McClennan v. Canada (Minister of National Defence), 2002 FCT 244

                                                                                                                                            Date: 20020308

                                                                                                                                       Docket: T-1998-01

                                                                                                                Neutral citation: 2002 FCT 244

BETWEEN:

                                                           LORNE W. MCCLENNAN

                                                                                                                                                          Plaintiff

                                                                              - and -

                                 HER MAJESTY THE QUEEN, AS REPRESENTED BY

THE MINISTER OF NATIONAL DEFENCE

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 The defendant, Her Majesty the Queen (hereinafter the "Crown") moves to strike the plaintiff's Statement of Claim, on the ground that it discloses no reasonable cause of action. In the action, by Statement of Claim filed November 8, 2001, the plaintiff seeks declarations:

i)    that he was a member of the Canadian Armed Forces (the "Forces") until his release on May 15, 2001, and

ii) that as a member of the Forces, he is entitled to the rights and benefits which would have accrued to any other member of the Forces, which he did not receive, between February 4, 1994 and May 15, 2001.

Background

[2]                 In July 1986, the plaintiff enlisted in the Forces. In September 1993, the plaintiff's Divisional Officer recommended that he be released from the Forces for performance and disciplinary related reasons, and a few days later the plaintiff's Commanding Officer decided that Mr. McClennan should be released. In January 1994, he was released from the Forces, following the expiration of the accumulated leave he was permitted to take with pay.

[3]                 On June 12, 1998, this Court issued an order setting aside the 1993 decision to release the plaintiff. (See: McClennan v. Canada (Minister of National Defence) (1998), 150 F.T.R. 96.)

[4]                 On August 29, 2000, the plaintiff was informed that a Career Review process would be undertaken to determine his status in the Forces. Between September 2000 and April 2001, various representations were made on the plaintiff's behalf in that process, to the effect that he should not be released. On May 15, 2001, the plaintiff was advised that the decision was made to confirm his release.

[5]                 The plaintiff did not challenge that decision. He does, however, challenge the defendant's decision that the effective date of his release is January 4, 1994, the same date as his original release.

Issues                                                    

[6]                 Following Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4^th) 321, 117 N.R. 321 at 336, the Crown submits that a pleading may be struck where it is plain and obvious that the claim discloses no reasonable cause of action and where the case is beyond doubt. The Crown argues that the plaintiff's Statement of Claim should be struck, for three reasons:

1) relations between Her Majesty the Queen and Her military personnel do not give rise to civil remedies;

2) the plaintiff's characterization of the relief sought as a declaration does not overcome the bar to his action, and

3) the plaintiff may have a right of redress under the National Defence Act, R.S.C. 1985, c. N-5, as amended.

[7]                 The plaintiff urges that there is a threshold issue involved in this case. That is, what is the effective date of the plaintiff's release from the Forces? Upon the answer to that question, it is said, relief from any proceeding will depend. That might be a threshold question, if this case were to proceed to trial, but it is not a question which is before the Court on this motion by the Crown to strike the plaintiff's statement of claim. For purposes of this motion the Court assumes the facts, but not the legal implications of the facts, set out in the Statement of Claim can be established.

Do relations between Her Majesty the Queen and Her military personnel give rise to civil remedies?

[8]                 The Crown submits that relations between Her Majesty the Queen and Her military personnel do not give rise to civil remedies. In support of this submission, the Crown relies on Gallant v. The Queen in right of Canada (1978), 91 D.L.R. (3d) 695 (T.D.), where Mr. Justice Marceau held, at 696:

...a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and...relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts...

The Crown cites several other cases supporting this long-standing proposition.

[9]                 The plaintiff urges that the cases denying any contractual relationship, and any remedies in civil courts from the relationship, between the Crown and military personnel, reflect a 19^th century view of military service which ignores the development, through legislation and jurisprudence, of modern principles that support a revised view of the relationship. If that be so, recognition of a change in the basic relationship, in my opinion, can only come by parliamentary action.

[10]            The plaintiff submits that it would be an error for this Court to hold that there was no contract between himself and Her Majesty, without first considering evidence which he might lead through discovery and at trial. For example, he might lead evidence of oral representations made or of documents handed out at recruiting centres across the country, promising to pay potential recruits, leading most Canadians to believe that the Forces conclude a contractual relationship with their members. Finally, he submits that he might lead evidence that the use of the word "lawfully" in s-s. 23(1) of the National Defence Act indicates the existence of a continuing reciprocal relationship between the Forces and their members. That subsection provides:

[11]            In my opinion, the jurisprudence relied upon by the Crown clearly establishes that members of the Forces serve at pleasure. They do not have contractual rights enforceable against the Crown, and that legal relationship cannot be changed by representatives of the Forces. In accord with established jurisprudence, this Court is bound to conclude that there is no contract of employment between Her Majesty and members of the Forces. The use of the word "lawfully" in s-s. 23(1) of the National Defence Act does not change the legal relationship, it simply describes how enrolment in the Forces is terminated, in accord with regulations.

Is declaratory relief possible where other relief is not?

[12]            The Crown submits that the plaintiff's plea for relief in the form of declarations does not overcome the bar to his action. In support of this submission, the Crown relies on Campbell v. Canada, [1979] F.C.J. No. 118 at para. 13 (T.D.), aff'd [1981] F.C.J. No. 414 (C.A.), where the Court struck out a claim in which the plaintiff sought damages for his dismissal from the Forces. The plaintiff then filed an amended Statement of Claim in which he sought a declaration that he had been wrongfully and unlawfully dismissed, but the Court struck the amended claim as well, holding that such a declaration would contradict its earlier decisions on this point.                  

[13]            The Crown further relies on Fitzpatrick v. Canada, [1959] Ex. C.R. 405, where a former member of the Forces sought a declaration or order that he was entitled to payment of the sum of $510.30, which had been credited to his pay account, but then was not paid to him following his dismissal. The Exchequer Court held that it did not have jurisdiction to grant the relief claimed and dismissed the action.                               

[14]            The plaintiff submits that, even if the declarations sought could have no legal effect (since the Crown has no enforceable legal obligation to pay members of the Forces), this Court may still grant the declarations. In support of this submission, the Plaintiff relies on Landreville v. The Queen, [1973] 2 F.C. 1223 (T.D.), where this Court held, at para. 17:

...(T)he Court has the jurisdiction to make a declaration which, though devoid of any legal effect, would, from a practical point of view, serve some useful purpose.

[15]            In the case at bar, the plaintiff submits that the declarations sought could be useful because they would establish that the plaintiff's military status ended in 2001, not in 1994. He urges that the declarations would allow him to pursue further his claim, by grievance or otherwise, and they could facilitate pension claims.

[16]            I am not persuaded that, if this matter were to proceed to trial, this Court would have jurisdiction to issue declarations in this case. Here declarations are requested simply as an alternative to a claim for payment, including possible pension claims. Any such claim depends upon regulations and statutory provisions for service pay and pensions, not upon implications that might be derived from declarations of this Court about the term of the applicant's service made without reference to those provisions.

[17]            An issue not argued by the parties, concerns the process for obtaining declaratory relief under the Federal Court Act, R.S.C. 1985, c. F-7, ss. 18 and 18.1, as amended by S.C. 1990, c. 8, s. 4. By s. 18 the Trial Division has exclusive original jurisdiction to grant declaratory relief against any federal board, commission, or other tribunal, and that remedy may be obtained only on an application for judicial review made under s. 18.1 of that Act. Unless the Court permits an application to be converted to an action under s-s. 18.4(2), an action for declaratory relief is generally not approved. While the Court may permit a proceeding initially framed as an action to proceed as an application for judicial review, generally upon allowing an amendment, or recommencement, of the matter, that would be inappropriate in a case where the relief sought relates to terms of service of a member of the Forces which, in my opinion, are not subject to the Court's jurisdiction unless and until Parliament has, through legislation, withdrawn that jurisdiction from the prerogative authority of the Crown and assigned it to the Court. No such legislation was here noted by either of the parties.

Does the plaintiff have a right of redress under the National Defence Act?

[18]            The Crown submits that the plaintiff may have a right of redress under the National Defence Act. The plaintiff submits that, as this dispute has previously been before this Court (see: McClennan v. Canada, supra), this matter is excluded from the jurisdiction of a military grievance board by s-s. 29(2)(b) of the National Defence Act, and therefore this Court is the only authority which can grant declarations in this case.

[19]            Whether the plaintiff may seek some form of redress under the National Defence Act in regard to his concerns is not a matter this Court cares to comment upon in the absence of full argument. If there were a possibility of such redress the Court would be reluctant to exercise any discretion, e.g. granting declaratory relief, in this matter. Even if there were no possibility of such relief, the Statement of Claim would still provide no reasonable cause of action. In short, possible redress under the National Defence Act is irrelevant to the issue before the Court in this motion to strike.

Conclusion

[20]            The motion to strike the plaintiff's Statement of Claim is allowed. An Order goes so providing. Costs, sought by the defendant, are awarded to Her Majesty, on a party and party basis, fixed at an amount of $1000.

W. Andrew MacKay

___________________________

JUDGE

OTTAWA, Ontario

March 8, 2002.