).

[21]            The substance of DVA's ruling is contained in its October 27, 2000 letter to the plaintiff. The letter is re-lined "Post-Traumatic Stress Disorder" and states:

As full entitlement has been granted to you under subsection 21(1) of the Pension Act, a ruling under subsection 21(2) of the Pension Act is not required.

The Department has considered all of the evidence placed before it in support of your claim including your service medical records, your statement, and all reports submitted with your application.

You relate that your post-traumatic stress disorder started during your service in Kosovo.

A review of your service records note symptoms of stress, fear, pressured speech, insomnia and anxiety recorded while you were serving in Kosovo with a subsequent diagnosis of post-traumatic stress disorder established on a Psychiatric Report by Dr. Girvin dated 4 May, 2000. The Department, therefore, concludes that symptoms of your post traumatic stress disorder first incurred during your SDA service in Kosovo.

The Department, therefore, grants a disability pension under subsection 21(1) of the Pension Act.

In making its decision, the Department has considered and applied the following subsections of the Pension Act:

Subsection 21(1) provides entitlement for a disability that is attributable to, or was incurred during, Special Duty Area military service.

Subsection 21(2) provides entitlement for a disability resulting from an injury or disease, or an aggravation thereof, that arose out of, or is directly connected with, military service in peacetime. [emphasis mine]

[22]            In her affidavit, Captain Marsot says the disability pension awarded to her is as a result of the diagnosis of PTSD from her service in Kosovo. She states this pension purports to compensate her solely for her PTSD developed in Kosovo. She conceded her PTSD arises, at least in part, from her military service in Kosovo.

[23]            As part of its record, the federal Crown filed a true copy of DVA's guidelines on DVA's pensionable disabilities. Paragraph 21.02 relates to stress and anxiety disorders and includes PTSD. The guidelines also contain paragraph 21.03 entitled "Assessment of Major Affective Disorders" which reads:

For assessment purposes the term Major Affective Disorders includes Manic-depressive Psychosis, Manic Disorder, Major Depressive Disorder, Bipolar Disorder, Unipolar Depression and Endogenous Depression. [emphasis mine]

THE AMENDED STATEMENT OF CLAIM

[24]            In her amended statement of claim dated May 11, 2001, Captain Marsot claims against the federal Crown the following:

(i)         damages for breach of contract;

(ii)        damages for negligent misrepresentation;

(iii)       damages for breach of fiduciary duty;

(iv)       damages for breach of sections 7, 8 and 15 of the Charter of Rights and Freedoms, (the "Charter");

(v)        damages for assault and battery by an agent of the Crown;

(vi)       damages for intentional infliction of mental suffering and negligence by agents of the Crown;

(vii)      damages for breach of fiduciary duty by agents of the Crown;

(viii)     general damages;

(ix)       damages for loss of future income;

(x)        damages for the cost of future therapy;

(xi)       special damages;

(xii)      punitive and aggravated damages.

[25]            I need not describe at length the plaintiff's amended statement of claim since its substance has been referred to in her affidavit filed in these proceedings. It is useful, however, to expand on certain causes of action pleaded.

[26]            Her breach of contract claim is grounded on an allegation (paragraph 30) that the actions of her direct supervising officers and the failure of the policies put into place to address harassment and discrimination breached the express or implied provisions of the implied contract which the plaintiff entered into with the defendant since it undertook to provide a harassment and discrimination-free work environment; also, it failed to put into place effective policies addressing harassment and discrimination based on gender and the Crown did not ensure the plaintiff had access to effective mechanisms which would stop harassment and gender discrimination.

[27]            The plaintiff's claim for negligent representation rests on an allegation (paragraph 31) the Crown negligently represented to the plaintiff (i) the workplace in which the plaintiff would be participating would be free of gender discrimination; (ii) the CAF had instituted policies to properly address discrimination and harassment; (iii) her supervisors would abide by these policies; (iv) if harassment and discrimination should occur, she would have appropriate and effective avenues of redress; (v) she would have a reasonable opportunity for advancement in the military without regard to her gender and would be thought and treated as a valuable member of the CAF by her colleagues and supervisors regardless of gender. She claims these representations were negligent representations and, as a result, she has sustained psychological and pecuniary damage.

[28]            In support of her claim for breach of fiduciary duty the plaintiff (paragraph 21) states the Majors who were her immediate supervisors and professional mentors were in a special position of trust and in a fiduciary relationship with her and, because of this, had a special duty of care to act in her best interest and to mentor her as a young infantry officer as well as to ensure the atmosphere within the infantry community was one which was conducive to the acceptance and support of women in non traditional roles. She alleges the Majors used the authority which they had vested within them by the federal Crown to abuse her, inflict mental pain and suffering on her, harass her, intimidate her, interfere with her and in the case of one of the Majors, assault and batter her, all of which constitute breaches of the fiduciary duty owed to her.

[29]            Her claim for breach of section 8 of the Charter of Rights and Freedoms (the "Charter"), stems from an allegation she makes at paragraph 20(a) that Major Koch subjected her to a psychological evaluation without her consent and without her knowledge when she was ordered to escort an officer around the base in Kosovo, that escort actually being a psychologist employed by the Department of National Defence retained to conduct a psychological evaluation of her.

[30]            This same incident, in the alternative, grounds her breach of section 7 of the Charter in mandating a psychological evaluation without her knowledge and consent.

[31]            Her claim for breach of section 15 of the Charter is based on discrimination by her immediate supervising officers, a discrimination on the enumerated ground of gender. She particularizes the discrimination by identifying several acts committed by her immediate supervisors. She also alleges inaction by the federal Crown to act on her complaints also constitutes discrimination.

[32]            Her claim on the intentional tort of battery rests on her allegation that one of the Majors pushed, struck and threw objects at her.

THE CASE FOR THE FEDERAL CROWN

[33]            Counsel for the federal Crown concentrated his argument on the plaintiff's action being barred by section 9 of the CLPA which he says precludes an action for damages where three conditions are met:

(a)        a pension has been paid;

(b)        out of the Consolidated Revenue Fund ("CRF");

(c)        for the injury in respect of which the claim (action) for damages is sought.

The only question here, he argues, is whether the third condition has been met, that is, the pension in question is in respect of the injuries for which the plaintiff seeks to recover damages in the action. Counsel for the plaintiff agrees conditions (a) and (b) are met but not the third one.

[34]            Counsel for the defendant argues all of the claims for damages in the plaintiff's statement of claim are related or connected to the disability--PTSD for which she receives a pension. That disability resulted from the injuries she had suffered while serving as a member of the CAF. But for those injuries, no disability would have been suffered and no disability payment would be payable.

[35]            He argues the factual connection between the injury and the pension is immediate and obvious. He points to Dr. Girvin's report and what the plaintiff told him in the interview. He says the plaintiff has admitted as much in paragraph 33 of her amended statement of claim which reads:

33.        As a consequence of the acts and/or omissions by the agents of the Crown and the Crown itself, the Plaintiff has been diagnosed with chronic post-traumatic stress and major depression. Given the severity of her condition, which was caused by the Defendant or its agents, the Plaintiff's career as an Infantry Officer in the Canadian Armed Forces is effectively over. The plaintiff has therefore sustained the damages particularized in paragraph 1 of the Statement of Claim. [emphasis mine]

[36]            Counsel for the defendant focusses on the broad meaning of the words "in respect of" given by the Supreme Court of Canada in [1983] 1 S.C.R. 29">Nowegijick v. The Queen, [1983] 1 S.C.R. 29, where Justice Dickson, as he then was, said:

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters. [emphasis mine]

He argues all of the allegations in the amended statement of claim are related to the plaintiff's injury due to the alleged conduct of her superiors.

[37]            He points to the Federal Court of Appeal judgments in Langille v. Canada (Minister of Agriculture), [1992] 2 F.C. 208 and Sarvanis v. Canada, [2000] F.C.J. No. 12, as well as Justice Rouleau's recent decision in Schlueter v. Canada (Royal Canadian Mounted Police), [2001] F.C.T. 748, as examples the courts barred an action because a pension was paid.

[38]            Counsel for the Crown goes further. He says section 9 of the CLPA bars any causes of action or heads of damages which she may have whether they lie in tort, breach of fiduciary duty, contract or damages under section 24 of the Charter for Charter breaches.

[39]            He says section 9 of the CLPA also bars damages which are not covered by the benefits available under the Pension Act and related legislation.

[40]            In terms of section 111 of the Pension Act, counsel for the federal Crown points to several cases where actions by members of the CAF against the Crown were barred when plaintiffs have been awarded pensions under the Pension Act.

[41]            Counsel for the federal Crown's alternative argument for a stay is based on a recent amendment to section 111 of the Pension Act which provides for a statutory stay pending an application for a pension in respect of the same disability which is the basis of the court action. He says Captain Marsot alleges she has been diagnosed with chronic post-traumatic stress disorder and major depression. She applied for and is in receipt of a disability pension for post-traumatic stress disorder only. The Court must stay her action pending her application for a pension for major depression and a decision made on such application.

THE CASE FOR THE PLAINTIFF

[42]            Counsel for the plaintiff argues three grounds why Captain Marsot's action is not barred either by section 9 of the CLPA or by section 111 of the Pension Act. Those three grounds are:

(i)         the injury or damages claimed for do not arise out of and are not directly connected to the Plaintiff's military service;

(ii)         an action based on the violation of the Charter of Rights and Freedoms, breaches of fiduciary duty and harassment is not an action for which a pension can be "paid or is payable"; and

(iii)        an action based on breach of a constitutional right cannot be barred by either the Crown Liability and Proceedings Act or by the Pension Act.

[43]            For his first point, counsel for the plaintiff bases this argument on subsection 21(2) of the Pension Act applicable to peacetime military service where the words "arose out of or was directly connected with such military service" are found.

[44]            He then refers to the Supreme Court of Canada's decision in [1983] 2 S.C.R. 362">Mérineau v. Canada, [1983] 2 S.C.R. 362 to argue the link between the damage claimed is not directly connected to her military service; the link is too tenuous. He finds support in the Federal Court of Appeal's decision in Berneche v. Canada, [1991] 3 F.C. 383, where negligence in the operating room in a military hospital in Ottawa was held not to be connected to the patient's military service.

[45]            In support of his second ground, counsel for Captain Marsot relies upon Prothonotary Aronovitch's decisions in Duplessis v. Canada, [2000] F.C.J. No. 1917 (sustained on appeal) [2001] F.C.J. No.1455 and in Stopford v. Canada, [2001] F.C.J. No. 1255.

[46]            For his third proposition, counsel for Captain Marsot cites several cases where the courts have held section 24 of the Charter is a self-standing source of relief in damages for Charter breaches.

ANALYSIS

(1)        Principles

[47]            Rules 213 to 217 of the Federal Court Rules, 1998, (the "Rules") spell out the procedure governing a motion for summary judgment and, in particular, subsection 216(1) provides "[W]here on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly".

[48]            The Federal Court of Appeal in Feoso Oil Ltd. v. The Sarla, [1995] 3 F.C. 68 and in Kanematsu GmbH v. Acadia Shipbrokers Ltd., [2000] F.C.J. No. 978, hold the intention or purpose behind the rule "appears to be that claims or defences clearly without foundation should not take up the time and incur the costs of a trial. To this end ...., both sides are required to ‘put their best foot forward'."

[49]            In Feoso Oil, supra, Justice Stone referred to the rules for summary judgment in Ontario and some of the jurisprudence interpreting the words "a genuine issue for trial" and, in particular, Justice Henry's decision in Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225, where he said at pages 237-238:

. . . the test is not whether the plaintiff cannot possibly succeed at trial; the test is whether the Court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; if so then the parties "should be spared the agony and expense of a long and expensive trial after some indeterminate wait".

[50]            The federal Crown seeks summary judgment on the sole basis the plaintiff's claim is statute-barred under section 9 of the CLPA and section 111 of the Pension Act because Captain Marsot is in receipt of a pension.

[51]            In support of its motion, the defendant filed the affidavit of Tracey Jack who is employed as a legal assistant in the Civil Litigation Section of the Department of Justice. Her affidavit appended, as exhibits, various documents including the plaintiff's application for a disability pension to DVA dated April 18, 2000, and the October 27, 2000 letter from DVA to the plaintiff advising she had been awarded a disability pension for PTSD. Tracey Jack was not cross-examined on her affidavit. In terms of the plaintiff, as noted, Captain Marsot filed an affidavit. She also was not cross-examined upon.

[52]            Section 9 of the CLPA is structured differently than former section 111 of the Pension Act. The reach of section 9 of the CLPA is broader than that of former section 111 of the Pension Act whose purpose is to provide pensions and other benefits to current and former members of the Canadian Armed Forces.

[53]            Section 9 of the CLPA bars a legal action if a pension or compensation has been paid or is payable out of the CRF for death, injury, damage or loss in respect of which the action or claim is made. Langille, supra, is an example of where the plaintiffs were statute-barred in an action in tort where compensation had previously been paid to them for the destruction of their animals pursuant to the provisions of the Animal Disease and Protection Act of Canada.

[54]              The case law recognizes the purpose of section 9 of the CLPA is to prevent double recovery or enhanced or different damages for the same incident or injury or loss when the pension or compensation has been paid under a no-fault regime analogous to workmen's compensation. (See Langille, Sarvanis and Schlueter, supra).

[55]            I note here what Justice Stone said in Langille, supra, about section 9 of the CLPA:

[12] It seems to us that the broad reach of subsection 4(1) does include the damage or loss for which the respondents here claim on account of their destroyed animals. The compensation was paid "in respect of" "damage or loss" resulting from the destruction of the animals and the claim in the present action is also "in respect of" that same "damage or loss". The only difference here is that respondents, by way of this action in tort, are seeking to enhance recovery in respect of that destruction beyond the level of the compensation they were paid in 1978 out of the Consolidated Revenue Fund. In our view, subsection 4(1) of the Crown Liability Act bars them from doing so. [emphasis mine]

CONCLUSIONS AND DISCUSSION

[56]            I am of the view the defendant's application for summary judgment should be dismissed and this, broadly speaking, for a lack of an evidentiary foundation and for several legal reasons related to the interpretation of section 9 of the CLPA. I make no mention of former section 111 of the Pension Act in terms of a statute barring provision because that provision has been repealed and now only provides for the mandatory stay.

[57]            As I see it, the factual foundation upon which the defendant builds its motion rests upon the following propositions:

(a)        as a result of the injuries which the plaintiff sustained during her service with the CAF, she applied for and received a disability pension;

(b)        in her application for that pension, she claimed she was suffering from Post-Traumatic Stress Disorder and on October 27, 2000, DVA advised her she had been awarded a disability pension for PTSD;

(c)        she commenced an action against the defendant for damages in respect of the injuries which she suffered during her service with the CAF;

(d)        the plaintiff herself recognizes in her amended statement of claim, in paragraph 33, that as a consequence of the acts and omissions by agents of the Crown described which relate to harassment and abuse, she has been diagnosed with Chronic Post-Traumatic Stress and Major Depression and given the severity of her condition, her career as an infantry officer in the CAF is effectively over. She has sustained the damages particularized in the amended statement of claim. She acknowledges she is in receipt of a pension for that disability;

(e)        in her affidavit in support of her opposition to summary judgment, she concedes her PTSD arises at least in part from her military service in Kosovo; and

(f)         she made the link between her harassment and abuse when interviewed by Dr. Girvin who diagnosed her as afflicted by PTSD.

[58]            As noted, the evidence advanced by the defendant in support of this summary judgment motion essentially consisted of Captain Marsot's application for a disability pension dated April 18, 2000 and received by DVA on May 2, 2000 where the disability claimed is PTSD in which she links the PTSD as a result of excessive harassment by the military and the October 27, 2000 letter from DVA which ruled her PTSD was pensionable under subsection 21(1) of the Pension Act -- Special Duty Area - Kosovo, with her disability assessed at thirty percent and additional pensions payable under that subsection on behalf of her spouse and on behalf of her daughter. It was Captain Marsot who put into evidence Dr. Girvin's report.

[59]            As I see it, from the defendant's perspective, the most critical piece of evidence establishing the payment of the pension is DVA's letter of October 27, 2000 ruling on her disability pension application. On its face, it tells me three things: (a) her disability is PTSD; (b) her pension entitlement was pursuant to subsection 21(1) of the Pension Act for her service in a special duty area, Kosovo; she was not awarded a pension under subsection 21(2) which relates to military service during peace time; and (c) her disability was assessed at thirty percent. I should point out subsection 21(1) providing for pensions for service in Special Duty Areas was enacted through an amendment to the Pension Act effective October 27, 2000.

[60]            There are several matters I do not know about her disability and her pension award. Specifically, the record does not contain any evidence on the following points:

(i)         why her disability was assessed at thirty percent;

(ii)        what assessment DVA made which led it to conclude she had PTSD as a disability. It may well be DVA relied on Dr. Girvin's report but it also may have relied upon the advice of other medical officers;

(iii)       I have no evidence on what PTSD is and what caused it in Captain Marsot's case. It may well be the PTSD was caused by the harassment alleged by Captain Marsot. Dr. Goldstein, when he made his consultation request to Dr. Girvin, identified multiple serious issues including verbal and physical harassment (over three years) but exacerbated by events in Kosovo. How it was exacerbated in Kosovo, I don't know. What role pre-deployment harassment might have played in her disability is not at all clear from the record and I am not prepared to conclude all of the pre-Kosovo deployment harassment is subsumed in the PTSD for which she received the pension;

(iv)       her pension is for deployment to a Special Duty Area where the symptoms of her PTSD manifested themselves. She appears not to have applied for nor received a pension in respect of alleged conduct of the military majors pre-deployment to Kosovo. It is unknown to me what pension entitlement, if any, she might be entitled to in this respect.

[61]            Because of the evidentiary gaps identified above, I am not satisfied the defendant has produced sufficient evidence to establish a causal link between the disability pension she is in receipt of and the damages she seeks in respect of the injuries she suffered. Put another way, on a factual basis, I am not satisfied the defendant made out a factual connection between her disability pension, what gave rise to that pension and whether that pension was all encompassing.

[62]            Second, counsel for the defendant submits the effects of section 9 of the CLPA is to smother all heads of damages which she seeks in her action whether in tort, breach of fiduciary duty, breach of contract or otherwise. I do not read the case law as supporting the defendant's all encompassing position and I accept the analysis put forward by counsel for Captain Marsot.

[63]            The principle behind section 9 of the CLPA is to bar double recovery and, as recognized by the case law, that means the pension paid must be for the injury, destruction, loss or damages giving rise to the damages sought in the action that is said to be statute-barred. In Langille, supra, the action barred was for loss suffered on account of the destruction of cattle for which compensation had been paid.

[64]            In Sarvanis, supra, the pension received was for the same injuries for which damages were claimed in the action. The Federal Court of Appeal barred the action and it mattered not whether the plaintiff could obtain more money by way of indemnity in the action than the compensation received.

[65]            In Schlueter, supra, Justice Rouleau found, in the case before him, it was evident the relief sought in the action directly related to injuries for which compensation had been paid out of the CRF for the same damage and loss sought in the action. This is why he distinguished in the case before him from that of Prothonotary Aronovitch in Duplessis, supra, sustained on appeal by this Court [2001] F.C.T. 1038.

[66]            The defendant has not established a sufficient evidentiary foundation to demonstrate the plaintiff is seeking double or enhanced recovery for the same injuries in the action sought to be barred and those covered by her pension. On its face, the necessary linkage or connection is not there. As counsel for the plaintiff put it, damages for breach of contract, damages for negligent representation, damages for breach of fiduciary duty, damages for Charter breaches, damages for assault and battery and damages for intentional infliction of mental suffering have nothing to do with the fact she is receiving a pension for PTSD. They cover other losses for which she had not been compensated for.

[67]            I also agree with counsel for Captain Marsot that paragraph 33 of her amended statement of claim, when it speaks of acts (as distinct from omissions), does not subsume all consequences and all damages she may have suffered.

[68]            Third, the scope of the application of section 9 of the CLPA is very much in doubt. In McLean v. Canada (1999), 164 F.T.R. 208 (FCTD), Justice Lutfy, (now A.C.J.) ruled section 9 of the CLPA was limited to barring actions in tort but not actions for breach of contract. McLean, supra, was followed by Justice Dawson in Aussant v. Canada, [2000] F.C.J. No. 600.

[69]            Fourth, the plaintiff's statement of claim alleges Charter breaches of sections 7, 8 and 15. Sections 7 and 8 breaches are grounded in the alleged covert psychological examination which she went through without her knowledge. Charter breaches may give rise to damages under section 24 and counsel for the plaintiff provided me with several cases to this effect. I do not see any connection between the Charter breaches and the reasons she is in receipt of a disability pension.

[70]            Moreover, there is a tension in the courts (contrast Prete v. Ontario (Attorney General) (1993), 110 D.L.R. (4^th) 94 (OCA) and St-Onge v. Canada, [1999] F.C.J. No. 1842 (FCTD) recently sustained on appeal [2001] F.C.J. No. 1523) on the impact of limitation periods on an action for damages for Charter breaches. While this case does not involve the application of a limitation period but rather a complete statutory bar arising out of a receipt of a pension, counsel for the plaintiff analogized the statutory bar in section 9 of the CLPA to a short limitation period. Moreover, the plaintiff has given notice of constitutional question in which he is to attack the validity or operability of section 9 of the CLPA (and section 111 of the Pension Act). These two legal issues make the grant of summary judgment inappropriate in the circumstances.

[71]            The analysis, in these reasons, has developed in the context of section 9 of the CLPA. A word needs be said about section 111 of the Pension Act. It is mportant to note section 111 of the Pension Act was amended by the Veterans' Benefit Act, S.C. 1999-2000, c. 34. This particular provision, as well as now subsection 21(1) of the Pension Act providing for pensions connected to a Special Duty Area pension such as Kosovo, came into force October 27, 2000.

[72]            Prior to the amendment, section 111 simply read:

111.    No action or other proceeding lies against Her Majesty or against any officer, servant, or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death.

[73]            This provision was somewhat analogous to section 9 of the CLPA and, as the case law shows, there was a certain overlap in the application of both statutory bars. With the amendments which became effective on October 27, 2000, the independent and self-standing statutory bar previously contained has been repealed and a direct tie-in to section 9 of the CLPA has been made.

[74]            Section 111 of the Pension Act now contains a statutory stay in the case of an action that is not barred by virtue of section 9 of the CLPA.

[75]            That statutory stay, which is mandatory on application, stays an action until an application for a pension in respect of the same disability or death has been made and pursued in good faith by the person who has brought the action and a decision has been made that no pension may be paid to or in respect of that person in respect of the same disability, has been confirmed by an appeal panel of the Veterans' Review and Appeal Board.

[76]            The plaintiff's action was commenced on December 15, 2000 and amended on May 11, 2001, both dates subsequent to the coming into force of new section 111 of the Pension Act. In the circumstances, no aspect of retrospectivity or retroactivity applies which would disentitle the defendant to a stay. The question remains, however, whether the defendant is entitled to a stay.

[77]            As noted, the stay application was made by the defendant because the plaintiff was diagnosed with PTSD and Major Depression but she only applied for and is in receipt of a disability pension for PTSD. The defendant says the plaintiff's entire action should be stayed pending her application for a pension for Major Depression and a decision on that application.

[78]            The plaintiff resists the stay application on the grounds her pension is not the subject of this action. Moreover, the plaintiff says she is not required to seek a review of her pension and it is inappropriate for the Crown to attempt to stay the proceedings pending such an appeal. She asserts she has applied for a pension as a result of her diagnosis of PTSD and Depression. In correspondence with counsel for the defendant, the plaintiff states the documents submitted clearly state the depression is an associated disorder to PTSD and therefore is encompassed in the pension.

[79]            Under amended section 111 a stay is granted on application which means the applicant has the onus of establishing the existence of the statutory pre-conditions and in my view there is only one such pre-condition. The application for the pension must be for the same disability as claimed in the action which is sought to be stayed.

[80]            The defendant has not provided me with sufficient facts to rebut the plaintiff's assertion her PTSD pension award also encompasses Major Depression. In addition, Captain Marsot in her action is not seeking disability damages.

DISPOSITION

[81]            For all of these reasons, the defendant's request for summary judgment or a stay is dismissed with costs payable to the plaintiff in any event of the cause.

                                                                                                                           "François Lemieux"       

                                                                                                                                          J U D G E                  

OTTAWA, ONTARIO

FEBRUARY 28, 2002